Turner v. Turner

22 Pa. D. & C.4th 442, 1994 Pa. Dist. & Cnty. Dec. LEXIS 105
CourtPennsylvania Court of Common Pleas, Pike County
DecidedNovember 23, 1994
Docketno. 92-1992-Civil
StatusPublished

This text of 22 Pa. D. & C.4th 442 (Turner v. Turner) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Pike County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Turner v. Turner, 22 Pa. D. & C.4th 442, 1994 Pa. Dist. & Cnty. Dec. LEXIS 105 (Pa. Super. Ct. 1994).

Opinion

THOMSON, P.J.,

This case involves a jurisdictional dispute over a child custody matter. The plaintiff and defendant were formerly husband and wife. The parties are the parents of a minor child, Ashley Christine Turner. The plaintiff resides in Pennsylvania. The defendant and the minor child have resided in New Jersey since January of 1992. The minor child attends school, and has family, friends and doctors in New Jersey.

PROCEDURAL HISTORY

On September 13, 1993, the parties entered into a stipulation, pertinent part of which provides:

“(5) Jurisdiction. The parties agree that the Court of Common Pleas of Pike County shall retain jurisdiction over the custody issue as long as Ethan Turner continues to reside in Pike County, Pennsylvania.” (Stipulation, p. 3.)

This stipulation was made an order of this court on September 13, 1993. Due to concerns about defendant’s compliance with the order, the plaintiff filed a copy of the order and stipulation in the Superior Court of New Jersey, Chancery Division, Family Part, Passaic [444]*444County, in accordance with the provisions of the Uniform Child Custody Jurisdiction Act. On June 27, 1994, defendant filed a rule to show cause why certain modifications to the September 13, 1993 order should not be made in the Superior Court of New Jersey. Plaintiff objected to the jurisdiction of the New Jersey Court. On July 19, 1994, the Superior Court of New Jersey entered an order stating that the State of New Jersey shall have jurisdiction over the minor child. The plaintiff appealed this order. On July 26, 1994 and August 9, 1994, this court entered orders remanding custody of the minor child to plaintiff and ordering a hearing to be held on the merits of plaintiff’s motion for contempt and for emergency hearing for modification of custody. On August 9, 1994, the New Jersey Superior Court enjoined plaintiff from continuing in any further proceedings in this court.

On August 17, 1994, the defendant filed a motion to transfer jurisdiction pursuant to 23 Pa.C.S. §5348. On the same day, the defendant filed preliminary objections to plaintiff’s petition to modify custody, alleging lack of jurisdiction. On September 8, 1994, the plaintiff filed an answer to the motion to transfer jurisdiction and new matter and also a brief in opposition to preliminary objections. Argument and hearing were subsequently held on the issue of jurisdiction.

CONCLUSIONS OF LAW

Under the Uniform Child Custody Jurisdiction Act, 23 Pa.C.S. §5341 et seq., preference is given to “home state” jurisdiction. See Warman v. Warman, 294 Pa. Super. 285, 298, 439 A.2d 1203, 1210 (1982). The “home state” is the “state in which the child immediately preceding the time involved lived with ... a parent ... for at least six consecutive months.” 23 Pa.C.S. §5343.

[445]*445There are some circumstances when a court may decide that “home state” jurisdiction does not prevail. See Warman, supra at 301-302, 439 A.2d at 1211; Hattoum v. Hattoum, 295 Pa. Super. 169, 175, 441 A.2d 403, 406 (1982). In these circumstances, a “significant contacts” analysis is performed under 23 Pa.C.S. §5344(a)(2), which provides for jurisdiction when:

“(2) it is in the best interest of the child that a court of the Commonwealth assume jurisdiction because:
“(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
“(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training and personal relationships of the child.”

However, caution should be used when performing a “significant contacts” analysis because the drafters of the Uniform Act noted that the purpose of section 5344(a)(2) was “to limit jurisdiction rather than proliferate it.” Warman, supra at 301, 439 A.2d at 1211, citing Comment of Commissioners, 9 Uniform Laws Annotated at 124, West Publishing Co. 1979.

Sometimes jurisdiction will exist in two states, but if it does, it will not be exercised in both states. Id. The Uniform Act authorizes a state to decline jurisdiction if it finds that it is an inconvenient forum and a court of another state has jurisdiction and is the more convenient forum.

The issue of how to proceed when parties once agreed on jurisdiction in a forum other than the “home state” was addressed in Melzer v. Witsberger, 299 Pa. Super. 153,445 A.2d 499 (1982). In Melzer, the Superior Court held that it was proper for the Court of Common Pleas [446]*446of Greene County, Pennsylvania to find jurisdiction despite the fact that West Virginia was the “home state.” The Superior Court affirmed the finding of jurisdiction in Pennsylvania on the basis that the parties entered into a comprehensive stipulation providing that Pennsylvania shall have jurisdiction over “[a]ll disputes pertaining to the enforcement, modification, or other proceedings about ... custody....” Id. at 157, 445 A.2d at 502.

DISCUSSION

The parties in this case are not disputing that New Jersey is currently the “home state” of their minor child, Ashley Christine Turner. As stated previously, “home state” jurisdiction is the preferential jurisdiction under the Uniform Act. Thus, the scale is tipped largely in favor of New Jersey.

However, assuming arguendo, that Pennsylvania has “significant contacts” with the child under section 5344(a)(2), then we conclude that both Pennsylvania and New Jersey have jurisdiction. Since only one state may exercise jurisdiction, “inconvenient forum” analysis should be done pursuant to section 5348. The factors to be considered under the “inconvenient forum” analysis are as follows:

“(1) If another state is or recently was the home state of the child.
“(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
“(3) If substantial evidence concerning the present or fiiture care, protection, training and personal relationships of the child is more readily available in another state.
[447]*447“(4) If the parties have agreed on another forum which is no less appropriate.
“(5) If the exercise of jurisdiction by a court of this Commonwealth would contravene any of the purposes stated in section 5342 (relating to purposes and construction of subchapter).” 23 Pa.C.S. §5348.

The application of factors one and two to this case clearly results in favor of New Jersey jurisdiction since the child resides, attends school and has family in New Jersey. Factor three also seems to tip the scale in favor of New Jersey. Factor four would tend to favor Pennsylvania jurisdiction due to the stipulation of the parties. Factor five involves the intent of the Uniform Act. Some of the purposes of the Act are to:

“Avoid jurisdictional competition and conflict with courts of other states ...

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Related

Hattoum v. Hattoum
441 A.2d 403 (Superior Court of Pennsylvania, 1982)
Warman v. Warman
439 A.2d 1203 (Superior Court of Pennsylvania, 1982)
Melzer v. Witsberger
445 A.2d 499 (Superior Court of Pennsylvania, 1982)

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Bluebook (online)
22 Pa. D. & C.4th 442, 1994 Pa. Dist. & Cnty. Dec. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-turner-pactcomplpike-1994.