Ad v. Mab

989 A.2d 32, 2010 Pa. Super. 15, 2010 Pa. Super. LEXIS 15, 2010 WL 338140
CourtSuperior Court of Pennsylvania
DecidedFebruary 1, 2010
Docket1883 EDA 2009
StatusPublished

This text of 989 A.2d 32 (Ad v. Mab) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ad v. Mab, 989 A.2d 32, 2010 Pa. Super. 15, 2010 Pa. Super. LEXIS 15, 2010 WL 338140 (Pa. Ct. App. 2010).

Opinion

989 A.2d 32 (2010)

A.D.
v.
M.A.B., Appellant.

No. 1883 EDA 2009.

Superior Court of Pennsylvania.

Submitted October 5, 2009.
Filed February 1, 2010.

*33 Martha Gale, Erdenheim, for appellant.

James McGarrity, Philadelphia, for appellee.

BEFORE: STEVENS, BOWES, and FITZGERALD,[*] JJ.

OPINION BY FITZGERALD, J.:

¶ 1 M.A.B. ("Father") appeals from the order entered in the Philadelphia County Court of Common Pleas, which declined jurisdiction in this child custody matter in favor of the courts of the State of Michigan upon reconsideration of the trial court's order of February 23, 2009, as requested by A.D. ("Mother"). We hold that the trial court considered and properly weighed all the relevant factors for inconvenient forums pursuant to 23 Pa.C.S. § 5427. Accordingly, we affirm.

¶ 2 The parties are the parents of a daughter, F.B. ("Child"), d.o.b. 2/21/01. Mother and Father were never married. Father has eleven children by two other women, one of whom is his legal wife. Mother was Father's third Muslim wife, not his legal wife. Mother's Muslim marriage to Father has been religiously terminated. At the time that Child was born, Mother was a recent immigrant to the United States with a valid green card. When Child was approximately six months old, Mother and Father separated permanently after a violent confrontation. During that confrontation, Mother suffered a wound to her face that required seventeen stitches.[1] Child was sent to live with her maternal grandmother in Africa for three months after the parties separated. N.T., 6/4/09, at 17. It is undisputed that Child *34 has not been present in Pennsylvania or had any contact with this Commonwealth since that time. According to Mother's counsel, Mother was reunited with Child in Tennessee and then "fled and ended up in Detroit, Michigan," when "she was discovered [by Father] in Memphis, Tennessee." N.T., 6/4/09, at 18.

¶ 3 Mother filed an action in Pennsylvania seeking custody of Child on September 6, 2001. The result of that proceeding, where both parties were represented by counsel, was an agreed-upon order, entered March 14, 2002, that granted sole legal and physical custody to Mother and provided that Father would not be obligated to pay support for two years. The order also permitted Mother to leave the Commonwealth with Child and provided further, in pertinent part:

5. Father may petition for visitation in the future, but he agrees that he shall not do so against Mother until at least two years after the signing of this agreement.
* * *
7. In the event that Father does wish to petition to see [Child] in the future, as specified in the time frame above, he may do so in Philadelphia. . . . If for any reason it is necessary for Mother to return to Philadelphia to participate in the litigation, then Father agrees to pay for Mother's travel costs.

Order, filed 3/14/02. On February 6, 2008, Father filed a petition for modification of the March 14, 2002 custody order. Father does not dispute the fact that he has had no contact with Child from the day she left his home at the age of six months. He did not visit her, call her, or write to her.

¶ 4 At a hearing on Father's petition in November of 2008, a question arose concerning the content of the file with the Philadelphia Department of Human Services ("DHS") relating to Father's two older daughters. Mother alleged that the two girls were removed from Father's home sometime in 2004 because Father abused them physically, raising concerns for Child's safety on the part of the trial court. It was agreed by the parties that the DHS file would be brought to court and reviewed by both counsel on January 15, 2009. The file was not made available on that date and DHS failed to respond to a subpoena to deliver the file to court for a hearing on February 23, 2009. At that hearing, from chambers, the trial judge called DHS and made arrangements for counsel to review the file at DHS. An order was entered by agreement on that date, without prejudice to the question of jurisdiction, that would have permitted Child to visit in Philadelphia on March 21 and 22, 2009, unless the trial court modified the order after a review of Father's DHS file.

¶ 5 Also at the February 23 hearing, the trial court provided both counsel with copies of a Custody Probation Officer Home Investigation Report regarding Father, dated February 13, 2009. In the report, the probation officer stated that Father told him two older daughters were removed from Father's home for approximately two years after DHS received reports that Father disciplined the girls by what Father described to the probation officer as spanking. The probation officer related in the report that Father told him he did not consider his behavior abusive because it is acceptable to discipline children that way in his home country of Guinea, in West Africa. Father does not dispute the content of that report.

¶ 6 Both counsel were subsequently able to review the complete DHS file together on March 6, 2009. We will not, however, consider the allegations or the arguments, findings, and conclusions based on the *35 DHS file because only the Home Investigation Report, and not the DHS file, was made part of the record currently before this Court.

¶ 7 After viewing the DHS file, Mother filed a petition for reconsideration of the February 23, 2009 order concerning visitation and requesting that the trial court decline jurisdiction. The trial court granted reconsideration in an order entered March 20, 2009. At argument on Mother's petition, Mother's counsel explained the March 14, 2002 agreement provided that no modification would be filed within the first two years and provided for no support payments because Mother "walked away from the money just to get away from him and to get a two-year head start from him." N.T., 6/4/09, at 6. Father's counsel explained Father's additional delay of five years in seeking modification, beyond the two years provided in the agreement, by stating it is Father's religious belief that "all children belong to their [m]other until they are seven. Once they are seven, it's time that Father steps in and has a role in their life, and that's what he wants to do now." Id. at 51.

¶ 8 After hearing argument on the issues surrounding Father's relationship with Mother, allegations regarding Father's abuse of his other daughters, and the circumstances relating to jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), 23 Pa.C.S. §§ 5401-5482, the trial court found that jurisdiction lies with the State of Michigan and entered the instant order declining jurisdiction in Pennsylvania. This appeal followed.[2]

¶ 9 Father raises the following questions on appeal:

A. Whether the Court below committed an error of law and/or abuse of discretion by declining to maintain jurisdiction in Philadelphia County pursuant to Uniform Child Custody Jurisdiction and Enforcement Act?
B. Whether the Court below committed an error of law and/or abuse of discretion when it entered the June 4, 2009 Order declining jurisdiction where the parties had specifically entered into an Agreement to maintain jurisdiction in Philadelphia County and an Order based on that Agreement was entered by Judge Idee Fox on March 22, 2002?
C.

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Bluebook (online)
989 A.2d 32, 2010 Pa. Super. 15, 2010 Pa. Super. LEXIS 15, 2010 WL 338140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ad-v-mab-pasuperct-2010.