Child Custody Venue Sufficiency of Evidence Effect of Recusal Request
B.A.B. v. J.J.B., PICS Case No. 17-1106 (Pa. Super. June 26, 2017) Ott, J. (25 pages).
Trial court that issued initial custody determination retained exclusive, continuing jurisdiction over custody, and further had jurisdiction to determine whether another jurisdiction would be a more convenient forum warranting transfer of jurisdiction and venue. Order of the trial court affirmed.
Mother B.A.B. appealed trial courts denial of her petition to transfer jurisdiction and venue of child custody proceeding with father J.J.B. Following the parties' separation in May 2006, mother moved to York County, while father remained in Lebanon County. Father sued for custody of the parties' three children in Lebanon County. The trial court initially granted mother primary physical custody, father partial custody, and the parties shared legal custody. Thereafter, a series of incidents prompted mother to seek a PFA order against father, the most serious of which occurred during a custody exchange when father used physical force to compel the parties' oldest son to enter father's car. Father was charged with simple assault. Father agreed to have no contact with the children for six months.
After that period, father petitioned for modification of custody, and the Lebanon County trial court entered an order granting the parties shared legal custody, but granted father final and binding decision-making authority if the parties could not reach agreement. When that decision was overturned, the trial court instead granted father primary legal custody. Subsequently, mother filed petitions in York County to transfer jurisdiction and venue, and to modify custody. The York County trial court concluded that Lebanon County was required to first relinquish jurisdiction. Mother refiled her transfer petition in Lebanon County, which was denied by the trial court, which noted that the parties' youngest child had been ordered into placement and held that it was not necessary to make custody determination until the parties' child was released from placement.
On appeal, mother argued that the trial court misapplied the law regarding venue in custody matters, based its ruling on insufficient evidence, and improperly cited mother's prior recusal request as a reason to deny her petition. Mother further challenged the trial court's grant of permission to a witness to testify telephonically at the venue hearing.
As to her first issue, mother argued that because a dependency hearing was pending there, York County had jurisdictional priority over all custody matters. The court held the argument waived for failure to raise it before the trial court. Nevertheless, the court held the argument to be inapplicable because the court that made an initial custody determination retained exclusive, continuing jurisdiction over custody, although that court could determine that another venue would be a more convenient form. Thus, the court ruled that Lebanon County had authority to determine whether York County was a more convenient forum.