In divorce proceedings, the court is the final arbiter of child custody. The court can also be the final arbiter when non-married couples seek to establish the rights and responsibilities of each parent. Florida law prefers that both parents work together to raise a child. That is true even when the parents’ marriage dissolves or they were never married and the relationship ends.
Florida law makes “no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.” (Fl. Stat. sec. 61.13(2)(c)(1)). A parenting plan is a document created to govern the relationship between the parents on decisions that must be made regarding the minor child. This agreement must contain a time-sharing schedule for the parents and child. The issues concerning the minor child may include, but are not limited to, the child’s education, health care, and physical, social, and emotional well-being. In creating the plan, all circumstances between the parents, including their historic relationship, domestic violence, and other factors must be taken into consideration. (Fl. Stat. sec. 61.046(14))
But there are more than state courts that deal with child custody issues in Florida. There are tribal courts which rule on matters that occur on tribal lands. For example, in Miami there is a dispute over whether the Florida state court or the Miccosukee tribal court has authority to determine the custody of two children.
Miccosukee Tribal Courts
The Miccosukee tribal court does not enforce Florida state law. The 1978 federal Indian Child Welfare Act (ICWA) is making waves in the current custody suit. The ICWA was put in place to stop state adoption practices that separated Native-American families. Another federal law that is in play here is the Uniform Child Custody Jurisdiction and Enforcement Act, which holds the Miccosukee as a sovereign nation and the tribal court decisions enforceable in state courts.
The mother in this dispute is a member of the Miccosukee tribe. She asserts that she and the children have always lived on tribal lands and the father had little contact with the children.
The father argues that the mother and children lived in Pembroke Pines and only moved to the reservation when a dispute between the parents occurred in September 2012. The Miccosukee court granted temporary custody to the mother on October 1 and set a hearing for November. The father filed a custody petition in Miami-Dade Circuit Court November 1 and went to the Miccosukee hearing a few days later. The Miccosukee court awarded sole custody of the children to the mother.
While federal laws appear to agree with this result, there is a catch. The Uniform Child Custody Jurisdiction and Enforcement Act dictates that the court with jurisdiction over the case will be the one where the children resided for six months prior to the filing of the case. The mother says the children have always lived on tribal lands, while the father says they lived in the State of Florida. The father’s petition in state court is set for arguments to determine the children’s residence to determine which court has jurisdiction.
While conflicts with Indian tribes are not common in Florida, the Uniform Child Custody Jurisdiction and Enforcement Act is applied in a great number of cases where one parent moves into or out of Florida during or just prior to divorce proceedings. Make sure your rights are preserved by contacting our knowledgeable attorneys regarding your custody matters.
For a free consultation on all of these issues, contact us at Hoffman, Larin and Agnetti, PA. We have offices in Dade, Broward and Monroe counties. Our attorneys have handled thousands of family law cases since 1975.