In 2004, the commonwealth of Pennsylvania adopted the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA. The UCCJEA replaced the Uniform Child Custody Jurisdiction Act, or UCCJA. It was believed that the UCCJEA would solve many of the problems that occurred under the UCCJA regarding child custody jurisdictional disputes. Under the UCCJA, a common problem arose when a petition was filed in a new state at a time when a custody order existed in a prior state. Thereafter, a subsequent petition would be filed in the prior state where the custody order had originated. In this instance, trouble arose because there were two jurisdictions competing for the same case. Under the UCCJEA, Section 5422 was designed to help solve this problem. Section 5422 is titled: "Exclusive, Continuing Jurisdiction." Pursuant to Section 5422(a): "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 initial child custody jurisdiction) or 5423 (relating to jurisdiction to modify determination) has exclusive, continuing jurisdiction over the determination until" one of two instances occurs. The first instance is when the court determines that neither the child nor the child and one parent/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. The second instance is when the court of this commonwealth or a court in another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this commonwealth.
The recent case of Billhime v. Billhime addresses exclusive continuing jurisdiction under the UCCJEA. Until Billhime , most practitioners believed that when applying Section 5422(a)(1) of the UCCJEA as long as one parent remained in the state where the custody order was issued jurisdiction would remain with that state. However, Billhime may change that belief.
Family law practitioners may recall the Billhimes from their 2005 relocation case where the trial court denied Lisa Billhime's petition to relocate to Florida, and the Pennsylvania Superior Court reversed the trial court's decision and permitted the relocation. Since Lisa Billhime moved with the children to Florida in 2005, there have been a number of petitions filed and modifications of the custody order in Pennsylvania where Darin Billhime continues to reside. Throughout the litigation, Lisa Billhime remained the primary physical custodian of the parties' children in Florida.
On June 8, 2006, Darin Billhime filed a petition to modify custody seeking primary physical custody of the children in Pennsylvania. On Feb. 28, 2008, Lisa Billhime responded by filing a motion requesting that the trial court relinquish jurisdiction of the case to Florida. The trial court denied Lisa Billhime's motion, claiming that the court retained exclusive continuing jurisdiction under Section 5422 of the UCCJEA, reasoning Darin Billhime remained a resident of Pennsylvania. Lisa Billhime filed a timely appeal of the trial court's decision.
The Superior Court reversed the trial court and remanded the case with the instruction that if the trial court determines that it lacks jurisdiction to make an initial custody determination pursuant to Section 5421 (regarding whether the court has jurisdiction to make an initial determination — which this trial court will no longer have) Lisa Billhime's motion to relinquish jurisdiction should be granted.
The Superior Court noted that the trial court weighed its decision "almost exclusively on father's continuing 'significant connection' in Pennsylvania. The trial court found that Mr. Billhime is the fifth-generation owner of a farm in Montour County, retains a Pennsylvania driver's license, has an active equitable distribution action pending in the local court, and enjoys the majority of visitation with his children in the state." However, the Superior Court focused on whether the children will continue to have a "significant connection" in Pennsylvania. The Superior Court stated:
In fact, essentially all of the evidence presented at the evidentiary hearing demonstrates that information related to the children's welfare is now located in the state of Florida. For example, the children's medical care is provided in Florida, including by their pediatrician, dentist and orthodontist. They attended private school in Florida, performing well, earning high grades and regularly being named to the Honor Roll and Headmaster's List. Through their school, they are involved in basketball, football, soccer, baseball, golf, safety patrols and extracurricular art classes. The boys also participate in Cub Scouts in Florida and are actively involved in the Orlando-based church. They have good friends and significant family in the Orlando area, including a grandmother, aunts and uncles and cousins.
Because of the foregoing, the Superior Court found that: "The record in this case does not support a finding that the children retain a 'significant connection' with Pennsylvania as required by subsection 5422(a)(1) of the UCCJEA."
In reviewing the Superior Court's Opinion, it appears as though the Billhime children spend a significant amount of time in Pennsylvania with their father during their school breaks. It appears as though they spend Spring Break, Thanksgiving Break, Christmas vacations, "as well as nearly all of the summer vacation" with Mr. Billhime in Pennsylvania. Some practitioners may find this case problematic because Mr. Billhime appears to be a very active partial physical custodian under the circumstances where a relocation was granted to a distant state. However, this case could also be welcomed by some family law practitioners as a case such as this (and subsequent litigation) would be difficult to present in having the Florida witnesses needed to attend a custody trial back in Pennsylvania. In many situations, teachers or school employees needed to testify would require subpoenas. This would be frustrating because of the interstate issue. Further, school districts/schools often require their attorneys to accompany the school employees to court. As time passes, after a relocation occurs, the majority of the evidence needed in a custody trial begins to shift toward the state where the children have relocated. In this respect, practically, the case may make sense.
Exclusive continuing jurisdiction remains an interesting issue in the world of child custody. Practitioners should pay careful attention to Section 5422 as well as the Uniform Law Comment thereunder. When reading the Uniform Law Comment, it is clear that jurisdiction attaches when each subsequent action/petition is filed in a child custody case. Therefore, if neither parent remains in the issuing state when a petition is filed, under 5422(a)(2), the issuing state loses exclusive continuing jurisdiction. Further, under the Uniform Law Comment, "Exclusive, continuing jurisdiction is not re-established if, after the child, the parents, and all persons acting as parents leave the state, the non-custodial parent returns." As provided under 5422(b), the issuing state, after it loses exclusive, continuing jurisdiction can only modify the determination if it has jurisdiction to make an initial determination under 5421.
Billhime is an important case for family law practitioners as it provides an argument countering the theory that jurisdiction automatically remains with the issuing state if one of the litigants remains in the issuing state and is an active parent in that state. However, the proper court to make the decision as to whether jurisdiction should be transferred when one of the litigants remains in the issuing state is the court in the issuing state. The UCCJEA solved the prior problem of which court makes that determination. It is only under Section 5422(a)(2) of the UCCJEA, when the child and both parents or any person acting as a parent no longer reside in the issuing state, that the issuing state or another state may determine that exclusive, continuing jurisdiction of the issuing state is lost.
Lastly, as a practitioner's tip, Section 5471 of the UCCJEA provides as follows: "The provisions of this chapter allocating jurisdiction and functions between and among courts of different states shall also allocate jurisdiction and functions between and among the courts of the Common Pleas of this Commonwealth." Therefore, the UCCJEA applies intrastate as well as interstate, that is, involving county to county jurisdictional disputes within the Commonwealth of Pennsylvania.
Michael E. Bertin is an associate in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. He is co-chairman of the custody committee and a member of the executive committee of the family law section of the Philadelphia Bar Association, and a member of the executive committee and council of the family law section of the Pennsylvania Bar Association.
This article is reprinted with permission from the April 14, 2009, issue of The Legal Intelligencer. © 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved
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