Childers v. Childers

34 Pa. D. & C.4th 511, 1996 Pa. Dist. & Cnty. Dec. LEXIS 136
CourtPennsylvania Court of Common Pleas, Berks County
DecidedMarch 29, 1996
Docketno. 4036-95 A.D.
StatusPublished

This text of 34 Pa. D. & C.4th 511 (Childers v. Childers) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Childers v. Childers, 34 Pa. D. & C.4th 511, 1996 Pa. Dist. & Cnty. Dec. LEXIS 136 (Pa. Super. Ct. 1996).

Opinion

SCHMEHL, J.,

This matter comes before the court on the preliminary objections of Lisa M. Childers, defendant, to the plaintiff’s complaint for custody. The complaint for custody was filed on August 9,1995. There is one child at issue, Michelle A. Childers, who was born on March 24, 1989. The defendant’s preliminary objections were filed on September 8,1995. The plaintiff filed an answer to the defendant’s preliminary objections on October 20, 1995, and subsequently filed a brief in opposition of preliminary objections on November 27, 1995. The matter was set down for argument on December 4,1995. After hearing argument on December 4, the court continued the matter to January 8, 1996 so that a decision regarding jurisdiction in the matter would be based not only upon argument but also upon testimony. The January 8,1996 [513]*513hearing was then continued to February 5, 1996, and then again continued to March 5, 1996.

The custody complaint alleges that Father lives in Ohio and Mother lives in Florida, and that they have one child, Michelle, who is in the primary custody of her mother. Father seeks primary physical custody, and alleges in the complaint that Pennsylvania has jurisdiction because Pennsylvania is the child’s home state in that she resided here from birth until April 1, 1995. The complaint further alleges that it is in the best interests of the child to have Pennsylvania retain jurisdiction as there is substantial evidence in Pennsylvania as to her care and protection, no other state would have jurisdiction, the parents’ postnuptial agreement from their (Pennsylvania) divorce proceedings addressed custody, and Mother intentionally removed the child from Pennsylvania so as to deprive Father of his custody rights.

Mother filed timely preliminary objections to the complaint on September 8,1995. The preliminary objections allege that Pennsylvania is an inconvenient forum as neither of the parents nor the child have lived in Pennsylvania since April 1995, four months prior to the filing of the custody complaint. The preliminary objections further allege that Father moved to Ohio in April 1994, and that one year later, Mother moved to Florida. It further alleges Mother did not move with the intent to deprive Father of custody, rather Father himself had relocated to Ohio one year earlier. There was no pending custody action at the time of Mother’s relocation, only the parties’ postnuptial agreement which briefly mentioned custody. Mother’s preliminary objections further allege that neither parent nor the child have sufficient contacts with the Commonwealth of Pennsylvania or Berks County, thus making Pennsyl[514]*514vania an inconvenient forum. Mother requests the complaint be dismissed and also requests counsel fees.

Mother’s brief in support of preliminary objections argues that the UCCJA controls in this matter and that under the UCCJA, this court has no jurisdiction to hear this matter.1 Father’s answer to Mother’s preliminary objections admits neither party now lives in Berks County but claims that there are significant contacts here along with much evidence as to the child’s care and well-being, and that no other state meets the requirements for jurisdiction under 23 Pa.C.S. §5344. Father also filed a brief in support of his position.

Pa.R.C.P. 1915.5(a) states that a party must raise any question of jurisdiction by preliminary objection filed within 20 days of service of the pleading to which the objection is made or at the time of hearing, whichever occurs first. The notes following the rule refer to 23 Pa.C.S. §5348, “inconvenient forum.” Section 5348 gives the court the power to decline to exercise jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make the custody determination and that a finding of inconvenient forum may be made upon the court’s own motion or upon motion of any party. The factors to be considered include: if another state is or recently was the home state of the child; if another state has a closer connection with the child and his family or with the child and one or more of the contestants; if substantial evidence concerning the present or future care, protection, training and personal relationships of the child is more readily available in another state; if the parties have agreed [515]*515on another forum which is no less appropriate; if the exercise of jurisdiction by a court of this Commonwealth would contravene any of the purposes stated in section 5342 (related to purposes and construction of subchapter). Pa.R.C.P. 1915.2 covers venue in actions for custody and visitation. Rule 1915.2(d) covers the issue of forum non conveniens and states that upon petition of any party the court may transfer an action to the appropriate court of any other county where the action could originally have been brought or could be brought at the time of filing the petition to transfer.

Rule 1915.2 makes no mention of handling this issue through preliminary objections nor a result of the dismissal of the custody complaint due to forum non conveniens. The court has doubts as to whether the procedure used to bring the issue of jurisdiction to the court for consideration was the best method. Pa.R.C.P. 1028(a)(1) provides that preliminary objections may be filed by any party to any pleading and are limited to certain grounds, including lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint. The note immediately following that section states that of the three grounds available to challenge venue, only improper venue may be raised by preliminary objection (as provided by Rule 1006(e)) and that forum non conveniens is to be raised by petition as provided in Pa.R.C.P. 1006(d)(1). However, as previously stated, 23 Pa.C.S. §5348 covers inconvenient forum in custody matters. Preliminary objections are not a totally inappropriate manner to bring this issue before the court.

Under either a jurisdiction argument or a forum non conveniens argument, this court could refuse to take jurisdiction and refer the matter to Florida. The UCCJA [516]*516governs child custody jurisdiction disputes. Its purpose is to avoid jurisdictional competition, promote cooperation between courts, assure litigation ordinarily occurs where the child and her family have the closest connection and where there is significant evidence of the child’s care, protection, training and personal relationships is most readily available. It is also to discourage continuing controversies over custody, deter abductions, avoid relitigation of disputes of other states, facilitate enforcement of other states’ decrees and promote the exchange of information between courts. 23 Pa.C.S. §5342(a)(l)-(8).

23 Pa.C.S. §5344(a) provides that Pennsylvania has jurisdiction to decide custody matters if:

“(1) this Commonwealth:
“(i) is the home state of the child at the time of commencement of the proceeding; or
“(ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth (emphasis added);

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Related

§ 5342
Pennsylvania § 5342(a)(l)
§ 5344
Pennsylvania § 5344
§ 5348
Pennsylvania § 5348

Cite This Page — Counsel Stack

Bluebook (online)
34 Pa. D. & C.4th 511, 1996 Pa. Dist. & Cnty. Dec. LEXIS 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/childers-v-childers-pactcomplberks-1996.