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Home My WebLink About2005-1784 Civil KEVIN W. CLAPPER, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : SIERRA BUCCHEIT (MARK), : DEFENDANT : 05-1784 CIVIL TERM IN RE: DEFENDANT’S PRELIMINARY OBJECTION TO PLAINTIFF’S PETITION TO MODIFY A CUSTODY ORDER OPINION AND ORDER OF COURT Bayley, J., July 10, 2008:-- Kevin W. Clapper and Sierra Buccheit are the parents of Hayden D. Clapper, August 1, 2005 born September 24, 1992. On , a consent custody order was entered in this court providing the mother with primary physical custody of Hayden and the father with periods of temporary physical custody. Later that August, the mother and Hayden moved from Mechanicsburg, Cumberland County, to Florida, where they continue to live in Oviedo, Seminole County. The father’s periods of temporary custody in the consent order were set in anticipation of Hayden living in Florida. In the fall of 2005, Hayden started school in the seventh grade in Florida. She will be entering tenth grade at the end of this summer. The periods of temporary physical custody awarded the father in the order of August 1, 2005, have not been consistently exercised. Since August, 2005, Hayden has visited her father in Pennsylvania four times. The first in November, 2005, over Thanksgiving; the second for a total of eight days in June and July 2006; the third over Thanksgiving in 2007; and 05-1784 CIVIL TERM the forth from December 22, to December 29, 2007. The father maintains that the mother has placed barriers on his exercising his full rights of temporary physical custody under the order of August 1, 2005. May 9, 2008 On , the father, who lives in Harrisburg, Dauphin County, filed a petition to modify the current custody order by granting him primary physical custody of Hayden. He maintains that Hayden wants to live with him. The mother filed preliminary objections challenging jurisdiction, and in the alterative, maintaining that Cumberland County is a forum non conveniens which warrants the petition being heard in Florida. Testimony was taken on these issues on June 24, 2008. The Uniform Child Custody Jurisdiction and Enforcement Act at 23 Pa.C.S. Section 5422 provides: (a) General rule.— Except as otherwise provided in section 5424 a court of this (relating to temporary emergency jurisdiction), Commonwealth which has made a child custody determination consistent with section 5421 (relating to initial child custody jurisdiction) has exclusive, or 5423 (relating to jurisdiction to modify determination) continuing jurisdiction over the determination until: neither (1) a court of this Commonwealth determines that the child, nor the child and one parent , nor the child and a have a significant connection with person acting as a parent this Commonwealth and that substantial evidence is no longer available in this 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 and any person acting as a parent do not presently reside in this Commonwealth. (b) Modification where court does not have exclusive, continuing jurisdiction.— A court of this Commonwealth which has made a child custody determination and does not have exclusive, continuing -2- 05-1784 CIVIL TERM jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 5421. (Emphasis added.) This court possessed jurisdiction to enter the child custody order on August 1, 2005. Therefore, since this is a petition to modify that order we must first determine Wagner v. Wagner, whether this court has “exclusive continuing jurisdiction.” See 887 A.2d 282 (Pa. Super. 2005). We find as a fact that neither Hayden nor her mother now have a significant connection with this Commonwealth and that substantial evidence is no longer available in this Commonwealth concerning Hayden’s care, protection, training and personal relationships. Therefore, there is no exclusive continuing jurisdiction for this court to hear the father’s petition to modify the custody order of April 1, 2005. “Section 5422 of the UCCJEA indicates that a trial court may modify a custody order for which it lacks ‘exclusive continuing jurisdiction’ if the trial court has jurisdiction Wagner, to make an initial determination under Section 5421 of the UCCJEA.” 887 A.2d at 287. Section 5421 provides in pertinent part: (a) General rule.— Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth has jurisdiction to make an initial child custody determination only if: (1) this Commonwealth is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth; -3- 05-1784 CIVIL TERM (2) a court of another state does not have jurisdiction under paragraph (1) or a court of the home state of the child has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum under section 5427 (relating to inconvenient forum) or 5428 (relating to jurisdiction declined by reason of conduct) and: (i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this Commonwealth other than mere physical presence; and (ii) substantial evidence is available in this Commonwealth concerning the child’s care, protection, training and personal relationships; (3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum to determine the custody of the child under section 5427 or 5428; or (4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3). (b) Exclusive jurisdictional basis.— Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this Commonwealth. Hayden has continuously lived in Florida since August, 2005. There is no home state jurisdiction in this Commonwealth under Section 5421(a)(1). Florida has home state jurisdiction and no court in that state has declined to exercise that jurisdiction; therefore, there is no jurisdiction under Section 5421(a)(2). Nor is there jurisdiction under Section 5421(a)(3) and (4). Accordingly, this court does not have jurisdiction to hear the petition of the father to modify the custody order entered on August 1, 2005. 1 Therefore, the following order is entered. __________ 1 This resolution makes it unnecessary to consider the alternative position of the mother that the father’s petition should be transferred to the state of Florida under the forum non conveniens Section 5427 of the UCCJEA. -4- 05-1784 CIVIL TERM ORDER OF COURT AND NOW, this day of July, 2008, the preliminary objection of IS GRANTED. defendant to plaintiff’s petition to modify a custody order, Plaintiff’s IS DISMISSED. petition, By the Court, Edgar B. Bayley, J. Jeanné Costopoulos, Esquire For Plaintiff Lindsay Gingrich Maclay, Esquire For Defendant :sal -5- KEVIN W. CLAPPER, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : SIERRA BUCCHEIT (MARK), : DEFENDANT : 05-1784 CIVIL TERM IN RE: DEFENDANT’S PRELIMINARY OBJECTION TO PLAINTIFF’S PETITION TO MODIFY A CUSTODY ORDER ORDER OF COURT AND NOW, this day of July, 2008, the preliminary objection of IS GRANTED. defendant to plaintiff’s petition to modify a custody order, Plaintiff’s IS DISMISSED. petition, By the Court, Edgar B. Bayley, J. Jeanné Costopoulos, Esquire For Plaintiff Lindsay Gingrich Maclay, Esquire For Defendant :sal