Wednesday, June 04, 2008

custody - jurisdiction - continuing jurisdiction

Billhime v. Billhime - Superior Court - June 4, 2008

This case involves Mother's petition for Pennsylvania courts to relinquish jurisdiction to Florida courts. The initial custody order was entered in Pennsylvania. In a later order, the court granted custody to the mother, who lives in Florida, where the children had been living for several years.

The UCCJEA, 23 Pa.C.S.A. § 5422(a)(1), provides that the courts of this Commonwealth will exercise exclusive continuing jurisdiction to modify child custody orders originally entered here unless the child, or a child and at least one parent (or a person acting as a parent), no longer have a “significant connection” with Pennsylvania. For the child, the lack of a continuing “significant connection” with the Commonwealth is established if the court finds that substantial evidence concerning the child’s care, protection, training and personal relationships is no longer available here.

The trial court refused Mother's petition, relying almost exclusively on Father’s continuing “significant connection” with Pennsylvania. However, the court did not focus in any detail on whether the children continue to maintain a “significant connection” to Pennsylvania, noting only that they visit Pennsylvania three times per year and spend time with their father, friends and paternal grandfather. There was little evidence regarding the continuing availability in Pennsylvania of “substantial evidence concerning the child’s “care, protection, training and personal relationships,” as is expressly required by sec . 5422(a)(1) of the UCCJEA. In fact, essentially all of the evidence presented at the evidentiary hearing demonstrates that information relating to the children’s welfare is now located in the state of Florida.

In the absence of exclusive continuing jurisdiction, a Pennsylvania court may nevertheless modify a child custody order it previously issued if it has jurisdiction to make an initial determination under section 5421 of the UCCJEA. 23 Pa.C.S.A. § 5422(b). Because the trial court did not address the applicability of section 5421 in connection with its initial consideration of Mother’s motion to relinquish jurisdiction, we remand for consideration and decision on this issue.

In the event the trial court determines that it lacks jurisdiction to make an initial custody determination pursuant to section 5421, it should grant Mother’s motion and relinquish jurisdiction of custody matters relating to these two children to the courts of the state of Florida. Order reversed. Case remanded.