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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 99492
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My child and I moved from the USA to Bolivia with the fathers

Resolved Question:

My child and I moved from the USA to Bolivia with the father's consent 6 years ago. There's a petition of custody by the father in Florida, ruled by the UCCJEA.

The country of BOLIVIA is not a "member" of the Hague Convention, but is a party who has signed Hague's "CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION".

Can Florida jurisdiction be challenged and request Bolivia to be considered the "home state" if the country is not a full member of the Hague?
Submitted: 3 years ago.
Category: Family Law
Expert:  Ely replied 3 years ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

The answer is no, I am afraid. Under the Uniform Child Custody Jurisdiction And Enforcement Act, the Court will recognize jurisdiction in a state where the child has lived for 6 months or more, and if original filing is in FL or the father does not object to FL being the jurisdiction in this case (as it seems that he does not).

While in the US, the child falls under US law. The Court in FL will hold that FL is the proper jurisdiction under Uniform Child Custody Jurisdiction And Enforcement Act as adopted by Florida per Fla. Stat. § 61.501 et seq.

Ergo, such challenge to the jurisdiction is likely to fail. I am sorry.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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Customer: replied 3 years ago.
Hi Ely, so even if the child is a current permanent resident of Bolivia and has been for 6 years, the jurisdiction will still stay in Florida?
Expert:  Ely replied 3 years ago.

Has any custody matter been heard in Bolivia prior to the child coming to the USA?
Customer: replied 3 years ago.
Child is not in the US. She was born in the US and moved to Bolivia shortly after,and has dual citizenship.
Bolivia has not heard anything on the case, only Florida which is where the divorce was done.
Expert:  Ely replied 3 years ago.
Ah... I see. Okay, my apologies. Let me get some dates from you, please (just month/year is fine):

1) What date did the child relocate to Bolivia?
2) What date was the Florida divorce filed?
3) What date was the supplemental Florida petition for modification of custody filed by fad?
Customer: replied 3 years ago.
Child was born May 2007 and moved to Bolivia in October 2007 and has remained in Bolivia with me to date.
Divorce was if al in Florida in Sept 2011.
Petition to modify filed by father in Aug 2013.
Expert:  Ely replied 3 years ago.
Okay, thank you.

Understand that UCCJEA affects any case in the USA. US Courts are going to follow US law. They will follow UCCJEA, and not a vague convention. And in any case, the convention talks more about kidnapping and recognizing orders to repetriate the child more than anything else.

Second, in UCCJEA, the term "jurisdiction" can mean another state, or, another country.

UCCJEA follows the following doctrine:

1) Original jurisdiction is where the child has lived for 6+ months (or wherever divorce was filed);
2) The jurisdiction remains this until/unless the child moves out of that jurisdiction and has no more ties to it. See here.

So if the child has lived in Bolivia since 2007 without visits to FL, even if the divorce was filed in 2011, jurisdiction may then be challenged. Not on principles of a Hague convention or lack thereof, but on the argument that under UCCJEA, the father SHOULD have filed in Bolivia.

Then of course it is up to the Judge. In the end, this is subjective. I am assuming for this answer that the child has not been visiting FL on a regular basis and has no ties to it.

Apologies for the earlier misunderstanding.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 3 years ago.
The child has visited Florida twice, last time in May 2011.
My attorney has said that we cannot challenge jurisdiction because there would be no "state" to witch it to since Bolivia is not a Hague member therefore us decisions are not valid there and vice versa.
I would much rather try the case in Bolivia. Do you believe I have grounds to challenge jurisdiction then?
Expert:  Ely replied 3 years ago.

I see. Well understand that I am only getting one view of the matter - your point of view. There is also your attorney's view, the court's view, and the father's view. So I am going off strictly what you are telling me.

From what you are telling me, one may be able to challenge jurisdiction, but there are a lot of nuances:

1) Whether or not the answer has been filed (if it has been, it may be too late to challenge it) and how long the proceeding has been ongoing;

2) Whether or not visiting FL twice is enough to consider the child having ties to it (if so, jurisdiction stays in FL);

3) Various other nuances we/I may not be aware of.

While Bolivia is not a member of the convention, a court in the USA will generally recognize a foreign judgment based on "comity" (doctrine of fairness, proper rights for both parties in court observed, etc).

However, while US may recognize Bolivian judgment, there is no guarantee of Bolivia recognizing a US judgment.

But even if that, if the jurisdiction is successfully challenged and the FL Court states "this must be filed in Bolivia"), the Bolivian court will likely simply take the case if a new case is filed in Bolivia...

In summary, there may be a chance, but because your attorney had more facts and is actively working the case, their opinion carries more weight. So my opinion of there perhaps being a shot (with the caveats listed above) is just that - an opinion.

Gentle Reminder: Again, surely you prefer that I be honest in my answer – please remember that rating negatively due to receiving bad news still hurts the expert – it is simply the way that the system is set up. Please use REPLY button to keep chatting, or RATE my answer when we are finished. (You may always ask follow ups free after rating.)
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