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Jurisdiction for a Child Custody Matter when More than One State is Involved

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Child custody jurisdiction is required for a court to make an initial determination as to custody between two parents.

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By Attorney Jeffrey B. Engle, Child Custody Lawyer, Harrisburg, PA

In order to have the power to determine the right to custody between litigants, a court must have subject matter jurisdiction over the person of the child.  Subject matter jurisdiction is beyond the control of the parties and cannot be acquired by estoppel, waiver, or consent. It may be raised at any time during the proceedings even on appeal. Subject matter jurisdiction may also be raised by the court sua sponte even if no party has objected to jurisdiction Because jurisdiction to make a child custody determination is subject matter jurisdiction, an agreement of the parties to confer jurisdiction on a court that would not otherwise have jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act is ineffective.

In determining whether child custody jurisdiction lies in Pennsylvania, two statutes are to be considered. One was the former Uniform Child Custody Jurisdiction Act (UCCJA), which is now replaced by the Uniform Child Custody Jurisdiction and Enforcement Act, and the other is the Parental Kidnapping Protection Act (PKPA). These statutes were enacted to avoid jurisdictional conflicts that existed between and among states regarding child custody matters. Before these statutes were enacted, custody orders were routinely modified by non-issuing states despite the dictates of the full faith and credit doctrine. This occurred either because the orders were not considered "final" or because the court that rendered the initial custody order retained the power to modify it. As a result, the state of the law provided an incentive for a parent who lost, or anticipated losing, a custody battle in one state to abduct the child to another state in the hopes of getting a better result.  The PKPA requires Pennsylvania courts to engage in a jurisdictional analysis pursuant to the uniform child custody jurisdiction law.  First, the court must decide whether the matter before it acts as a modification to a custody or visitation order of another state that was rendered consistently with the provisions of the PKPA. If so, the PKPA then requires the court to look to whether it could, absent the out-of-state proceeding, assert appropriate jurisdiction.

There are four statutory bases for child custody jurisdiction under the UCCJA:

  • "Home State"- "(1) the 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 the commonwealth but a parent or person acting as a parent continues to live in the commonwealth";
  • "Significant contacts and substantial evidence"  "(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 23 Pa.C.S. § 5427 (relating to inconvenient forum) or 23 Pa.C.S. § 5428 (relating to jurisdiction declined by reason of conduct):
    • (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";
  • "By Reason of Decline"  "(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 the statute"; or
  • "No Other Jurisdiction is appropriate"  "(4) no court of any other state would have jurisdiction under the criteria specified by the statute."

The statute is the exclusive jurisdictional basis for making a child custody determination by a court of this commonwealth.  Jurisdiction is determined at the time the action is commenced. Only after the Commonwealth determines it has jurisdiction, in a child custody dispute, can it then measure its claim against another forum also having jurisdiction.

Under the Uniform Child Custody Jurisdiction and Enforcement Act, a court's decision to exercise or decline jurisdiction is subject to an abuse of discretion standard of review and will not be disturbed absent an abuse of that discretion. An "abuse of discretion" occurs when the court has overridden or misapplied the law, when its judgment is manifestly unreasonable, or when there is insufficient evidence of record to support the court's findings.

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