Posted by: Nov 26, 2013By MJSJSDC

Bode Miller Runs into a Jurisdictional Problem in his Custody Efforts

jurisdiction and custody

Jurisdiction is an important issue in custody arrangements.

Olympic gold medalist skier Bode Miller will return to New York next month to fight for custody of his nine-month-old son after a New York appeals court ruled that jurisdiction was proper in the state where the baby was born.

NBC News reports that Miller and his ex-girlfriend, Sara McKenna, have been fighting over primary physical custody of the child since before he was born.  The parties met and dated briefly in California, where McKenna became pregnant.  During pregnancy, McKenna relocated to New York to attend graduate school at Columbia University on the G.I. Bill.  Miller filed for custody and accused McKenna of relocating to a state that might be less sympathetic to a father’s rights in custody actions.

In September, a New York family court referee initially agreed with Miller, ruling that McKenna should not have left California before co-parenting details were worked out.  At that hearing, the referee awarded custody to Miller.  A New York appeals court reversed the decision earlier this month ruling that McKenna’s rights had been violated and that jurisdiction was proper in New York because the baby was born in New York.  Following a hearing Monday, McKenna was granted custody pending a hearing early in December.

The New York family court’s decision raised questions about the rights of a pregnant woman to relocate and questions about proper jurisdiction in custody actions. However, in Miller and McKenna’s case, there is no doubt that jurisdiction is proper in New York.

The Commonwealth of Pennsylvania, like New York, is subject to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).  The UCCJEA vests courts with “exclusive, continuing jurisdiction” and jurisdiction to rule on initial custody determinations, modification of child custody determinations, and temporary emergency custody determinations. 23 Pa.C.S.A. § 5401, et. seq.

Pennsylvania courts have jurisdiction to make an initial child custody determination only if:

1.  the 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 the 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 forum under section 5427 (relating to inconvenient forum) or 5428 (relating to jurisdiction declined by reason of conduct) 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;

 

3.  all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum to determine the custody of the child under section 5427 or 5428; or

 

4.  no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3).

23 Pa.C.S.A. § 5421.

Photo Credit: New York Daily News

“Home State”, as used in the statute, is defined as the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.  23 Pa.C.S.A. § 5402.

In the case of a child six months of age or younger, the term means the state in which the child lived from birth with any of the persons mentioned.  Thus, since Miller and McKenna’s child was born in New York, the UCCJEA dictates that New York is the “home state” of the child, and jurisdiction to make an initial custody determination is proper in New York.

If you have child custody questions regarding jurisdiction or initiating a child custody proceeding, contact us at by phone at 717.520.4400 or by email at FamilyLaw@jsdc.com to schedule an appointment in either our Hershey or Mechanicsburg office.