Under existing law, the basic jurisdiction to allow custody to be determined in the courts of the Commonwealth of Pennsylvania is determined by the actual residence of the children for the six months before a petition is initially filed.
Pennsylvania’s subject matter jurisdiction over the question of custody is determined by the Uniform Child Custody Jurisdiction and Enforcement Act (“Act”), 23 Pa.C.S. § 5401 – 5482.
The purpose behind the promulgation of the Act includes the avoidance of jurisdiction conflicts between the Commonwealth and other states; the promotion of cooperation between interested jurisdictions; the assurance of custody litigation in a form having the greatest nexus with the case; and deterrence of abductions. A trial court must abstain from exercising jurisdiction when another court has jurisdictional priority. Jurisdictional priority occurs when another state, at the time the custody proceeding is initiated in the Commonwealth, a proceeding concerning the custody of the child already in progress.
Recently in the case of M.E.V. v. R.D.V., 2012 PA Super 233, decided October 23, 2012, the Father (R.D.V.) appealed from an order overruling his preliminary objections to a complaint for custody of the parties’ two children filed by the Mother (M.E.V.).
Mother and Father were both living together in New Jersey where they were married and had two children, approximately two and four years of age when in May of 2011, Mother found Father having an affair with another woman. On June 2, 2011, Mother moved with her children to Erie, Pennsylvania, her hometown. Mother and Father agreed that Mother’s location was temporary and the parties would revisit, after a trial period, custody arrangements. In November of 2011, Mother finally told Father that she was not going to move from Erie and that her relocation to Erie was permanent. On November 30, 2011, Father filed a complaint for divorce in New Jersey which complaint, as allowed by New Jersey law, included an allegation that New Jersey was the home state of the children and that the children should be returned to New Jersey so the parties could exercise joint legal custody and Father would be named as the primary custodian and his residence would be the primary residence. Mother was served with a copy of the complaint on December 28, 2011.
On January 13, 2012, Mother filed a complaint for custody in the Erie County Court of Common Pleas. On February 6, 2012, Father filed his preliminary objections to the custody complaint asserting there was a prior custody action filed in New Jersey which Mother was aware of because she had been served and, therefore, as a matter of law, venue was improper in the Erie County Court of Common Pleas. The Court of Common Pleas Court overruled the objections and Father appealed to the Superior Court. The Common Pleas Court found that there was no pending custody case in New Jersey. The Superior Court held that the trial court abused its discretion in making this determination. Writing for the Court, Judge Strassburger wrote,
“There is no question that Father filed a complaint for divorce in New Jersey, which included averments regarding custody, on November 30, 2011, which was served on Wife on December 28, 2011. Mother filed her complaint for custody on January 13, 2012. As such, a child custody proceeding, as defined by the statute, was commenced in New Jersey prior to the child custody proceeding commencing in Pennsylvania. Thus it was incumbent upon the trial court to stay the Pennsylvania proceeding, contact the New Jersey courts in accordance with (law), regarding communication between courts, who would then have the opportunity to exercise or decline jurisdiction. The failure to follow this procedure was an abuse of discretion and the trial court’s order must be reversed on this basis, because it lacked jurisdiction to enter the order.”
The Superior Court noted that the trial court determined that the children lived with the Mother in Pennsylvania for six months. The move to Pennsylvania was not a permanent relocation but rather a temporary move where the parties agreed the move was only temporary and the issue would be revisited. It was not until November of 2011, when Mother advised Father that she would not be moving from Erie, that it could be argued that she was permanently relocated to Pennsylvania. In the same month (November, 2011), Father filed his complaint in New Jersey which included the issue of custody.
The Superior Court stated that its ruling does not mean that Pennsylvania cannot exercise jurisdiction. What the Superior Court’s decision does mean is that Pennsylvania will not determine which state should proceed but rather the issue of what state is the proper state for determination of jurisdiction must be resolved in the favor of New Jersey making that decision.