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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.R. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
E.S.C., SR. AND J.C.C.
Appellants No. 612 EDA 2017
Appeal from the Order Entered January 10, 2017
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2014-28814
BEFORE: BOWES, LAZARUS AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 02, 2017
E.S.C., Sr. (“Father”) and J.C.C. (“Mother”), (collectively “Parents”),
appeal from the January 10, 2017 order denying their petition to relinquish
jurisdiction, which requested that the Court of Common Pleas of Montgomery
County relinquish jurisdiction and transfer this matter to the State of
Connecticut.1 We affirm.
____________________________________________
1
We note that, pursuant to Pa.R.A.P. 311(b), an order sustaining venue is
appealable as of right only if:
(1) the plaintiff, petitioner, or other party benefiting from the
order files of record within ten days after the entry of the
order an election that the order shall be deemed final; or
(Footnote Continued Next Page)
* Retired Senior Judge specially assigned to the Superior Court.
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We set forth the salient factual and procedural history as follows:
This case concerns C.C., born on December 17, 2010. The
child lived in Montgomery County, Pennsylvania, as did his
mother and father. The child’s father died on July 10, 2012[,]
and the child’s mother had her parental rights terminated on
October 22, 2013. The child’s paternal grandparents adopted
the child on August 20, 2014, and they are now his mother and
father. On September 1, 2014, mother and child moved from
Souderton, Pennsylvania to Norwich, Connecticut, while father
stayed behind in Pennsylvania because of his employment
schedule. Father commuted from Souderton, Pennsylvania to
his job at Pfizer, Inc., in West Trenton, New Jersey during the
week. Father would commute to Connecticut on weekends.
On October 27, 2014, shortly after mother and child
relocated to Connecticut, the child’s maternal grandmother
[(“Grandmother”)], as plaintiff, commenced this custody action
against the parents, as defendants, seeking shared legal and
partial custody of the child. . . . On April 8, 2015, the parties
appeared before the [trial court] and presented evidence during
a full-day hearing on grandmother’s custody complaint. The
parties on that date reached an agreement by which
grandmother would have partial physical custody, and that
agreement was recited on the record and made an order of this
court. That agreed order was amended, by agreement of the
parties, by the “Stipulated Order to Clarify Order” filed on
December 9, 2015. The result was an agreed custody order by
_______________________
(Footnote Continued)
(2) the court states in the order that a substantial issue of venue
or jurisdiction is presented.
Pa.R.A.P. 311(b). Neither of these requirements has been met herein.
Nevertheless, this Court has allowed an appeal from an order denying a
petition to change venue when there were no other claims pending before
the trial court. See Galgon v. Martnick, 653 A.2d 44, 46 n.1 (Pa.Super.
1995) (finding order denying petition to transfer venue was final where all
that remained before court was pending support order). As there are no
other outstanding matters pending before the trial court, this appeal is
properly before us.
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which grandmother would have physical custody of the child one
weekend every month (three overnights), with an extra day or
days appended during the three summer months and some
holidays.
On October 4, 2016, the parents commenced an action
against grandmother in Connecticut. It was an action for an
order of protection, which is Connecticut’s version of
Pennsylvania’s Protection from Abuse. Parents sought relief
from the Connecticut court based on their claim that the child’s
seven year old cousin had committed an act of sexual abuse
upon him while both children were in grandmother’s care in
Pennsylvania. Temporary relief was denied as final relief.
On November 7, 2016, the parents filed to the Superior
Court, Judicial District of New London at Norwich, Connecticut, a
“Post-Judgment Motion to Modify, Suspend and/or Provide
Supervised Access.” By that motion, the parents asserted that
“it is no longer in the child’s best interest to have unsupervised
contact with the plaintiff.” The parents asked Connecticut to
terminate grandmother’s right to partial custody[.]
In support of their request made to the Connecticut court,
the parents leveled two charges against grandmother. The first
was that the child was being exposed to knowledge of the
existence of his biological mother while in grandmother’s care.
The second was that the child was being physically endangered
while in grandmother’s care. More specifically, the parents
accused grandmother of: (1) failing to “adequately supervise”
the child while in her care; (2) permitting the child to be “in the
presence” of the biological mother; (3) permitting the other
children in grandmother’s custody to “mak[e] statements to the
[child] about his adoption”; (4) failing to “provide adequate
arrangements” for the child; (5) having on display in
grandmother’s home “prominent pictures” of biological mother;
and (6) permitting all children in grandmother’s custody “to go
to a local park without an adult.”
....
On December 9, 2016, per the [trial court’s] directive, the
parents filed with this court a prayer for relief styled as a
“Petition to Relinquish Jurisdiction.” By their petition, the
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parents asked this court to “relinquish jurisdiction and transfer
jurisdiction to the State of Connecticut.”
Trial Court Opinion, 4/13/17, at 1-4 (internal citations omitted).
Following a hearing on the matter, the trial court denied Parents’
petition. Parents filed a timely notice of appeal and complied with the
court’s order to file a Rule 1925(b) concise statement of errors complained
of on appeal. The court authored a Rule 1925(a) opinion. This matter is
now ready for our review.
Parents raise three questions for our consideration:
(1) Where the child and the parents do not have a significant
connection with this Commonwealth and substantial
evidence is no longer available in this Commonwealth
regarding the child’s care, protection, training, and
personal relationships, under 23 Pa.C.S.A. § 5422,
including because (a) [Parents] and the child now live in
Connecticut and neither of the parents reside and exercise
parenting time with the child in Pennsylvania, and
accordingly, there is no basis to find that a significant
connection with Pennsylvania exists; and (b) the parents
and the child all live in Norwich, Connecticut, where the
child’s teachers, counselor, school, and healthcare
providers are located, as well as all other witnesses
regarding the child’s care, protection and training, and
accordingly there is no basis to find that substantial
evidence relating to the child’s care, protection, training,
and personal relationships remains present within
Pennsylvania;
(2) Where the child and his parents do not presently reside in
this Commonwealth, under 23 Pa.C.S.A. § 5422, including
because: (a) the child and his parents do not presently
reside in Pennsylvania and instead have lived in
Connecticut for over two years; (b) parent E.S.C.’s merely
sleeping overnight in Pennsylvania at most three times per
week when he is working in New Jersey does not constitute
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residing in Pennsylvania under 5422 (a)(3), per Section
5422, Uniform Law Comment, paragraph 2; (c) the child’s
maternal grandmother’s status as a Pennsylvania resident
and visitation claimant does not provide a basis for
conferring exclusive, continuing jurisdiction on this
Commonwealth, per Section 5422, Uniform Law Comment,
paragraph 2; and (d) in construing and applying Section
5422, the trial court properly should have considered the
above referenced official comments to the Uniform Child
Custody Jurisdiction and Enforcement Act when
interpreting that statute which was adopted by
Pennsylvania several years after the comments were
published; and
(3) Because this Commonwealth is an inconvenient forum,
including because (a) the child and parents have lived in
Connecticut for over two years; (b) all witness including
the child’s counselor, teachers and healthcare providers,
and the parents and the child, are located in the State of
Connecticut; (c) the State of Connecticut has already
started proceedings regarding the pertinent issues relating
to maternal grandmother’s visitation with the child, and it
is the more convenient forum in accordance with the
applicable statute; (d) Connecticut is the child’s home
state, and as a general rule, the home state of the child is
the preferred forum; and (e) since a hearing/proceeding is
being held in Connecticut, the Connecticut court can make
a determination that the child no longer resides in the
Commonwealth of Pennsylvania?
Appellants’ brief at 4-6.
Parents’ first and second issues challenge the trial court’s
determination that it has subject matter jurisdiction over their custody
dispute. As we observed in B.L. v. T.B., 152 A.3d 1014 (Pa. Super. 2016),
“[w]hether a court has subject matter jurisdiction is a question of law, for
which our standard of review is de novo and our scope of review is plenary.”
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Id. at 1016 (Pa. Super. 2016) (citing S.K.C. v. J.L.C., 94 A.3d 402, 408
(Pa.Super. 2014)).
The Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”)
reads in pertinent part:
(a) General rule.--Except as otherwise provided in section
5424 (relating to temporary emergency jurisdiction), a
court of this Commonwealth which has made a child
custody determination consistent with section 5421
(relating to initial child custody jurisdiction) or 5423
(relating to jurisdiction to modify determination) has
exclusive, continuing jurisdiction over the determination
until:
(1) a court of this Commonwealth determines that neither
the child, nor the child and one parent, nor the child
and a person acting as a parent have a significant
connection with the Commonwealth and that
substantial evidence is no longer available in this
Commonwealth concerning the child’s care, protection,
training and personal relationships; or
(2) a court of this Commonwealth or a court of another
state determines that the child, the child’s parents and
any person acting as a parent do not presently reside
in this Commonwealth.
23 Pa.C.S. § 5422(a).
Parents first contend that the trial court no longer has exclusive,
continuing jurisdiction over their custody matter. They argue that a
significant connection with Pennsylvania “no longer exists in the present
matter.” Appellants’ brief at 15. Parents note that they and the child live in
Connecticut, and that neither parent resides or exercises parenting time with
the child in Pennsylvania. Further, Parents specifically dispute that Father
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resides in Pennsylvania, asserting that he merely sleeps in the state three
nights a week in order to commute to work in New Jersey.
In order to undermine the import of Grandmother’s status as a
Pennsylvania resident, Parents emphasize the official comments to § 5422,
which note that “a remaining grandparent or other third party who claims a
right to visitation, should not suffice to confer exclusive, continuing
jurisdiction on the state that made the original custody determination after
the departure of the child, the parents and any person acting as a parent.”
Appellants’ brief at 16 (citing 23 Pa.C.S. § 5422, comment). Parents claim
that this comment prohibited the trial court from relying on Grandmother’s
residency or contacts with the child to support ongoing jurisdiction. Finally,
Parents assert that substantial evidence relating to the child’s care,
protection, training, and personal relationships does not exist in
Pennsylvania, as this proof is available only in Connecticut where he
currently lives.
After reviewing the certified record and the parties’ briefs, we affirm
on the basis of the trial court’s opinion. See Trial Court Opinion, 4/13/17, at
10-11 (concluding that the child, C.C., maintained a significant connection
with Pennsylvania and that substantive evidence regarding his care,
protection, training and personal relationships necessarily exists in this
Commonwealth since Parents raised claims that Grandmother’s care of the
child within the state was deficient). As noted by the trial court,
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Grandmother exercises custody over C.C. three nights a week, once every
month, with extra days during the summer and during holidays. Id. at 2, 6.
While staying with Grandmother, C.C. lives with four cousins and a half-
sister, and regularly spends time with other family members living in the
area. Id. at 6. Moreover, Parents raised claims implicating Grandmother’s
care of the child while he lives in Pennsylvania, and those allegations will be
resolved by examining evidence obtained from his time within the
Commonwealth. Thus, we find the court did not err in this regard.
Second, Parents argue that the trial court lacks jurisdiction over this
matter since Parents and child moved to Connecticut. Parents again rely on
the commentary to § 5422, which, in this regard, states, “when the child,
the parents, and all persons acting as parents physically leave the state to
live elsewhere, the exclusive, continuing jurisdiction ceases.” Appellants’
brief at 19 (citing 23 Pa.C.S. § 5422, comment) (emphasis omitted).
Parents maintain that they do not physically live in Pennsylvania, and that
Father only sleeps in Pennsylvania three nights a week due to his
occupation.
Again, we affirm on the basis of the trial court’s opinion. See Trial
Court Opinion, 4/13/17, at 11-12 (concluding that Father lives in
Pennsylvania for three overnights a week, and therefore § 5422(a)(2) does
not divest the Commonwealth of jurisdiction). The trial court found and the
record reveals that Parents own a house in Souderton, Montgomery County,
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which Father uses three days a week. Id. at 5. Although Father lives in
Connecticut a portion of the week, he also physically resides, for the
purposes of § 5422(a)(2), in Pennsylvania for the remainder of the week.
No relief is due.
Finally, Parents contend, in the alternative, that the trial court erred in
failing to grant their petition to relinquish jurisdiction since Pennsylvania is
an inconvenient forum. The UCCJEA reads, in pertinent part:
(a) General rule.--A court of this Commonwealth which has
jurisdiction under this chapter to make a child custody
determination may decline to exercise its jurisdiction at any
time if it determines that it is an inconvenient forum under
the circumstances and that a court of another state is a more
appropriate forum. The issue of inconvenient forum may be
raised upon motion of a party, the court’s own motion or
request of another court.
(b) Factors.--Before determining whether it is an inconvenient
forum, a court of this Commonwealth shall consider whether
it is appropriate for a court of another state to exercise
jurisdiction. For this purpose, the court shall allow the parties
to submit information and shall consider all relevant factors,
including:
(1) whether domestic violence has occurred and is likely to
continue in the future and which state could best
protect the parties and the child;
(2) the length of time the child has resided outside this
Commonwealth;
(3) the distance between the court in his Commonwealth
and the court in the state that would assume
jurisdiction;
(4) the relative financial circumstances of the parties;
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(5) any agreement of the parties as to which state should
assume jurisdiction;
(6) the nature and location of the evidence required to
resolve the pending litigation, including testimony of the
child;
(7) the ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present
the evidence; and the familiarity of the court of each
state with the facts and issues in the pending litigation.
23 Pa.C.S. § 5427(a) and (b). Since this argument assumes the
Commonwealth has jurisdiction over the matter, we apply a discretionary
standard of review. S.K.C., supra, at 406 (noting, “when a trial court
possesses subject matter jurisdiction over a child custody dispute, a trial
court’s decision to exercise that jurisdiction is subject to an abuse of
discretion standard of review.”).
Parents do not set forth the relevant factors delineated in § 5427.
Rather, they simply argue that they commenced proceedings against
Grandmother in Connecticut, and Pennsylvania is otherwise inconvenient
since they have lived in Connecticut for more than two years. They maintain
that many of the witnesses they would call on their behalf dwell in
Connecticut, including C.C.’s counselor, teachers, and healthcare providers.
Finally, Parents aver that Grandmother only works part-time, and, as such,
Connecticut would be a less-inconvenient forum for her.
Upon review of the certified record, we affirm this issue on the basis of
the trial court opinion. See Trial Court Opinion, 4/13/17, at 12-15
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(concluding that the § 5427 factors militate in favor of Pennsylvania
retaining jurisdiction over this matter). The trial court evaluated the § 5427
factors in light of the facts of this case and found that factors 3, 4, 5, 6, and
8 were relevant to this proceeding and weighed in favor of Pennsylvania
retaining jurisdiction. We agree with that assessment. The court found that
factor five slightly favored Pennsylvania since, although the parties had not
entered into a forum selection clause, they had agreed on April 8, 2015, that
any future custody proceedings would occur in Pennsylvania. Similarly,
factor eight slightly favored Pennsylvania since the trial court had been
involved from the early stages of the proceeding. Nevertheless, it observed
that, although its involvement had not been extensive, it had been far more
involved than the court in Connecticut.
In addition, the trial court concluded that factors three and four
strongly favored Pennsylvania, noting the financial disparity between the
parties, and the burden Grandmother would endure traveling to Connecticut.
The court highlighted that Parents retain ownership of a house in the
Commonwealth. Finally, the trial court determined that factor six was nearly
dispositive in favor of Pennsylvania, observing that the evidence required to
resolve the litigation is almost entirely in this state since this matter involves
Grandmother’s care of C.C. while exercising her visitation rights in
Pennsylvania. We find that the record supports the trial court’s
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determination, and thus, it did not abuse its discretion in denying Parents’
petition to relinquish jurisdiction.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2017
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