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Home My WebLink About2003-2385 Civil ROSALIE E. WALTERS, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. STEVEN A. SMITH and MELISSA A. SMITH, DEFENDANTS 03-2385 CIVIL TERM IN RE: PETITION OF MELISSA A. SMITH CHALLENGING JURISDICTION OPINION AND ORDER OF COURT Bayley, J., December 8,2004:-- On May 12, 2003, Rosalie E. Walters filed a complaint against her son, Steven A. Smith, and Melissa A. Smith, the father and mother of Alisha Destiny Smith, born November 25, 2001. The paternal grandmother sought visitation with her granddaughter. She lived in Gardners, Pennsylvania, the mother lived with Alisha in Mount Holly Springs, Pennsylvania, and the father was incarcerated in SCI Camp Hill, Pennsylvania. On August 15, 2003, the grandmother and the mother entered into an agreement which was made an order of court on November 21, 2003. The order provided the mother with "sole legal custody and primary physical custody" of Alisha. It provided the grandmother visitation with Alisha every other Saturday from 9:00 a.m. to 6:00 p.m. The father was not a party to the agreement, and no order has ever been entered with regard to his custody rights to Alisha. On December 13, 2003, the grandmother filed a petition for special relief. She alleged that the mother intended to move with Alisha to Indiana, and sought an order to prevent moving Alisha to Indiana. An order entered on December 30, 2003, denied the petition. The 03-2385 CIVIL TERM court commented: The petition does not set forth any facts which would enable the paternal grandmother to prevent relocation by the mother with her daughter Alisha Smith, born November 25, 2001, who is in her physical custody pursuant to an order of November 21, 2003. If the mother relocates and the current order of visitation is impractical, the grandmother may petition under 23 Pa.C.S. Section 5313(a) to seek another order of partial custody/visitation as may then be warranted and practical. In late December, 2003, the mother with Alisha moved to Munster, Indiana. On September 1, 2004, the mother filed a petition for custody of Alisha in the Lake Superior Court, Gary, Indiana. A hearing is scheduled in February, 2005. On September 27, 2004, approximately nine months after the mother and Alisha moved to Indiana, the paternal grandmother filed a petition in this court to modify the order of November 21, 2003. She seeks new periods of visitation. On October 13, 2004, the father, who now lives with his mother in Gardners, filed a petition for modify the order of November 21, 2003.1 He seeks an order "granting Defendant Mother and Defendant Father shared legal custody of the child and by substantially altering the physical custody arrangements." The mother challenges jurisdiction of the petitions of both the paternal grandmother and the father. Pennsylvania enacted the new Uniform Child Custody Jurisdiction and Enforcement Act, 23 Pa.C.S. Section 5401 et seq., effective August 16, 2004. There has never been a custody order entered in this court regarding the rights of the father to Alisha. Therefore, Section 5421 of the Act titled "Initial child custody jurisdiction," is applicable. It provides: (a) General rule.-Except as otherwise provided in section 5424 1 He had been in prison from October, 2001 to August, 2004. -2- 03-2385 CIVIL TERM (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; (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. (c) Physical presence and personal jurisdiction unnecessary.- Physical presence of or personal jurisdiction over a party or a child is not necessary or sufficient to make a child custody determination. (Emphasis added. ) Alisha has lived continuously in Indiana since the latter part of December, 2003. Indiana is Alisha's home state under Section 5421 (a)(1). A court in Indiana has jurisdiction under Section 5421 (a)(2), and has not declined to exercise that jurisdiction. Accordingly, Indiana is the jurisdiction to hear any custody complaint between the mother and father -3- 03-2385 CIVIL TERM regarding Alisha. The father's petition will be dismissed. There is an existing custody order regarding Alisha in this court dated November 21, 2003, between the paternal grandmother and the mother. Section 5422 of the UCCJA, titled Exclusive, continuing jurisdiction, provides: (a) General rule.-Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth which has made a child custody determination consistent with section 5421 (relating to initial child custody jurisdiction) or 5423 (relating to jurisdiction to modify determination) has exclusive, continuing jurisdiction over the determination until: (1) a court of this Commonwealth determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with 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 jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 5421. 2004, June 15, P.L. 236, No. 39, S 3, effective Aug. 16, 2004. (Emphasis added.) The paternal grandmother continues to live in Pennsylvania. Thus, she has a significant connection with this Commonwealth. Alisha has been living with her mother in Indiana for almost a year. The grandmother has not seen her since November 23, 2003. The order of November 21, 2003, granted the grandmother limited periods of visitation, not partial physical custody. She was not then in loco parentis with Alisha. She is a grandparent, and was not acting as a parent. Substantial evidence is no longer available in this Commonwealth -4- 03-2385 CIVIL TERM concerning Alisha's care, protection, training and personal relationships. Accordingly, this court no longer has exclusive, continuing jurisdiction. Since there is no original jurisdiction under Section 5421 of the UCCJA, the petition of the grandmother must be dismissed. ORDER OF COURT AND NOW, this day of December, 2004, IT IS ORDERED: (1) The petition of Rosalie E. Walters to modify the court order of November 21, 2003, IS DISMISSED FOR LACK OF JURISDICTION. (2) The petition of Steven A. Smith to modify the court order of November 21, 2003, IS DISMISSED FOR LACK OF JURISDICTION. By the Court, Edgar B. Bayley, J. Timothy J. Colgan, Esquire For Melissa A. Smith Andrew H. Shaw, Esquire For Rosalie E. Walters and Steven A. Smith :sal -5- ROSALIE E. WALTERS, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. STEVEN A. SMITH and MELISSA A. SMITH, DEFENDANTS 03-2385 CIVIL TERM IN RE: PETITION OF MELISSA A. SMITH CHALLENGING JURISDICTION ORDER OF COURT AND NOW, this day of December, 2004, IT IS ORDERED: (1) The petition of Rosalie E. Walters to modify the court order of November 21, 2003, IS DISMISSED FOR LACK OF JURISDICTION. (2) The petition of Steven A. Smith to modify the court order of November 21, 2003, IS DISMISSED FOR LACK OF JURISDICTION. By the Court, Edgar B. Bayley, J. Timothy J. Colgan, Esquire For Melissa A. Smith Andrew H. Shaw, Esquire For Rosalie E. Walters and Steven A. Smith :sal