         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED

JAMES BAKER,

              Appellant,

 v.                                                      Case No. 5D15-4139

CARA CATHERINE TUNNEY,

           Appellee.
________________________________/

Opinion filed October 21, 2016

Appeal from the Circuit Court
for Volusia County,
Kellie J. Miles, Judge.

Allison J. McCabe and Susanne D.
McCabe, of McCabe Law Firm, Port
Orange, for Appellant.

Bradley S. Sherman, Orange City, for
Appellee.

PER CURIAM.

       James Baker (“Father”) appeals from the dismissal of his petition for determination

of paternity, parental responsibility, child support, and related relief. We reverse because

the trial court erroneously concluded that Florida was not the child’s home state and that

it lacked jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act

(“UCCJEA”).

       The parties agree that Baker is the minor child’s biological father. The child was

born in Florida and lived here until the mother relocated to New York when the child was
less than two weeks old. Both parties filed child custody petitions on the same day: Father

filed a petition in Florida, and Cara Tunney (“Mother”) filed in New York. Soon afterwards,

Father filed a motion for an emergency pick-up order/order to show cause. The trial court

issued an order directing Mother to explain “why [she] should not be adjudged in

Contempt of this Court for removing the minor child from Florida.”

       In her response, Mother acknowledged that Baker was the child’s biological father,

that she previously resided in Florida with Father and the child, and that she took the child

and relocated to New York. However, she denied that taking the child to New York was

unlawful and asserted that it was necessary under the circumstances and in the best

interest of the child. Mother alleged that on two occasions after the child’s birth, Father

was intoxicated, angry, and threatening. Her mother, who was visiting from New York to

help with the newborn, allegedly witnessed the incidents. Mother “decided that we had

little choice but to return home to New York where there would be a stable, supportive

and protective atmosphere in which to provide for the new-born child.”

       Mother had also filed an amended petition for temporary custody and placement

of the child in Yates County, New York, to which she attached a supporting affidavit

reciting essentially the same factual circumstances as in her response to the Florida

petition and motion. The New York court issued an order to show cause that directed

Father to explain why an order granting temporary custody should not be entered in favor

of Mother. The order prohibited the child’s removal from New York without court approval

and granted Mother temporary placement of the child.

       The Florida court held two jurisdictional hearings that telephonically included the

New York court. No testimony or evidence was presented at the hearings. Father argued




                                             2
“claims a right to a child-custody determination under the laws of this state.”

§ 61.503(13)(a)-(b), Fla. Stat. (2015) (emphasis added).

       Moreover, many courts have recognized that, under the UCCJEA and its prior

versions, a putative father’s rights may be akin to those of a father of a child born to a

marriage. See, e.g., Slay v. Calhoun, 772 S.E.2d 425, 430 (Ga. Ct. App. 2015)

(concluding that Georgia had home state jurisdiction over minor child who lived in Georgia

with putative father because putative father was person acting as child’s parent); Matter

of Paternity of R.L.W., 643 N.E.2d 367, 369 (Ind. Ct. App. 1994) (rejecting argument that

father was not “parent” for consideration under prior version of UCCJEA because he was

merely the putative father, noting that mother was attempting to use the statute “as a

shield for her ‘seize and run’ strategy”); In re Estate of Patterson, 652 S.W.2d 252, 256

(Mo. Ct. App. 1983) (holding unwed father’s rights under UCCJA “should not be

foreclosed solely because he was not married to their mother”).

       Here, the parties agree that Father and Mother cohabitated during the pregnancy.

They also signed a lease together before the child was born. Father was present for the

child’s birth, and both Father and Mother are listed on the child’s birth certificate. Father

also filed a claim with Florida’s putative father registry, and Mother acknowledges that he

is the biological father of the child. Thus, Father qualifies as a “parent” or “person acting

as a parent” under the statute.

       Florida was the child’s home state at the time of the filing of the competing petitions

because from birth to relocation, the child lived in Florida with both Father and Mother.

The child was less than six months old, and the child’s home state is where the child lived

from birth with a parent or person acting as a parent. See § 61.503(7), Fla. Stat. (2015);




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             [T]he state in which a child lived with a parent or a person
             acting as a parent for at least 6 consecutive months
             immediately before the commencement of a child custody
             proceeding. In the case of a child younger than 6 months of
             age, the term means the state in which the child lived from
             birth with any of the persons mentioned. A period of temporary
             absence of any of the mentioned persons is part of the period.

§ 61.503(7), Fla. Stat. (2015) (emphasis added).

      The state with home state jurisdiction over the child has priority under the

UCCJEA. Hindle, 33 So. 3d at 784 (citing Arjona v. Torres, 941 So. 2d 451, 455 (Fla. 3d

DCA 2006)). Jurisdiction extends to making an initial child custody determination only if:

             (a) This state is the home state of the child on the date of the
             commencement of the proceeding, or was the home state of
             the child within 6 months before the commencement of the
             proceeding and the child is absent from this state but a parent
             or person acting as a parent continues to live in this state;

             (b) A court of another state does not have jurisdiction under
             paragraph (a), or a court of the home state of the child has
             declined to exercise jurisdiction on the grounds that this state
             is the more appropriate forum under s. 61.520 or s. 61.521,
             and:

             1. The child and the child’s parents, or the child and at least
             one parent or a person acting as a parent, have a significant
             connection with this state other than mere physical presence;
             and

             2. Substantial evidence is available in this state concerning
             the child’s care, protection, training, and personal
             relationships;

             (c) All courts having jurisdiction under paragraph (a) or
             paragraph (b) have declined to exercise jurisdiction on the
             grounds that a court of this state is the more appropriate forum
             to determine the custody of the child . . . ; or

             (d) No court of any other state would have jurisdiction under
             the criteria specified in paragraph (a), paragraph (b), or
             paragraph (c).




                                            4
§ 61.514(1)(a)-(d), Fla. Stat. (2015).

       As a preliminary matter, Mother argues that Father is not a “parent” under the

UCCJEA because his paternity was never legally established, and he presented no

evidence that he was anything more than the biological father of the child. She contends

that to qualify as a “parent” in Florida, the father must be adjudicated the biological parent

pursuant to section 742.10, Florida Statutes (2015), or the parties must have filed a

paternity acknowledgement agreement pursuant to section 382.013(2)(c), Florida

Statutes (2015). Mother also asserts that the statute defining natural guardians applies to

this case, which provides, in relevant part, that:

              (1) The parents jointly are the natural guardians of their own
                  children and of their adopted children, during minority,
                  unless the parents’ parental rights have been terminated
                  pursuant to chapter 39. . . . The mother of a child born out
                  of wedlock is the natural guardian of the child and is
                  entitled to primary residential care and custody of the child
                  unless the court enters an order stating otherwise.

§ 744.301, Fla. Stat. (2015) (emphasis added).

       Father contends that the circuit court erred in ruling that Florida was never the

child’s home state solely because the child was in Florida for only eleven days and

paternity was never established via court order. He argues that under the UCCJEA, the

fact that the child was born out of wedlock has no bearing on the child’s home state, and

the plain language of the statute indicates that Florida is the child’s home state. We agree.

       Applying section 744.301 to proceedings under the UCCJEA would exclude both

putative fathers and children born out of wedlock from the jurisdictional protections

provided in the statute. While the UCCJEA does not specifically define “parent,” the

definition of “person acting as a parent” includes a person other than a “parent” who




                                              5
“claims a right to a child-custody determination under the laws of this state.”

§ 61.503(13)(a)-(b), Fla. Stat. (2015) (emphasis added).

       Moreover, many courts have recognized that, under the UCCJEA and its prior

versions, a putative father’s rights may be akin to those of a father of a child born to a

marriage. See, e.g., Slay v. Calhoun, 772 S.E.2d 425, 430 (Ga. Ct. App. 2015)

(concluding that Georgia had home state jurisdiction over minor child who lived in Georgia

with putative father because putative father was person acting as child’s parent); Matter

of Paternity of R.L.W., 643 N.E.2d 367, 369 (Ind. Ct. App. 1994) (rejecting argument that

father was not “parent” for consideration under prior version of UCCJEA because he was

merely the putative father, noting that mother was attempting to use the statute “as a

shield for her ‘seize and run’ strategy”); In re Estate of Patterson, 652 S.W.2d 252, 256

(Mo. Ct. App. 1983) (holding unwed father’s rights under UCCJA “should not be

foreclosed solely because he was not married to their mother”).

       Here, the parties agree that Father and Mother cohabitated during the pregnancy.

They also signed a lease together before the child was born. Father was present for the

child’s birth, and both Father and Mother are listed on the child’s birth certificate. Father

also filed a claim with Florida’s putative father registry, and Mother acknowledges that he

is the biological father of the child. Thus, Father qualifies as a “parent” or “person acting

as a parent” under the statute.

       Florida was the child’s home state at the time of the filing of the competing petitions

because from birth to relocation, the child lived in Florida with both Father and Mother.

The child was less than six months old, and the child’s home state is where the child lived

from birth with a parent or person acting as a parent. See § 61.503(7), Fla. Stat. (2015);




                                              6
Fleckles v. Diamond, 35 N.E.3d 176, 189 (Ill. App. Ct. 2015) (noting that the “UCCJEA

gives priority to the jurisdiction of the child’s ‘home state,’ which for a child less than six

months old is defined as the birth state” (citation omitted)). In its order, the circuit court

dismissed the petition solely based on its finding that Florida never had home state

jurisdiction over the child. That was error.

       This conclusion does not mean that New York improperly exercised jurisdiction.

The New York court based its decision on the emergency jurisdiction provisions of the

UCCJEA. See N.Y. Dom. Rel. Law § 76-c (McKinney 2015). The statute provides that

New York could properly exercise temporary jurisdiction “if the child is present in the state

. . . [and] it is necessary in an emergency to protect the child, a sibling or parent of the

child.” Id. The Florida and New York courts in this case consulted and agreed to allow

New York to exercise temporary jurisdiction based upon Mother’s allegations of domestic

violence. Yet, while New York arguably could have exercised temporary emergency

jurisdiction, it did not become the child’s home state simply because Mother filed a child

custody petition in New York. Father filed a custody petition in Florida, the child’s home

state, which precluded New York from exercising permanent jurisdiction in this case. See

§ 61.517, Fla. Stat. (2015); N.Y. Dom. Rel. Law 76-c (McKinney 2015). Absent Florida

expressly relinquishing its jurisdiction to New York, both the dismissal under review and

New York’s assumption of home state jurisdiction were improper.

       We reverse and remand to the circuit court to consider Father’s child custody

pleadings on the merits. Unless Florida relinquishes its jurisdiction to New York, Florida

remains the child’s home state. See §§ 61.514, 61.520, Fla. Stat. (2015). Accordingly,




                                               7
Florida retains exclusive jurisdiction to enter permanent custody decrees in this case. 2

See Steckler v. Steckler, 921 So. 2d 740, 744-45 (Fla. 5th DCA 2006) (citing Yurgel v.

Yurgel, 572 So. 2d 1327, 1332, (Fla. 1990)).

      REVERSED and REMANDED.


TORPY, COHEN and WALLIS, JJ., concur.




      2  Upon exercising home state jurisdiction over the child on remand, the trial court
must also comply with the requirements of Florida’s emergency jurisdiction statute.
Because New York could properly exercise temporary emergency jurisdiction in this case,
further communication between the courts will be necessary “to resolve the emergency,
protect the safety of the parties and the child, and determine a period for the duration of
the temporary order.” See § 61.5174, Fla. Stat. (2015).


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