About Fundamental Fairness

It is about fundamental fairness. Truth in advertising. Keeping a promise. If I promise something, and then I don't keep my promise, there should be consequences. Sometimes a promise is broken because its impossible to keep, external events interfere. But, maybe there should still be consequences for a broken promise, even if the breaking of it was unavoidable. Or maybe the breaking of that promise should just be forgiven. But, making a promise with no intention of keeping it? Isn't that simply unfair, deceptive?

If I advertise a car for sale at a certain price. And someone comes along and says, ok, I'll give you the price you're asking -- I have cash; can I then turn around and say, no I want more money than that? Or can I say, no I'm going to think about it. Is it ethical to advertise a price for a thing when you have no intention of accepting that amount? Is it legal?

Can I, as a seller, say to the wannabe buyer that I want to hold out for more money?

Can I, as a seller, say to the wannabe buyer, I'll let you know later whether I'll sell it to you and for what amount. And when later comes, I tell the wannabe buyer that now there are others offering me more money for the same car. So, I say to the wannabe buyer, what is your highest and best price? Is this legal and ethical?

What if I never had any intention of selling the car for the advertised price? Is that bait and switch?

Probably not, since no other car was being switched. But is it deceptive? I think so, The following is from the FTC website:

"WHAT MAKES AN ADVERTISEMENT DECEPTIVE?

According to the FTC's Deception Policy Statement, an ad is deceptive if it contains a statement - or omits information - that:

• Is likely to mislead consumers acting reasonably under the circumstances; and
• Is "material" - that is, important to a consumer's decision to buy or use the product.

Certain elements undergird all deception cases.

First, there must be a representation, omission or practice that is likely to mislead the consumer. Practices that have been found misleading or deceptive in specific cases include false oral or written representations, misleading price claims, sales of hazardous or systematically defective products or services without adequate disclosures, failure to disclose information regarding pyramid sales, use of bait and switch techniques, failure to perform promised services, and failure to meet warranty obligations.

Second, we examine the practice from the perspective of a consumer acting reasonably in the circumstances. If the representation or practice affects or is directed primarily to a particular group, the Commission examines reasonableness from the perspective of that group.

Third, the representation, omission, or practice must be a "material" one. The basic question is whether the act or practice is likely to affect the consumer's conduct or decision with regard to a product or service. If so, the practice is material, and consumer injury is likely, because consumers are likely to have chosen differently but for the deception. In many instances, materiality, and hence injury, can be presumed from the nature of the practice. In other instances, evidence of materiality may be necessary.

Thus, the Commission will find deception if there is a representation, omission or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer's detriment. 

The Commission also considers claims or omissions material if they significantly involve health, safety, or other areas with which the reasonable consumer would be concerned. Depending on the facts, information pertaining to the central characteristics of the product or service will be presumed material. Information has been found material where it concerns the purpose, safety, efficacy, or cost, of the product or service. Information is also likely to be material if it concerns durability, performance, warranties or quality. Information pertaining to a finding by another agency regarding the product may also be material."

I think that when a thing is offered for a certain price its a promise. Contract law is all about enforcing promises. I also think that offering a thing for sale at a certain price is a contract that can be enforced. Contract enforcement remedies include money damages and specific performance. And, contract law is surprisingly not as cut and dried as I thought. Many times, contract enforcement remedies are based on the intent of the parties and reasonableness.

I have always been mystified as to exactly how bidding wars for houses can happen. In general, a listing for a house for sale is treated as a request for offers. In general, people list a price for sale above what they are willing to accept and anticipate negotiations. But, if someone accepts the offer to sell without any attempt to negotiate the price or terms -- isn't the seller bound to honor their promise? Apparently not, at least in common practice in 2015. I maintain that legally, the offer to sell at a set price is just that - an offer. And a buyer's acceptance of that price and terms is acceptance.

All real estate contracts must be in writing, as per the Statute of Frauds. And, in my scenario, this is also the case. The first writing is the offer to sell, which is the MLS listing for sale at a certain price, the property and terms described with specificity. In my theory, this itself is a unilateral contract. So, if someone comes along when there is no other offer pending, and accepts the offer to sell; and agrees to price and terms; it then becomes a bilateral contract. And is enforceable.

I have had realtors, a real estate broker, a worker at Fannie Mae, and various individuals tell me that I am wrong. That my thinking is muddled, that I don't know how things work, and more or less that I'm an idiot. I also asked a real estate attorney, who, to his credit, said "I don't know". I keep asking the same question.

If someone offers a property for sale, and I say ok, I'll buy that property for that amount with cash and no contingencies -- doesn't the seller have to sell it to me for that amount and for those terms? After all, it was the seller's idea in the first place, not mine. He was the one offering (promising) to sell.

On three different occasions, what I thought should have been a contract has suddenly turned into a bidding war. On all three occasions, we offered full price with no contingencies. And, on all three occasions, the seller did not accept our "offer", but instead let us know that we should now submit our highest and best bid. I continue to maintain that this practice is unethical and probably illegal. I further believe that if I sued the seller, the suit would be based on breach of contract, and that as a remedy I would request specific performance. So that the court might then order the seller to sell us the house.

My detractors have told me, that there is no contract in my scenario. I beg to differ. A contract is a promise, the initial promise, the contract occurred when the seller offered the property for sale and I accepted the offer for sale.

The broker, in the most patronizing manner possible, told me that the seller is doing us a favor by allowing us to submit our highest and best offer. What????

And the entire Greek chorus of my detractors has told me that no one can make someone sell their property. Again, I beg to differ. I rely on a case that I expect is taught in law school - Lucy v Zehmer.

Lucy is a 1954 Virginia Supreme Court case in which Mr. and Mrs. Zehmer and Mr. and Mrs. Lucy were at a bar. The Zehmers told the Lucys that they would sell them their 400+ acre farm for $50,000. and proceeded to write the price and terms on a cocktail napkin.

Zehmer subsequently refused to go through with the sale, alternately claiming that he was drunk and that he was joking. Following is an excerpt from that case:

"If it be assumed, contrary to what we think the evidence shows, that Zehmer was jesting about selling his farm to Lucy and that the transaction was intended by him to be a joke, nevertheless the evidence shows that Lucy did not so understand it but considered it to be a serious business transaction and the contract to be binding on the Zehmers as well as on himself. The very next day he arranged with his brother to put up half the money and take a half interest in the land. The day after that he employed an attorney to examine the title. The next night, Tuesday, he was back at Zehmer's place and there Zehmer told him for the first time, Lucy said, that he wasn't going to sell and he told Zehmer "You know you sold that place fair and square." After receiving the report from his attorney that the title was good he wrote to Zehmer that he was ready to close the deal.

Not only did Lucy actually believe, but the evidence shows he was warranted in believing, that the contract represented a serious business transaction and a good faith sale and purchase of the farm."

Like Lucy, not only do I actually believe someone will sell a house for the promised price, I believe the promise is enforceable. The holding in Lucy was that the contract was enforced, and the farm was sold as agreed.

We ARE Disruptors

We are disruptors, and - yes - proud of it. I am happy that we disrupt the status quo. I am happy that we present an alternative to consumers. If the legal world had properly served consumers, we would not exist. Legal document preparers are here to stay. We have a foothold. Around 70% of family law litigants are pro se -- self represented. Many of the self-represented employ legal document preparers to prepare their paperwork. Some of them cannot possibly afford an attorney. Others have no desire to retain an attorney. And still others have no need for an attorney.

If, we legal document preparers, present a viable alternative for consumers - then why not? Consumers who cannot afford an attorney are not lost clients for attorneys - it was never possible for them to be attorneys' clients at all. Price being the governing factor. It makes no sense for Mercedes Benz to be upset with Kia for stealing their customers. Not the same customer, not the same demographic.

Some consumers can well afford an attorney but choose not to retain counsel. They either feel that they can easily handle their legal affairs themselves, or feel that an attorney will cause them to spend money needlessly.

Still other consumers do not need an attorney at all. They only need papers. They only need documents prepared; they are well aware of their rights and issues; and there is no legal dispute. Many of these consumers realize that if they retained counsel, it is quite possible that an attorney could create a dispute where none existed before. No dispute = no billable hours.

I have no goal to malign attorneys. They don't need my help in discrediting their profession. The numbers speak for themselves. Since 70% of family law litigants are attorney free - one can only surmise that a fair percentage of them could afford counsel if they chose.

I, as a legal document preparer, receive some attorney referrals. One of the attorneys who refers to me [we'll call him John] has done so for the past several years and I am rarely able to reciprocate, as he really only wants family law mediation clients. And I rarely have this type of customer to refer. I can only say Thank You. I suppose John refers to me because in his opinion the consumer is better off paying my lower fee and spending their money to take care of their children; rather than paying his fee and their having to stretch financially to pay it. In all these years, only once has there been a problem. The soon to be ex disputed jurisdiction for the divorce as the couple still had marital property in another state. I referred her back to John, then she came back and asked me to prepare a voluntary motion to dismiss. Which I did at no cost.

Even more than I appreciate the compensation John's referrals bring, I appreciate the respect he gives me by sending his clients my way.

On the other hand, I recently severed ties with an attorney, we'll call her Mary. She and I had an arrangement in which she would offer my customers a low cost consultation; and then in theory send them back to me for document preparation. No one ever came back. It was a legal Bermuda Triangle. She had presented herself to me as an advocate for pro se litigants and a friend to Florida document preparers. Although it took me a while to catch on, the truth came out. Beware the wolf in sheep's clothing. I was blind sided, and I have yet to forgive myself for that. She displays the following on her site:

" ... many people are opting to use document preparers who can complete divorce forms at low cost, affordable rates. And while this is an attractive option, most document preparers have little or no legal training or experience outside of document preparation. ..."

That statement isn't particularly true. Most document preparers have extensive experience and academic training, including B.A. degrees in Legal Studies; paralegal certificates; years of law firm experience; JD degrees; law degrees from other states or countries; and lots of hands on experience. A few document preparers are self taught - graduates of the school of hard knocks.

The first big difference between John and Scarey Mary is that John wants to serve the consumer; while Mary wants to serve herself. The second difference is that John is established in his profession; while Mary is competing with nonlawyer lay practitioners. As a consumer, that in itself would be enough to scare me away from Mary. Did she, and other attorneys of her ilk, really go to law school to learn how to fill out forms. Scarey. Mary.

Poverty and Wealth are Relative Terms

Poverty and wealth are relative terms. I am talking about material poverty and wealth. All I know is the chasm is getting wider and deeper. The haves have more than ever and are less likely than ever to reach across the great divide to build a bridge.

In the 1980s, Ronald Reagan’s economics program began to drastically rollback social programs established by Franklin Delano Roosevelt and Lyndon Johnson. In 2013, the Economic Policy Institute (EPI.org) reported that the average CEO made 295 times the salary of the average worker, although its unlikely that the CEOs did 295 times the work. In 1978, the average CEO made just 29.9 times the salary of the average worker.

No one chooses poverty. But, as it always has been in America, the biggest crime of all is to be poor. And we blame the poor for being poor; blithely forgetting that we don't know their story. Illness, bad luck, divorce, lack of opportunity, lack of education, and, yes, even poor choices. But, it is counter productive for all of us to continually blame the poor for being poor; and have the poor as society's collective scapegoat.

Although America may still be sometimes called the "Land of Opportunity" the harsh reality is that just 4 % of those raised on the bottom rung of the ladder ever climb to the top. New York Times.

Missouri is currently trying to pass a bill that if passed would prohibit food stamp recipients from being able to use those funds to buy “cookies, chips, energy drinks, soft drinks, seafood, or steak". The proposed ban of seafood is inexplicable from a nutrition standpoint, so it can only mean that the haves don't want to let the poor eat fish - or shrimp - or crab - or apparently even canned tuna. Also the prohibition of steak is nonsensical both from a nutrition and practical standpoint. Someone could buy ground sirloin, but not a steak? Could they ask the butcher to cut a steak up into stew meat and thereby make it acceptable for purchase?

Missouri's bill is unlikely to pass; or if passed to remain in place very long. The food stamp program, now called the Supplemental Nutrition Assistance Program - SNAP for short - is federal. Individual states are allowed to implement pilot programs, but they are not allowed to change the rules. And according to the federal government:

• Soft drinks, candy, cookies, snack crackers, and ice cream are food items and are therefore eligible items; and
• Seafood, steak, and bakery cakes are also food items and are therefore eligible items

Florida Governor Rick Scott took a similar battle to the federal appellate court when Scott was called out and sued by the ACLU for passing a law requiring recipients of Temporary Aid for Needy Families (TANF) to be drug tested when they applied for services. In his detailed ruling, denying Scott's appeal, Judge Stanley Marcus of the 11th U.S. Court of Appeals concluded that “citizens do not abandon all hope of privacy by applying for government assistance.” He said that “the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable” and that “by virtue of poverty, TANF applicants are not stripped of their legitimate expectations of privacy.”

Low income citizens face daily challenges in addition to such primary needs as food and shelter. The word "indigent" appears in some form in the top twenty search strings used to arrive at www.faldp.org - the site for theFlorida Association of Legal Document Preparers. Many low income Floridians are turned away from their local Legal Aid Society even though they are income qualified. Reasons to be turned away include: their local legal aid lacks the resources to assist them; and that the specific legal problem is not the type of issue that legal aid is equipped to deal with. Many other citizens do not income qualify for any legal aid, but they also cannot afford a private attorney.

In the immortal words of Janis Joplin

Oh Lord, won't you buy me a Mercedes Benz?

My friends all drive Porsches, I must make amends.

Worked hard all my lifetime, no help from my friends,

So Lord, won't you buy me a Mercedes Benz?

Oh Lord, won't you buy me a color TV?

Dialing For Dollars is trying to find me.

I wait for delivery each day until three,

So oh Lord, won't you buy me a color TV?

Oh Lord, won't you buy me a night on the town?

I'm counting on you, Lord, please don't let me down.

Prove that you love me and buy the next round,

Oh Lord, won't you buy me a night on the town?

Everybody!

Oh Lord, won't you buy me a Mercedes Benz?

My friends all drive Porsches, I must make amends,

Worked hard all my lifetime, no help from my friends,

So oh Lord, won't you buy me a Mercedes Benz?  

Stop Florida's Unconstitutional Plan to Outlaw Anonymous Speech

A dangerously misguided Florida bill would forbid websites from operating anonymously just because they meet a vague definition of disseminating “commercial recordings”—and it's headed for a vote this week.

Supporters of the “True Origin of Digital Goods Act” say it's about “piracy,” but it would actually have disastrous consequences for anonymous online speech both inside and outside the state. Anybody operating a website that is even “likely to” host music or videos “directly or indirectly,”—even their own music or videos—could be ordered to reveal their name and address.

This new law isn't just unnecessary to enforce federal copyright or trademark laws—it also creates a new avenue for legal abuse. Anyone “aggrieved” by an anonymous website owner could take that owner to court, without having to show legal harm.

Anonymous speech is a vital part of the American free speech tradition, and of the rights guaranteed by the First Amendment. Artists, writers, and citizens rely on the freedom to speak anonymously through blogs, independent news sites, amateur video and music, and other websites and services. They rely on anonymity to voice unpopular opinions and speak truth to power without fear of harassment or reprisals at work or at home.

If you're in Florida, act now to tell your lawmakers: don't sacrifice anonymous speech at the altar of vague anti-piracy policy. Vote no on “True Origins of Digital Goods Act,” HB271 in the House and SB604 in the Senate.

From the Electronic Frontier Foundation's site - www.eff.org

And, an email from Fight for the Future states:

The news coming out of Florida is not good. Florida is poised to pass a dangerously misguided SOPA-like bill this week. This is bad for the Internet, both inside and outside the state.

Florida state legislature has introduced two related bills - HB 271 and SB 604 - otherwise known as the “True Origin of Digital Goods Act” (TODGA).[1]  

Supporters say the bills will curb online piracy. But really this is about online censorship. Just imagine having to put your home address on all of your websites that contain streaming content? Are you kidding??

Click here to sign the petition to stop the passage of the True Origin of Digital Goods Act”.

Unfortunately TODGA is no joke. If the act become law, any website that has commercial streaming content will be legally required to post their owner’s true name and contact information on the site or risk being taken down.[2]

What else is bad about the “True Origins of Digital Goods Act”?

• The bill is useless. The Digital Millennium Copyright Act already covers what Florida says it needs to fix; TODGA just creates a new avenue for legal abuse. Anyone “aggrieved” by an anonymous website owner could take that owner to court, without having to show legal harm. [3]

• TODGA will allow officials to take down alleged violators without any due process. This sets a dangerous precedence that will curb free speech on the Internet and circumvent normal channels.

We can’t let this happen.

When Congress tries to pass SOPA/PIPA and CISPA, we stop them every time. Now they’re trying to sneak similar bills under the radar at the state level. We are smarter than that.

Please sign the petition to stop Florida’s“True Origins of Digital Goods Act”, and share this petition with your friends.

-Susan, Evan, Holmes, Tiffiniy, Jessica, Vasjen, Charlie and Jeff
Fight for the Future

Sincerely,

----

Sources:

[1] http://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=53294&

[2] Electronic Future Foundation. Stop Florida’s Unconstitutional Plan to Outlaw Anonymous Speech. EFF website. https://act.eff.org/action/stop-florida-s-unconstitutional-plan-to-outlaw-anonymous-speech (Note: EFF’s article was written when Florida tried to pass the same bills last year. Thankfully the 2014 bills failed. Let’s make sure the same thing happens in 2015.)

[3] Florida Legislature Considering SOPA/PIPA-like bills. The Internet Association http://internetassociation.tumblr.com/post/115035123138/florida-legislature-considering-sopa-pipa-like

Come on Florida - We don't want to be Flori-DUH - sign the petition and donate. This is important.

A Day in the Life of a Miami Pro Se Litigant ...

Dealing with Miami-Dade County Family Court — 
It just got harder for the Pro Se

Guest Post by Elisa Epstein

Pro Se litigant’s dealings with the Miami Dade County Family Court system has never been more difficult with the recent hiring of court’s supervisors who make every effort to push Pro Se litigants through the “self-help” desk located on the 24^th floor. Try to “bypass “the “self-help desk” and simply file your documents directly with the clerk and you will be met with the recently hired filing’s “police”. This new crop of supervisors stand, both literally and figuratively, between you and the filing clerks.

These supervisors will insist you disclose your matter on command in front of whatever audience happens to be waiting in line, and, tell you that as a Pro Se you must first go to the “self-help” desk. If you tell them you don’t want to use “self-help”, they will then try to intimidate you by telling you that the filing clerks are trained now to reject and red-stamp a Pro Se filings no matter how correctly the forms are filled out.

The unwitting and unfortunate Pro Se who bends to this tyrannical attitude and retreats to the” self-help” program will be given a new set of burdens and hardships-- there is the long line in the dingy, crowded, windowless room, fees for form “packets” (forms which are easy accessible and FREE from the Supreme Court website), and, additional filing fees for modifications to prior judgments. But worst of all, for the anxious litigant wanting to quickly resolve their matter, the several week or more delay to have your case heard while the “self-help” division processes your forms.

So why is Dade now insisting on “self-help” for Pro Se Litigants? The city will insist it’s helping the public by making the court more efficient and accessible for the public. But when you look at the revenue stream the city generates from the “self-help” desk from form packet , extra filing fees, use of their own notaries etc., one easily wonders if the “self-help” desk is really there to serve the public, or whether it is just another revenue stream for the city.

So what’s a Pro Se to do with all this “self-help”?

There are two possible ways to go about it-- use the e-filing system (which the clerks will swear only exists for attorneys or, stand your ground and file your documents directly. When you actually make it to the clerk, usually they will be helpful and answer some questions you might have if they happen to know what they are doing. I’d highly suggest passing any important questions through more than one clerk.

The advantage of e-filing is fairly obvious—no potential harassment, no travel, no parking fees. But filing in-person has its own distinct advantages. When you file in-person, you can get certified copies of your documents that lists the date of filing (for a few bucks). Having certified copies puts a little additional pressure on the clerks to actually file your documents, file them in a timely fashion and gives you an established, undisputable record with the court.

If the supervisor tells you your docs will be rejected because you are pro se, smile, accept their frown, and politely tell them that you will keep coming back until the documents are correct. This is basically the last thing they want to hear.

Whether you chose to E-File or file in-person, your case should pop up for hearing in a few weeks

Dade… thanks for the “self-help”, but no thanks.

Legalese versus Readability

To a writer, the struggle between readability and gobbledygook is as important as the struggle between good and evil. The battle for dominance is particularly important to legal writers. Gobbledygook has long been the evil king – readability the rebel. Legal writers writing court pleadings and contracts for other lawyers and judges are content to uphold the status quo – stick with the legalese and jargon. Keep the unlawyers out. Other legal writers, who write for consumers are translators, translating the arcane and obscure words into everyday language.

I plugged the following paragraphs into Dr. G. Harry McLauglin's SMOG calculator. SMOG is an acronym for: Simple Measure of Gobbledygook. The SMOG calculator was developed in 1969 (imagine!) and back then you had to do the math yourself. It is based on the number of syllables in each word, number of words in each sentence, and number of letters in each word. Dr. McLaughlin states on his SMOG website,

“My readability formula SMOG estimates the years of education needed to understand a piece of writing. SMOG is widely used, particularly for checking health messages”.

The Federal Trade Commission requires that health messages for the public be written at no higher than a fifth grade reading level. I believe there should be a similar requirement for legal messages.

The following paragraphs are an excerpt from the instructions for the Petition for Simplified Dissolution of Marriage, Florida Supreme Court approved form 12.901(a), which was published on 1/2015:

When should this form be used?

This form should be used when a husband and wife are filing for a simplified dissolution of marriage. You and/or your spouse must have lived in Florida for at least 6 months before filing for a dissolution in Florida. You may file a simplified dissolution of marriage in Florida if all of the following are true:

You and your spouse agree that the marriage cannot be saved.

You and your spouse have no minor or dependent child(ren) together, the wife does not have any minor or dependent children born during the marriage, and the wife is not now pregnant.

You and your spouse have worked out how the two of you will divide the things that you both own (your assets) and who will pay what part of the money you both owe (your liabilities), and you are both satisfied with this division.

You are not seeking support (alimony) from your spouse, and vice versa.

You are willing to give up your right to trial and appeal.

You and your spouse are both willing to go into the clerk’s office to sign the petition (not necessarily together).

You and your spouse are both willing to go to the final hearing (at the same time).

If you do not meet the criteria above, you must file a regular petition for dissolution of marriage.

This petition should be typed or printed in black ink. Each of you must sign the petition in the presence of a deputy clerk (in the clerk’s office), although you do not have to go into the clerk’s office at the same time. You will need to provide picture identification (valid driver’s license or official identification card) for the clerk to witness your signatures.

The results were:

Readability Consensus

Based on 8 readability formulas, we have scored your text:

Grade Level: 10

Reading Level: standard / average.

Reader's Age: 14-15 yrs. old (Ninth to Tenth graders)

According to the Florida Literacy Coalition:

"One in Five Florida Adults Lacks Basic Literacy Skills:

More than 2.6 million adults in Florida— or 20 percent of those 16 and older — lack even the most basic reading skills, according to estimates released Thursday by the National Center for Education Statistics (NCES). Florida, with its large immigrant population, has the third lowest adult literacy level of all the states, behind California and New York. The state experienced a 33% increase over ten years in the percentage of people who fall in the lowest literacy skill level, with rates ranging from a low of 7 percent in St. John’s County to 52 percent in Miami-Dade."

I plugged in the first two paragraphs of this blog post into the SMOG calculator and received the following results.

Readability Consensus

Based on 8 readability formulas, we have scored your text:

Grade Level: 8

Reading Level: fairly difficult to read.

Reader's Age: 12-14 yrs. old (Seventh and Eighth graders)

 I think its ironic that I am not making any attempt to write at any grade level. I'm only trying to make the words I write as clear and concise as I can. And the State of Florida, who should be striving to make the language on the pro se form instructions easy to read, are more difficult to read than my writing.

Jurisdiction and the UCCJEA

The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) is a federal law that must be considered in all Florida child custody and child timesharing cases. The UCCJEA Affidavit states where the child has resided for the past five years; who the child resided or resides with; and whether there are any conflicting court orders from any other state or jurisdiction. A UCCJEA Affidavit must be filed along with a Dissolution of Marriage with Children; and any subsequent modification of time-sharing or custody.

There are two requirements under the UCCJEA for making or modifying a custody determination:

(1) the court must have a basis of jurisdiction under the Act, and

(2) the parties must be given notice and opportunity to be heard.

The UCCJEA's jurisdictional provisions vary, based on whether a case involves an initial custody or visitation determination; or modification of an existing order. 

Initial Jurisdiction

The UCCJEA establishes four bases for initial jurisdiction—

• Home State,
• Significant connection,
• More appropriate forum, and
• Vacuum jurisdiction.

Home State jurisdiction.

Under the UCCJEA, a court has home State jurisdiction if the court is located in the child's home State (when the proceedings begin) or if the court is located in the State that was the child's home State within 6 months of the proceedings' commencement and the child's parent (or a person acting as his or her parent) continues to live in the State even after the child has been removed. This extended home State rule allows a left-behind parent to commence a custody proceeding within 6 months of a child's removal from the home State.

Example. A 2-year-old child, born and raised in Florida, is abducted by his father before either parent has filed for custody. The boy and his father move to Georgia. The left-behind mother may file for an initial custody determination in Florida (which has home State jurisdiction) within 6 months of the child's removal. The child's absence from Florida does not deprive the State of jurisdiction. If the father commences a custody proceeding in Georgia while Florida is the child's home State under the UCCJEA, the mother can seek dismissal of the Georgia proceeding based on lack of jurisdiction.

Significant connection jurisdiction.

When a child has no home State or when a home State declines jurisdiction, another State court may exercise jurisdiction if the child has sufficient ties to the State and substantial evidence concerning the child is available in the State. A child need not be physically present in a State for the State to exercise significant connection jurisdiction. More than one State may have jurisdiction on this basis, but only one State may exercise jurisdiction. The statute resolves the conflict in favor of the first-filed proceeding. However, the courts are required to communicate, and the court in the State of the first-filed proceeding may defer to the court in the second State following judicial communication.

Example. A father and his child go to visit the child's paternal grandparents in Colorado. The father is reminded of the beauty of the mountains and decides not to return to Florida, where his marriage had been faltering and his job prospects have dimmed. The family had been living in Florida for 4 years. Within 2 months of his arrival in Colorado, the father files for custody there on significant connection grounds. The Colorado court lacks jurisdiction and may not proceed to the merits of the case unless Florida, the child's home State, declines jurisdiction in favor of Colorado. However, if the mother does not commence a custody proceeding in Florida within 6 months of the child's removal, Colorado becomes the child's home State and the Colorado court may then exercise jurisdiction and decide custody.

Example. A mother and father are high-tech professionals who have moved frequently during the previous several years to work for Internet companies. After 4 months in California, the father leaves the mother and their infant and returns to Florida, where the family had lived for 5 months preceding their move to California. The infant has been in daycare and has pediatricians and relatives in both States. The father's cross-country move prompts the couple to assess the viability of their marriage, and they decide to divorce. However, they cannot agree on custody, and the mother and father simultaneously commence separate custody proceedings in California and Florida. The parents have not lived in any State long enough for their child to have established a home State. Both California and Florida arguably have significant connection jurisdiction, but under the UCCJEA only one of them should exercise it. If a court learns from the required pleadings that a proceeding has been commenced in a sister State, the court is required by the UCCJEA to stay its proceeding and communicate with the other court to decide which proceeding should continue. If they cannot agree, the court with the first-filed case may move forward and the other court should dismiss its proceeding.

More appropriate forum jurisdiction.

Under the UCCJEA, a third basis for initial jurisdiction exists when both the home State and significant connection State(s) decline jurisdiction in favor of another, more appropriate State on grounds of inconvenient forum or unjustifiable conduct.

Example. The parents of a 10-year-old girl are separated but have not filed for custody. Pursuant to her parents' informal agreement, the girl remains with the father in Florida, where she goes to school. She spends the majority of her time with a housekeeper because her father is frequently out of town on business. The child spends one weekend a month in West Virginia with her mother. Because the mother works a night shift involving frequent overtime, many of the girl's weekend visits are spent at the homes of friends in her mother's neighborhood. Both sets of the child's grandparents live in Maryland. The father plans to move to Maryland at the end of the school year so the child can go to her grandparents after school, and he has a contract to purchase a house in Maryland when the school year ends. However, before the move, the father becomes increasingly concerned about the mother's absence during the child's visits. He files for custody in Maryland. Based on these facts, it is conceivable that courts in the District of Columbia (the child's home State) and West Virginia (a significant connection State) might decline jurisdiction in favor of Maryland, the child's soon-to-be home State. A decision to decline jurisdiction is discretionary and fact dependent.

Vacuum jurisdiction.

The UCCJEA provides that if no court has home State, significant connection, or more appropriate forum jurisdiction, an alternate court may fill the vacuum and exercise jurisdiction over an initial custody proceeding. This provision would apply to situations in which children fail to remain in any State long enough to form attachments (such as - homeless children, children of migrant workers or military personnel, or children sent from relative to relative for temporary care).

A UCCJEA Affidavit must be filed in every Florida Dissolution of Marriage with Children; and all subsequent modifications of time-sharing or custody.