CHAPTER 53 CUSTODY-- Sub-Chapter B - Child Custody Jurisdiction
(provided by Divorce Source, Inc.)
Published 6.30.98
Section5341. Short title of subchapter.
Section5342. Purposes and construction of subchapter.
Section5343. Definitions.
Section5344. Jurisdiction.
Section5345. Notice and opportunity to be heard.
Section5346. Notice to persons outside this Commonwealth; submission to jurisdiction.
Section5347. Simultaneous proceedings in other states.
Section5348. Inconvenient forum.
Section5349. Jurisdiction declined by reason of conduct.
Section5350. Information under oath to be submitted to the court.
Section5351. Additional parties.
Section5352. Appearance of parties and the child.
Section5353. Binding force and res judicata effect of custody decree.
Section5354. Recognition of out-of-State custody decrees.
Section5355. Modification of custody decree of another state.
Section5356. Filing and enforcement of custody decree of another state.
Section5357. Registry of out-of-State custody decrees and proceedings.
Section5358. Certified copies of custody decree.
Section5359. Taking testimony in another state.
Section5360. Hearings and studies in another state; orders to appear.
Section5361. Assistance to courts of other states.
Section5362. Preservation of documents for use in other states.
Section5363. Request for court records of another state.
Section5364. Intrastate application.
Section5365. International application.
Section5366. Priority.
Section 5341. Short title of subchapter.
This subchapter shall be known and may be cited as the Uniform Child Custody Jurisdiction Act.
Section 5342. Purposes and construction of subchapter.
(a) Purposes.--The general purposes of this subchapter are to:
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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 their
well-being.
2.Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child.
3.Assure that litigation concerning the custody of a 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 courts of this Commonwealth decline the exercise of jurisdiction when the child and his family have a closer connection with another state.
4.Discourage continuing controversies over child custody in the interest 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 relitigation of custody decisions of other states in this Commonwealth insofar as 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 Commonwealth and those of other states concerned with the same child.
Section5343. Definitions.
The following words and phrases when used in this subchapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
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"Contestant." -
An institution or an individual, including a parent, who claims a right to custody or visitation rights with
respect to a child.
"Custody determination." - A court decision and court orders and instructions providing for the custody of a child, including visitation rights. The term does not include a decision relating to child support or any other monetary obligation of any person.
"Custody proceeding." - Includes proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings.
"Decree" or "custody decree." - A custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree.
"Home state." - The state in which the child immediately preceding the time involved lived with his parents, a parent or a person acting as parent, or in an institution, for at least six consecutive months, and, in the case of a child less than six months old, the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.
"Initial decree." - The first custody decree concerning a particular child.
"Modification decree." - A custody decree which modifies or replaces a prior decree, whether made by the court which rendered the prior decree or by another court.
"Person acting as parent." - A person, including an institution other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody.
"Physical custody." - Actual possession and control of a child.
(a) General rule.--A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
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1.this Commonwealth:
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(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth;
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(i) the child and his parents, or the child and at least one contestant, have a significant
connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training and personal relationships of the child;
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(i) the child has been abandoned; or
(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent;
5.the child welfare agencies of the counties wherein the contestants for the child live, have made an investigation of the home of the person to whom custody is awarded and have found it to be satisfactory for the welfare of the child.
(c) Physical presence unnecessary.--Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.
Section 5345. Notice and opportunity to be heard.
Before making a decree under this subchapter, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of the child. If any of these persons is outside this Commonwealth, notice and opportunity to be heard shall be given pursuant to section 5346 (relating to notice to persons outside this Commonwealth; submission to jurisdiction).
Section 5346. Notice to persons outside this Commonwealth; submission to jurisdiction.
(a) General rule.--Notice required for the exercise of jurisdiction over a person outside this Commonwealth shall be given in a manner reasonably calculated to give actual notice, and may be:
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1.by personal delivery outside this Commonwealth in the manner prescribed for service of process within
this Commonwealth;
2.in the manner prescribed by the law of the place in which the service is made for service of process in that place in an action in any of its courts of general jurisdiction;
3.by any form of mail addressed to the person to be served and requesting a receipt; or
4.as directed by the court, including publication, if other means of notification are ineffective.
(c) Proof of service.--Proof of service outside this Commonwealth may be made by affidavit of the individual who made the service, or in the manner prescribed by the law of this Commonwealth, the order pursuant to which the service is made, or the law of the place in which the service is made. If service is made by mail, proof may be a receipt signed by the addressee or other evidence of delivery to the addressee.
(d) Submission to jurisdiction.--Notice is not required if a person submits to the jurisdiction of the court.
Section 5347. Simultaneous proceedings in other states.
(a) General rule.--A court of this Commonwealth shall not exercise its jurisdiction under this subchapter if, at the time of filing the petition, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subchapter, unless the proceeding is stayed by the court of the other state because this Commonwealth is a more appropriate forum or for other reasons.
(b) Procedure.--Before hearing the petition in a custody proceeding, the court shall examine the pleadings and other information supplied by the parties under section 5350 (relating to information under oath to be submitted to the court) and shall consult the child custody registry established under section 5357 (relating to registry of out-of-State custody decrees and proceedings) concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state, it shall direct an inquiry to the state court administrator or other appropriate official of the other state.
(c) Stay; communication with other court.--If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction, it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with sections 5360 (relating to hearings and studies in another state; orders to appear) through 5363 (relating to request for court records of another state). If a court of this Commonwealth has made a custody decree before being informed of a pending proceeding in a court of another state, it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction, it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.
Section 5348. Inconvenient forum.
(a) General rule.--A court which has jurisdiction under this subchapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
(b) Moving party.--A finding of inconvenient forum may be made upon the court's own motion or upon motion of a party or a guardian ad litem or other representative of the child.
(c) Factors to be considered.--In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose, it may take into account the following factors, among others:
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1.If another state is or recently was the home state of the child.
2.If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
3.If substantial evidence concerning the present or future care, protection, training and personal relationships of the child is more readily available in another state.
4.If the parties have agreed on another forum which is no less appropriate.
5.If the exercise of jurisdiction by a court of this Commonwealth would contravene any of the purposes stated in section 5342 (relating to purposes and construction of subchapter).
(e) Disposition.--If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum.
(f) Effect on divorce or other proceeding.--The court may decline to exercise its jurisdiction under this subchapter if a custody determination is incidental to an action for divorce or another proceeding while retaining jurisdiction over the divorce or other proceeding.
(g) Costs and expenses.--Subject to general rules:
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1.If it appears to the court that it is clearly an inappropriate forum, it may require the party who commenced
the proceedings to pay, in addition to the costs of the proceedings in this Commonwealth, necessary travel
and other expenses, including attorney fees, incurred by other parties or their witnesses.
2.Payment is to be made to the office of the clerk of the court of common pleas for remittance to the proper party.
(i) Registry of out-of-State stay; notice of assumption of jurisdiction.--Any communication received from another state informing this Commonwealth of a finding of inconvenient forum because a court of this Commonwealth is the more appropriate forum shall be filed in the custody registry of the appropriate court. Upon assuming jurisdiction, the court of this Commonwealth shall inform the original court of this fact.
Section 5349. Jurisdiction declined by reason of conduct.
(a) General rule.--If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in conduct intending to benefit his position in a custody hearing, the court may decline to exercise jurisdiction if this is just and proper under the circumstances.
(b) Restriction on modification of foreign decree.--Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state, the court may decline to exercise its jurisdiction unless the petitioner can show that conditions in the custodial household are physically or emotionally harmful to the child, the burden of proof being on the petitioner requesting the court to take jurisdiction.
(c) Costs and expenses.--Subject to general rules, in appropriate cases a court dismissing a petition under this section may charge the petitioner with necessary travel and other expenses, including attorney fees, incurred by other parties or their witnesses.
Section 5350. Information under oath to be submitted to the court.
(a) General rule.--Every party in a custody proceeding in his first pleading or in an affidavit attached to that pleading shall give information under oath as to the present address of the child, the places where the child has lived within the last five years and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit, every party shall further declare under oath whether:
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1.he has participated (as a party, witness, or in any other capacity) in any other litigation concerning the
custody of the same child in this or any other state;
2.he has information of any custody proceeding concerning the child pending in a court of this or any other state; and
3.he knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.
(c) Continuing duty.--Each party has a continuing duty to inform the court of any custody proceeding concerning the child in this Commonwealth or any other state of which he obtained information during proceedings under this subchapter.
Section 5351. Additional parties.
If the court learns from information furnished by the parties pursuant to section 5350 (relating to information under oath to be submitted to the court) or from other sources that a person not a party to the custody proceeding has physical custody of the child or claims to have custody or visitation rights with respect to the child, it shall order that person to be joined as a party and to be duly notified of the pendency of the proceeding and of his joinder as a party. If the person joined as a party is outside this Commonwealth, he shall be served with process or otherwise notified in accordance with section 5346 (relating to notice to persons outside this Commonwealth; submission to jurisdiction).
[ Pennsylvania Rule of Civil Procedure No. 1915.25, as amended March 30, 1994, provided that section 5351 is suspended insofar as it provides for the joinder of a person not a party who claims to have custody or visitation rights with respect to the child.]
Section 5352. Appearance of parties and the child.
(a) General rule.--The court may order any party to the proceeding who is in this Commonwealth to appear personally before the court. If that party has physical custody of the child, the court may order that he appear personally with the child.
(b) Out-of-State persons.--If a party to the proceeding whose presence is desired by the court is outside this Commonwealth with or without the child, the court may order that the notice given under section 5346 (relating to notice to persons outside this Commonwealth; submission to jurisdiction) include a statement directing that party to appear personally, with or without the child, and declaring that failure to appear may result in a decision adverse to that party.
(c) Costs and expenses.--If a party to the proceeding who is outside this Commonwealth is directed to appear under subsection (b) or desires to appear personally before the court with or without the child, the court may require another party to pay travel and other necessary expenses of the party so appearing and of the child if this is just and proper under the circumstances.
Section 5353. Binding force and res judicata effect of custody decree.
A custody decree rendered by a court of this Commonwealth which had jurisdiction under section 5344 (relating to jurisdiction) binds all parties who have been served in this Commonwealth or notified in accordance with section 5346 (relating to notice to persons outside this Commonwealth; submission to jurisdiction) or who have submitted to the jurisdiction of the court and who have been given an opportunity to be heard. As to these parties, the custody decree is conclusive as to all issues of law and fact decided and as to the custody determination made unless and until that determination is modified pursuant to law, including the provisions of this subchapter.
Section 5354. Recognition of out-of-State custody decrees.
The courts of this Commonwealth shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this subchapter or which was made under factual circumstances meeting the jurisdictional standards of this subchapter, so long as the decree has not been modified in accordance with jurisdictional standards substantially similar to those of this subchapter.
Section 5355. Modification of custody decree of another state.
(a) General rule.--If a court of another state has made a custody decree, a court of this Commonwealth shall not modify that decree unless:
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1.it appears to the court of this Commonwealth that the court which rendered the decree does not now have
jurisdiction under jurisdictional prerequisites substantially in accordance with this subchapter or has
declined to assume jurisdiction to modify the decree; and
2.the court of this Commonwealth has jurisdiction.
Section 5356. Filing and enforcement of custody decree of another state.
(a) General rule.--A certified copy of a custody decree of another state whose decrees are recognized under section 5354 (relating to recognition of out-of-State custody decrees) may be filed in any office of the clerk of the court of common pleas of this Commonwealth. The clerk shall treat the decree in the same manner as a custody decree of a court of common pleas of this Commonwealth. A custody decree so filed has the same effect and shall be enforced in like manner as a custody decree rendered by a court of this Commonwealth.
(b) Costs and expenses.--A person violating a custody decree of another state which makes it necessary to enforce the decree in this Commonwealth may be required to pay necessary travel and other expenses, including attorney fees, incurred by the party entitled to the custody or his witnesses.
Section 5357. Registry of out-of-State custody decrees and proceedings.
Each office of the clerk of the court of common pleas shall maintain a registry in which it shall enter the following:
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1.Certified copies of custody decrees of other states received for filing.
2.Communications as to the pendency of custody proceedings in other states.
3.Communications concerning a finding of inconvenient forum by a court of another state.
4.Other communications or documents concerning custody proceedings in another state which may affect the jurisdiction of a court of this Commonwealth or the disposition to be made by it in a custody proceeding.
The office of the clerk of the court of common pleas, at the request of the court of another state or at the request of any person who is affected by or has a legitimate interest in a custody decree, shall certify and forward a copy of the decree to that court or person.
Section 5359. Taking testimony in another state.
In addition to other procedural devices available to a party, any party to the proceeding or a guardian ad litem or other representative of the child may adduce testimony of witnesses, including parties and the child, by deposition or otherwise, in another state. The court on its own motion may direct that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony shall be taken.
Section 5360. Hearings and studies in another state; orders to appear.
(a) Hearings and studies.--A court of this Commonwealth may request the appropriate court of another state to hold a hearing to adduce evidence, to order a party to produce or give evidence under other procedures of that state or to have social studies made with respect to the custody of a child involved in proceedings pending in the court of this Commonwealth; and to forward to the court of this Commonwealth certified copies of the transcript of the record of the hearing, the evidence otherwise adduced, or any social studies prepared in compliance with the request. Subject to general rules, the cost of the services may be assessed against the parties or, if necessary, ordered paid by the county.
(b) Order to appear.--A court of this Commonwealth may request the appropriate court of another state to order a party to custody proceedings pending in the court of this Commonwealth to appear in the proceedings, and, if that party has physical custody of the child, to appear with the child. The request may state that travel and other necessary expenses of the party and of the child whose appearance is desired will be assessed against another party or will otherwise be paid.
Section 5361. Assistance to courts of other states.
(a) General rule.--Upon request of the court of another state, the courts of this Commonwealth which are competent to hear custody matters may order a person in this Commonwealth to appear at a hearing to adduce evidence or to produce or give evidence under other procedures available in this Commonwealth or may order social studies to be made for use in a custody proceeding in another state. A certified copy of the transcript of the record of the hearing or the evidence otherwise adduced, any psychological studies and any social studies prepared shall be forwarded to the requesting court.
(b) Voluntary testimony.--A person within this Commonwealth may voluntarily give his testimony or statement in this Commonwealth for use in a custody proceeding outside this Commonwealth.
(c) Appearance in other state.--Upon request of the court of another state, a competent court of this Commonwealth may order a person in this Commonwealth to appear alone or with the child in a custody proceeding in another state. The court may condition compliance with the request upon assurance by the other state that travel and other necessary expenses will be advanced or reimbursed.
Section 5362. Preservation of documents for use in other states.
In any custody proceeding in this Commonwealth, the court shall preserve the pleadings, orders and decrees, any record that has been made of its hearings, social studies and other pertinent documents until the child reaches 18 years of age. Upon appropriate request of the court of another state, the court shall forward to the other court certified copies of any or all of such documents.
Section 5363. Request for court records of another state.
If a custody decree has been rendered in another state concerning a child involved in a custody proceeding pending in a court of this Commonwealth, the court of this Commonwealth upon taking jurisdiction of the case shall request of the court of the other state a certified copy of the transcript of any court record and other documents mentioned in section 5362 (relating to preservation of documents for use in other states).
Section 5364. Intrastate application.
(a) General rule.--Except as otherwise provided in this section, the provisions of this subchapter allocating jurisdiction and functions between and among courts of different states shall also allocate jurisdiction and functions between and among the courts of common pleas of this Commonwealth.
(b) Home jurisdiction.--For the purposes of the definition of "home state" in section 5343 (relating to definitions), a period of temporary absence of the child from the physical custody of the parent, person acting as parent or institution shall not affect the six months or other period.
(c) Petitioner.--As used in this subchapter, insofar as relates to the allocation of jurisdiction and functions between and among the courts of common pleas of this Commonwealth, the term "petitioner" means anyone seeking change in the status of custody of a child either by an affirmative action brought in a court or as a defense to a custody action brought by a person acting as parent who had previously been awarded custody of the child.
(d) Effect of agency investigation.--Section 5344(a)(5) (relating to jurisdiction) shall not be applicable for the purposes of this section.
(e) Period of notice.--Notice under section 5346 (relating to notice to persons outside this Commonwealth; submission to jurisdiction) shall be served, mailed, delivered or last published at least 20 days before any hearing.
(f) Jurisdiction declined by reason of conduct.--
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1.If it is just and proper under the circumstances, when the petitioner for an initial decree has wrongfully
taken the child from another jurisdiction or has engaged in improper conduct intending to benefit his
position in a custody proceeding, upon presentation of the petition, the court shall decline to exercise
jurisdiction or shall exercise jurisdiction only to issue an order, pending a full hearing in the appropriate
jurisdiction, returning the parties to the custodial status quo existing prior to the improper conduct or
wrongful taking unless the petitioner can show that conditions in the former custodial household are
physically or emotionally harmful to the child.
2.Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another court if the petitioner, without consent of the person entitled to custody, has:
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(i) improperly removed the child from the physical custody of the person entitled to
custody;
(ii) improperly retained the child after a visit or other temporary relinquishment of physical custody; or
(iii) removed the child from the jurisdiction of the court entering the decree without 20 days' written notice to the court entering the decree and any party entitled to custody or visitation rights under the terms of the decree.
3.Subject to general rules, in appropriate cases a court dismissing a petition under this subsection may charge the petitioner with necessary travel and other expenses, including attorney fees, incurred by other parties or their witnesses.
(h) Modification of custody decrees.--
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1.If another court has made a custody decree, a court before which a petition for modification is pending shall
not modify the decree of the other court unless it appears to the court before which the petition is pending
that the other court which rendered the decree does not have jurisdiction under jurisdictional prerequisites
substantially in accordance with this subchapter or has declined to assume jurisdiction to modify its decree
and the provisions of subsection (f)(2) will not be violated by an exercise ofjurisdiction by the court before
which the petition is pending.
2.If a court of this Commonwealth is authorized under paragraph (1) to modify a custody decree of another court, it shall give due consideration to the transcript of the record and other documents of all previous proceedings submitted to it in accordance with section 5363 (relating to request for court records of another state).
The general policies of this subchapter extend to the international area. The provisions of this subchapter relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.
Section 5366. Priority.
Upon the request of a party to a custody proceeding which raises a question of existence or exercise of jurisdiction under this subchapter, the case shall be given calendar priority and handled expeditiously.
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