Tuesday, July 26, 2005

custody - jurisdiction - UCCJEA v. UCCJA

About a week ago, I posted information about O'Gwynn v. Herbert - Pa. Superior Court, June 21, 2005


The case involved a woman who filed for custody in Pa., having just moved from Louisiana to avoid abuse. The father filed for custody in Louisiana, and the court decided that the LA courts, not the PA courts, had jurisdiction. I got too lazy to analyze the case fully. Mea culpa. I mentioned that it was decided under the old UCCJA, 23 Pa. CS 5341 et seq. -- which has been replaced with the UCCJEA, 23 Pa. CS 5401 et seq. -- along with the PPKA, and questioned the current relevance of the decdision.

I've looked at the case more closely and think that the UCCJEA may entirely undermine the decision and might now direct a different result under the same facts.

In O'Gwynn, the court relied heavily on the fact under the UCCJA, harm to the child was a predicate to exercising emergency jurisdiction. The court stressed this factor (decision at 10-12) and mentioned but then ignored the fact that the mother had a PFA order in Louisiana. The abuse of the mother was not a factor in the case.

Under the UCCJEA, 23 Pa. CS 5424(a), Pennsylvania courts can exercise temporary emergency jurisdiction in a custody case if a) the child is present in Pa. and b) the child has been abandoned, or c) it is necessary in an emergency to protect the child because the child or a sibling or a parent of the child is subjected to or threatened with mistreatment or abuse." (emphasis added)

Under its express terms, the UCCJEA makes abuse of a sibling or parent of the child relevant in determining emergency custody jurisdiction.

I think that this is a significant change from the practice under the UCCJA.

Donald Marritz, staff attorney
MidPenn Legal Services
Gettysburg, Pa.