Issues pertaining to exclusive continuing jurisdiction and inconvenient forum in child custody cases are often hot topics among family law practitioners. Recently, the case of A.D v. M.A.B., addressed both of these issues.
Because Pennsylvania adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) a number of years ago, matters pertaining continuing jurisdiction and inconvenient forum in child custody cases are controlled by this act. Specifically, 23 Pa.C.S.A. §5424 pertains to exclusive continuing jurisdiction and 23 Pa.C.S.A. Section 5427 pertains to inconvenient forum.
The facts of A.D v. M.A.B. are as follows: The mother was the father's third Muslim wife, but not his legal wife. The father has 11 children with two other women. The parties had one daughter together. In 2001, when the parties' daughter was six months old, after a violent confrontation where the mother suffered a serious wound from the father and he was convicted of criminal charges as a result thereof, the child was sent to live with her maternal grandmother in Africa. Months later, mother and child were reunited in Michigan.
The mother then filed an action in Philadelphia County seeking custody of the child. The parties entered into an agreement in 2002 providing the mother with sole legal and physical custody of the child and permitting the mother to leave Pennsylvania with the child.
The agreement also provided: "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. ... 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 litigation, then Father agrees to pay for Mother's travel costs."
On Feb. 6, 2008, the father filed a petition in Philadelphia County to modify the parties' agreement. At that time, the father had had no contact with the child for approximately seven years (since the child was six months old). The father admitted that he did not visit, call or write to the child during that time.
At the hearing, issues arose from the fact that two of the father's daughters from another relationship were removed from his home by the Department of Human Services for two years after DHS received reports that he disciplined the girls "by what Father described to the probation officer as spanking." The mother alleged that the two girls were removed from the father's home because he abused them physically. The father admitted that he did not believe his discipline techniques on the daughters were abusive, since it was acceptable in his home country of Guinea, in West Africa.
At the hearing, the father argued that he refrained from petitioning to modify earlier because he believed that "all children belong to their mother until they are seven."
After hearing argument on the father's modification petition, the trial court found that the proper jurisdiction for the case was in Michigan, based on the allegations surrounding the father's abuse of his other daughters and the circumstances relating to jurisdiction under the UCCJEA. The father appealed the trial court's decision.
Section 5422 under the UCCJEA provides, in part, "[A] court of this Commonwealth which has made a child custody determination ... has exclusive, continuing jurisdiction over the determination until: (1) a court of the Commonwealth determines that neither the child, nor the child and one parent ... have a significant connection with this Commonwealth and that substantial evidence is no longer available in the Commonwealth concerning the child's care, protection, training and personal relationships; or (2) a court of this Commonwealth or a court of another state determines that the child, the child's parents ... do not presently reside in the Commonwealth."
In examining exclusive continuing jurisdiction, the Superior Court analyzed the recent case of Billhime v. Billhime , which focused on whether the court is permitted to transfer a case to another state when exclusive continuing jurisdiction does not lie in the other state. In Billhime , the mother relocated to Florida, and the initial custody order was entered in Pennsylvania (where the father resides). After living several years in Florida with the children, the mother petitioned to transfer the case to Florida. The trial court denied the mother's motion and the Pennsylvania Superior Court reversed the trial court and relinquished jurisdiction to Florida because, inter alia, the information relating to the children's welfare was now located in Florida and the children only visited Pennsylvania several times per year.
The present case is more compelling than Billhime , as the child and mother had no contacts with Pennsylvania. The mother and the child had not resided in Pennsylvania for approximately seven years. The Pennsylvania trial court stated, "the center of interest[, including child's physicians, pediatrician, school, friends, family, [and] contacts[,] are in Michigan." Therefore, it was appropriate for Philadelphia County and Pennsylvania to relinquish jurisdiction, and the Superior Court found that the trial court did not abuse its discretion in determining same.
Father also claimed that the court also erred in transferring jurisdiction because the parties' agreement contained a "forum selection clause." The Superior Court disagreed that the clause in the agreement was a "forum selection clause" and was instead "permissive" language. The Superior Court further indicated that even if the language in the agreement was a "forum selection clause" it would not be determinative of where the case should be heard.
Under Section 5427, there are eight factors to consider. Factor 5 pertains to whether there is any agreement of the parties as to which state should assume jurisdiction. The other factors include, but are not limited to: the length of time the child has resided outside the commonwealth; the relative financial circumstances of the parties; the nature and location of the evidence required to resolve the pending litigation, including testimony of the child; the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and the familiarity of the court of each state with the facts and issues in the pending litigation. The Superior Court stressed that Factor 5 is only one of eight factors to be considered, and when weighing all of the factors, Pennsylvania was an inconvenient forum and Michigan was overwhelmingly more appropriate.
Therefore, the Pennsylvania trial court was affirmed by the Superior Court when it relinquished jurisdiction of the case and transferred it to Michigan.
This case is important for the family law practitioner. First, it reminds the practitioner that the trial court that made an initial custody order can transfer the case out of state (or county) or relinquish jurisdiction of the case even though a parent continues to reside in that state (the "issuing state"). Second, this case provides guidance to family law practitioners who find themselves with a case where there is a forum selection clause in an agreement, but the forum selected in the agreement is no longer convenient.
Michael E. Bertin is a partner in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-chairman of the custody committee and secretary of the family law section of the Philadelphia Bar Association, and a member of council and past member of the executive committee of the family law section of the Pennsylvania Bar Association.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.