signguy
newbie
Reged: 03/03/11
Posts: 45
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I recently lost a jurisdictional dispute between the states of florida and wisconsin. I am going to attempt an appeal.
The first issue I am raising:
The wisconsin court ruled they had "exclusive continuing jurisdiction" because the court said the case began in wisconsin. In researching the UCCJEA of wisconsin exclusive continuing jurisdcition only happens when a court of the state makes an order regarding a custody proceeding.......The only order the ex and i got ever was "Order and stipulation for setting birth expenses" included in that order it said 50/50 custody and placement is awarded to the parents jointly.....No specific times given and the ex and i never went to a hearing. we signed that order and a paternity affidavit....does that constitute a custody proceeding/determination by this definition?
(3) “Child custody determination” means a judgment, decree,
or other order of a court providing for legal custody, physical custody,
or visitation with respect to a child. The term includes a permanent,
temporary, initial, and modification order. The term does
not include an order relating to child support or other monetary
obligation of an individual.
or
(4) “Child custody proceeding” means a proceeding in which
legal custody, physical custody, or visitation with respect to a child
is an issue. The term includes a proceeding for divorce, legal separation,
neglect, abuse, dependency, guardianship, paternity, termination
of parental rights, and protection from domestic violence,
in which the issue may appear. “Child custody proceeding”
does not include a proceeding involving juvenile delinquency,
contractual emancipation, or enforcement under subch. III.
I might have just answered my own question......does signing a parternity affidavit in a child support office count? lol
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Maury
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Reged: 06/02/04
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Yes. I don't think there is much of a question about it. It is clearly an order and it clearly adjudicates custody and it was affirmatively approved by the parties who subjected themselves to the court's jurisdiction by doing so.
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signguy
newbie
Reged: 03/03/11
Posts: 45
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yeah right!!!!! ok so anywhoo kinda funny. post judicial communication hearing Florida has issued their order on the matter, with a very specific ruling on all things addressed and it is up on the wisconsin court website allready. But wisconsin has not sent out or posted their ruling on the matter....lol thats why i was fighting so hard because of the big differences in states......
induldge me this... In floridas final order they say I didnt start a custody proceeding there untill 9/28.10. looking at the record nothing happened in florida on 9/28/10 however an emergency return of child was filed there and sent onto a judge on 9/13.10 2 weeks before the final order says anything was filed......whats up with that.....just a small typo indicating moms filing in wisconsin was first.......Im not ok with that, but I dont think it matters........does it matter for an appeal now that the courts record is wrong on who filed first? THATS NOT THE ONLY HUGE DISCREPANCY EITHER ON THE RECORD.....
INDULDGE ONCE MORE PLEASE. Will a court make a ruling very loosely and no fear of it being overtiurned because they feel the petitioner would never have a lawyer to appeal or couldnt handle an appeal himself. and also just to get it over with????? no matter how awful personal discretion was used?????
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Maury
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On appeal, the only thing that can be addressed are arguments that were made in the lower court. If you did not argue that the filing in Florida was first, then it is not an issue on appeal. If you did argue it, the erroneous date could be the lynch pin of the argument if you can demonstrate when the filing actually occurred and how the error was made. Of course, unless the Court of Appeals allows you to reopen the record to supplement evidence, you would be restricted only to the evidence previously produced in the lower court.
The court made a ruling based on what it deemed correct. They do make errors. That is why we have appellate courts. They are not simply trying to stick it to one party or another.
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signguy
newbie
Reged: 03/03/11
Posts: 45
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yeah i understand you can argue only what was brought up in lower court and in my brief in support of jurisdiction i did bring up
"Bedingfield vs bedingfield 417 so 2d 1047 fla 4th dca 1995 that says "when two jurisdictions have concurrent jurisdiction over a dispute the principle of priority generally applies to allow the first filed action to proceed as explained in bedingfield vs bedingfield"
I also brought up
"vorphal vs lee 99 wis 2d 7 298 nw 2d 222 "when children were abducted from their home state to wisconsin the trial court properly assumed emergency jurisdiction but erred to stay the proceedings under 822.07(5)"
On 10/13/10 in front of the court commisioner in wisconsin at an enforcement of physical placement hearing the transcripts have me saying, "your honor i wish to dismiss todays motion as another court is addressing the issues" the court commisioner dismissed and then refered me an ex to mediation 3 weeks later and then the trial court held a "change of venue" hearing with only wisconsin taking part, even though i asked at that hearing for judicial communicatuion, and then and only after i filed a motion with the florida court and copied wisconsin in on it that said.......whoa the horses somebody has got to talk to wisconsin, did a JA from wisconsin call me and say "well the orders we issued on friday (3 days previous) are being rescinded because there is more research to do.....
.lol I mean come'on debacle? jus saying fishy.....
If I appeal will the wisconsin court still say they cant address visitation because jurisdiction isnt decided? because thats what they have been saying!!!
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Maury
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I am afraid there is no vast conspiracy afoot. Occams razor - Sometimes the simplest explanation is correct. The Judge ruled based on the evidence before him/her. It also appears both states made a ruling which may mean that the courts communicated with one another as well.
You can only appeal from a final Order. If you have an order that resolves an issue in a dispositive fashion, it is appealable. If not, you must seek leave of court to pursue an interlocutory appeal.
Is your appeal in Wisconsin of Florida? If in Wisconsin, you better research Wisconsin law. Florida case law has no persuasive authority in Wisconsin.
It would also appear in Florida that the first to file rule is, to an extent, discretionary. See floridabar.org/DIVCOM/JN/JNJournal01.nsf/Articles/27038B01C2CEDDAC8525767E006E7DF8
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signguy
newbie
Reged: 03/03/11
Posts: 45
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yeah wisconsin appeal....but Im thinking its a waste of time, and I just need to get a real custody order so mom doesnt continue to run the show like she has for 10+ months and not allow contact at all!!! :(
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Maury
Carpal \'Tunnel
Reged: 06/02/04
Posts: 8146
Loc: This Asylum --->
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If you reside in Wisconsin, there is a presumption for shared parenting and, if you reside in reasonable geographic proximity, the week on, week off schedule is not too unusual.
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signguy
newbie
Reged: 03/03/11
Posts: 45
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sweet smile on my face......yeah I transfered my job up here before that final hearing, and moved to within 45 minutes of Moms residence. i have been here a month and mom still wont let me see daughter.
my car blew up (engine ) on the way to hearing last week in the town where neither of us live. she is 2 1/2 hours and I am aprox 3 where custody is being heard....lol that doesnt make sense either but whatever/.....i like the sound of week on week off and that represents 50/50 60/40.....just curious I need to keep custody above 30/70. 30 being me
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