All but one state in the United States have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA) (the exception being Massachusetts). The predecessor of the UCCJEA was the Uniform Child Custody Jurisdiction Act (UCCJA). A primary complaint about the UCCJA was that numerous custody orders could be entered in different states and forum-shopping could be more prevalent. 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."
In order to avoid forum-shopping and multiple states entering multiple custody orders, the UCCJEA also emphasizes exclusive continuing jurisdiction. 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. Therefore, under the UCCJEA, the litigants are to go back to the court of the issuing state as long as a litigant remains in the issuing state. However, under the UCCJEA, the issuing state can determine that jurisdiction should no longer be in that state.
There is an exception where the issuing state is not the determining court as to whether the case should continue in that court. The exception exists when no parties and the child reside in the issuing state. In such an instance, another state may rule that no parents (or person acting as a parent) currently reside in the issuing state. In all other instances, the issuing state determines whether it should continue to have jurisdiction over the matter.
In the recent case of T.A.M. v. S.L.M., ___ A.3d.___, 2014 Pa. Super. 255 (Nov. 7, 2014), this issue was addressed. According to the opinion, the T.A.M. case contained tragic facts. T.A.M. (the father) and S.L.M. (the mother) are the natural parents of a child who was born in September 2004. T.A.M. and S.L.M. resided in Tennessee and shared custody of the child pursuant to an order entered in Tennessee, as the parties were separated. According to the opinion: "It is undisputed that on Feb. 28, 2011, mother dropped child off at father's residence and mother has not been seen since." The opinion further states that it is undisputed "that police are actively investigating the mother's disappearance as a homicide and the father is considered a person of interest in the case."
Shortly after the mother's disappearance, her mother, D.M.S., who is a resident of Erie County, Pa., petitioned for custody in Tennessee. The maternal grandmother was granted custody by the Tennessee court and the child was permitted to relocate with the maternal grandmother to Erie County. Since the entry of that order, the child has been residing with the maternal grandmother in Pennsylvania. The court also granted the father supervised visitation, with his parents (the paternal grandparents) being the supervisors. According to the opinion, in 2012, the maternal grandmother was successful in suspending the father's supervised visitation after the maternal grandmother alleged "that father and paternal grandmother urged child to burn down maternal grandmother's home and provided matches to assist child in doing so."
Over a year later, on Dec. 6, 2013, the father filed a custody action in Erie County seeking custody. The action brought by the father was against the mother and maternal grandmother. In the father's complaint, he alleged that Pennsylvania should assume jurisdiction over the matter as he "resided in Palm City, Fla., since June of 2013, maternal grandmother and child have resided in Pennsylvania since 2011, and the mother's whereabouts are unknown." After a custody trial was scheduled in Pennsylvania, the maternal grandmother filed a motion in Tennessee to review custody and child support. A few days prior to the scheduled hearing in Pennsylvania, the Erie County trial court received correspondence from the Tennessee trial court indicating that "father's representation to [the trial court] of the Tennessee court's 'willingness to defer jurisdiction to Pennsylvania' was a misrepresentation." According to the opinion, as a result of the correspondence received by the Pennsylvania court, the Pennsylvania court entered an order staying the custody trial "in order to give the Tennessee court the opportunity to address its continuing jurisdiction" at a hearing scheduled in Tennessee. After the scheduled hearing in Tennessee, the Pennsylvania court contacted the Tennessee court and confirmed that a hearing took place and that "no order was entered to relinquish jurisdiction of custody." In citing the trial court, the Pennsylvania Superior Court's opinion reflects that the trial court entered an order dismissing the father's Pennsylvania complaint for custody stating that it lacked jurisdiction to modify the Tennessee court's child custody determination because the Tennessee court did not relinquish jurisdiction.
The father filed a timely notice of appeal raising two issues pertaining to whether the trial court misapplied the law in dismissing his custody complaint that he filed in the home state of the child because the former home state judge declined to relinquish jurisdiction; and whether the trial court erred in not recognizing that Pennsylvania was the more appropriate jurisdiction to adjudicate the matter regardless of the issue of home state.
Pursuant to the UCCJEA, a court of this state has jurisdiction to modify an order made by a court of another state if two requirements are met: (1) it has jurisdiction to make an initial determination under the section of the UCCJEA relating to initial child custody jurisdiction (which favors home state) and (a) the court of the other state determines it no longer has exclusive continuing jurisdiction or that a court of this state would be a more convenient forum, or (b) a court of this state or a court of the other state determines that the child, the child's parents and any person acting as a parent do not presently reside in the other state. Because the child had been living with the maternal grandmother in Pennsylvania for three years, the Superior Court found that "there is no question that Pennsylvania is child's home state." Further, no parent or person acting as a parent still resides in Tennessee. The Superior Court highlighted that the mother has not been heard of since Feb. 28, 2011, and may no longer be living. As such, pursuant to the UCCJEA, the Superior Court found that Pennsylvania has jurisdiction to modify the order of the Tennessee court. The Superior Court vacated the trial court's order, reinstated the father's complaint, and remanded the case for proceedings consistent with the opinion. In a footnote in the opinion, the Superior Court acknowledged that the father may well have been judge-shopping but that "it is irrelevant to the jurisdictional issue."
This case is important for the bench and the bar as it provides a reminder that the trial court's hands are not tied in making a jurisdictional decision when faced with a petition to modify custody of an order of another state when the court of the other state refuses to relinquish jurisdiction and no parents (or persons acting as parents) and the child or children reside in the issuing state. That is the exception where another court (not in the issuing state) can make a determination that no litigants remain in the issuing state.
Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book "Pennsylvania Child Custody Law, Practice, and Procedure." Bertin is a former chair of the family law section of the Philadelphia Bar Association, co-chair of its custody committee, and treasurer of the family law section of the Pennsylvania Bar Association and a member of its executive committee.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Reprinted with permission from the January 13, 2015 edition of The Legal Intelligencer © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, firstname.lastname@example.org or visit www.almreprints.com. # 201-01-15-09