Sunday, December 09, 2012

Out-of-State Action for Divorce, In-State Action for Custody

When parties litigate legal action in two separate jurisdictions, the proceedings can be complicated and expensive. In October 2012, the Pennsylvania Superior Court decided a case dealing with pending custody actions. Mother filed her custody action in Pennsylvania and Father filed his custody action in New Jersey. M.E.V. v. R.D.V., 2012 WL 5205618. Mother and Father were married in September 2005 and had two children together. In May 2011, Mother found out Father was having an affair and relocated with the children from their New Jersey residence to be with family in Erie, Pennsylvania in June 2011. In November 2011, Father filed a Complaint for Divorce in New Jersey, which stated that the children’s home was New Jersey and that the children should be returned to New Jersey so that the parties could exercise joint legal custody. Mother was served with Father’s Complaint on December 28, 2011.

On January 13, 2012, Mother filed a Complaint for Custody in the Court of Common Pleas of Erie County, Pennsylvania. Father filed Preliminary Objections to Mother’s filing, asserting that a prior custody matter had been filed by him in New Jersey and that Mother was aware of his filing. Father asserted that venue was improper in Erie County and that the matter should be heard in New Jersey. 

On March 20, 2012, the trial court in Erie County held a hearing on the matter. The trial court denied Father’s preliminary objections regarding venue. Father appealed and raised the issue of whether the trial court erred in concluding that Pennsylvania, and not New Jersey, was the children’s “home state” under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S. §§5401-5482.

Before ruling on the issue that Father raised, the Superior Court considered whether Pennsylvania had subject matter jurisdiction to determine the issue of whether it had jurisdiction. Any party or the court sua sponte (on its own) can raise the question of subject matter jurisdiction at any time. The Superior Court noted that the UCCJEA was enacted to help avoid jurisdictional conflicts, as well as to promote cooperation between interested jurisdictions. A trial court cannot exercise jurisdiction over a case when another state has jurisdiction priority. If the trial court determines that a child custody proceeding has begun in the court system of another state, then that trial court should put its case on hold and communicate with the other court to determine which court is the more appropriate forum. 23 Pa.C.S. §5426.

Without explaining its reasoning, the trial court concluded that Father did not initiate a custody action under the UCCJEA, because there were no custody proceedings scheduled or pending. The only action pending in New Jersey was Father’s Complaint for Divorce. The Pennsylvania appellate court found that the trial court abused its discretion in making that decision because Father’s Complaint for Divorce included a custody count. The trial court determined that Father did not have a custody proceeding pending in New Jersey and only had a divorce proceeding pending. However, under the statute, a child custody proceeding includes proceedings for divorce. 23 Pa.C.S. §5402. The Pennsylvania trial court should have put its proceeding on hold and checked with the New Jersey court before allowing Mother’s complaint to proceed in Pennsylvania.

The Pennsylvania appellate court also found that the trial court further abused its discretion by determining that Pennsylvania was the children’s home state for the purposes of making a custody determination. The UCCJEA defines home state as the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. 23 Pa.C.S. §5421(a)(1). The trial court determined that the children resided in Pennsylvania, despite Mother’s testimony during the trial that showed that the Mother’s move was on a temporary basis and that Mother and Father would reevaluate in six months. Therefore, the Appellate Court concluded that Pennsylvania did not have jurisdiction over the children.

In summary, the Pennsylvania appellate court found that Pennsylvania did not have jurisdiction because Father had already instituted a custody action in New Jersey and because Pennsylvania was not the children’s “home state.”

If you have questions concerning child custody and where you should commence proceedings, you should contact an attorney.

Written by Allyson Lutley, law clerk at the Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney.


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The termination of relationships and ancillary matters, including divorce, annulment, property settlements, alimony, child custody and visitation, child support and alimony awards are all under family law.
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