Fully researched Legal Interoffice memorandum based on my class hypothetical - Research Paper Example

?MEMORANDUM FR: Jeff Bambas DA: October 17, RE: Porter v. Straub ______________________________________________________________________ Question Presented Whether our client, Melissa Porter, has any recourse to regain custody of her son after the child’s father filed a second paternity case in another state from which the first was filed and he had unofficial, temporary custody of the child for over 6 months. Brief Answer Yes. The fact that the child’s father filed a paternity action in Illinois when paternity had already been established by court order in Florida, thus the Florida court had continuing custody jurisdiction, following the Uniform Custody Jurisdiction and Enforcement Act (750 ILCS 36/101 et seq. (West 2004)). In order to obtain any custodial rights, the correct filing would be in Florida for a temporary change of custody or a petition requesting a change of jurisdiction to reflect the parties’ new home state. In addition, due to Ms. Porter’s active duty status in the military, the action falls under the Service Members Civil Relief Act of 1997 and contains several, reversible errors under that law and its adoption by Florida statute 61.13002, et seq.. Statement of Facts Our new client, Melissa Porter, has a five- year old son with former partner, John Straub. Paternity, custody and child support were established in Florida in 2008, where the child and the parents resided for approximately four years. The Florida courts have not relinquished jurisdiction, nor is there any pending action to do so. All parties relocated to Illinois a year ago. There were no filings, motions or correspondence between courts to change home state jurisdiction. At that time Ms. Porter had custody of her son, David. Ms. Porter joined the U.S. Army Reserves in August 2010. There was a verbal agreement between mother and father that Mr. Straub would provide a home for his son during six weeks of Basic Training, at which time Melissa would resume care and custody of their David. During active duty in the Reserves, Ms. Porter suffered a serious training accident and spent six months recovering. She was recently re-settled in Chicago and attempted to arrange the return of her son to her care. Mr. Straub and his new wife refused and filed a paternity action in Illinois, the conclusion of which he was awarded custody of the son. Our client wants to understand what rights she has to the return of her son under applicable State and Federal statutes, as well as any other issues or concerns that arise from her service and subsequent injury. Discussion It is likely that the Illinois Appellate Court will overturn the lower court decision on custody jurisdiction and vacate the custody order because it occurred while Ms. Porter was covered by the Service Members Civil Relief Act (50 U.S.C. §520, et sec) and the Florida courts had continuing custody jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act of 1997 (750 ILCS 36/101 et seq. (West 2004)) (UCCJEA). The original Florida custody order of November 3, 2008 takes precedence over the Illinois custody order obtained in error in 2011. The Uniform Child Custody Jurisdiction and Enforcement Act presents the States with more transparent principles to use in deciding which States have original jurisdiction with regard to paternity and custody determinations. Article 2, Section 202(a) states: Except as otherwise provided in Section 204, a court of this State which has made a child-custody determination consistent with Section 201 or 203 has exclusive, continuing jurisdiction over the determination until: (1) a court of this State determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training, and personal relationships; or (2) a court of this State or a court of another State determines that the child, the child's parents, and any person acting as a parent do not presently reside in this State. (b) A court of this State which has made a child-custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 201. Following the above-cited statute, Florida had already made the initial custody determination and retained continuing custody jurisdiction until the Florida court made a determination that none of the parties resided in that state. To our knowledge, there was no filing by Mr. Straub in the Florida court that held original jurisdiction, nor was there any correspondence between the two states as to jurisdiction. Illinois has adopted the UCCJEA under 750 Ill. Comp. Stat. 36/101 et seq. (2004). This provision stands until the appropriate pleadings are filed and the Florida courts have formally released jurisdiction. The Illinois court has stated that this is the proper procedure to transfer jurisdiction to the new home state forum (In re Joseph V.D, a minor, 373 Ill. App.3d 559; 868 N.E.2d 1076 (2007)). The court stated it was reversible error not to have complied (id.). The Illinois Court of Appeals has retained this stance in In re Marriage of Katherine L. Diaz, (363 Ill. App. 3d 1091; 845 N.E.2d 935 (2006)). The Diaz case presents issues of length of residence in between two states as well as addressing allegations of abuse or mistreatment. The court found there was neither threatened nor actual abuse to the mother or children and the Illinois court could not exercise emergency jurisdiction on that basis. (id. at 5). Illinois has refused to take custody jurisdiction on an emergency basis unless the children are in danger of “irreparable and immediate harm . . .” (Gainey v. Gainey, 237 Ill.App.3d 868, 604 N.E.2d 950 (1992)). The “temporary absence” provisions of UCCJEA 102(7) applies to the absence of the child when determining how long the child has remained in one state, conferring home state jurisdiction to the place in which the child dwells for six contiguous months Illinois has followed Florida in its opinion on inconvenient forum as well. In this matter, Horgan (f/k/a Romans) v. Romans, (366 Ill. App. 3d 180; 851 N.E.2d 209 (2006)), the lower court relied on the inconvenient forum provision of the UCCJEA, while the Appellate court found this was not sufficient reason in which to obtain jurisdiction. Thus Porter v. Straub would likely be reversed and remanded on this basis as well. Florida courts take the matter of jurisdiction very seriously. They incorporated the UCCJEA into Florida Statutes 61.502 to 61.542. In Sarpel v. Eflani, 65 So. 3d 1080; 36 Fla. L. Weekly D 1181 (2011)), the court decided a brief absence from the State was not sufficient to change the home state from Florida. In Hindle v. Fuith, (33 So. 3d 782;35 Fla. L. Weekly D 914 (2011)), the Florida Court of Appeals again took up the matter of home state for the purpose of jurisdiction but found conception in the state alone was not enough to establish jurisdiction under UCCJEA. The above-cited cases involved the question of whether Florida was the home state for the initial custody determination (emphasis added). In contrast, Mr. Straub and Ms. Porter had previously filed for initial paternity, custody and child support in Florida. Thus the initial determination had already been made. The Order’s substance was that Mr. Straub is the father, custody was given to the mother and Mr. Straub was to pay child support in the amount of $100 per week. The above-cited cases involved initial or temporary custody jurisdiction in Florida whereas the Porter/Straub matter was already decided. This gives Florida home state jurisdiction until properly relinquished or there is an emergency contrary to the “best interest of the child” (Sec. 101(5), Sec. 202)(a)(1) and Sec. 204(d)). The issue was taken up by the Florida court in Arojona v. Torres, (941 So. 2d 451 (2006); 31 Fla. L. Weekly D 2676). In this case the court Section 204 allows for temporary jurisdiction in another state if it is necessary to prevent abuse or neglect of the child, otherwise the same section reiterates that the Florida court retains jurisdiction because there was no filing under sections 201 to 203 attempting to change the home state of the child. The court also made clear their opinion on jurisdiction in McKinnon (f/k/a Staats) v. Staats (924 So. 2d 82, 31 Fla. L. Weekly D 641 (2006)). In that situation, though neither parent nor their child had significant ties to the State of Florida and hadn’t for some time, the original Florida Order in place at that time was the controlling order, because the under Florida Statutes Sec. 61.516 and 61.530 the Florida court retained jurisdiction and convenience of forum is not an exception (id. at 5). There is no known filing in by Mr. Straub requesting relief under Florida statutes or case law. Mr. Straub did not file the correct pleading, nor did he file in the correct jurisdiction. Paternity and Custody had already been decided in Florida, which retained exclusive and continuing jurisdiction until otherwise ordered by the Florida court. His Illinois petition should have been dismissed, requiring correspondence between the Florida and Illinois courts in order to assess the correct jurisdiction. His filing of a paternity petition is moot, having already been decided by another court having continuing jurisdiction (UCCJEA, sec. 203). Our client is also entitled to certain protections under the Service Members Civil Relief Act (50 U.S.C. §520, et sec) (SCRA). Ms. Porter was in basic training in the Army Reserves when she was injured and was therefore considered on “active duty” throughout the time of her recuperation and for up to 90 days after discharge (id. Sec. 2-2). The significance lies in the protections afforded “active duty” members only. Most provisions of the Act require the service member to file a letter to the court to establish that their military service renders that person materially incapable of participating in the court proceedings. This notice may be filed either before or after active duty. Our client has not said whether this was done. Mr. Straub was required to file an Affidavit of Non-Military Service, if applicable (Sec.200(1)). There is no record of said filing. The Act also provides for an automatic stay of any judgments (Sec. 3-8) and a tolling of the Statute of Limitations (Sec. 3-9). A Stay of Judgment would require an immediate return of the child pending further court action. A tolling of the statute of limitations requires that the Illinois custody decision, if filed within 90 days of Ms. Porter’s discharge, enables her to file an appeal from the Illinois lower court, regardless of whether the time for appeal has passed, and file the appropriate documents to challenge the jurisdiction to make orders with regard to custody. The Florida Supreme Court has also adopted the SCRA (50 So. 3d 595; 2010 Fla. (2010)). The Florida court, having jurisdiction, provides a specific statute with added protections for a military parent. Florida statute 61.13002 states the court will not amend or modify the custody order in place on the date of activation to service. Should the court find an emergency situation exists to where it is in the best interest of the child to issue a temporary modification (61.13002(1)), this modification becomes void at the service member’s discharge from active duty (61.13002(4)). Home state jurisdiction is an important concept in both states and could easily have been transferred from Florida to Illinois with the proper filings. However this was not done and the correct way to modify custody is a to return to the Florida courts until they relinquish home state jurisdiction. For the purposes of Ms. Porter’s case, there would need to be an appeal in Illinois to vacate the order of the lower court, followed by a filing in Florida for protection under the SCRA. The relief offered under Illinois and Florida statute and case law and the UCCJEA should be the immediate return of the child to his mother. Ms. Porter’s case is not without it’s flaws, however. Upon re-opening of the case, there would be a question of danger to the child should he be returned to his mother, and this point cannot be ignored. Whether Porter or Straub petition the Florida courts, and either Illinois or Florida is modified to be the “home state” of the child, any petition to modify custody will be subject to a review of whether the child is in immediate danger. The older version of the UCCJA contained a “best interest” standard that was eliminated in the current version due to its confusing interpretation by the courts. The UCCJEA affords emergency protection if the court of continuing jurisdiction finds that the children are in immediate danger (Sec. 3(a)(3)). Florida statute 61.517 defines emergency jurisdiction as a situation in which “ . . .the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” The same statute, at Section 2, sets out that, “61.514-61.516, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under ss. 61.514-61.516.” (In the Interest of D.N.H.W., a child. N.W.T. and G.S.T., v. L.H.D. and S.W., 955 So.2d 1236, 32 Fla. L. Weekly D 1258 (2007)). Stated plainly, even if Illinois obtained temporary jurisdiction due to mistreatment or abandonment of the child, a permanent change of custody can only be issued by Florida. Our client has not been accused of mistreating or abusing her son. However, we do not know how her current condition of partial blindness and hearing loss will impact her ability to parent. This may be an issue Mr. Straub will raise in subsequent proceedings. The fact that our client is now blind in one eye and has severe hearing loss would likely bring her under the coverage of the Americans With Disabilities Act (42 U.S.C.S §126, et seq). This act proposes to prevent discrimination in public services for individuals with a disability and a remedy should discrimination occur. However, it does not provide a means of regaining custody. The Act merely insists on reasonable accommodations be provided, such as hearing aids and large print documents during public proceedings. During the mother’s recuperation, prior to re-settlement in Chicago, Mr. Straub may have had a valid argument in Florida for abandonment and temporary custody on this issue. However, this section of the statute would not apply today as our client has not abandoned her son, she has provided a home for herself and her son, and there has been no showing of abuse or mistreatment. Again, the Florida court retains jurisdiction and will do so until the proper petition is filed. Our client should expect the immediate return of her son, pending any new petitions filed. She should expect that the Florida court will relinquish jurisdiction to Illinois, which is the home state of all parties for the purpose of UCCJEA jurisdiction and requires only a court order or memorandum between courts to accomplish the requirements of statute in each state. At that point, she would retain custody of her son under the SCRA, which requires the resumption of earlier orders made in her absence (the court of original jurisdiction in Florida). Absent a showing of abuse, abandonment, or mistreatment, our client should be able to regain custody of her son upon the Illinois Appellate Court ruling that will surely reverse the lower court and find that Illinois is not the proper jurisdiction for the proceedings commenced by Mr. Straub. Additional Considerations The Servicemembers Civil Relief Act came into being as a means to protect our armed forces from the worries of being away from home during their time of service. It is very specific with regard to what actions can and cannot be taken against an active duty member. At 50 U.S.C.S. App.§522, sec. 4-4, the law provides a stay of all civil proceedings including eviction. Our client did not mention receiving any notice of proceedings. If she did then 50 U.S.C § App. 522(b)(2)(A) requires Ms. Porter to file a letter with the court stating that her military service “materially effects” her ability to appear. We do not know if that was done or if the court accepted her request for relief. While the eviction of Ms. Porter was improper, as was the auction of her belongings, she may not have followed the correct procedures to obtain protection under this Act. Illinois provides additional protections for active duty members. It extends the stay of proceedings for 90 days and reverses any judgments entered during active duty plus 90 days. The court can also require the plaintiff to file a bond against damages the service member may suffer as a result of the action. Ms. Porter may be able to gain some relief in this manner since her active duty caused her to lose her apartment and belongings. Additionally, Illinois law provides that a landlord cannot evict a service member if the rent is less that $2400 per month. Instead the service member may make an arrangement for an allotment from their pay in order to satisfy the rent obligation. Again we do not know all the facts that would enable Mss. Porter to avail herself of this provision (http://findarticles.com/p/articles/mi_6997/is_2_95/ai_n28406813/pg_3/?tag=content;col1, accessed October 15, 2011) The Act merely serves to stave off civil proceedings until the service member has been released from active duty for 30 to 90 days. There is no provision for damages under the SCRA so the only relief available is another eviction proceeding and, possibly, reimbursement for the auctioned items. The landlord may also be required to provide reasonable accommodations to Ms. Porter under the Americans With Disabilities Act. Should she regain her tenancy, this could include certain aids to permit Ms. Porter to live in her apartment as an able-bodied person. However, the military would likely pay for requirements related to her service disability. Read More