Opinion
No. 199, 1998.
August 23, 1999.
Appeal from the Family Court, New Castle County, CN97-11383.
AFFIRMED
Unpublished Opinion is below.
ERIC C. RINEHART, Petitioner Below, Appellant, v. SALLY A. RINEHART, Respondent Below, Appellee. No. 199, 1998. Supreme Court of Delaware. Submitted: July 6, 1999. Decided: August 23, 1999.
Pseudonyms have been used to protect the identity of the parties to this appeal. Supr. Ct. R. 7(d).
Court Below: Family Court of the State of Delaware, in and for New Castle County, File No. CN97-11383, Petition No. 97-36242.
Before VEASEY, Chief Justice, WALSH and HARTNETT, Justices.
ORDER
This 23rd day of August 1999, upon consideration of the briefs of the parties and the Family Court's supplemental decisions on remand dated October 26, 1998 and May 3, 1999, it appears to the Court that:
(1) On September 3, 1997, Sally A. Rinehart (Mother) commenced an action for the custody of her minor child in Pennsylvania. On October 22, 1997 Eric C. Rinehart (Father) filed this action in Delaware also seeking custody. In this appeal the Father challenges the Delaware Family Court's April 22, 1998 Order dismissing his petition for custody and its deferral of jurisdiction to the Pennsylvania Court of Common Pleas as the more appropriate forum.
Rinehart v. Rinehart, Del. Fam., C.A. No. 97-36242 (Apr. 22, 1998).
(2) On March 20, 1998, after a hearing, the Pennsylvania Court issued an order finding that Pennsylvania had jurisdiction over the custody proceedings. The Father did not appear at the hearing, never challenged jurisdiction in Pennsylvania, and did not appeal that order. The Pennsylvania Court then scheduled a custody hearing. On May 4, 1998, the Mother and Father entered into a temporary custody agreement in Pennsylvania. Meanwhile, the Mother challenged the Delaware Family Court's jurisdiction by entering a limited entry of appearance and moving to dismiss the Father's custody petition in Delaware. This lead to the Family Court's April 22, 1998 Order dismissing this suit. This appeal followed.
(3) On October 15, 1998 we remanded the appeal to the Family Court. The Family Court issued a supplemental decision on remand on October 26, 1998 explaining its April 22, 1998 dismissal of the Father's custody petition. On February 16, 1999, this Court again remanded to the Delaware Family Court with instructions to consider whether, under the Uniform Child Custody Jurisdiction Act, the Mother had established sufficient residence in Pennsylvania to confer jurisdiction on the Pennsylvania Court. In response to that remand, the Family Court held a teleconference on March 19, 1999, as required by 13 Del. C. § 1906, with the Family Division of the Court of Common Pleas of Pennsylvania to consider which forum was more appropriate to litigate the custody proceedings. Both of the parties were represented at the teleconference, presented arguments, and filed legal memoranda on the appropriate forum for jurisdiction.
Rinehart v. Rinehart, Del. Supr., No. 199, 1998, Veasey, C. J. (Oct. 15, 1998) (ORDER). We subsequently remanded again on February 16, 1999. Rinehart v. Rinehart, Del. Supr., No. 199, 1998, Walsh, J. (Feb. 16, 1999) (ORDER).
Rinehart v. Rinehart, Del. Fam., C.A. No. 97-36242 (Oct. 26, 1998).
Rinehart v. Rinehart, Del. Supr., No. 199, 1998, Walsh, J. (Feb. 16, 1999) (ORDER).
Although the Mother was not present at the teleconference, she was represented by counsel.
(4) After the teleconference, the Pennsylvania Court, on April 14, 1999, advised the Delaware Court that because subject matter jurisdiction had never been challenged in Pennsylvania, that issue was not pending before it and it therefore declined to take a position on whether the Delaware Family Court had jurisdiction.
(5) The Delaware Family Court then found that although neither state qualified as the home state of the child at the time each action was commenced, both Delaware and Pennsylvania had a basis for jurisdiction under the significant connection test of the Uniform Child Custody Jurisdiction Act adopted in both Delaware and Pennsylvania. The Uniform Act confers jurisdiction on a court to make an initial determination or modification of child custody if:
13 Del. C. § 1903(1) (a). When the custody action was commenced on September 3, 1997 by the Mother in Pennsylvania the child's home state was still Delaware because the child had only lived in Pennsylvania for approximately five months. When the Father filed in Delaware on October 22, 1997, however, Delaware was no longer the child's home state. Because the child had been living in Pennsylvania for more than six months when the Father filed, Pennsylvania had become the child's home state. The general rule that jurisdiction based upon home state status is preferable to jurisdiction based on other grounds, therefore, is inapplicable here. Albert v. Phillips, Del. Fam., 602 A.2d 104, 105 (1991).
Rinehart v. Rinehart, Del. Fam., C.A. No. 97-36242 (May 3, 1999). Delaware and Pennsylvania have both adopted the Uniform Child Custody Jurisdiction Act (UCCJA). The UCCJA appears in Delaware as 13 Del. C. ch. 19. The UCCJA is codified in Pennsylvania as 23 Pa. C.S.A. § 5341 et. seq.
[i]t is in the best interests of the child that a court of this State assume jurisdiction because:
a. The child and his parents, or the child and at least 1 contestant, have a significant connection with this State; and
b. There is available in this State substantial evidence concerning the child's present or future care, protection, training and personal relationships.
The Family Court concluded that the Pennsylvania Court acted substantially in conformity with the Uniform Child Custody Jurisdiction Act.
Rinehart v. Rinehart, Del. Fam., C.A. No. 97-36242 (May 3, 1999).
(6) The finding of the Family Court that the Pennsylvania Court acted substantially in compliance with the Uniform Child Custody Jurisdiction Act is supported by the record. At the time the Mother filed her custody petition in Pennsylvania the child was two years, four months of age, and had resided in that state for approximately five months. The Mother alleged in her motion in the Delaware Family Court for the limited purpose of having petitioner's custody petition dismissed that she and the child had mutual friends and relatives in Pennsylvania, attended church in Pennsylvania, had inherited assets in Pennsylvania, and that the child had a doctor in Pennsylvania. The child had previously resided in Delaware with both parents before moving to Pennsylvania in March 1997 and had a doctor in Delaware until July 1997.
See Dincer v. Dincer, Pa. Supr., 701 A.2d 210 (1997); Albert v. Phillips, Del. Fam., 602 A.2d 104 (1991).
(7) A court that has jurisdiction over a child custody proceeding may defer jurisdiction to a court in another state that has concurrent jurisdiction if it determines that it would be in the best interest of the child. Title 13 section 1907, Delaware Code, provides a nonexclusive list of factors the court may consider:
(1) If another state is or recently was the child's home state;
(2) If another state has a closer connection with the child and his family or with the child and 1 or more of the contestants;
(3) If substantial evidence concerning the child's present or future care, protection, training and personal relationship is more readily available in another state;
(4) If the parties have agreed on another forum which is no less appropriate; and
(5) If the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in § 1901 of this title.
If the court finds that another forum would be more appropriate, therefore, it may dismiss the custody action.
(8) After a lengthy discussion, the Family Court held that although both states had jurisdiction over the proceedings for child custody, it would defer jurisdiction to the Pennsylvania Court. It found this was consistent with the general purposes of the Uniform Child Custody Jurisdiction Act to avoid competing litigation. In this appeal the Father has not established that the Family Court abused its discretion under 13 Del. C. 1907 in deferring jurisdiction to the Pennsylvania Court as the more appropriate forum.
Rinehart v. Rinehart, Del. Fam., C.A. No. 97-36242 (May 3, 1999).
Title 13 section 1901, Delaware Code states:
(a) The general purposes of this Chapter are to:
(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on the well-being of such children;
(2) Promote cooperation with the courts of other states to the end that a custody decree with be rendered in that state which can best decide the case in the interest of the child;
(3) Assure that litigation concerning the custody of the child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training and personal relationships is most readily available, and that the courts of this State decline the exercise of jurisdiction when the child and his family have a closer connection with another state which has enacted the Uniform Child Custody Jurisdiction Act;
(4) Discourage continuing controversies over child custody in the interests of greater stability of home environment and of secure family relationships for the child;
(5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards;
(6) Avoid the relitigation of custody decisions of others states in this State insofar as it is feasible;
(7) Facilitate the enforcement of custody decrees of other states;
(8) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this State and those of other states concerned with the same child; and
(9)Make uniform the law of those states which enact child custody jurisdiction legislation.
(b) This chapter shall be construed to promote the general purposes stated in this section.13 Del. C. § 1901.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family Court be, and the same hereby is, AFFIRMED.
BY THE COURT:
s/s Maurice A. Hartnett, III, Justice