Opinion
File No. CN15-04433 Petition No.: 17-05148
04-04-2017
M------ D-------, Petitioner, v. J------- D-------, Respondent.
ORDER
Before the Court is a Petition to Modify Custody filed by M------ D------- (hereinafter "Father") against J------- D------- (hereinafter "Mother") in the interest of their minor children A-------- F. D------- born October 26, 2011 and B-------- J. D------- born January 16, 2013 (hereinafter collectively "Children"). Both parties are self-represented. The Court held a Call of the Calendar on March 29, 2017, for which both parties appeared. At the hearing, the parties disagreed as to whether this Court had proper jurisdiction over this matter and requested the Court ascertain the proper jurisdiction pursuant to 13 Del. C. §1921, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
BACKGROUND
The parties were married in 2011 and resided in Newark, DE with the Children until their separation in 2015. Thereafter, Mother moved to Conshohocken, PA. On December 7, 2015, the Court issued a consent Order by agreement of the parties affording Mother and Father joint legal custody and shared residential placement on a 3-4-4-3 schedule or by mutual agreement of the parties. The parties also agreed that the Children would attend school in PA and that the consent Custody Order would need to be modified prior to the Children beginning school.
On February 23, 2017, Father filed the herein Petition to Modify Custody, along with a Motion for Emergency Ex Parte Order. Father's Motion asserted that his mother, Paternal Grandmother, was no longer able to care for the Children on Thursdays and Fridays and that Father needed to enroll the Children in preschool. However, Father asserted that Mother refused to allow the Children to enroll in a preschool of Father's choice. The Court denied Father's Motion for ex parte relief that same day. On February 27, 2017, Father filed a Motion for Interim Relief, requesting the Court issue an Interim Order on the herein Petition specifying the parties' days with the Children so that he could enroll them in preschool.
On February 28, 2017, Mother filed a Motion to Dismiss Father's Petition, asserting that the Court lacked jurisdiction. Mother stated that the Children had been residents of Montgomery County, PA, since November of 2015 and that the custody Order was registered with Montgomery County on October 27, 2016. Mother noted that the Children were in school in PA and that the Children visited paternal relatives, including Paternal Grandmother, in PA during Father's time with the Children.
On March 3, 2017, Mother filed an Answer to Father's Motion for Interim Relief, again asserting that the Court lacked jurisdiction to consider the herein matter.
The Court scheduled a Call of the Calendar on March 29, 2017, for which both Mother and Father appeared. At that proceeding, Mother continued to assert that the Court lacked jurisdiction to consider the herein matter as the Children resided in PA. Mother stated that the Children's doctors, dentist, pre-school, and kindergarten were all in PA, as well as extended maternal and paternal relatives. Mother also stated that the Children only spent every other weekend in DE and that the Children were insured through PA Medicaid. Finally, Mother noted that she had filed a Petition to Modify a Foreign Custody Order on March 6, 2017, in Montgomery County and mediation in that matter is scheduled for April 19, 2017. Father denied that this Court lacked jurisdiction and requested the matter proceed in Delaware.
ANALYSIS
Before considering the merits of Father's Petition to Modify Custody, the Court must first consider, pursuant to Mother's Motion to Dismiss, whether the Court has jurisdiction in this matter. Mother asserts that the Court lacks jurisdiction in this matter because the Children are residents of Montgomery County, PA, whereas Father denies Mother's claim and requests the Court deny the Motion to Dismiss and grant his requested relief.
This Court's jurisdiction in custody disputes is determined by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA, the Court's analysis may be twofold: first, the Court must determine whether it has jurisdiction over the herein matter under the statute; and second, a Court having jurisdiction may determine that it is nonetheless an inconvenient forum to litigate the matter and defer jurisdiction to another state which is a more convenient forum for a child custody determination pursuant to 13 Del. C. §1926. The decision to decline to exercise jurisdiction under §1926 is within the discretion of this Court.
13 Del. C., Chapter 19.
The herein Petition seeks to modify a Custody Order entered by this Court in December of 2015 by consent of the parties. Therefore, in order to determine whether the Court has jurisdiction over this matter, the Court must determine jurisdiction pursuant to 13 Del. C. §1921, which provides:
(a) ...a court of this State which has made a child custody determination... has exclusive, continuing jurisdiction over the determination until:The statute clearly reflects that once this Court has made a child custody determination, this Court retains exclusive continuing jurisdiction over the matter until deemed otherwise by either this Court or the court of another state. The record reflects that this Court issued a custody Order in the interest of the Children in December of 2015. Therefore, this Court retains exclusive continuing jurisdiction over the matter until this Court or a court in another state finds that the Children lack a substantial connection with this State or that the Children and their parents no longer reside in the State.
1) A court of this state 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 State and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
2) A court of this State 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 State.
Under the UCCJEA, the strong presumption is that the decree state will continue to have modification jurisdiction until it loses all or almost all connections with the Child. In Butler v. Grant, the Court adopted the majority rule of interpreting the UCCJEA and held that "the DE Family Court has exclusive continuing jurisdiction... as long as the child [or] one of the child's parents... continues to reside in Delaware, and the child continues to have some contact with the State of Delaware, such as visitation in state." The record reflects that this Court issued an Order regarding custody on December 7, 2015 and that the Children have continued to have visitation with Father, who resides in DE, since that time. Accordingly, the Court finds that this Court continues to have exclusive continuing jurisdiction over this matter pursuant to the UCCJEA as codified in 13. Del. C. Chapter 19.
Butler v. Grant, 714 A.2d 747, 752-753 (Del. 1998), citing In the Interest of Shockley, Del. Fam., 611 A.2d 508 (1992).
Butler v. Grant, 714 A.2d 747, 752-753 (Del. 1998).
Nonetheless, a Court having exclusive continuing jurisdiction over a matter may, pursuant to 13 Del. C. §1926, decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum to litigate the matter. In determining whether this Court is an inconvenient forum, the Court must consider the factors outlined in §1926(b). These factors include the length of time the Children have resided out of state; the familiarity of the court of each state with the facts and issues in the pending litigation; the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child; and, the ability of the court of each state to decide the issue expeditiously.
13 Del. C. §1926 (b) provides:
(b) Before determining whether it is an inconvenient forum, a court of this State shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside this State;
(3) The distance between the court in this State and the court in the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume jurisdiction;
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.
Delaware case law suggests that the analysis of whether a forum is convenient is dependent on the specific circumstances of each individual case. For example, in Albert v. Phillips, this Court found that although it had jurisdiction over the determination of custody of a child, it was nonetheless an inconvenient forum to resolve that issue. The Court found that a court of another state, Colorado, possessed greater access to information regarding the child's health and wellbeing and declined to exercise jurisdiction. Likewise, in Zook v. Davis, the Court found that although it had jurisdiction to consider modification of a custody order issued by the Court, this Court was no longer a convenient forum to determine the issue of custody as the children had resided with Mother in New Jersey for three (3) years and testimony regarding the children's well-being was more readily available in New Jersey. In Zook, the Court found that it was an inconvenient forum to decide the issue of custody despite the fact that the children had a significant connection with the State and visited Father every other weekend in Delaware.
Albert v. Phillips, 602 A.2d 104 (1991) (Del. Fam. Ct).
Zook v. Davis, 641 A.2d 849 (1992) (Del. Fam. Ct.).
On the other hand, the Court found in Butler that this Court was not an inconvenient forum to exercise jurisdiction, despite the fact that mother and the child had resided in Connecticut for approximately three (3) years. Although the child's medical care, schooling, and extracurricular activities were in CT, the Court found that the child had extended relatives who resided in DE and that the child participated in summer camp and church in DE.
Butler v. Grant, 714 A.2d 747, (Del. 1998) (affirming Family Court's determination of jurisdiction). --------
The record reflects that Mother moved with the Children from Delaware to Pennsylvania following the parties' separation in 2015. The Children attend pre-school in Pennsylvania and Alexander will begin kindergarten there this coming fall. The record also reflects that the Children receive public benefits through PA Medicaid. Additionally, the Children's' doctors, dentist, and relatives, other than Father, reside in PA. Unlike in Butler, the record reflects that all of the Children's extended relatives, with the exception of Father, reside in PA. Paternal Grandmother, who historically has cared for the Children during a significant amount of Father's time, also resides in PA. Therefore, the Court finds that PA is a more convenient forum to litigate the matter of custody, as the majority of witnesses, other than Father, reside in PA, as do the Children. The Children have only recently begun a pre-school program a few weeks ago.
The Court also notes that its history and knowledge of this family is relatively limited. Custody of the Children has only been determined by this Court one (1) time, which was by consent of the parties following mediation. Therefore, the Court only has access to the facts asserted in the pleadings of the parties; the Court has made no determinations of fact that would afford the Court enhanced knowledge of this family pursuant to the herein Petition. Therefore, the Court finds that, although this Court issued an Order regarding custody of the Children, it nonetheless is not substantially familiar with the issues and facts in the herein Petition. The Court also notes that the parties have pending mediation scheduled for April of 2017 in PA. This Court would be unable to schedule this matter until at least three (3) to four (4) months from now due to the heavy burden of cases on the Court's calendar. Therefore, it would expedite this matter if this matter proceeded in PA, as a proceeding has already been scheduled this month.
For the aforementioned reasons, the Court finds that this Court is an inconvenient forum to address the herein matter. Pennsylvania, where the Children are currently residing and where there is a pending proceeding in this matter, is the best forum to exercise jurisdiction over the custodial arrangements of the Children.
CONCLUSION
The Court finds that it has exclusive continuing jurisdiction pursuant to 13 Del. C. §1921. However, the Court declines to exercise jurisdiction as it has determined that it is an inconvenient forum and that PA is a more appropriate forum to determine the herein matter. Accordingly, Mother's Motion to Dismiss is hereby GRANTED.
IT IS SO ORDERED.
April 4, 2017
Date Written Order Issued
/s/ _________
ARLENE MINUS COPPADGE, JUDGE Cc: File
Parties Date Order mailed to parties: