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


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* Former Justice specially assigned to the Superior Court.
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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


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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

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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.”


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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


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       (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

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         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.


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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.


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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

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         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


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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

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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


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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


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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




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