The Uniform Child Custody Jurisdiction
and Enforcement Act (UCCJEA)
On March 26, 2007, an Order to Pick-Up Minor Children was issued by the Florida Court which states: "This Court exercised and continues to exercise original jurisdiction over the minor children listed below under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), specifically, section 61.514, Florida Statutes."
What is the UCCJEA?
The UCCJEA is part of Florida Law and is contained in Sections 61.501-61.542, Florida Statutes. Section 61.502, Florida Statutes, describes the purpose of the UCCJEA as to: "Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being." And to: "Deter abductions."
Section 61.514, Florida Statutes, states: "A court of this state has jurisdiction to make an initial child custody determination only if: 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."
The "home state" of the child is defined in Section 61.503, Florida Statutes: "'Home state' means the 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."
The UCCJEA is compatible with applicable federal law
The federal Parental Kidnapping Prevention Act, Title 28 - Part V - Chapter 115 - Section 1738A U.S. Code, states that: "'Home State' means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months." And also that: "A child custody or visitation determination made by a court of a State is consistent with the provisions of this section if such court has jurisdiction under the law of such State, and such State is the home State of the child on the date of the commencement of the proceeding, or had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State."
The UCCJEA determines Habitual Residence
A 2006 New York case, Krymko v. Krymko, demonstrates the sensible application of the Uniform Child Custody Jurisdiction and Enforcement Act and the Hague Convention on the Civil Aspects of International Child Abduction in an integrated fashion.
A married couple moved with their young child from their home in Ontario, Canada to New York in mid-2004. After about five months in New York the mother took the child back to Canada without the father's consent and she promptly initiated a custody action in Toronto, Ontario. The father thereupon instituted suit for custody in New York. He also applied for the return of the child under the Hague Convention and instituted a Hague Convention case in Ontario.
In April, 2005, the Ontario court ruled that the child had been "habitually resident" in New York on the day that she was taken back to Canada. Accordingly, the Ontario court ordered that the mother return the child to New York. The mother brought the child back to New York but asked the New York court to dismiss the New York custody action on the ground that New York was not the "home state" of the child under the UCCJEA, because at the time that the New York case had been commenced, the child had been in New York for only five months before being taken back to Canada.
The Court held that, even if the time in New York had been only five months, the subsequent stay in Toronto followed a removal that the Ontario court had determined was wrongful within the meaning of the Hague Convention. Accordingly, it should be deemed to be a "period of temporary absence" within the meaning of the UCCJEA, which should be added to the prior period of five months so as to constitute the required six-month period.
The Court held, citing cases in Indiana (Ortman v. Ortman) and Texas (Matter of Lewin), that "the appellant may not decide the timing and forum of the custody proceeding through wrongful removal of the child from the jurisdiction."
Unjustifiable Conduct: In a different but similar NY case, the court stated that the mother's abduction of the child was "irresponsible and reprehensible," and "her withholding of important information" from the two Courts involved in the custody proceedings "shows a settled purpose to manipulate the courts to her own ends." The court determined that, "these bad faith actions, totally at odds with the purposes of the UCCJEA, constitute unjustifiable conduct." The issue of unjustifiable conduct is mentioned in Florida Statute 61.521 and is part of the UCCJEA.
The UCCJEA does not recognize a
The Brazilian petition for divorce (dated April 26, 2007) does not mention the ongoing Florida divorce process, despite the fact that Smadar Hameiry received the Florida divorce papers and the pick-up order on April 9, 2007, and her Florida attorney, Howard Poznanski, learned of the ongoing Florida divorce on April 3, 2007.
Section 61.506, Florida Statutes, states: "A court of this state shall treat a foreign country as if it were a state of the United States." "A child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this part must be recognized and enforced." "A court of this state need not apply this part if the child custody law of a foreign country violates fundamental principles of human rights."
In this particular case, the custody determination made by the Brazilian Court was not made under factual circumstances or in substantial conformity with the UCCJEA, and therefore it cannot be recognized or enforced in Florida. Lack of US citizenship by the entire Bordaty family is not a factor in this case. Furthermore, the Brazilian Court did not have the jurisdictional requirements to issue a custody determination even under Brazilian law.
In this particular case the Bordaty family always lived in Israel before moving to Florida, and the 3 children were born in Israel and always lived in Israel before moving to Florida. The Bordaty family never lived in Brazil. Therefore, technically speaking, if the Bordaty family had lived in Florida for less than 6 months, then Israel would have had jurisdiction under the UCCJEA, but certainly not Brazil.
The UCCJEA is compatible with applicable
To assist with the recovery of children abducted internationally, the United States implemented federal legislation under the International Child Abduction Remedies Act by signing the Hague Convention On The Civil Aspects Of International Child Abduction. The International Child Abduction Remedies Act addresses the unilateral action by Smadar Hameiry of wrongfully removing the children from Florida to Brazil for the apparent purpose of obtaining custody of the children in Brazil. Title 42 - Chapter 121 - Section 11601 - U.S. Code states that: "Persons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention." The same U.S. Code also states that: "The international abduction or wrongful retention of children is harmful to their well-being."
The UCCJEA is relevant to applicable criminal laws
Section 787.03 (2) Florida Statutes, Interference With Custody, states that: "In the absence of a court order determining rights to custody or visitation with any minor or with any incompetent person, any parent of the minor or incompetent person, whether natural or adoptive, stepparent, legal guardian, or relative of the minor or incompetent person who has custody thereof and who takes, detains, conceals, or entices away that minor or incompetent person within or without the state with malicious intent to deprive another person of his or her right to custody of the minor or incompetent person commits a felony of the third degree."
A defense to the above section requires that the person taking the minor children must: "Within a reasonable time after taking a minor, commence a custody proceeding that is consistent with the federal Parental Kidnapping Prevention Act, 28 U.S.C. s. 1738A, or the Uniform Child Custody Jurisdiction and Enforcement Act, Ss. 61.501-61.542." In this particular case, that would have meant commencing a custody proceeding in Palm Beach County, Florida. Commencing a custody proceeding in Brazil, in this case, would have not satisfied this requirement.
Furthermore, Section 787.04 (4) Florida Statutes, Concealing Minors Contrary to Court Order, states that: "It is unlawful for any person, who has carried beyond the limits of this state any minor whose custody is involved in any action or proceeding pending in this state pursuant to the order of the court in which the action or proceeding is pending or pursuant to the permission of the court, thereafter, to fail to produce the minor in the court or deliver the minor to the person designated by the court."
Additionally, The International Parental Kidnapping Crime Act of 1993. Title 18 - Part I - Chapter 55 - Section 1204 - U.S. Code states that: "Whoever removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights shall be fined under this title or imprisoned not more than 3 years, or both."
Smadar Hameiry wrongfully removed the children from Florida on March 20, 2007. Smadar Hameiry did not have her husband's permission, or the permission of the Florida Court to remove her children from Florida and take them to Brazil. If Smadar Hameiry had any doubts about her immigration status in the USA, she should have discussed these issues with her husband, and if her husband would have not been able to clarify those concerns, or if Smadar Hameiry would have had any other problems with her husband, the proper procedure would have been for Smadar Hameiry to file for divorce in Florida. If Smadar Hameiry and the children had been in Florida with an expired visa, the Florida Court would have immediately granted Smadar Hameiry permission to return with the children back to Israel, but certainly not to Brazil.
The Florida Court is always on the side of the women during a divorce proceeding. If Smadar Hameiry would have filed for divorce in Florida, instead of abducting the children to Brazil, she would have probably obtained primary custody of the children, she would have kept the house and the car, and she would have received lots of money in the form of alimony and child support payments from her ex-husband. But abducting the children to Brazil was probably the only sure way for Smadar Hameiry to lose legal custody of the children. Smadar Hameiry was not properly advised by her 2 Florida attorneys. They should have advised her to file for divorce in Florida, instead of abducting the children to Brazil. Even today, Smadar Hameiry's Florida attorneys should advise her to return the children to Florida immediately.
The children were wrongfully removed from Florida and are wrongfully being retained in Brazil, for the purpose of obstructing the lawful parental rights of Mr. Bordaty, and to inflict Parental Alienation upon the children. Regardless of what has occurred since March 20, 2007, the Florida Court will not prevent Smadar Hameiry from having continued contact with her children in the event the children are returned to Florida. As stated on the Final Divorce Judgment: "Mother shall have reasonable visitation or time sharing with the parties' minor children after reasonable notice and as agreed to by the parties after the parties' minor children are returned to the State of Florida." In Florida, the end of the marriage is not the end of the family, and the Court favors and encourages that the children enjoy the maximum possible contact with both their parents following a divorce proceeding.
Based on the foregoing facts, Florida and US laws, and in accordance to the Hague Convention, the Brazilian Federal Court handling the Hague Convention proceedings should order the return of the minor children in this case to Florida, as soon as possible.
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