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HomeMy WebLinkAbout92-4197 CivilJADE BROCK SOPHIA A. BATTLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 92-4197 CIVIL TERM IN RE: CUSTODY JURISDICTION OPINION AND ORDER OF COURT Bayley, J., December 9, 2003:-- Jade Brock and Sophia Battle are the parents of daughters Shaquay Brock, age 12, born February 11, 1991, and Yonna Brock, age 11, born February 13, 1992. The parents lived together in Carlisle, Cumberland County when the children were born. They did not marry. They separated on August 23, 1992. Their custody litigation has resulted in the following: (1) On January 15, 1993, with the mother intending to move to Florida, she was awarded primary physical custody. Periods of partial physical custody were awarded to the father including two eight week periods each year. (2) On August 19, 1997, after the mother returned to Pennsylvania, she was again awarded primary physical custody with the father having extensive periods of temporary physical custody. (3) On December 18, 1998, the father was awarded primary physical custody when the mother returned to Florida. The mother was awarded periods of temporary physical custody including all but the first and last weeks of each summer vacation 92-4197 CIVIL TERM period. (4) On August 19, 1999, with the mother in Florida, an order was entered affirming the order of December 18, 1998, that awarded primary physical custody to the father, with the mother having partial physical custody during the summer months and at other times during the year. (5) On January 10, 2001, it was ordered: [u]pon consideration of [mother's] Petition for Special Relief, following a hearing held on today's date, and it appearing that [the father] has been incarcerated since November 11, 2000, that he is presently incarcerated in Dauphin County on a parole detainer, and that he is awaiting trial in Cumberland County on a charge of possession of cocaine with intent to deliver, the petition is granted to the extent that primary physical custody of the parties' children, Shaquay Brock (date of birth, February 11, 1991 ) and Yonna Renee Brock (date of birth, February 13, 1992), is awarded to... Sophia Battle, pending a custody conciliation conference. The court administrator is directed to schedule this matter for a custody conciliation conference. [The mother] shall bring both children to the custody conciliation conference. To the extent that [the mother] is seeking a permanent order for primary physical custody of the children, she is directed to file a petition for modification within the next two days. (Footnote omitted.) (Emphasis added.) (6) On January 11, 2001, the mother filed a petition to modify the August 19, 1999 custody order. On October 4, 2001, a custody conciliator, having received no request to reschedule a conciliation conference set for February 15, 2001, and continued until July 2, 2001, relinquished jurisdiction. The reason that the case did not go to conciliation was that the father was in prison. (7) On October 2, 2003, the mother allowed the children to visit their father in Carlisle at the end of May, 2003, following the end of the school year in Florida. After -2- 92-4197 CIVIL TERM the father would not allow the children to return to the mother's home in Orlando, Florida, an order was entered granting the mother's petition for special relief by requiring that the father return them to Florida not later than October 13, 2003. The father complied with this order.1 On October 6, 2003, the father, who is doing well, filed the within complaint seeking custody of Shaquay and Yonna.2 The mother filed a motion to dismiss for lack of jurisdiction upon which a hearing was conducted on November 6, 2003. Shaquay and Yonna have been living with her in Orlando, Florida since the beginning of 2001. The mother has a six-year-old son, Charles Mitchell, Jr., who lives with them. There is no custody order or pending custody case in Florida. The mother's father, uncles, aunts and cousins of the children live in or near Orlando. In the spring of 2002, Shaquay and Yonna were placed in foster care by a children and youth agency in Florida. Later that spring, they lived with their paternal grandfather for approximately 1 A memorandum opinion was filed in support of the order of October 2, 2003. It was noted that it was the mother's position that the father reneged on promise to return the children to her at the end of the summer. The father maintained that when he brought the children to Pennsylvania at the end of the school year the mother agreed that they would live with him. We stated, "even if he was under that impression it had to be clear to him that was not the mother's position when she came here to pick the children up [before the next school year]. The father is in violation of the existing custody order awarding primary physical custody of Shaquay and Yonna to their mother. He has not used proper legal means to secure primary physical custody. Although the children are happy staying with him and life appears easier for them than with their mother, there is no legal or factual basis to deny the mother's petition for special relief." 2 He successfully completed a boot camp program operated by the Pennsylvania Department of Corrections. -3- 92-4197 CIVIL TERM three months and then returned to their mother's home. There is no current oversight -4- 92-4197 CIVIL TERM by the children and youth agency. When the children came to Carlisle at the beginning of June, 2003, and the father would not return them to the mother in mid-August, he enrolled them in the Carlisle School District. They both attended the Wilson Middle School until they were returned to Florida in mid-October. This is the same school district where the children attended when they lived with their father from December, 1998 until January, 2001. The children have many friends in Carlisle. They have a pediatrician here. They have gone to Sunday school at the Shiloh Missionary Baptist Church. When they started school they were in an after-school program at the YMCA. They were in girl scouts and were cheerleaders for midget football and youth basketball. DISCUSSION There is no custody proceeding in Florida, nor have there been any. The father's complaint seeks to modify an order of this court, not the order of another state. Under the Federal Parental Kidnapping Prevention Act at 28 U.S.C.A. 1783A(d), despite the fact that the children no longer live in Pennsylvania, this state has "continuing jurisdiction" over their custody if the following conditions are met: (1) the initial decree complied with the PKPA at the time the decree was rendered, (2) under Pennsylvania law, Pennsylvania maintains jurisdiction over the decree, and (3) Pennsylvania remained the residency of any of the parties during the proceeding. In re adoption of N.M.B., 764 A.2d 1042 (Pa. 2000); Favacchia v. Favacchia, 769 A.2d 531 (Pa. Super. 2001). Factor (1) is satisfied because at the time of the initial order in -5- 92-4197 CIVIL TERM January, 1993, Pennsylvania was the home state of the children given that they had lived here with both of their parents since they were born. Factor (3) is satisfied because the father has at all times remained in Pennsylvania. The issue under factor (2) is whether, under Pennsylvania law, Pennsylvania continues to have jurisdiction. In Pennsylvania, custody jurisdiction is governed by the Uniform Child Custody Jurisdiction Act which provides at 23 Pa.C.S. § 5344: (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) it is in 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 -6- 92-4197 CIVIL TERM 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.--Except 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. (Emphasis added.) Pursuant to Section 5344(a)(2), we conclude that it is in the best interest of the children for this court to retain jurisdiction. As to subsection (i), the father and both children have a significant connection with Pennsylvania. First, the mother and father lived together in Cumberland County, Pennsylvania when the children were born. The father has remained a resident of Pennsylvania throughout the custody litigation. Second, the children were born in Pennsylvania and have lived here for significant periods during their lives. In addition, they have friends, have attended elementary and Sunday school, and have participated in extracurricular activities in Pennsylvania. Their comfort level of living here with their father for over three months in the summer of 2003 was such that, when we heard the mother's petition for special relief, both children expressed a desire to live with the father. Third, even when the children resided with their mother in Florida, they had significant periods of visitation at the -7- 92-4197 CIVIL TERM father's residence in Pennsylvania. Lastly, this court excised initial jurisdiction over the custody of Shaquay and Yonna in January, 1993, and since has entered numerous orders including an order of special relief when the mother invoked our jurisdiction this year. As to subsection (ii), there is available in Cumberland County substantial evidence concerning the present and future care, protection, training, and personal relationships of Shaquay and Yonna. In addition to the previously mentioned connections, the girls also have school records here from when the lived in Carlisle before moving to Florida in 1999, and there are records from when they attended school in Carlisle for a short period in 2003. They have a pediatrician here. There would not appear to be any more significant information regarding the children in Florida than there is here. Under all these circumstances we are satisfied that it is in the best interest of Shaquay and Yonna to continue jurisdiction over this custody dispute. Since this court has already taken considerable evidence regarding that dispute in the hearing for special relief, and in this hearing as to jurisdiction, and since the mother is living in Florida, we will by-pass conciliation and expedite a hearing on the merits during the children's school break at Christmas. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of December, 2003, IT IS ORDERED: (1) The motion of Sophia A. Battle to dismiss the custody complaint of Jade -8- 92-4197 CIVIL TERM Brock based on lack of jurisdiction, IS DISMISSED. (2) A hearing shall be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 1:30 p.m. on Monday, December 29, 2003. (3) Sophia A. Battle shall have Shaquay Brock and Yonna Brock present for that hearing. By the Court, Dirk Berry, Esquire For Jade Brock Joan Carey, Esquire Legal Services For Sophia A. Battle :sal Edgar B. Bayley, J. -9- JADE BROCK SOPHIA A. BATTLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 92-4197 CIVIL TERM IN RE: CUSTODY JURISDICTION ORDER OF COURT AND NOW, this day of December, 2003, IT IS ORDERED: (1) The motion of Sophia A. Battle to dismiss the custody complaint of Jade Brock based on lack of jurisdiction, IS DISMISSED. (2) A hearing shall be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 1:30 p.m. on Monday, December 29, 2003. (3) Sophia A. Battle shall have Shaquay Brock and Yonna Brock present for that hearing. By the Court, Dirk Berry, Esquire For Jade Brock Joan Carey, Esquire Legal Services For Sophia A. Battle :sal Edgar B. Bayley, J.