DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

KELLY KAY LUNSFORD,

Appellant,

v.

KARA ENGLE and JAKE PHILLIPS,

Appellees.

No. 4D19-774

[January 22, 2020]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Karen M. Miller, Judge; L.T. Case No. 502015DR011293 

NB.

John F. Schutz of John F. Schutz, PL, Palm Beach Gardens, for 

appellant.

No appearance for appellees.

GERBER, J.

A grandmother appeals from a Florida court’s order dismissing her 

action seeking temporary custody of her grandson. The Florida court 

dismissed the action for lack of initial custody jurisdiction, on the ground 

that an Oregon court already had exercised jurisdiction over the child.

The grandmother raises two arguments: (1) because Florida is the 

child’s home state, and because the Oregon court’s jurisdiction was limited 

to exercising temporary emergency jurisdiction while the child was in 

Oregon, the Florida court erred in not exercising initial custody 

jurisdiction over the child; and (2) the Florida court violated the 

grandmother’s due process rights when it communicated with the Oregon 

court during a jurisdiction hearing without allowing the grandmother to 

participate.

We agree with both of the grandmother’s arguments. Therefore, we 

reverse and remand for the Florida court to: (1) communicate to the 

Oregon court that the Florida court will be exercising initial custody 

jurisdiction over the child; (2) allow the parties to participate in this 
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communication if they so request; (3) disregard any orders which the 

Oregon court entered after the Oregon court had completed its exercise of 

temporary emergency jurisdiction; and (4) begin its exercise of initial 

custody jurisdiction with the grandmother’s verified petition for temporary 

custody.

Procedural History

In December 2014, the child was born in Palm Beach County. The 

child resided with his mother and grandmother at the grandmother’s home

in Palm Beach County until the child was three months old.

In March 2015, when the child was three months old, the mother and 

father left Florida with the child. Ten days later, the mother and father 

reached Oregon with the child. At that time, a domestic violence incident 

occurred when the father struck the mother while she was driving and the 

child was in a rear seat, causing them to get into an accident. The Oregon 

Department of Human Services (“Oregon DHS”) sheltered the child and 

petitioned the Oregon court to exercise temporary emergency jurisdiction 

over the child. The Oregon court granted the petition. The mother 

returned to Florida without the child and resumed living at the 

grandmother’s home.

In August 2015, when the child was eight months old, Oregon DHS 

fostered the child with his step-grandmother in Palm Beach County. 

Oregon DHS did not foster the child with the grandmother, because the 

mother was living with the grandmother. The mother later left town again 

with the father.

In November 2015, when the child was eleven months old, the 

grandmother, through counsel, filed a verified petition for temporary 

custody with the Florida circuit court. In the petition, the grandmother 

argued the Florida court had initial custody jurisdiction because:

[T]he . . . child has resided continuously in the State of Florida 

since birth on December 14, 2014, until the travel from the 

state with his biological mother and alleged father in March 

2015. [The child’s] absence from jurisdiction from March 

2015 through August 2015 was not due to establishment of 

residence in Oregon, or any other state. From August 2015 

through the present, the . . . child continues to reside in Palm 

Beach County.
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The grandmother also filed a motion for judicial communication with 

the Oregon court pursuant to section 61.519, Florida Statutes (2015). The 

grandmother filed the motion for judicial communication to clarify that 

Florida had initial custody jurisdiction.

The Florida court granted the grandmother’s motion for judicial 

communication and scheduled a hearing with the Oregon court.

In May 2016, when the child was seventeen months old, the jurisdiction 

hearing occurred between the Florida court and the Oregon court. The 

Florida court began the hearing by saying it had received from the Oregon 

attorney general’s office a memo opining that the Oregon court should 

retain jurisdiction over the child. The following discussion then occurred:

[FLORIDA COURT] (to the grandmother’s counsel): You want 

to go ahead and respond to [the Oregon attorney general’s 

memo]?

[GRANDMOTHER’S COUNSEL]: I do. And, Judge, let me give 

you a copy of some documentation that would appear to be 

pertinent to that issue. Judge, this case was --

[OREGON COURT]: I’m sorry, just a minute. I’m sorry. I’m 

happy to have you all put on the record whatever objections 

you want, but this is a conferring call. It’s not really a hearing. 

And, Judge, you agree with me that Oregon retains 

jurisdiction, and . . . I have other matters that I have to deal 

with. I’m not sure that I’m prepared to hear any objection on 

that side. Is there any reason why we need to do that?

[FLORIDA COURT]: Not particularly. I mean, according to 

this memo, [the Department of Children and Families (DCF)]

in Florida is not taking the case. Just going through the 

memo, it’s undisputed that Oregon has jurisdiction and [has 

the child] under their care . . . that once the Court has 

temporary emergency jurisdiction, the Court and State 

become the home state of the Child so long as no custody 

proceeding in another state has been commenced and if 

determination, if that had been finalized. There is no action 

being taken by Florida. DCF has on multiple occasions 

declined to accept the case. Florida got this case through an 

[Interstate Compact on the Placement of Children] and is 

doing sort of a courtesy supervision. Oregon, again, has 

jurisdiction over the Child, but it’s also in the best interest 
4

that the case be heard. It’s moving forward in Oregon. The 

biological parents have apparently conceded to Oregon having 

jurisdiction. The biological parents, one of them was in 

custody or is currently in custody in Texas. The Mother has 

wandered around and has come back to Florida, and at some 

point moved back in with the [grandmother] . . . . And then 

[Oregon DHS] . . . said, [“]You can’t live with the mother if 

you’re going to have the Child there; too; that’s not in the 

Child’s best interest.[”] So - -

[OREGON COURT]: Well, that’s not exactly accurate, but it’s 

close enough at this point. If you need to refer to this memo

- -

[FLORIDA COURT]: I think the memo outlines pretty clear 

that Oregon has jurisdiction over this case.

[OREGON COURT]: I agree with you. And . . . I have a lot of 

people in the courtroom here, and I don’t see a need to hear 

anymore because we have been working on this and been 

talking about it for a long time. So Oregon will retain 

jurisdiction, and I think that pretty much concludes the 

matter. Is that good with you?

[FLORIDA COURT]: Good with me.

[OREGON COURT]: All right. Thank you very much.

In August 2016, when the child was twenty months old, Oregon DHS 

requested the Oregon court to terminate the mother’s parental rights. 

Oregon DHS argued the mother was an unfit parent due to severe mental 

health issues and her behavior, which manifested neglect and 

abandonment of the child. Oregon DHS also argued termination was in 

the child’s best interests, and it had “identified two potential adoptive 

placements, both of whom are relatives to [the child].” The request did not 

identify the relatives who were the potential adoptive placements.

Our record contains no information regarding the outcome of Oregon 

DHS’s request for the Oregon court to terminate the mother’s parental 

rights, or any other information regarding the Oregon court’s proceedings.

In June 2018, when the child was nearly three-and-a-half years old, 

the grandmother, through new counsel, filed with the Florida court a 

motion to disregard the Oregon court’s orders based on the Oregon court’s 
5

lack of jurisdiction under the Uniform Child Custody Jurisdiction and 

Enforcement Act (“UCCJEA”). The motion argued, in pertinent part, “Any 

Orders entered in Oregon [were] void as Florida continued to have subject 

matter jurisdiction of all proceedings involving the . . . child. . . .”

The Florida court held a hearing on the grandmother’s motion. At the 

hearing, the grandmother’s new counsel raised five arguments: (1) lack of 

subject matter jurisdiction can be raised at any time; (2) under the 

UCCJEA, because the child was born in Florida and returned to Florida, 

Florida was the child’s home state and therefore had initial custody 

jurisdiction; (3) also under the UCCJEA, the Oregon court had only 

temporary emergency jurisdiction; (4) the fact that DCF declined to accept 

supervision over the child, and that the parents had conceded to Oregon 

having jurisdiction, were irrelevant because parties cannot confer

jurisdiction under the UCCJEA; and (5) under the UCCJEA, the Florida 

court and the Oregon court violated the grandmother’s due process rights 

by not letting her original counsel be heard during the jurisdiction hearing 

two years earlier.

Despite the grandmother’s arguments, the Florida court denied the 

grandmother’s motion to disregard the Oregon court’s orders based on the 

Oregon court’s lack of jurisdiction. The Florida court then entered an 

order dismissing the grandmother’s action for lack of jurisdiction.

This appeal followed. The grandmother raises two arguments: 

(1) under the UCCJEA, because Florida is the child’s home state, and 

because the Oregon court had only temporary emergency jurisdiction, the 

Florida court erred in not exercising initial custody jurisdiction; and 

(2) the Florida court violated the grandmother’s due process rights when 

it communicated with the Oregon court during the jurisdiction hearing

without allowing the grandmother to participate.

Our Review

“We review de novo [a] trial court’s ruling that it lacked subject matter 

jurisdiction under the UCCJEA.” Barnes v. Barnes, 124 So. 3d 994, 995

(Fla. 4th DCA 2013). Applying de novo review, we agree with the 

grandmother’s arguments. We address each argument in turn.

1. Subject Matter Jurisdiction Under the UCCJEA

“The UCCJEA is a jurisdictional act that governs subject matter 

jurisdiction over child custody matters.” McAbee v. McAbee, 259 So. 3d 

134, 139 (Fla. 4th DCA 2018) (citation omitted).
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“The general purposes of the UCCJEA are to avoid jurisdictional 

competition and conflict with other courts in child custody matters; 

promote cooperation with other courts; insure that a custody decree is 

rendered in the state which enjoys the superior position to decide what is 

in the best interest of the child; deter controversies and avoid relitigation 

of custody issues; facilitate enforcement of custody decrees; and promote 

uniformity of the laws governing custody issues.” McIndoo v. Atkinson, 

159 So. 3d 227, 229 n.1 (Fla. 4th DCA 2015) (citation omitted).

“Under the UCCJEA, jurisdictional priority lies in the child’s home 

state.” Barnes, 124 So. 3d at 995 (citation omitted). Within Florida’s 

codification of the UCCJEA, that jurisdictional priority arises from sections 

61.503(7) and 61.514(1)(a), Florida Statutes (2015).

Section 61.503(7) provides, “‘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. In the case of a child younger than 6 months of age, 

the term means the state in which the child lived from birth with any of the 

persons mentioned.” § 61.503(7), Fla. Stat. (2015) (emphasis added).

Section 61.514(1)(a), Florida Statutes (2015), provides, in pertinent 

part, “a court of this state has jurisdiction to make an initial custody 

determination . . . if . . . [t]his state is the home state of the child on the date 

of the commencement of the proceeding . . . .” § 61.514(1)(a), Fla. Stat. 

(2015) (emphasis added); see also Barnes, 124 So. 3d at 996 (“[S]ection 

61.514(1)(a) permits the exercise of home state jurisdiction if, at any time 

during the six months preceding the filing of the custody proceeding, Florida 

qualified as the child’s home state.”) (emphasis added; citation omitted).

Within Oregon’s codification of the UCCJEA, section 109.751, Oregon 

Statutes (2015), entitled “Temporary Emergency Jurisdiction,” provides, in 

pertinent part:

(1) A court of this state has temporary emergency jurisdiction 

if the child is present in this state and . . . it is necessary in 

an emergency to protect the child because the child . . . is 

subjected to or threatened with mistreatment or abuse.

(2) If there is no previous child custody determination that is 

entitled to be enforced . . . and a child custody proceeding has 

not been commenced in a court of a state having jurisdiction 

. . . a child custody determination made under this section 
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remains in effect until an order is obtained from a court of a 

state having jurisdiction . . . If a child custody proceeding has 

not been or is not commenced in a court of a state having 

jurisdiction . . . a child custody determination made under 

this section becomes a final determination if the 

determination so provides and this state becomes the home 

state of the child.

(3) If there is a previous child custody determination that is 

entitled to be enforced . . . or a child custody proceeding has 

been commenced in a court of a state having jurisdiction . . .

any order issued by a court of this state under this section 

must specify in the order a period that the court considers 

adequate to allow the person seeking an order to obtain an 

order from the state having jurisdiction . . . The order issued 

in this state remains in effect until an order is obtained from 

the other state within the period specified or the period 

expires.

. . . .

OR. REV. STAT. § 109.751 (2015) (emphasis added).

Oregon’s temporary emergency jurisdiction statute mirrors Florida’s 

temporary emergency jurisdiction statute, section 61.517, Florida Statutes 

(2015). See K.I. v. Dep’t of Children & Families, 70 So. 3d 749, 751 (Fla. 

4th DCA 2011) (under section 61.517, “the court of another state may 

exercise temporary jurisdiction in an emergency situation to protect a child 

even though the court with initial custody jurisdiction has exclusive, 

continuing jurisdiction”).

Here, Oregon had temporary emergency jurisdiction over the child

when the child was injured in the Oregon car accident, because that event, 

caused by domestic violence between the father and mother while the child 

was in the car, constituted an emergency in which the child was subjected 

to mistreatment. OR. REV. STAT. § 109.751(1) (2015).

However, on the date that the grandmother filed her temporary custody 

petition in Florida, Florida had initial custody jurisdiction over that 

petition, because Florida remained the child’s home state. § 61.514(1)(a), 

Fla. Stat. (2015). Florida remained the child’s home state because within 

a portion of the six months before the grandmother’s petition, the child 

was younger than six months of age, and had lived in Florida from birth. 

§ 61.503(7), Fla. Stat. (2015). Cf. Barnes, 124 So. 3d at 996 (“The mother 
8

left Florida after living here with the two children for approximately ten 

months and within the six-month period prior to the father’s filing of the 

petition, thereby making Florida the home state of the two minor children 

at the time of the petition. Thus, the trial court erred in declining to 

exercise jurisdiction on the grounds that the home state of the minor 

children was Colorado under the UCCJEA.”).

Based on the foregoing, the Florida court erred in: (1) failing to exercise 

initial custody jurisdiction during the hearing with the Oregon court after 

the grandmother filed her temporary custody petition; (2) denying the 

grandmother’s motion to disregard the Oregon court’s orders based on the 

Oregon court’s lack of initial custody jurisdiction; and (3) dismissing the 

Florida case for lack of initial custody jurisdiction.

2. Communication Between Courts

Section 109.731, Oregon Statutes (2015), entitled “Communication 

Between Courts,” provides, in pertinent part:

(1) A court of this state may communicate with a court in 

another state concerning a proceeding arising under [the 

UCCJEA].

(2) The court may allow the parties to participate in the 

communication. If the parties are not able to participate in 

the communication, they must be given the opportunity to 

present facts and legal arguments before a decision on 

jurisdiction is made.

. . . .

OR. REV. STAT. § 109.731 (2015) (emphasis added). As can be seen under 

the Oregon communication statute, subsection (2)’s first sentence uses the 

permissive word “may” to describe the parties’ ability to participate in the 

communication between courts. But subsection (2)’s second sentence 

uses the mandatory word “must” to describe the parties’ ultimate ability 

to present facts and legal arguments before a jurisdiction decision is made.

Florida’s version of the UCCJEA’s “Communication Between Courts”

statute, section 61.511, Florida Statutes (2015), contains mandatory 

language throughout subsection (2)’s second sentence. Section 61.511 

provides, in pertinent part:
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(1) A court of this state may communicate with a court in another 

state concerning a proceeding arising under this part.

(2) The court shall allow the parties to participate in the 

communication. If the parties elect to participate in the 

communication, they must be given the opportunity to present facts 

and legal arguments before a decision on jurisdiction is made.

. . . .

§ 61.511, Fla. Stat. (2015) (emphasis added).

As our sister court held in Johnson v. Johnson, 88 So. 3d 335 (Fla. 2d 

DCA 2012), “[w]e construe the words ‘shall’ and ‘must’ in [section 

61.511(2)] to impose a mandatory duty upon the trial court that must be 

performed before ruling.” Id. at 338 (emphasis added). See also Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 

112 (2012) (under the “Mandatory/Permissive Canon,” “[m]andatory 

words impose a duty; permissive words grant discretion.”).

Here, however, the Florida court erred in not performing this mandatory 

duty to “allow the parties to participate in the communication . . . [and] be 

given the opportunity to present facts and legal arguments before a 

decision on jurisdiction is made.” § 61.511(2), Fla. Stat. (2015). If the 

Florida court had performed this mandatory duty, then perhaps the 

Florida court and the Oregon court would have concluded that the Oregon 

attorney general’s opinion incorrectly interpreted UCCJEA’s jurisdictional 

requirements.

The facts that the Oregon court interrupted the grandmother’s counsel 

from participating in the communication does not excuse the Florida 

court’s failure to perform its duty under section 61.511. Even though 

Oregon’s section 109.731(2)’s first sentence uses the permissive word 

“may” to describe the parties’ ability to participate in the communication 

between courts, section 109.731(2)’s second sentence uses the mandatory 

word “must” to describe the parties’ ultimate ability to present facts and 

legal arguments before a jurisdiction is made.

Further, the fact that Florida’s DCF declined to accept supervision over 

the child, and that the parents had conceded to Oregon having 

jurisdiction, should have been irrelevant to the Florida court. Under the 

UCCJEA, neither DCF nor the parents could agree to initial custody 

jurisdiction in Oregon when no such jurisdiction existed. See In re 

D.N.H.W., 955 So. 2d 1236, 1238 (Fla. 2d DCA 2007) (under the UCCJEA, 
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“[p]arties cannot agree to jurisdiction over the subject matter where none 

exists, and the defense of lack of subject matter jurisdiction can be raised 

at any time”).

In sum, given the ultimate mandatory nature of both Oregon’s and 

Florida’s statutes that a party has a due process right to be heard, the 

Florida court had a mandatory duty to correct the Oregon court and 

ensure that the grandmother’s argument was heard. See Johnson, 88 So. 

3d at 339 (“Section 61.511(2) operates as a due process provision.”).

Thus, reversal is required on this ground as well. See Haugabook v. 

Jeffcoat-Hultberg, 219 So. 3d 65, 67 (Fla. 4th DCA 2016) (“[T]he failure to 

allow a party to participate in the communication with a court in another 

state requires reversal [under section 61.511].”).

Conclusion

Based on the foregoing, we reverse the Florida court’s orders dismissing 

this case for lack of initial custody jurisdiction, and denying the 

grandmother’s motion to disregard any orders which the Oregon court 

entered after the Oregon court had completed its exercise of temporary 

emergency jurisdiction.

On remand, the Florida court shall: (1) communicate to the Oregon 

court that the Florida court will be exercising initial custody jurisdiction 

over the child; (2) allow the parties to participate in this communication if 

they so request; (3) disregard any orders which the Oregon court entered 

after the Oregon court had completed its exercise of temporary emergency 

jurisdiction; and (4) begin its exercise of initial custody jurisdiction with 

the grandmother’s verified petition for temporary custody.

Reversed and remanded for proceedings consistent with this opinion.

DAMOORGIAN and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.