The application of Kinney System, Inc. v. Continental Ins. Co. to modification of child custody proceedings.

• Author: Ilvento, Lauren M.
• Position: Florida

As our society becomes increasingly mobile, parents are frequently faced with exercising timesharing with minor children across state lines. Courts are increasingly entering orders with respect to such interstate timesharing. Once one parent and a minor child have resided for more than six months in a foreign jurisdiction, in which jurisdiction should a modification be sought? Should it be the jurisdiction where the initial determination was made or the jurisdiction in which the child is residing?

In addition to the case law, both the federal and state legislatures have enacted statutes to attempt to create consistent rules to provide for increased clarity and consistency with respect to jurisdictional issues in child custody cases. Through the enactment of the Uniform Child Custody Jurisdiction Act (adopted in 1968), the Parental Kidnapping Prevention Act (adopted in 1997), and the Uniform Child Custody Jurisdiction and Enforcement Act (adopted by Florida October 1, 2002), the jurisdictional rules have been refined and made more consistent, while the basic concepts guiding whether a court should exercise jurisdiction over a case have been preserved.

One of the basic tenets of law with respect to a court exercising its subject matter jurisdiction is the doctrine of forum non conveniens. Courts have long recognized that, even if a forum may properly exercise jurisdiction over an action, that forum may not be the most convenient forum to hear the matter. Pursuant to the doctrine of forum non conveniens, a court located in an "inconvenient forum" may decline to exercise its jurisdiction.

In 1996, the Florida Supreme Court in the seminal case Kinney System, Inc. v. Continental Ins. Co., 674 So. 2d 86 (Fla. 1996), adopted the federal forum non conveniens doctrine. (1) The four-prong test set forth in Kinney was then codified in Fla. R. Civ. P. 1.061, and will be referred to herein as the "Kinney test." (2)

A review of the case law reveals that when the issue of forum non conveniens is raised by a party in a modification of custody case, the Kinney test has rarely been recognized or applied. A reading of the UCCJEA, the commentary by the National Conference of Commissioners to the Uniform Act, and the case law that applies the Florida transfer of venue statute with respect to transfers of modification actions within the state of Florida, as well as the dicta in a few cases that mention the application of Fla. R. Civ. P. 1.061 in the context of custody modifications, lead to the conclusion that the Kinney test, as codified in Rule 1.061, should consistently be applied in modification cases in which one party seeks to have a Florida court decline to exercise jurisdiction on the basis of forum non conveniens.

Continuing Exclusive Jurisdiction

Jurisdiction over modifications of child custody determinations is established by both federal law and state law. (3) On the federal level, the Parental Kidnapping Prevention Act (PKPA) establishes whether a court may assume jurisdiction over a child custody determination. (4) The term "custody determination" is defined broadly to include any "judgment, decree, or other order of a court providing for the custody of a child, and includes permanent and temporary orders, and initial orders and modifications." (5) With respect to the modification of an initial custody determination, the PKPA states that "[t]he jurisdiction of a court of a state which has made a child custody or visitation determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such [s]tate remains the residence of the child or of any contestant." (f) Subsection (c)(1) states that the court must have jurisdiction under the law of the state in which the court lies. (7) Full faith and credit is to be given to child custody determinations made in any jurisdiction by every other jurisdiction. (8) In fact, a court "shall not modify except as provided [in the PKPA] any custody determination or visitation determination made consistently with the provisions of this section by a court of another state." (9) Only if the court that made the custody determination either no longer has jurisdiction over the action or has declined to exercise that jurisdiction may a court of another state modify the custody determination. (10)

Promulgated in 1997, the UCCJEA replaced the Uniform Child Custody Jurisdiction Act (UCCJA) and resolved certain inconsistencies between the UCCJA and the PKPA. It also added a uniform procedure for registration and enforcement of child custody orders across state lines and sought to increase judicial communication and cooperation with respect to child custody cases.

The UCCJEA sets forth the jurisdiction of the Florida courts both with respect to initial actions and actions to modify existing determinations. Pursuant to [section]61.514, (11) an initial action to determine child custody may be brought in the child's "home state," which generally is the jurisdiction in which the minor child has resided for the past six months. Section 61.515 provides that a court which makes an initial determination retains exclusive jurisdiction with respect to modification actions unless and until either 1) a Florida court determines that the child and both parents no longer "have a significant connection" to this state and substantial evidence concerning the child's situation is no longer available in this state, or 2) a Florida court or a court of another state determines that none of the parents or the child continue to reside in the state of Florida. (12)

However, in contrast to the presumption that the court making an initial determination retains exclusive jurisdiction over child custody matters until such time as all of the relevant parties no longer have significant contacts with the state of Florida or no longer reside here, [section]61.516 and case law also contemplate that a Florida court may choose not to exercise jurisdiction over a case if another forum would be more convenient. The fact that the initial proceeding may have occurred in a non-U.S. court or that the alternate forum being sought is a non-U.S. forum, does not change the analysis. (13) Thus the same analysis applies whether the alternate forum is in a sister state or in another country.

Declination to Exercise Jurisdiction

The UCCJEA recognizes that a court may decline to exercise its jurisdiction in a modification proceeding on the basis that another forum is more convenient. Section 61.516 delineates that a Florida court otherwise having jurisdiction over a child custody action may make the determination that another state "would be a more convenient forum under section 61.520" to hear the case. (14)

F.S. [section]61.520, "Inconvenient forum," states in part in subsection (1):

A court of this state which has jurisdiction under this part to make a child custody determination may decline to exercise its jurisdiction at any time if it...