Military Deployment and Child Custody Cases
Child custody jurisdiction may be maintained in PA when the deployed leave PA, but have the intent to return and stay in PA. Often the crucial question becomes, where do I file for custody if I’m deployed overseas and won’t be home for a year? The simplest response is ‘wherever you intend on returning when your deployment is completed to permanently reside.’
The Pennsylvania Child Custody Act is clear on the issue of jurisdiction. It states as follows:
23 Pa.C.S.A. § 5421. Initial child custody jurisdiction
(a) General rule.–Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth has jurisdiction to make an initial child custody determination only if:
(1) this Commonwealth is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth; or
(2) a court of another state does not have jurisdiction under paragraph (1) or a court of the home state of the child has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate and: (i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this Commonwealth other than mere physical presence; and (ii) substantial evidence is available in this Commonwealth concerning the child’s care, protection, training and personal relationships; or
(3) all courts having jurisdiction have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate; or
(4) no court of any other state would have jurisdiction.
It is also important to note that physical presence of or personal jurisdiction over a party or a child is not necessary or sufficient to make a child custody determination. However, the court does need to be assured that one of the party’s does intend on moving to or living in the Commonwealth. Wagner v. Wagner, 2005 PA Super 377, 887 A.2d 282 (2005).