J-S39003-19
2019 PA Super 292
T.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
M.H. :
:
Appellee : No. 1107 EDA 2019
Appeal from the Order Entered March 15, 2019
In the Court of Common Pleas of Delaware County
Civil Division at No(s): CV-2017-008046
BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.
OPINION BY GANTMAN, P.J.E.: FILED SEPTEMBER 27, 2019
Appellant, T.D. (“Mother”), appeals from the order entered in the
Delaware County Court of Common Pleas, which granted the petition of
Appellee, M.H. (“Father”), to transfer jurisdiction of this custody action to
Delaware State court. We reverse.
The relevant facts and procedural history of this case are as follows.
Mother and Father are the biological parents of S.H., a minor (“Child”). Father
has resided in Delaware since 1998. Mother moved to Delaware in 2006.
Child was born in 2011, and has resided with Mother since birth. Mother
moved to Pennsylvania in 2014, and then moved back to Delaware on
September 1, 2017. That same day, Mother attempted to file a custody
complaint in Delaware State court, which declined to accept the pleading,
because Child and Mother had not resided in Delaware within the previous six
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S39003-19
months. Mother filed a custody complaint in Pennsylvania, in the Delaware
County Court of Common Pleas, on September 19, 2017. The Delaware
County Court of Common Pleas entered a temporary custody order on October
27, 2017, awarding Mother primary physical custody of Child and awarding
Father partial physical custody of Child every other weekend. On March 27,
2018, Father filed in the Delaware County Court of Common Pleas a petition
to transfer jurisdiction of the custody action to the state of Delaware, pursuant
to Section 5422(a) of the Uniform Child Custody Jurisdiction and Enforcement
Act (“UCCJEA”), 23 Pa.C.S.A. §§ 5401-5482. On April 14, 2018, Mother
moved with Child from the state of Delaware to Chester, Pennsylvania.
On August 8, 2018, the Delaware County Court of Common Pleas
granted Father’s petition and transferred jurisdiction to the state of Delaware.
Mother timely filed a motion for reconsideration on August 27, 2018, which
the court granted on August 28, 2018. On August 30, 2018, Father filed a
petition to modify custody in Delaware State court; the Delaware State court
subsequently stayed Father’s petition at Mother’s request, pending resolution
of the jurisdictional dispute in the Delaware County Court of Common Pleas.
On January 7, 2019, the Delaware County Court of Common Pleas
conducted a hearing on Mother’s reconsideration motion with testimony from
Father, Child’s paternal grandmother, and Mother. On March 15, 2019, the
Pennsylvania court again granted Father’s petition and transferred jurisdiction
to Delaware State court. In its March 2019 opinion, the trial court purportedly
-2-
J-S39003-19
relied upon this Court’s decision in S.K.C. v. J.L.C., 94 A.3d 402 (Pa.Super.
2014) to examine the parties’ and Child’s circumstances under Section 5422
as of the date Father filed his petition to transfer jurisdiction, March 27, 2018.
The trial court determined that, as of March 27, 2018, the parties and Child
had lived in Delaware State for over six months and, as of that date, Child had
more significant connections with Delaware than Pennsylvania.
On April 12, 2019, Mother timely filed a notice of appeal and a
contemporaneous concise statement of errors complained of on appeal per
Pa.R.A.P. 1925(a)(2)(i).
Mother raises two issues for our review:
WHETHER THE PENNSYLVANIA TRIAL COURT ERRED AS A
MATTER OF LAW IN DETERMINING THAT IT LACKED
SUBJECT MATTER JURISDICTION OVER THE INSTANT
CUSTODY MATTER BECAUSE ITS DETERMINATION UNDER
23 PA.C.S.A. § 5422 DID NOT RELY UPON THE FACTUAL
CIRCUMSTANCES AS THEY EXISTED WHEN THE
MODIFICATION PETITION WAS FILED, BUT INSTEAD
RELIED UPON FACTUAL CIRCUMSTANCES AT THE TIME THE
MOTION TO TRANSFER JURISDICTION WAS FILED?
IF THE PENNSYLVANIA TRIAL COURT IN FACT LACKED
JURISDICTION OVER THE INSTANT CUSTODY MATTER AS
OF THE TIME THE MOTION TO TRANSFER JURISDICTION
WAS FILED, DID IT THEREFORE LACK THE POWER TO
DIRECT THE PARTIES TO PURSUE ALL FUTURE LITIGATION
IN THE CUSTODY MATTER IN THE STATE OF DELAWARE?
(Mother’s Brief at 4).
In her issues combined, Mother argues the trial court incorrectly viewed
the parties’ and Child’s circumstances as of March 27, 2018, the date Father
filed in the Delaware County Court of Common Pleas a petition to transfer
-3-
J-S39003-19
jurisdiction, to determine whether the court retained exclusive, continuing
jurisdiction over this custody action under Section 5422. Mother asserts,
pursuant to S.K.C., supra, the trial court should have examined the factual
circumstances as they existed when Father filed a petition to modify
jurisdiction in Delaware State court, August 30, 2018. Mother submits, as of
August 30, 2018, she and Child resided in Pennsylvania and Child had
numerous significant connections to Pennsylvania. Mother also argues that if
the Delaware County Court of Common Pleas no longer had exclusive,
continuing jurisdiction over this custody dispute as of March 27, 2018, the
date Father filed his petition to transfer jurisdiction, then the Delaware County
Court of Common Pleas lacked jurisdiction to rule on Father’s transfer petition.
Mother concludes this Court should reverse the order of the Delaware County
Court of Common Pleas, transferring jurisdiction to the state of Delaware, and
dismiss Father’s petition to transfer as moot. We agree relief is due.
“The purpose of the UCCJEA is to avoid jurisdictional competition,
promote cooperation between courts, deter the abduction of children, avoid
relitigating custody decisions of other states, and facilitate the enforcement of
custody orders of other states.” A.L.-S. v. B.S., 117 A.3d 352, 356 (Pa.Super.
2015). “One of the main purposes of the UCCJEA was to clarify the exclusive,
continuing jurisdiction for the state that entered the child custody decree.”
Rennie v. Rosenthol, 995 A.2d 1217, 1220 (Pa.Super. 2010). The UCCJEA
“is designed to eliminate a rush to the courthouse to determine jurisdiction.”
-4-
J-S39003-19
Bouzos-Reilly v. Reilly, 980 A.2d 643, 645 (Pa.Super. 2009).
Section 5402 of the UCCJEA defines several terms relevant to a
discussion of the operative statutory provisions as follows:
§ 5402. Definitions
* * *
“Child custody proceeding.” A proceeding in which legal
custody, physical custody or visitation with respect to a child
is an issue. The term includes a proceeding for divorce,
separation, neglect, abuse, dependency, guardianship,
paternity, termination of parental rights and protection from
domestic violence, in which the issue may appear. …
“Commencement.” The filing of the first pleading in a
proceeding.
* * *
“Home state.” 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. … A period of temporary
absence of any of the mentioned persons is part of the
period.
“Initial determination.” The first child custody
determination concerning a particular child.
* * *
23 Pa.C.S.A. § 5402.
Section 5421 of the UCCJEA identifies circumstances under which a trial
court has jurisdiction to make an initial custody determination, and reads as
follows:
§ 5421. Initial child custody jurisdiction
-5-
J-S39003-19
(a) General rule.—Except as otherwise provided in
section 5424 (relating to temporary emergency
jurisdiction), a court of this Commonwealth has jurisdiction
to make an initial child custody determination only if:
(1) 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;
(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).
(b) Exclusive jurisdictional basis.—Subsection (a) is
the exclusive jurisdictional basis for making a child custody
determination by a court of this Commonwealth.
(c) Physical presence and personal jurisdiction
-6-
J-S39003-19
unnecessary.—Physical presence of or personal
jurisdiction over a party or a child is not necessary or
sufficient to make a child custody determination.
23 Pa.C.S.A. § 5421.
Section 5422(a) enumerates circumstances under which a court that
has made a custody determination retains exclusive, continuing jurisdiction
over the custody action, and provides, in relevant part, as follows:
§ 5422. Exclusive, continuing jurisdiction
(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)…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 this 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.A. § 5422(a). In other words, “under section 5422(a), a court which
has made a child custody determination under section 5421…retains exclusive,
continuing jurisdiction over that determination until the elements of section
5422(a)(1) or section 5422(a)(2) have been satisfied.” S.K.C., supra at 408.
-7-
J-S39003-19
Further, “Section 5422 is written in the disjunctive, and, therefore, …the trial
court [i]s required only to determine whether the child[] fail[s] one of the
jurisdictional tests set forth in Section 5422(a)”). Wagner v. Wagner, 887
A.2d 282, 286 (Pa.Super. 2005).
Under Section 5422(a)(1),
[A] [Pennsylvania] court that makes an initial custody
determination retains exclusive, continuing jurisdiction until
neither the child nor the child and one parent or a person
acting as a parent have a significant connection with
Pennsylvania and substantial evidence concerning the
child’s care, protection, training, and personal relationships
is no longer available here. The use of the term “and”
requires that exclusive jurisdiction continues in
Pennsylvania until both a significant connection to
Pennsylvania and the requisite substantial evidence are
lacking. In other words, Pennsylvania will retain jurisdiction
as long as a significant connection with Pennsylvania exists
or substantial evidence is present.
Rennie, supra at 1220-21 (emphasis in original). “[B]oth prongs under
[S]ection 5422(a)(1) must be lacking in order to relinquish jurisdiction.” Id.
at 1223 (explaining Court need not consider whether substantial evidence was
available in Pennsylvania regarding child’s care, protection, training, and
personal relationships, because Court concluded there existed significant
connection to Pennsylvania).
[P]ursuant to the plain and ordinary meaning of the phrase
“significant connection,” exclusive, continuing jurisdiction is
retained under [S]ection 5422(a)(1) as long as the child and
at least one parent have an important or meaningful
relationship to the Commonwealth. Accordingly, we must
look at the nature and quality of the child’s contacts with
the parent living in the Commonwealth.
-8-
J-S39003-19
Id. at 1221-22. In other words, “a ‘significant connection’ will be found where
one parent resides and exercises parenting time in the state and maintains a
meaningful relationship with the child.” Id. at 1222. Additionally, “the phrase
‘a court of this state’ under subsection (a)(1) makes it clear that the original
decree state is the sole determinant of whether jurisdiction continues. A party
seeking to modify a custody determination must obtain an order from the
original decree state stating that it no longer has jurisdiction.” 23 Pa.C.S.A.
§ 5422, Uniform Law Comment.
Under Section 5422(a)(2), “[c]ontinuing jurisdiction is lost when the
child, the child’s parents, and any person acting as a parent no longer resides
in the original decree state.” A.L.-S., supra at 360 (quoting 23 Pa.C.S.A. §
5422, Uniform Law Comment). In this context, “residence” means “living in
a particular place, requiring only physical presence.” Wagner, supra at 286.
“The phrase ‘do not presently reside’ is not used in the sense of a technical
domicile. The fact that the original custody determination state still considers
one parent a domiciliary does not prevent it from declining exclusive,
continuing jurisdiction after the child, the parents, and all persons acting as
parents have moved from the state.” 23 Pa.C.S.A. § 5422, Uniform Law
Comment.
It is the intention of this Act that subsection (a)(2) of this
section means that the named persons no longer continue
to actually live within the state. Thus, unless a modification
proceeding has been commenced, when the child, the
parents, and all persons acting as parents physically leave
the state to live elsewhere, the exclusive, continuing
-9-
J-S39003-19
jurisdiction ceases.
* * *
If the child, the parents, and all persons acting as parents
have all left the state which made the custody determination
prior to the commencement of the modification proceeding,
considerations of waste of resources dictate that a court in
state B, as well as a court in state A, can decide that state
A has lost exclusive, continuing jurisdiction.
* * *
Jurisdiction attaches at the commencement of a proceeding.
If state A had jurisdiction under this section at the time a
modification proceeding was commenced there, it would not
be lost by all parties moving out of the state prior to the
conclusion of proceeding. State B would not have
jurisdiction to hear a modification unless state A decided
that state B was more appropriate under section 207
(section 5427)[(relating to inconvenient forum)].
* * *
23 Pa.C.S.A. § 5422, Uniform Law Comment.
This Court has held, “when making a determination under section 5422,
the trial court must rely upon the factual circumstances as they existed when
the modification petition was filed. Likewise, when reviewing a trial
court’s section 5422 determination, this Court must rely upon the facts as they
existed at the time the modification petition was filed.” S.K.C., supra
at 412 (emphasis added). In this context, a “modification petition” is “a
petition filed with a court that maintains exclusive, continuing jurisdiction
under section 5422. We do not use the term to refer to a petition filed with a
court to modify a determination made in another jurisdiction[.]” Id. at 411
- 10 -
J-S39003-19
n. 12.
This interpretation is supported by the comment to section
5422, which reads, in pertinent part, “Jurisdiction attaches
at the commencement of a proceeding. If state A had
jurisdiction under this section at the time a modification
proceeding was commenced there, it would not be lost by
all parties moving out of the state prior to the conclusion of
proceeding.” If we permitted the determination to be made
at any other point in time, it would give no effect to this
comment. Under section 5422(a)(2), a court lacks
exclusive, continuing jurisdiction if all parties move out of
the Commonwealth. If this occurred during the
proceedings, and if we allowed the section 5422
determination to be made based on the facts as they existed
at either the modification hearing or when the trial court
made its determination then our interpretation would
compel the trial court to determine that it lost subject
matter jurisdiction—contrary to the comment to section
5422.
We also believe that allowing the determination to be made
at any other point in time would be problematic. Allowing
the determination to be made at the time a hearing is held
on the modification petition would provide an incentive for
parents not residing within this Commonwealth to delay the
proceedings to reduce any connection that the child would
have with this Commonwealth. Moreover, allowing the
decision to be made based upon the factual circumstances
as they exist at the time the trial court makes its
determination would encourage the trial court to make
factual findings regarding changed circumstances since the
modification hearing occurred. On the other hand, requiring
that the decision be made based upon the factual
circumstances at the time the modification petition was filed
avoids these problems.
Id. at 411-12 (internal citations omitted). The trial court’s decision on
jurisdiction under Section 5422 is a pure question of law, subject to a de novo
standard of review and a plenary scope of review. Id. at 408.
Instantly, no one disputes that the Delaware County Court of Common
- 11 -
J-S39003-19
Pleas had original custody jurisdiction when Mother filed the initial custody
complaint on September 19, 2017, in Pennsylvania. The Delaware County
Court of Common Pleas also had jurisdiction when it entered the temporary
custody order on October 27, 2017, awarding Mother primary physical custody
of Child and awarding Father partial physical custody of Child every other
weekend. Under the plain language of Section 5422(a), the Delaware County
Court of Common Pleas, as the court that entered the temporary custody order
on October 27, 2017, retained exclusive, continuing jurisdiction over this
custody matter to resolve the jurisdictional test of Section 5422. See 23
Pa.C.S.A. § 5422(a); 23 Pa.C.S.A. § 5422, Uniform Law Comment; S.K.C.,
supra. Thus, the Delaware County Court of Common Pleas had the statutory
authority to decide if it should continue to exercise jurisdiction over the
custody dispute. See 23 Pa.C.S.A. § 5422(a); 23 Pa.C.S.A. § 5422, Uniform
Law Comment; S.K.C., supra. Therefore, we reject Mother’s circular
argument that the Delaware County Court of Common Pleas lacked jurisdiction
to determine if it retained exclusive, continuing jurisdiction under Section
5422.
The Delaware County Court of Common Pleas, however, selected the
incorrect date as the benchmark for its Section 5422 analysis. The court
purportedly relied on S.K.C., supra when it used March 27, 2018, the date
Father filed his petition to transfer jurisdiction in Pennsylvania, as the
“snapshot” date for purposes of Section 5422. S.K.C., however, instructs
- 12 -
J-S39003-19
Pennsylvania courts conducting a Section 5422 analysis to view the parents’
and child’s relationship to Pennsylvania as of the date a motion to modify
custody is filed in Pennsylvania. See id. Of all dates available, established
law chose the filing date of a motion to modify custody as the date least
subject to manipulation by the parties or to change by court calendar or
continuances. Id. As such, the date a motion for custody modification is filed
is the least mutable date to measure the elements of Section 5422. Id. Thus,
the date Father filed a petition to transfer jurisdiction was not the appropriate
date for the trial court to use as the “snapshot” date in its Section 5422
calculus.
Further, the S.K.C. Court explained the operative motion to modify
custody for a Section 5422 determination must be filed in the state where
initial custody jurisdiction rests; out-of-state motions for custody modification
do not mark the “snapshot” date in a Section 5422 test. Id. Therefore,
contrary to Mother’s argument, the date Father filed a motion to modify
custody in the Delaware State court (August 30, 2018) is likewise an
inappropriate date for the Delaware Court of Common Pleas to use to examine
the factual circumstances under Section 5422. Id. (stating qualified request
to modify custody in this context must be filed in state of initial jurisdiction).
In light of the foregoing, the Delaware County Court of Common Pleas
misapplied S.K.C. and erred as a matter of law when it based its Section 5422
analysis on the facts as they existed on March 27, 2018, when Father filed his
- 13 -
J-S39003-19
petition to transfer jurisdiction. Further, neither party filed a motion for
modification of custody in Pennsylvania to mark the appropriate “snapshot”
date for Section 5422 purposes. Without a proper motion to modify custody,
filed in the Delaware County Court of Common Pleas, the court lacked the
relevant reference date for its Section 5422 decision. Id. Under the facts and
circumstances of this case, we conclude that jurisdiction over this custody
action remains in the Delaware County Court of Common Pleas in
Pennsylvania, based upon the original custody complaint filed on September
19, 2017, and the temporary custody order of October 27, 2017. Accordingly,
we reverse.
Order reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/19
- 14 -