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Home My WebLink About00-0931 civil termJAMIE LEIGH MYERS, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA RICK ANDREW KROUT, DEFENDANT 00-0931 CIVIL TERM IN RE: CUSTODY JURISDICTION BEFORE BAYLEY, J. AND HESS, J. ORDER OF COURT AND NOW, this ~'~' _ day of May, 2000, IT IS ORDERED that a hearing on the objection of defendant to jurisdiction shall be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania, on Thursday, June 1,2000, at By theC0urt, Mary A. Etter Dissinger, Esquire Edgar B. Bayley, J~ For Plaintiff Thomas E. Flower, Esquire For Defendant ;saa JAMIE LEIGH MYERS, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA RICK ANDREW KROUT, DEFENDANT 00-0931 CIVIL TERM IN RE: CUSTODY JURISDICTION BEFORE BAYLEY, J. AND HESS, J. OPINION AND ORDER OF COURT Bayley, J., May 4, 2000:-- On February 17, 2000, plaintiff, Jamie Leigh Myers, filed a complaint against defendant, Rick Andrew Krout, seeking custody of their two children, Jessica M. Krout, age 15, and Daniel J. Krout, age 14. An amended complaint was filed on February 25, 2000. Plaintiff lives in Wormleysburg, Cumberland County. Defendant and the children live in El Paso, Texas. The parties were divorced on December 28, 1988. For the next nine years the children lived in Pennsylvania. They spent time with each parent pursuant to a written agreement that was made part of the parties' Pennsylvania property settlement agreement. On September 26, 1988, the parties had executed an addendum to that agreement whereby the father would have "majority physical custody wherever he may reside," with the mother having "reasonable rights of minority physical custody as the parties may agree." The agreement provided: 00-0931 CIVIL TERM Mother specifically acknowledges and agrees that she will permit the children to reside with father outside the Commonwealth of Pennsylvania, provided father adheres faithfully to the terms and conditions herein set forth. One of those terms and conditions is that "The father shall provide each child with a roundtrip ticket every summer to visit there [sic] mother until the age of eighteen years old." In January, 1998, the father moved with the children to Arizona where they lived until December 26, 1999. During that period the children visited their mother in Pennsylvania under the terms of the September, 1988 custody agreement. On December 27, 1999, the father moved with the children to El Paso, Texas. The father has filed an objection challenging the jurisdiction of this court to hear the custody issue raised in the mother's amended complaint filed on February 26, 2000. The parties chose to brief and argue the objection without developing a record. Pennsylvania, at 23 Pa.C.S. Section 5341-5366, and Texas at V.T.C.A., Family Code §§ 11.51 to 11.75, have enacted the Uniform Child Custody Jurisdiction Act. Section 5344 of the Act provides: (a) General rule.--A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree 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; -2- 00-0931 CIVIL TERM (2) it is the best interest of the child that a court of this 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; (3) the child is physically present in this Commonwealth, and: (i) the child has been abandoned; or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; (4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum to determine the custody of the child; and (ii) it is in the best interest of the child that the court assume jurisdiction; or (5) the child welfare agencies of the counties wherein the contestants for the child live, have made an investigation of the home of the person to whom custody is awarded and have found it to be satisfactory for the welfare of the child. (b) Physical presence insufficient. MExcept under subsection (a)(3) and (4), physical presence in this Commonwealth of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this Commonwealth to make a child custody determination. (c) Physical presence unnecessary.--Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody. "Home state" is defined in Section 5343 as: The state in which the child immediately preceding the time involved lived with his parents, a parent or a person acting as parent, or in an institution, for at least six consecutive months, and, in the case of a child less than six months old, the state in which the child lived from birth -3- 00-0931 CIVIL TERM with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period. There is no home state jurisdiction in Pennsylvania under Section 5344(a)(1) of the Uniform Child Custody Jurisdiction Act because neither Jessica nor Daniel have lived in Pennsylvania for six months prior to the mother filing this complaint on February 17, 2000.' There is also no jurisdiction under Section 5344(a)(3) of the Act as the children are not physically present in the Commonwealth. Under Section 5344(a)(2), this court can assume jurisdiction in the best interest of the children if the children and the mother have a significant connection with this Commonwealth and there is available in this Commonwealth substantial evidence concerning the present or future, protection, training and personal relationships of the child. In In the matter of D.L.S., 278 Pa. Super. 446 (1980), the Superior Court of Pennsylvania noted that it is not necessary that the criteria in both the home state test (Section 5344(a)(1)), and the strength of contacts test (Section 5344(a)(2)), be present before a court can properly find jurisdiction because each test is an independent basis of authority. The court stated that the strength of contacts test "[ils employed when the home state test cannot be met or as an alternative to that test." See also Warman v. Warman, 294 Pa. Super. 285 (1982). In the case sub judice, there is no record on which to determine if it is in the best interest of the children to assume jurisdiction under the criteria in Section ' For the same reason, Texas, where the children now live, also does not have home state jurisdiction. -4- 00-0931 CIVIL TERM 5344(a)(2) of the Uniform Child Custody Jurisdiction Act. Likewise, without a record, we cannot assume jurisdiction under Section 5344(4) of the Act on the basis that no state would have jurisdiction under the prerequisites substantially in accordance with Section 5344(1), (2) or (3), and that it is in the best interest of the children to assume jurisdiction. Even if this court has jurisdiction it may, on its own motion under Section 5348 of the Uniform Child Custody Jurisdiction Act, "[d]ecline to exercise its jurisdiction anytime before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum." In this case, depending on the evidence, that could be a court in Texas? Such a determination, however, requires a record that we do not have. Accordingly, because the record is insufficient to make a determination on the father's objection to jurisdiction, we will schedule a hearing. ORDER OF COURT AND NOW, this -t,~ day of May, 2000, IT IS ORDERED that a hearing on the objection of defendant to jurisdiction shall be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania, on Thursday, June 1, 2000, at 1:30 p.m. 2 Both parties agree, as does this court, that this custody issue should not be litigated in a court in Arizona, despite the fact that Arizona has home state jurisdiction, because neither the children nor either party now live in Arizona. -5- 00-0931 CIVIL TERM EdgarB. ayey, .[ Mary A. Etter Dissinger, Esquire For Plaintiff Thomas E. Flower, Esquire For Defendant :saa -6-