DISCUSSION AND IDEAL ANSWER TO QUESTION I

Harold K. Strum’s arguments depend on a literal - perhaps wooden - reading of the statutes, while Lenny Burkhalter’s arguments ring true to fundamental notions of equity and fairness.

Harold K. Strum’s Arguments

Mr. Strum will argue that he is privileged against service of process while in Florida attending to unrelated litigation.

Mr. Strum will further argue that The Bahamas is the “home state” of Danielle because she has lived there for the last six months, or since birth if less than six months old.  Accordingly, the UCCJA requires Florida to give comity to the Bahamian decree.  FPKPA is not applicable to the Bahamian decree, since FPKPA deals only with full faith and credit among states and territories of the United States and does not apply internationally.

Strum will further argue that he was not a party to the California suit and is not bound by the California judgment.  As to him, it is an ex parte judgment not entitled to comity under UCCJA.  Mr. Burkhalter, on the other hand, voluntarily appeared in the Bahamian action and was subject to the in personam jurisdiction of the Bahamian courts.  If Mr. Burkhalter did not like the Bahamian judgment, he should have appealed to the Court of Appeals of The Bahamas.

Lenny Burkhalter’s Arguments

Mr. Strum’s claim of privilege against service of process is a red herring.  First, Mr. Strum voluntarily appears in the Florida action when he asks the Florida court to enforce the Bahamian decree.  He cannot ask the court for relief out of one side of his mouth while objecting to jurisdiction out of the other.

Second, no service is even necessary.  This is not an action to determine custody in the courts of Florida.  This is an action in the courts of Florida to register and domesticate a California judgment.  Under UCCJA, such registration may be done ex parte.  Jurisdiction over Mr. Strum is irrelevant.  Custody is a matter of status, a form of in rem action in which the child is the res.

It is not necessary that the parties have any connection with Florida to file a petition to make another state’s judgment executory in Florida.  The question, therefore, turns on whether California had jurisdiction.  If California had jurisdiction consistent with UCCJA, Florida is bound to register the judgment and make it executory in Florida.

Turning to the question of whether California had jurisdiction of the paternity-and-custody action consistent with the UCCJA, it is important to note that, under California law, an action for paternity of an unborn child may be brought in that state if the child was conceived in California.  Custody may be determined in a California paternity action.

At the time suit was filed in California, both Lenny Burkhalter and Ann Nicci Smithers resided in California.  There was nowhere else at that time where the suit could have been filed.  But did California acquire jurisdiction consistently with UCCJA?  The child had not yet been born, so there was no home state.  It was proper, then, to proceed to the second (and, if not the second, the fourth) tier.  These tiers pointed to California because no other state at that time had jurisdiction and because the parties were all present in California and there was available in California evidence concerning the child’s future care.

Once California acquired jurisdiction properly, all subsequent actions are locked out by UCCJA.  The Bahamas therefore was without jurisdiction during the pendency of the California case.

Mr. Burkhalter will further argue that to the extent the California and Bahamian judgments are inconsistent, the California judgment is the most recent and therefore governs.

A second argument can be advanced by Mr. Burkhalter.  Since the Bahamian judgment is a foreign-country judgment, comity rather than full faith and credit applies.  Comity permits a court to go behind the foreign judgment to determine if due process was denied or if the judgment or cause of action on which it is based is contrary to the strong public policy of the forum.

A long line of United States Supreme Court cases, starting with Stanley v. Illinois and Caban v. Mohammed and continuing on to the recent case of Troxel v. Granville, holds that the right of a blood parent or parents to raise their child is a fundamental constitutional right that may be divested only if a parent is proven unfit.  Any law allowing an interloper who just happens to be on the scene to sign a piece of paper and thereby divest the natural father of his American constitutional right to parent his child is repugnant to the strong public policy of the United States and therefore repugnant to the strong public policy of Florida.

Decision

The California court properly acquired jurisdiction of the case consistently with UCCJA by virtue of California being the only place where the action could have been brought at the time it was filed.  California’s jurisdiction is consistent with the second and fourth tiers of UCCJA.  The first tier was not available at the time the suit was filed, as the child had not yet been born.

The suit later filed in The Bahamas therefore was locked out, and the judgment of the Supreme Court of the Bahamas is a nullity.  The Bahamian judge should have called the California judge and declined to accept the case.  Further, the Bahamian judgment is based on outmoded concepts of parentage that deny due process to natural fathers.  The determination of the Bahamian court is contrary to the strong public policy of the United States, and therefore of Florida.

For these reasons, the Bahamian judgment is denied comity.  The California judgment is granted full faith and credit.  The California judgment is hereby made an order of this court, and the sheriff of Palm Beach County and all peace officers anywhere in Florida are hereby authorized and directed to seize the child wherever in Florida she may be found, and to return the child forthwith to the lawful custody of her natural father, Lenny Burkhalter.

NOW THE GRADING KEY