custody case, dissolution of marriage, divorce attorney, family law attorney, Okaloosa County, santa rosa county, uccjea, Walton County
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Want to keep custody of your child? Good, but you may want to keep the child in Florida!

I had an opportunity to help a struggling mother in Florida who was involved in a custody battle with her child’s paternal grandparents. The child had gone to visit the grandparents, who lived in Alabama, but the child never came back. During the week-long visit, the grandparents filed a dependency petition against the mother, in Alabama, and refused to return the child. The petition alleged that the child was abused and neglected by the mother while in her custody, that the father was deployed on active military duty, and that they needed a custody order from the Alabama court to take care of the child. They obtained temporary custody at an initial hearing in the case, and the mother’s case went down hill from there.

Another state can exercise jurisdiction over a Florida child, but generally that jurisdiction will only exist on an emergency basis until the case can be transferred to the child’s home state. If any jurisdiction existed in Alabama, it would have been temporary or emergency jurisdiction under Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA protects children on an emergency basis when the child has been abandoned, or the court otherwise needs to act immediately to protect the child’s safety. However, the official comments to Alabama’s UCCJEA state: “[A] custody determination made under the emergency jurisdiction provisions of this section is a temporary order. The purpose of the order is to protect the child until the state that has jurisdiction under Sections 201-203 enters an order.” Sections 201-203 refer to the child’s home state, the state where the child has already been subjected to a custody order, the state where the child has significant connections or where the home state has declined jurisdiction. Florida has enacted its own version of the UCCJEA with similar policies and procedures. None of these provisions provided a factual or legal basis for continuing jurisdiction in Alabama… until the Florida judge refused to exercise jurisdiction through a letter to the Alabama court. The reason: Unless a case was filed in Florida, the judge simply saw no reason to assert jurisdiction as the home state.

When the Florida judge refused to exercise jurisdiction over the case, the Alabama family court had no choice but to use the scant information before it to address the allegations and decide the case itself. There is no question that the mother had her share of personal and economic problems, but it was not clear that she was unable to adequately care for the child. Moreover, proving that her Florida home was appropriate for the child was practically impossible because the Alabama social worker could not perform what otherwise would have been a routine home evaluation (they weren’t authorized to travel into Florida to evaluate the mother’s home). The Alabama judge, who understandably wanted some kind of assurance that the home was suitable, chose to err on the side of caution and leave custody with the grandparents. They, of course, had no trouble being evaluated by the Alabama social worker who was assigned to the case (the social worker’s office was a mere 2-3 miles from the grandparents home).

The time that passed while this case was in court was also frustrating. It took nearly two years to get to a trial because of emergency hearings, preliminary hearings, review hearings, motion hearings and, quite frankly, an election that resulted in a new judge being elected in the Alabama court. Indeed, I only became involved in the case many months after the dependency petition had already been filed and the grandparents had been awarded temporary custody in Alabama. By this time, the mother, who was initially very active in the case and prepared to protect her parental rights, seemed to have given up hope that she would ever regain custody of her child. The distance between her Florida home and the child was significant, and the court had only granted supervised visitation due to the nature of the allegations made by the grandparents. Therefore, by the time the Florida judge refused to hear the case, the mother’s relationship with her child was strained at best. She gave up and I lost contact with her before the final court hearing in the case.

In retrospect, I still doubt the Florida judge understood that the mother, the father, the child and all of the relevant facts were in the State of Florida when he refused to exercise jurisdiction. It was his administrative call to make, but to expect the Alabama grandparents to travel to Florida and file their petition (as he apparently did) simply made no logical sense. There is no question that the mother had her share of personal problems, but I believe she could have prevailed in the case, either through a final order in the Alabama family court, or on appeal. As an attorney who desperately wanted to fight this battle, and win, I was professionally very disappointed that the mother ended her fight – she could have won.

The lessons to be learned from this case are simple. Hire an experienced attorney at the beginning of your case, and fight from a position of strength, before opposing parties have gained significant advantages that may be difficult to overcome. If the mother in my case had been represented before the grandparents gained temporary custody, her chances of success would have been greatly improved because she could have challenged any basis for emergency jurisdiction. Also, she could have filed a case in Florida, before the grandparents gained a custody interest in Alabama, and avoided the path that followed.

Fight to the end! Various post-judgment or appellate actions were at the mother’s disposal, but she had apparently lost the will to fight for custody. Arguably, even if emergency jurisdiction existed in Alabama, the Alabama judge should have given the grandparents a reasonable period of time to file a case in Florida (the child’s home state), and dismissed the Alabama case if they failed to do so. In other words, the informal letter from the Florida judge declining to exercise jurisdiction may have been legally inadequate; that action should have come through a formal court order from a Florida court. If the final custody order in Alabama had been set aside on appeal, the mother would have had another opportunity to gain custody of her daughter.


Andrew D. Wheeer is a family law, elder law and appellate attorney, and the founder of The Wheeler Firm, PA. Andrew only take cases in those practice areas in order to focus on those special areas of the law. With offices in Fort Walton Beach and Miramar Beach, Andrew represents clients throughout Okaloosa and Walton counties, and has represented more than 2,000 clients over the course of the past 15 years. Andrew attended the Cumberland School of Law at Samford University, and graduated with a Juris Doctorate of law in 2002. While attending law school, Andrew was active in numerous legal writing opportunities, won awards for legal writing and was selected as a member of the Cumberland Law Review. Andrew was then accepted to the Cumberland Study Abroad Program and attended Durham University in Durham, England. Andrew also worked as a research assistant and intern for Chief Magistrate Judge John Ott in the Federal District Court for the Northern District of Alabama. Over the next 15 years, Andrew represented thousands of clients in divorce, adoption, custody modification proceedings, child support contempt actions, probate litigation, and counseled clients on elder law rights, including long-term care planning and general estate planning. Andrew believes clients desire representation from attorneys who have a thorough understanding of their specific legal issues. Therefore, after beginning his career as a general practitioner, Andrew chose to focus his career on a few specific areas of law - those that affect the family. He continues to concentrate on those areas today. Andrew regularly interacts with the public by speaking to groups of people on family and elder law topics, including long-term care planning and techniques to avoid probate litigation. In 2012, Andrew began teaching seminars on adoption law through the National Business Institute, providing guidance to other attorneys on proper procedures to secure adoptions of children. Andrew is married to Regina Wheeler, with whom he has a son, and the family resides in Santa Rosa Beach, Florida. Andrew serves as President of the Destin Kiwanis Club and is active in the local chambers of commerce.

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