Recently, a number of Pennsylvania Superior Court cases have been published pertaining to jurisdiction in child custody cases. The cases of R.M. v. J.S. , C.L. v. Z.M.F.H. and B.J.D. v. D.L.C. will be addressed in this article.
Jurisdictional disputes in child custody cases are always a hot topic for family law practitioners. In 2004, Pennsylvania enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Prior to the enactment of the UCCJEA, the Uniform Child Custody Jurisdiction Act (UCCJA) governed in Pennsylvania. The UCCJEA was adopted in Pennsylvania to provide clearer standards for the determination of jurisdiction in child custody disputes. However, questions continue to remain regarding the interpretation of different sections of the UCCJEA.
The "home state" of the child is the preferred basis for jurisdiction in child custody cases. Arguments have been raised as to whether the two sections contained in the UCCJEA pertaining to "home state" are in conflict with one another.
Section 5402 defines "home state" as the state where the child lived for "six consecutive months immediately before the commencement of a child custody proceeding." Section 5421(a)(1) provides that Pennsylvania has home state jurisdiction over custody matters if Pennsylvania was the child's home state "within six months before the commencement of the proceeding."
The debate centers around the word "immediately." Does the fact that §5402 provides "immediately before the commencement of a child custody proceeding" invalidate the state's "home state" status if there is a break between the six month period and the filing of the action?
The case of R.M. v. J.S. addressed this issue as well as other jurisdictional issues to be discussed below.
The factual background detailed in the R.M. case is as follows: The parties had one child during their marriage. The parties and the child moved to Florida, "although the mother and the child went back to Pennsylvania for various periods of time." After the mother suffered "a mental episode" the child was placed in her grandmother's care and then returned to the father.
The case of R.M. is a custody dispute where mother, father and grandmother each sought custody of the child. The father filed preliminary objections regarding jurisdiction. The father's preliminary objections were summarily denied. He thereafter filed a timely appeal. The father raised numerous issues on appeal including a standing issue under the former Grandparent Visitation Act (which was repealed in January 2011). Only the jurisdictional issues raised in the case will be addressed herein.
With regard to the issue of whether a break between the six-month home state requirement and the filing of the action invalidates a state's home state status, the Superior Court found that a state does not lose its home state status if such a break in time occurs. The Superior Court held: "We conclude, based upon stated the 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." Therefore, a break in time is permitted.
The father in the R.M. case also raised the issue as to whether the maternal grandmother qualified as a "person acting as a parent" under the UCCJEA. Section 5421(a)(1) provides, in part, that: "This Commonwealth has jurisdiction to make an initial child custody determination only if: 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." Section 5402 defines "a person acting as a parent" as follows: a person who "has physical custody of the child or has had physical custody for a period of six consecutive months including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and has been awarded legal custody by a court or claims a right to legal custody under the laws of this Commonwealth."
According to the opinion in R.M. , "The record reflects that child was judicially removed from mother's care and placed in maternal grandmother's home for one of the six months at issue." The maternal grandmother did not qualify as "a person acting as a parent" as she did not have physical custody of the child for six consecutive months nor was she ever awarded legal custody of the child, according to the opinion. However, the mother and maternal grandmother asserted that the child "was in the constructive custody of mother when she permitted [the child] to spend time with her grandparents."
The Superior Court declined to accept the theory of constructive custody. Because the Superior Court found that the child did not live with a parent for six months, the trial court abused its discretion and committed an error of law by determining that Pennsylvania was the child's home state.
The next issue covered by the R.M. case pertaining to jurisdiction is whether the child's absence from Florida was a temporary absence or permanent absence. Because Pennsylvania is not the home state of the child, if it were decided that the child's absence from Florida was intended to be permanent, Florida would not qualify as the child's home state either. In such a situation, the child would have no home state.
The Superior Court provides a reminder in the R.M. case that if there is no home state of the child, the court must determine which state has "the maximum significant contacts" to decide in which state jurisdiction properly lies. The Superior Court found that the trial court in R.M. erred by not holding a hearing to determine whether the mother's relocation to Pennsylvania was temporary. The 2009 Pennsylvania Superior Court case of Bouzos-Reilly v. Reilly similarly addressed the issue of when there is no home state of the child.
The R.M. case further addressed the issue of when "unjustifiable conduct" can affect a court's decision of exercising jurisdiction in a child custody action. Practitioners should remember that §5428(a) provides, in pertinent part: "If a court of this Commonwealth has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction." Section 5428(a) also provides exceptions to the mandate of declining to exercise jurisdiction in such situations.
In R.M. , the trial court failed to hold a hearing to determine whether it should have declined jurisdiction based on the mother's and maternal grandmother's "unjustifiable conduct." According to the opinion: "Father raised an issue of fact regarding whether mother and maternal grandmother engaged in unjustifiable conduct by failing to inform him of mother's deteriorated mental health status and inability to care for child [and child's living situation in order to have child remain in Pennsylvania]." Because the father raised an issue
of fact regarding same, the Superior Court held that the trial court erred in failing to hold a hearing on the issue.
The R.M. case is important for family law practitioners as it provides an excellent outline and history as to the numerous areas of the UCCJEA and the Parental Kidnapping Prevention Act (PKPA), and resolves the issue in applying the six month requirement for home state jurisdiction. R.M. also reiterates that home state jurisdiction is the preferred basis for jurisdiction in child custody cases, and also provides a reminder that the trial courts should hold hearings to determine whether relocations are temporary or permanent, as well as whether conduct of the parties qualifies as "unjustifiable conduct" if the issue is raised by a party. The Superior Court vacated the order and remanded the case for further proceedings.
The recent case of C.L. v. Z.M.F.H . is also an important case for the family law practitioner as it reiterates when there is no home state of the child and there are simultaneous filings in more than one state, each with significant contacts, the state of the first filing is the appropriate jurisdiction, and the trial courts are to communicate with each other on such issues. The C.L. case, which involved a jurisdictional dispute between a court of the Commonwealth of Pennsylvania and a Tribal Court of an Indian Reservation, also highlights that pursuant to the UCCJEA, Indian Reservations are to be treated as additional states of the United States and the orders from the Tribunal Courts shall be recognized and enforced if made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of the UCCJEA.
Lastly, the recent case of B.J.D. v. B.L.C. is helpful to the practitioner because it addressed the issue of whether a trial court has the ability to make any custody orders if the trial court no longer has exclusive continuing jurisdiction under the UCCJEA. In B.J.D. , the trial court of Blair County, Pa., entered an order in 2009 granting father primary physical custody of the parties' child and permitted the father to relocate with the child to the island of Saipan in the U.S. Commonwealth of the Northern Mariana Islands to live with the father's girlfriend. The mother had been living in Oklahoma since 2004, according to the opinion. The father and the child then temporarily moved to Canada and thereafter Maryland. Prior to the father moving to Maryland the mother wrote a letter to the trial court in Blair County requesting that jurisdiction of the case be transferred to Oklahoma.
Months later, when the father and child moved to Maryland (where his mother resided), the father filed a petition in Blair County requesting to modify the existing custody order to allow him to live in Maryland with the parties' child. The trial court entered an order transferring the case to Oklahoma but did not modify the custody order. The father appealed, claiming the trial court abused its discretion in transferring the case to Oklahoma instead of Maryland. The trial court reasoned that it transferred the case to Oklahoma as it was a place of "stable jurisdiction." The issue of subject matter jurisdiction is "purely one of law" and, therefore, the standard of review is de novo and the scope of review is plenary. Pursuant to §5422, because the parents and child no longer resided in Pennsylvania, Pennsylvania no longer had exclusive continuing jurisdiction to enter any custody orders. Therefore, the Superior Court vacated the trial court's order, dismissed the case, and relinquished jurisdiction, and the issue of proper jurisdiction will take place "in a jurisdiction with a stake in the issue."
MICHAEL E. BERTIN is a partner in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-chairman of the custody committee and secretary of the family law section of the Philadelphia Bar Association, and a member of council and past member of the executive committee of the family law section of the Pennsylvania Bar Association.
This article is reprinted with permission from the .August 9, 2011, issue of The Legal Intelligencer. © 2011 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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