In Pennsylvania, jurisdiction in child custody cases is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Jurisdiction in child custody cases is an issue that arises often and has been seen numerous times in appellate decisions. The recent case of B.L. v. T.B. , __ A.3d __, 2016 Pa. Super 284 (Dec. 13, 2016), is the third reported appellate case addressing the issue of jurisdiction in child custody cases in the last two years.
As I indicated in previous articles, with the exception of Massachusetts, all of the states in the United States have adopted the UCCJEA. Under the UCCJEA, the primary focus is on the home state of the child. The UCCJEA defines home state as: "The state in which the 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." The UCCJEA also emphasizes exclusive continuing jurisdiction in an effort to avoid forum shopping and multiple states entering multiple custody orders.
The previous two cases addressing jurisdiction and the modification custody orders are TAM v. SLM , 104 A.3d 30 (Pa. Super. 2014), and A.L-S. v. B.S. , 117 A.3d 338 (Pa. Super. 2015). As reiterated in those cases, generally, when modifying a custody order, pursuant to the UCCJEA, the proper state in which to file the petition is the state where the order was issued unless none of the parties and the child no longer reside in that state. Under the UCCJEA, the litigants are to go back to the court that issued the custody order as long as a litigant remains in the issuing state. Under the UCCJEA, the issuing state can determine that jurisdiction should no longer be in that state.
The recent case of B.L. has very interesting facts. A mother and father in that case reside in Texas. The parties had two children who were born in Texas. According to the opinion, in 2013 the children began residing in Pennsylvania with a guardian (who is a cousin of the mother). The parties entered into a guardianship agreement which was signed by the mother and the father as well as the guardian. The agreement provided that it would be in the best interest of the children to be in the guardian's primary care and that the mother and father "'consent to provide full legal and physical guardianship over the person' of children to guardian." The guardianship agreement set a maximum length of guardianship until Aug. 29, 2014.
In October 2013, less than six months after the children moved to Pennsylvania with the guardian, the father filed a custody action in Texas, "which resulted in an order establishing the custodial arrangements between mother and father, and giving the father the right to designate the children's primary residence without regard to geographic location." According to the opinion, the guardian was not notified of, and did not have the opportunity to participate in, the Texas custody proceedings.
The guardian filed a custody complaint in Pennsylvania (Schuylkill County) on July 25, 2014. Court proceedings were scheduled thereafter in Pennsylvania and a conciliation conference occurred where an interim status quo order was entered pending a trial. As reflected in the opinion, the trial date was scheduled and continued numerous times and then cancelled when it appeared the parties reached a final resolution. Because the parties' agreement ultimately fell through, a trial was scheduled. The father then filed a motion to dismiss the guardian's complaint primarily based on the fact that the existence of the Texas custody order "deprived the [Pennsylvania] trial court of jurisdiction." The trial court granted the father's motion and the guardian filed a timely notice of appeal.
In a footnote in the Superior Court's opinion, the Superior Court provided a reminder that it does not necessarily apply a "bright-line application" of the appellate rule under children's fast track appeals that requires the appellant to file his statement of errors complained of on appeal contemporaneously with the notice of appeal. Here the Superior Court found that there was no prejudice and, hence, no waiver when the guardian failed to file her statement contemporaneously with her notice of appeal because she ultimately filed it and the trial court addressed the guardian's issues.
The crux of the appeal pertained to whether Pennsylvania had jurisdiction to modify the Texas order. Under the exclusive continuing jurisdiction section of the UCCJEA, because the order was entered in Texas, and the parents remained in Texas, Texas is the appropriate jurisdiction to hear modification actions of the order. However, the guardian raised the issue as to whether Texas had jurisdiction to make the initial custody determination. The guardian's argument lies in the fact that the children did not reside in Texas at the time the father filed his custody action in Texas. Therefore, the guardian claimed that Texas was not the children's home state at the time the action was initiated in Texas. This is an issue that has previously been addressed by Pennsylvania's appellate courts. The definition of home state under the provision of the UCCJEA adopted by Texas is as follows: "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." The debate surrounding the UCCJEA and the definition of home state is whether a break between the six-month period and the filing can occur. The purpose of the home state definition is to provide a safe harbor of six months surrounding the filing so that there is predictability of where custody actions should be filed. According to the opinion, "the children had lived in Texas the entire time before they came to Pennsylvania, making Texas the home state of the children within six months before the father filed the action there and that the father and mother continued to live in Texas." As such, the Superior Court held that Texas had jurisdiction to make an initial custody determination under the UCCJEA adopted by Texas.
Previously, the Pennsylvania Superior Court in the case of R.M. v. J.S. , 20 A.3d 496 (Pa. Super. 2011), stated: "We conclude, based upon the stated legislative purpose of prioritizing home state jurisdiction and the history behind the UCCJEA, it was the intent of the General Assembly that there be a six-month window for a state to establish home state jurisdiction in circumstances where a child is no longer in Pennsylvania at the time the custody action commences." "If a child is absent at the time of filing but has otherwise resided in the state for at least six months prior thereto, home state status will not be lost. As such, once qualified as the 'home state,' a state retains home state jurisdiction for a six-month period commencing on the date the child leaves the state."
Because Texas had jurisdiction to make an initial custody determination the Superior Court held that it had exclusive, continuing jurisdiction over the matter. The Superior Court also highlighted that under Pennsylvania's definition of "home state" the children's temporary absence from Texas counts toward their Texas residency. The guardianship agreement provided a maximum length of time for the guardianship which concluded on Aug. 29, 2014 (and could end sooner by being revoked prior to that date). Therefore, the Superior Court found that the trial court properly construed the agreement as a temporary guardianship. As such, the Superior Court affirmed the trial court's holding that Pennsylvania lacked subject matter jurisdiction to make an initial custody determination under Section 5421 of the UCCJEA as adopted by Pennsylvania. Lastly, the Superior Court reiterated that the guardian is free to make an inconvenient forum argument as well as others in Texas as that is the appropriate jurisdiction for such arguments.
This case is an important case because it provides yet another reminder of how the UCCJEA works. It is important to remember that inconvenient forum arguments are not lost due to exclusive, continuing jurisdiction attaching to orders and states. However, they must be brought in the proper jurisdiction. As in this case, the guardian had strong arguments, but they were simply made in the wrong state. This appears to happen more often than not in custody cases where jurisdiction is an issue. In cases such as this, the doors are not necessarily closed for custody and litigation, however, the right building must be chosen before opening the door.
Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel. He is co-author of the book "Pennsylvania Child Custody Law, Practice, and Procedure." Bertin is a fellow of the American Academy of Matrimonial Lawyers, a former chair of the family law section of the Philadelphia Bar Association, the current co-chair of its custody committee, and holds the officer position of second vice chair of the family law section of the Pennsylvania Bar Association. Bertin can be reached at 215-665-3280 or firstname.lastname@example.org.
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Reprinted with permission from the February 14, 2017 edition of THE LEGAL INTELLIGENCER © 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, email@example.com or visit www.almreprints.com. # 201-02-17-09