Child Custody, Visitation & Relocation
Court Transfers Venue of a North Carolina Custody Court Order to Pennsylvania When Parents and Child no Longer Reside in North Carolina
In the child custody jurisdiction litigation case of L.A. vs. A.D., PICS Case No. 14-1145, (C.P. Lycoming County, July 2, 2014), the Honorable Joy Reynolds McCoy ruled because plaintiff mother and her child no longer lived in North Carolina, plaintiff petitioned to transfer venue to Lycoming County, Pa., where she resided was granted.
Mother requested that this matter be transferred from the 21st Judicial District of North Carolina to Lycoming County, Pa., where she resided. Mother appeared and was represented by counsel and father appeared by telephone and was unrepresented.
The parties entered into an agreement in the 21st Judicial District of North Carolina on Sept. 16, 2013. At the time of the agreement, father was a resident of Carroll County, Va., and mother was a resident of Forsyth County, N.C. Mother was granted primary custody and leave to relocate herself and the child to Williamsport, Pa. The order included the following: “The defendant agrees to remain under the jurisdiction of the North Carolina courts for purposes of future modifications of this order.”
Mother relocated to Lycoming County in September 2013. The child attended school in Lycoming County. The child’s physician and dentist were located in Lycoming County. The child had maternal family members located in Lycoming County. Mother testified it would be difficult for her to travel to North Carolina due to issues with her employment. Father continued to reside in Virginia although he regularly traveled and visited family members who resided in North Carolina.
The initial and existing child custody order was from North Carolina. Neither the child nor the parents of the child resided in North Carolina. Because the child and both parents no longer resided in North Carolina, the court held that North Carolina no longer had exclusive, continuing jurisdiction as outlined in 23 Pa. C.S. 5422. Having found that North Carolina no longer had jurisdiction, 23 Pa. C.S. 5423 delineated the requirements for the court’s authority to modify the order entered in North Carolina.
The court had jurisdiction to make an initial determination under 5421(a)(1). Pennsylvania was the home state of the child on the date of the commencement of the proceeding. Mother began the proceeding in Lycoming County. The child had resided, by the agreement of the parties, in Lycoming County, Pa. in excess of six months prior to the filing. The child continued to reside in Lycoming County.
The court also addressed the effect of the forum selection clause entered into by the parties. The parties agreed to North Carolina remaining as the forum. At the time, it was intended that neither party would reside in North Carolina. Two parents may not agree, via a forum selection clause, to litigate their child custody despite in a court that lacks subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. Since neither parent not the child resided in North Carolina, the North Carolina court lacked subject matter jurisdiction which could not be retained through the forum selection clause.
The court had jurisdiction to modify the North Carolina court order, as Pennsylvania was the child’s home state and none of the parties resided in North Carolina. Mother’s petition for change of venue was granted.
Reference: Digest of Recent Opinion, Pennsylvania Law Weekly, 37 P.L.W.709 (July 29, 2014)
Filed Under: Child Custody; Child Custody Jurisdiction & Venue
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