Legal Question in Family Law in Florida

Diversity Jurisdiction / Juvenile Dependency

Father has physical Custody, residing in Florida for 5 months prior to allegation of neglect.

Father residing in Florida temporarily.

DCF files Petition for Dependency.

Mother shares Joint Legal Custody.

Mother is Alien / Non-Citizen, overstay on Visa.

Mother has consented to Adjudication of Dependency.

Father denies allegations.

Case scheduled for trial, Father denied court appointed counsel.

DCF has fraudulently asserted Jurisdiction through filing of Petition, and has falsified facts and statements, due to Mother admitting she has not seen child for over a year (abandonment) and is a non-citizen, has a low income and inadequate housing. Mother is participating in Reunification services, with the belief that she may be awarded custody.

Case filed more than 60 days ago.

Father forced to remain in Florida, against his will, as Mother Adjudicated child dependent as to state.

Can this case be Removed to Federal Court, based on Diversity Jurisdiction, Intentional Tort / Abuse of Process, Denial of Due Process (denial of court appointed counsel) Statutes of Fraud?

Asked on 3/21/09, 10:55 am

1 Answer from Attorneys

Brent Rose The Orsini & Rose Law Firm

Re: Diversity Jurisdiction / Juvenile Dependency

The federal court wouldn't have jurisdiction. You can only get a case in federal court in two ways: 1) a federal question (like suing the United States or violating the U.S. Constitution) or 2) diversity.

1) Obviously, you don't have a federal question. DCF is state agency that has obtained state jurisdiction by alleging that abuse or neglect of a child has occurred in the state, causing the child to be dependent on the state.

2) Diversity jurisdiction requires two things. The first one is that you must have diversity of citizenship. I'll give you that because you have Florida versus non-Florida citizens. The second thing is an amount in controversy of over $75,000. You don't have that because the case isn't about money.

You haven't described any intentional tort or abuse of process. Statute of frauds involves contract law and has nothing to do with this. Your due process argument might work as a federal question, but in dependency cases, right to counsel is a state statutory right, not a federal constitutional right, so you still don't have a federal question.

The case can't be removed to federal court.

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Answered on 3/21/09, 1:51 pm

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