Tuesday, November 08, 2005

custody - modification - UCCJEA

Wagner v. Wagner - Pa. Superior Court - November 7, 2005


Following the parents' divorce in Mercer County, Pennsylvania in 2002, Mother got primary physical custody of the two children by an order of the same court. The parties shared legal custody. Mother, who was in the Army Reserve, maintained her domicile in Florida, where she had a mailing address, driver's license and was registered to vote. She and the children had other significant connections to Florida. Father moved to Ohio. Mother was then transferred to Fort Dix, NJ, and children were sent to live with her stepmother in Florida. When Mother got orders to go to Iraq, Father sought and got a custody order from the Mercer County court. Mother appealed, alleging lack of jurisdiction under the UCCJEA and violation of the Servicemembers' Civil Relief Act, 50 USC App. sec. 501 et seq.,

The Superior Court reversed. Applying 23 Pa. C.S. sec. 5422(a), dealing with modification orders, the court held that the lower court did not have "exclusive, continuing jurisdiction" to modify its original order, because (a) neither parent resided in Pennsylvania, and (b) neither the children nor the parents had "significant connections" with Pennsylvania.

The court also decided that the lower court did not have jurisdiction under sec. 5422(b), because it did not have jurisdiction under the criteria in sec. 5421 to make an initial custody determination. Pennsylvania was not the "home state," since the children were no longer here, and neither parent lived here. Nor did Pennsylvania have jurisdiction under the "significant connections" test, which can only apply if no other state can assume jurisdiction. The court found that the children had more significant connections with Florida than Pennsylvania and remanded the case to the trial court with a direction that it be transferred to Florida.

Donald Marritz
MidPenn Legal Services