J-A07045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

H.L.K.                                          IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

F.A.A.

                         Appellant                  No. 1831 WDA 2014


              Appeal from the Order Entered October 23, 2014
             In the Court of Common Pleas of Allegheny County
                  Family Court at No(s): FD09-07348-009


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                           FILED AUGUST 28, 2015

      Appellant, F.A.A. (Father) appeals from the October 23, 2014 order,

concluding that the family court had jurisdiction to make an initial custody

determination pursuant to Section 5421(a) of the Uniform Child Custody

Jurisdiction and Enforcement Act (UCCJEA), 23 Pa.C.S.A. § 5401-5482. The

order further declined to register the custody order issued in the Kingdom of

Saudi Arabia pursuant to Section 5445(d)(1) and under principles of comity.

After careful review, we affirm.

      The relevant factual background, as gleaned from the certified record,

follows. H.L.K. (Mother), a citizen of the United States, and Father, a citizen

of Saudi Arabia, married in Allegheny County in 1994. Family Court Opinion,

10/23/14, at 2. That same year, the parties moved to Saudi Arabia, where

their son, M.A.R., was born in October 1996, and their daughters, M.A.R.
J-A07045-15


and M.A.R., were born in January 2000, and September 2001.           Id.   The

three children are dual citizens of the United States and of Saudi Arabia. Id.

      Mother and Father divorced in October 2012, and Mother returned

alone to the United States. Family Court Opinion, 10/23/14, at 2. In June

2013, Father permitted the three children to visit Mother for the summer

months in Allegheny County.     Id.   The parties’ daughters have remained

with Mother in Allegheny County since that time, but the parties’ son

returned to Saudi Arabia on August 18, 2013. Id. at 3.

      The procedural history of this case may be summarized as follows. In

August of 2013, Mother filed a pro se complaint for custody in Allegheny

County, wherein she requested primary custody of the three children.       Id.

By order dated August 7, 2013, the family court granted Mother’s custody

request. On October 9, 2013, Father filed an emergency motion to vacate

the order, wherein he alleged that he did not receive timely notice of the

complaint, and that the family court lacked jurisdiction under the UCCJEA.

Id. On November 7, 2013, the family court vacated the custody order and

assumed interim emergency jurisdiction pending a hearing on jurisdiction,

which occurred on March 26, 2014.      Id. at 3-4.   By order dated April 2,

2014, the family court found that it did not have jurisdiction over the

custody action. Id. at 4; Order, 4/2/14.

      Thereafter, on April 17, 2014, Father initiated a custody action in

Saudi Arabia, wherein he sought custody of the three children. Family Court


                                      -2-
J-A07045-15


Opinion, 10/23/14, at 4. On May 23, 2014, Mother filed a second custody

complaint in Allegheny County, wherein she sought primary physical and

shared legal custody of the parties’ daughters.1 Id.; Complaint for Custody,

5/23/14.    On May 27, 2014, the family court issued a rule to show cause

upon Mother to show why her second complaint should not be dismissed for

lack of jurisdiction. Family Court Opinion, 10/23/14, at 4.

       On July 17, 2014, a Saudi Arabian court issued a custody order that

granted Father sole custody of the parties’ daughters. Family Court Order,

7/17/14. On July 25, 2014, Father filed in Allegheny County a request for

registration of the child custody order in Saudi Arabia. On August 11, 2014,

Mother filed an objection to the registration and enforcement of the foreign

custody order.

       The family court held a hearing on both the jurisdictional and

registration issues on October 9, 2014, during which Mother testified. The

family court found, in part, that it has jurisdiction over Mother’s second

custody complaint, and that the order “entered in the Kingdom of Saudi

Arabia dated July 17, 2014 shall not be registered and is not entitled to

enforcement in this Commonwealth[.]”             Family Court Order, 10/23/14, at

¶ 3.

____________________________________________


1
  Mother did not request custody of the parties’ son, who is now eighteen
years old and living in Saudi Arabia. As such, he is not a subject of this
appeal.



                                           -3-
J-A07045-15


      On November 5, 2014, Father filed a notice of appeal and a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i). By order dated November 12, 2014, the family court stated

that the reasons for the subject order “already appear of record in [the

family court’s] Memorandum dated October 23, 2014….” Order, 11/12/14.

      On appeal, Father raises the following issues for our review.

             [1.] Is Pennsylvania the home state of the minor
             children?

             [2.] Did the temporary absence exception to the
             home state rule apply?

             [3.] Did Mother engage in unjustifiable conduct when
             retaining the children?

             [4.] Should the [family] court have proceeded when
             there was a custody action pending in Saudi Arabia?

             [5.] Should the Saudi Custody Order be registered
             with the [family] court?

Father’s Brief at vi.

      Our standard of review for decisions involving jurisdiction is as follows.

             A court’s decision to exercise or decline jurisdiction is
             subject to an abuse of discretion standard of review
             and will not be disturbed absent an abuse of
             discretion.   Under Pennsylvania law an abuse of
             discretion occurs when the court has overridden or
             misapplied the law, when its judgment is manifestly
             unreasonable, or when there is insufficient evidence
             of record to support the court’s findings. An abuse
             of discretion requires clear and convincing evidence
             that the [family] court misapplied the law or failed to
             follow proper legal procedures.




                                       -4-
J-A07045-15


Wagner v. Wagner, 887 A.2d 282, 285 (Pa. Super. 2005) (citation

omitted).

       Instantly, the family court concluded that it had jurisdiction to make

an initial custody determination pursuant to Section 5421(a) of the UCCJEA,

which provides as follows.2

              § 5421. Initial child custody jurisdiction.

              (a) General rule. --Except as otherwise provided in
              section 5424 (relating to temporary emergency
____________________________________________


2
  In this case, the family court treated the Kingdom of Saudi Arabia as a
state of the United States pursuant to the following provision.

              § 5405. International application of chapter.

              (a) Foreign country treated as state. --A court of
              this Commonwealth shall treat a foreign country as if
              it were a state of the United States for the purpose
              of applying Subchapter B (relating to jurisdiction)
              and this subchapter.

              (b)    Foreign custody determinations. --Except as
              otherwise provided in subsection (c), a child custody
              determination made in a foreign country under
              factual circumstances in substantial conformity with
              the jurisdictional standards of this chapter must be
              recognized and enforced under Subchapter C
              (relating to enforcement).

              (c)   Violation of human rights. --A court of this
              Commonwealth need not apply this chapter if the
              child custody law of a foreign country violates
              fundamental principles of human rights.

23 Pa.C.S.A. § 5405.




                                           -5-
J-A07045-15


          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).

                                 -6-
J-A07045-15




23 Pa.C.S.A. § 5421(a). The UCCJEA defines “home state” as “[t]he 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.” 23 Pa.C.S.A. § 5402.

     The family court found that, at the time Mother filed her second

custody complaint, the parties’ daughters had been living with Mother in

Allegheny County for more than six months. Therefore, pursuant to Section

5421(a)(1), the family court concluded that it had “‘home state’ jurisdiction

to make the initial child custody determination.”     Family Court Opinion,

10/23/14, at 8.

     In his first and second issues on appeal, Father argues Pennsylvania is

not the “home state” because the parties intended that their daughters’ stay

in Pennsylvania would be temporary, lasting only for the summer of 2013.

Father’s Brief at 10. As such, Father implies that Saudi Arabia is the “home

state” of the parties’ daughters, and that their “period of temporary

absence” should be “treated as if [they] never left” Saudi Arabia pursuant to

Section 5402. Id. at 8.

     Upon careful review, we discern no abuse of discretion by the family

court. We adopt the family court’s cogent opinion as dispositive of Father’s

first and second issues on appeal. See Family Court Opinion, 10/23/14, at



                                    -7-
J-A07045-15


5-8 (finding that, “by at least August 18, 2014, when the parties’ son

returned to Saudi Arabia without the parties’ daughters, Father became

aware that the daughters would not be returning to Saudi Arabia and that

Mother    intended     the   daughters         to   reside   permanently   with   her   in

Pennsylvania. Consequently, when Father initially became aware of Mother’s

intent to keep the daughters here in Pennsylvania, the absence from Saudi

Arabia was no longer considered ‘temporary.’”                 Id. at 8, citing M.E.V. v.

R.D.V., 57 A.3d 126, 133 (Pa. Super. 2012)).3, 4

       In his third issue, Father argues that Mother engaged in unjustifiable

conduct when she retained the parties’ daughters in the United States.




____________________________________________


3
  The family court concluded that, “in order to preserve the ‘home state’
status in Saudi Arabia, Father should have initiated simultaneous custody
proceedings in Saudi Arabia within six months of learning that his daughters
were not returning. Nothing prevented him from doing so.” Family Court
Opinion, 10/23/14, at 15 n.8.
4
   In the argument section of his brief, Father asserts that the family court
erred in failing to dismiss Mother’s second custody complaint because she
filed it “within two month[s] of the initial determination [declining to exercise
jurisdiction over Mother’s first custody complaint] and the children’s stay
was extended because of the lengthy time it took to schedule the initial
jurisdiction hearing.” Father’s Brief at 12. We observe that Father did not
assert this error in his concise statement of errors complained of on appeal.
In addition, Father did not raise this issue in the Statement of Questions
Involved in his brief. Therefore, we conclude that Father’s claim is waived.
See Dietrich v. Dietrich, 923 A.2d 461, 463 (Pa. Super. 2007) (stating
that when an appellant filed a Rule 1925(b) statement, any issues not raised
in that statement are waived on appeal); accord Pa.R.A.P. 1925(b)(4)(vii).



                                           -8-
J-A07045-15


Father’s Brief at 12.   Father asserts the family court should have declined

jurisdiction pursuant to Section 5428(a), which provides as follows.

            § 5428.       Jurisdiction declined by reason of
            conduct.

            (a) General rule. --Except as otherwise provided in
            section 5424 (relating to temporary emergency
            jurisdiction) or by other laws of this Commonwealth,
            if a court of this Commonwealth has jurisdiction
            under this chapter because a person seeking to
            invoke its jurisdiction has engaged in unjustifiable
            conduct, the court shall decline to exercise its
            jurisdiction unless:

                  (1) the parents and all persons acting as
                  parents have acquiesced in the exercise of
                  jurisdiction;

                  (2) a court of the state otherwise having
                  jurisdiction under sections 5421 (relating to
                  initial child custody jurisdiction) through 5423
                  (relating      to   jurisdiction     to    modify
                  determination)       determines       that   this
                  Commonwealth is a more appropriate forum
                  under section 5427 (relating to inconvenient
                  forum); or

                  (3) no court of any other state would have
                  jurisdiction under the criteria specified in
                  sections 5421 through 5423.

23 Pa.C.S.A. § 5428(a).

      Based upon our careful review, we conclude that the family court has

ably addressed Father’s third issue. Therefore, we likewise adopt the family

court’s well-reasoned opinion as dispositive of Father’s arguments related to

this issue. See Family Court Opinion, 10/23/14, at 8-13 (finding: (1) “when

Mother chose to keep the parties’ daughters in Allegheny County in August

                                     -9-
J-A07045-15


of 2013 instead of sending them back to Saudi Arabia with the parties’ son,

her conduct was justified”; (2) “Assuming arguendo that Mother’s conduct in

retaining the parties’ daughters in Pennsylvania is considered unjustified,

this Court still declines to apply the general rule stated in Section 5428(a),

because of the exceptions contained in 23 Pa.C.S.A. § 5428(a)(1) and (3)”).

      In his fourth issue, Father argues that the family court erred in

exercising jurisdiction over Mother’s second custody complaint filed on May

23, 2014, when Father’s custody action in Saudi Arabia, filed on April 17,

2014, was pending, of which Mother was served with notice on May 20,

2014. The following provision of the UCCJEA is applicable.

            § 5426. Simultaneous proceedings.

            (a) General rule. --Except as otherwise provided in
            section 5424 (relating to temporary emergency
            jurisdiction), a court of this Commonwealth may not
            exercise its jurisdiction under this subchapter if, at
            the time of the commencement of the proceeding, a
            proceeding concerning the custody of the child has
            been commenced in a court of another state
            having jurisdiction substantially in conformity
            with this chapter unless the proceeding has been
            terminated or is stayed by the court of the other
            state because a court of this Commonwealth is a
            more convenient forum under section 5427 (relating
            to inconvenient forum).

23 Pa.C.S.A. § 5426(a) (emphasis added).

      Upon review, we discern no abuse of discretion by the family court.

We adopt the family court’s cogent opinion as also dispositive of Father’s

fourth issue on appeal. See Family Court Opinion, 10/23/14, at 13 (finding


                                    - 10 -
J-A07045-15


that “Saudi Arabia no longer had jurisdiction under the UCCJEA at the time

Father initiated proceedings there on April 17, 2014. Therefore, because a

child custody proceeding had not been commenced in another state ‘having

jurisdiction substantially in conformity with (the UCCJEA,)’ this Court finds

that … Section 5426[(a)] does not apply”).

      In his fifth and final issue, Father argues that the family court erred in

failing to register the custody order issued in Saudi Arabia on July 17, 2014,

granting Father sole custody of the parties’ daughters.          The following

provision of the UCCJEA is applicable.

            § 5445.      Registration        of   child   custody
            determination.

                                         …

            (d)   Contest over validity of registered order. --A
            person seeking to contest the validity of a registered
            order must request a hearing within 20 days after
            service of the notice. At that hearing, the court shall
            confirm the registered order unless the person
            contesting registration establishes that:

                  (1) the issuing court did not have jurisdiction
                  under Subchapter B (relating to jurisdiction);

                  (2) the child custody determination sought to
                  be registered has been vacated, stayed or
                  modified by a court having jurisdiction to do so
                  under Subchapter B; or

                  (3) the person contesting registration was
                  entitled to notice, but notice was not given in
                  accordance with the standards of section 5408
                  (relating to notice to persons outside
                  Commonwealth), in the proceedings before the


                                    - 11 -
J-A07045-15


                  court that issued the          order   for   which
                  registration is sought.

23 Pa.C.S.A. § 5445(d).

      The family court concluded that, “the Saudi Order is not entitled to

registration because Saudi Arabia did not have jurisdiction to enter the initial

child custody determination when Father initiated proceedings there on April

17, 2014.”    Family Court Opinion, 10/23/14, at 16.       Father contends on

appeal that he waited to initiate a custody action in Saudi Arabia until the

conclusion of the family court’s decision regarding jurisdiction over Mother’s

first custody complaint so as “to avoid simultaneous proceedings.” Father’s

Brief at 17. Further, Father argues there was “[a] breakdown in the court

system [that] caused [the] jurisdiction hearing to be delayed five months

from the date it was requested.”      Id.     He asserts that, “[h]ad the court

scheduled the jurisdiction hearing in a timely manner,” he would have filed

the custody action in Saudi Arabia sooner. Id.

      We discern no abuse of discretion by the court in declining to register

the custody order issued in Saudi Arabia pursuant to Section 5445(d)(1).

The family court recognized that “there was a lengthy delay in deciding

whether it had jurisdiction over Mother’s [f]irst [c]omplaint.” Family Court

Opinion, 10/23/14, at 15, n. 8. Nevertheless, we conclude the family court

properly determined that, Father “should have initiated simultaneous

custody proceedings in Saudi Arabia within six months of learning that his

daughters were not returning. Nothing prevented him from doing so.” Id.

                                     - 12 -
J-A07045-15


       Based on the foregoing, we conclude that all of Father’s issues on

appeal are devoid of merit. Accordingly, the family court’s October 23, 2014

order is affirmed.

       Order affirmed.5

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015




____________________________________________


5
  In the alternative, the family court declined to register the July 17, 2014
custody order issued in Saudi Arabia under principles of comity, finding that
the order violated the public policy of Pennsylvania. Because we conclude
that the family court did not abuse its discretion in declining to register the
foreign custody order pursuant to Section 5445(d)(1), we need not decide
whether the Saudi court’s order is contrary to public policy.



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..



     IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                             FAMILY DIVISION

                                                        No.: FD 09-007348-009

                           Plaintiff,

                     v.
        PA A

                            Defendant.

                                           MEMORANDUM

     BICKET, J.                                                           October 22, 2014


             On May 23, 2014, Plaintiff filed a complaint for custody in Allegheny

     County. On May 27, 2014, a Rule to Show Cause was issued upon Plaintiff to

     show why her complaint should not be dismissedfor lack of jurisdiction. On July

     25, 2014, Defendant filed a request to have a foreign custody order registered In

     Allegheny County. Argument on the return of the rule was held on August 5,

     2014.     Plaintiff filed an objection the registration of the foreign custody order on

     August 11, 2014.      Following briefing and a hearing on October 9, 2014, for the

     reasons set forth below, this Court finds that Plaintiff's complaint tor custody

     should not be dismissed; that this Court has jurisdiction over the within matter;

     and that the foreign custody order should not be registered in Pennsylvania.

                                           BACKGROUND

             Plaintiff,                   (hereinafter, "Mother"), and Defendant FAA

                          (hereinafter, "Father"), formerly husband and wife, are the




                                                                                                           23
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,.




     parents of three children.      M.~. .        (Age 18; D/0/B: 10/15/1996),   A{A I   (Age

     14; D/0/B: 01/09/2000), one MA , (Age 13; D/0/B: 09/19/2001).             Mother is a

     citizen of the United States and Father is a citizen of Saudi Arabia. Mother met

     Father in Allegheny County when she was 15 years old. The parties married in

     Allegheny County In 1994 when Mother was 18 years old. At the end of 1994,

     the parties moved to Saudi Arabia. Thereafter, the parties' three children were

     born. All three children are dual citizens of the United States and Saudi Arabia.

     At some point in the parties' relationship. Mother converted to Islam and all

     three children were raised in the Islamic faith in Saudi Arabia. In 2008, Mother

     moved back to Allegheny County and filed for divorce In Allegheny County in

     2009. However, before a divorce decree was entered, she moved back to

     Saudi Arabia and continued her marriage to Father until October. 2012, at

     which point Mother and Father finally divorced.           Immediately following the

     divorce, Mother belleved she was required to leave Saudi Arabia because she

     was no longer sponsored by Father to remain legally in the country.                  She

     returned alone to Allegheny County on October 5, 2012. At that time, due to

     "guardianship" laws in Saudi Arabia, Mother was unable to return to Allegheny

     County with the children without Father's permission.

           In June of 2013, Father permitted the children to visit Mother in Allegheny

     County. Initially, the parties' Intent was for the children to visit Mother during the

     summer months and to return to Saudi Arabia to attend school in the fall. At

     some point in August of 2013, the parties' daughters allegedly informed Mother



                                               2
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                                                                 Circulated 08/19/2015 03:11 PM




 of their desire to remain with her in the United States. On August 7, 2013, Mother,

pro se, presented a Complaint for Confirmation of Custody/Complaint for

Custody in Allegheny County, requesting custody of all three children

(hereinafter, the "First Complaint").   Upon Father falling to appear, this Court

Issued an Order dated August 7, 2013, confirming Mother's primary custody of

the three children.    On August 18, 2013, the parties' son returned to Saudi

Arabia.   The parties' two daughters, however, remained with Mother and

Mother enrolled them in school in the Mount Lebanon School District In

Allegheny County for the 20l 3 school year.

      On October 9, 2013, Father, appearing specially to challenge the

jurisdiction of this Court, presented an emergency motion to vacate the August

7, 2013 Confirmation of Custody Order. Father argued that he did not receive

timely notice of Mother's First Complaint and that this Court lacked jurisdiction to

enter the Order under the Uniform Child Custody Jurisdiction and Enforcement

Act (hereinafter. the "UCCJEA"). In turn, Mother, now represented by counsel,

argued that Saudi Arabia should not be treated as a state pursuant to the

"human rights exception" contained in the UCCJEA.            (See 23 Pa. C.S.A. §

5405(c)). This Court directed each party to brief the "human rights exception"

and took Father's emergency motion under advisement.

      On November 7, 2013, in response to Father's emergency motion, this

Court entered an Order which vacated the August 7, 2013 Order and assumed

interim emergency jurisdiction based on the allegations in Mother's First



                                         3
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Complaint      pending    a full hearing on jurisdiction.       Said hearing took place on

March 26, 2014.       Following the hearing, on April 4, 2014, this Court entered an

Order finding that it lacked jurisdiction over Mother's First Complaint.1             Since April

4, 2014, the parties' daughters have remained with Mother in Allegheny County

and have attended school, doctors' appointments, and other activities here.

        On April 17, 2014, Father Initiated custody proceedings in Saudi Arabia.

Mother was served with notice of the Saudi Arabian proceedings on May 20,

2014.    On May 23, 2014, represented by new counsel, Mother filed another

Complaint for Custody of the parties' two daughters In Allegheny County

(hereinafter, the "Second Complaint").              On May 25, 2014, this Court Issued a

Rule to Show Cause upon Mother to show why her Second Complaint should

not be dismissed for lack of jurisdiction. After each party briefed this Court on

the relevant issues, oral argument was held on the record on August 5, 2014. In

the meantime, an ex parte proceeding on Father's custody complaint in Saudi




        1. Because it was clear that Pennsylvanlo did not have "hcrne state" Jurisdiction at the
time Mother filed her First Complaint (as the parties' daughters had not lived In Pennsylvania for
six months prior to the time she flied it), the Morch 26, 2014 hearing was held solely to address
whether 23 Po. C.S.A. § 5405(0), which states that foreign countries shall be treated as states of
the United States, should not apply due to the allegations that Saudi Arabia custody law violates
fundamental human rights pursuant to 23 Po. C.S.A. § 5405(c), and/or whether this Court should
continue Its temporary emergency jurisdiction pursuant to 23 Pa. C.S.A. § 5424. Mother failed to
present sufficient evidence showing that Saudi Arabian custody low violates fundamental
human rights or that the parties' daughters were threatened with mistreatment or abuse in Saudi
Arabia; therefore. this Court entered the April 4, 2014 Order finding It lacked Jurisdiction over
Mother's First Complaint. Nelthe[ party appealed.




                                                4

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 Arabia occurred         on June 29, 2014.2         On July 17, 2014, a Saudl Arabian court

 issued a custody order that granted Father sole custody of the parties' children.

 On July 25, 2014,         Father    filed a request to have the Saudi custody order

 registered in Allegheny County. On August 11, 2014, pursuant to 23 Pa. C.S.A. §

 5445(d), Mother filed an objection to the registration and enforcement of the

 Saudi Arabian order. A hearing on both the Jurisdictional and registration Issues

 occurred on October 9, 2014.3

                                               DISCUSSION

 I.   JURISDICTION TO MAKE AN INITIAL CUSTODY DETERMINATION


          Whether a court of this Commonwealth has jurisdiction to adjudicate

 Mother's Second Complaint is governed                       by the Uniform Child Custody

Jurisdiction and Enforcement Act, set forth at 23 Pa. C.S.A. § 5401 et. seq.

Courts of this Commonwealth have Jurisdiction to make an Initial custody

determination only if:



         2. This Court finds Mother was given adequate notice of the Saudi Arabian custody
proceedings. but tolled to appear. Mother testified that she did not attend the Saudi proceedings
because she was afraid to go bock, she did not think it was safe to return and thought she would be
arrested. and she did not know how. or if, she could obtain a visa (even though she never contacted
the U.S. or Saudi embassy to Inquire). This Court finds Mother was reasonable and credible In her
beliefs.

          J. For reasons of judicial economy, this Court Incorporated the relevant testimony and
exhibits presented at the Morch 26, 2014 hearing Into the current proceedings and permitted each
party to supplement same. Neither party objected to the incorporation of the Morch 261h hearing
Into the current proceedings. See Jones v. Jones. 2005 Po. Super. 337. 884 A.2d 916-17 (Po. Super.
2005) (finding that incorporating testimony from a prior custody hearing between the parties was "on
Intelligent and efficient way to proceed, particularly when the same trlal Judge presided over the
prior hearings"). The facts set forth within this Memorandum are from the testimony and relevant
exhibits presented at both the March 26. 2014 hearing and the October 9. 2014 hearing. as well the
Joint stipulations of facts the parties' counsel orally read Into the record at the October 9th hearing.




                                                   5

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'.




            (l) 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 (l) 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 Jurisdictionunder paragraph Cl) or (2) have
           declined to exercise Jurisdictionon the ground that a court of this
           Commonwealth is the more appropriate tarum 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).

     23 Pa. C.S.A. § 5421 (a). "Horne state" is defined as:

           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. In the case of a
           child six months of age or younger, the term means the state in
           which the child lived from birth with any of the personsmentioned.
           A period of temporary absence of any of the mentioned personsis
           part of the period.

     23 Pa. C.S.A. § 5402. A foreign country is treated as if it is a state of the United



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 States for the purposes of applying the provisions of the UCCJEA, unless the

 custody law of the foreign country violates fundamental                     human rights.       23 Pa.

 C.S.A. § 5405.

         In the matter sub iualce. the parties' daughters have clearly "lived" with

 Mother in Pennsylvania since June of 2013.4                       Thus, under the clear and

 unambiguous definition of "home state" contained In Section 23 Pa. C.S.A. §

5402, at the time Mother commenced the instant child custody proceeding by

filing her Second Complaint on May 23, 2014, Pennsylvania was the two

daughters' "home state," unless their absence from Saudi Arabia Is considered

temporary.

        A. Temporary Absence

        Father argues that the daughters' absence from Saudi Arabia should be

considered "temporary" and therefore, not Included In the calculation of time

they lived with Mother in Pennsylvania, but instead Included in the period of

time the children have lived in Saudi Arabia. See Defendant's Reply Brief In

Response to Rule to Show Cause (hereinafter "Father's Brief"), at pp. 4-5.

Father's analysis Is partly correct. When the children initially came to visit Mother

In Allegheny County in June of 2013, the Court finds that the visit was intended

to be temporary. However, by at least August 18, 2013, when the parties' son

          4. The word "llve" is synonymous with the word "reside." R.M. v. J.S., 20 A.3d 496, 505 (Pa.
Super. 2011). "The classic legal definition of the term 'residence' in this Commonwealth Is 'livfng In a
particular place. requiring only physical presence." Wagner v. Wagner, 887 A.2d 282. 286 (Pa. Super.
2005) (citing Norman v. Pennsy/vanra Nar; Ins. Co., 684 A.2d 189, 191 (Pa. Super. 1996)). Uttllzfng this
definition. the daughters hove clearly "llved· with Mother In Pennsylvania since June, 2013.




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 returned to Saudi Arabia without the parties' daughters, Father became          aware

 that the daughters    would not be returning to Saudi Arabia and that Mother

 intended   the   daughters   to reside permanently      with   her in Pennsylvania ..

Consequently,     when Father initially became   aware of Mother's intent to keep

the daughters     here in Pennsylvania, their absence from Saudi Arabia was no

longer considered     "temporary."    See M.E. V. v. R.D. V., 57 A.3d 126, 133 (Pa.

Super. 2012)(suggestlng In dicta that a child's absence from his or her home

state will no longer be considered temporary once the stay-at-home parent

becomes aware of the other parent's Intent). Additionally, Mother enrolled the

daughters In school in Allegheny County in August of 2013, further indicating her

intent for the children to permanently reside with her. At the time, there was no

custody order in place and the parties merely disagreed as to where their

daughters would live.

      Because the parties' daughters had "lived" in Pennsylvania for over six

months preceding the date Mother filed her Second Complaint (I.e. August 18,

2013 to May 23, 2014), pursuant to 23 Pa. C.S.A. § 5421 (a). this Court has "home

state" jurisdiction to make the initial chlld custody determination.

      B. Unjustifiable Conduct

      Father further argues that this Court should decline Jurisdiction because

Mother has engaged in "unjustifiable conduct." See Father's Brief. at pp. 6-7.

Section 5428(0) of the UCCJEA states:




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        (l)f a court of this Commonwealth has jurisdiction under this chapter
       because a person seeking to invoke Its jurisdiction has engaged in
       unjustiflable conduct      the court shall decline to exercise its
       jurisdiction unless:

              (1) the parents and all persons acting as parents have
              acquiesced in the exercise of jurisdiction;

              (2) a court of the state otherwise having jurisdiction
              under sections 5421 (relating to initial child custody
             jurisdiction) through 5423 (relating to jurisdiction to
              modify      determination)    determines    that   this
             Commonwealth Is a more appropriate forum under
             section 5427 (relating to inconvenient forum); or

              (3) no court of any other state would have jurisdiction
              under the criteria specified In sections 5421 through
              5423.

23 Pa. C.S.A. § 5428(0).   Before considering whether any of the three exceptions

contained in Section 5428(0) apply, this Court must first consider whether Mother

has engaged in unjustifiable conduct. "Justifiable" is defined as "(c)apable of

being legally or morally Justified; excusable; defensible." BLACK'S LAW DICTIONARY

(9th ed. 2009).   This Court finds that when Mother chose to keep the parties'

daughters in Allegheny County In August of 2013 instead of sending them back

to Saudi Arabia with the parties' son, her conduct was justified.

       First, Mother testified that she believed, mistakenly or not that she was

required to leave Saudi Arabia immediately following the parties' divorce in

October of 2012. When Mother left Saudi Arabia. the children were required to

stay with Father in Saudi Arabia due to Saudi "guardianship" laws, unless Father

gave his permission for them to leave. Effectively, Father was awarded de facto

custody of the children following the parties' divorce. Additionally, while it is true


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.

     that Father permitted the children to visit Mother in June of 2013 with the

     expectation that they return to Saudi Arabia in the fall, when it came time for

     the children to return to Saudi Arabia, the parties' daughters, whom this Court

     finds to be mature and intelligent, desired to stay with Mother. Mother wanted

     to respect her daughters' wishes and she did not want them to return to Saudi

    Arabia. She believed her daughters would live a better life in America. At the

    time, there was no custody order in place; the parties merely disagreed as to

    where the children would reside. Finally, Mother believed that If she sent the

    parties' daughters back to Saudi Arabia, she would have no chance to obtain

    custody under Saudi Arabian law and possibly would never see her children

    again.s

            In sum, Mother's conduct                 in keeping the parties' daughters in

    Pennsylvania was based partly on her beliefs regarding the laws of Saudi Arabia

    and partly on her daughters' strong desire to remain In Pennsylvania. Her

    conduct was neither illegal nor in violation of any court order. For these reasons,

    this Court finds that Mother's conduct was justlfled.6

            5. Considering the language contained In the July 17, 2014 Saudi Arabian Order of Court,
    Mother's beliefs regarding her chance to obtain custody In a Saudi court system appear to at least
    be reasonable, If not validated.

             6. In McCoy v. Thresh. 862 A.2d 109. 115 (Po. Super. 2004). the trial court determined that a
    father's conduct In retaining the children In Pennsylvania Instead of returning them to Californfa when
    summer was over. in contravention of the parents' agreement. was unjustifiable. However. the
    Superior Court affirmed the trial court's opinion on different grounds. Id. ("We agree with the trial
    court that Pennsylvania does not have jurisdiction under either the "home store" or the "significant
    contacts" provision of the UCCJA..). The Superior Court never reached whether the trial court's
    determination regarding the father's unjustifiable conduct was correct. The trial court's finding that
    the father's conduct in McCoy was unjustiflable Is not binding on this Court. especially considering the
    specific and unique circumstances of this case.




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       Assuming   arguendo that Mother's conduct in retaining the parties'

daughters in Pennsylvania is considered unjustified, this Court still declines to

apply the general rule stated in Section 5428(0), because of the exceptions

contained in 23 Pa. C.S.A. § 5428(a)(l) and (3). The Uniform Law Comment to

Section 5428 explains that the reasoning behind Section 5428(a) (i.e. a concern

that one parent will take a child to another jurisdiction in an attempt to find a

more favorable forum) has become diminished due to the enactment of the

UCCJEA:

      The "Clean Hands" section of the UCCJEA has been truncated in
      this Act. Since there is no longer a multiplicity of jurisdictions which
      could take cognizance of a child-custody proceeding, there Is less
      of a concern that one parent will take the child to another
      Jurisdiction In an attempt to find a more favorable forum. Most of
      the jurisdictional problems generated by abducting parents should
      be solved by the prioritization of home state in section 20l (section
      5421 ); the exclusive, continuing Jurisdiction provisions of section 202
      (section 5422); and the ban on modification in section 203 (section
      5423). For example, If a parent takes the ch/Id from the home state
      and seeks an originalcustodydetermination elsewhere, the stay-at-
      home parent has six months to file a custodypetition under the
      extended home stale jurisdictionalprovision of section 201 (section
      5421), which will ensure that the case is retained in the home slate.
      (.' ,)

       Nonetheless, there are still a number of cases where parents, or their
      surrogates, act in a reprehensible manner, such as removing,
      secreting, retaining, or restraining the child. This section ensures that
      abducting parents will not receive an advantage for their
      unjustifiable conduct. If the conduct that creates the jurisdiction is
      unjustified, courts must decline to exercise jurisdiction that is
      inappropriately invoked by one of the parties. For example, if one
      parent abducts the child pre-decree and establishes a new home
     state. that jurisdiction will decline to hear the case. There are
     exceptions. If the other party has acquiesced In the court's
     jurisdiction, the court may hear the case. Such acquiescence may



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       occur by ( ... ) not filing in the court that would   otherwise have
      jurisdiction under this Act.

 Id. (Uniform Law Comment)(emphasis added).

      Here, if Father believed that Mother's conduct in retaining their daughters

in Pennsylvania was unjustified, the Unifarm Law Comment suggests that his

remedy was to Initiate simultaneous child custody proceedings In Saudi Arabia

within six months of learning of Mother's unjustified conduct.   See e.g. M.E. V. v.

R.D. V., 57 A.3d 126, 128 (Pa. Super. 2012) (when mother Informed father that the

children would not be returning to their "home state" of New Jersey, father

initiated proceedings In New Jersey within six months, thus preserving "home

state" jurisdiction In New Jersey).      Mother's conduct allegedly became

"unjustifiable" on August 18. 2013, when she failed to return the parties'

daughters to Saudi Arabia.       However, Father waited approximately eight

months to initiate child custody proceedings in Saudi Arabia.         When Father

finally did initiate child custody proceedings in Saudi Arabia on April 17, 2014,

Saudi Arabia no longer had "home state" jurisdiction; Pennsylvanla did. As such,

this Court finds that, even if it considers Mother's conduct unjustified, the

exceptions contained in Section 5428(a)(l) and (3) apply. Therefore, this Court

will exercise jurisdiction over Mother's Second Complaint. See also AI-Raddahi v.

AI-Raddahi, 2006 WL 5483095 (Columbia Cnty. Ct. Cmmn. Pis., May 17, 2006)

("When (mother) did not return on the plane as planned, (father) knew or should

have known that (mother) was not going to return to Saudi Arabia In August

2005. He did nothing to address his custody concerns for over six months. He


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knowingly allowed    (mother) and the minor child to establish residency in

Pennsylvania,their home state. Only after they had done so did he take action.

He cannot now complain.")

      C. Simultaneous Proceedings

      Father also argues that because a custody proceeding had already

commenced In Saudi Arabia (on April 17, 2014) and a determination had

already been made In Saudi Arabia (on July 17, 2014), under 23 Pa. C.S.A. §

5426, a Court of this Commonwealth may not exercisejurisdictionover Mother's

Second Complaint (filed May 23, 2014). See Father's Brief, at pp. 5-6. Section

5426(0)states:

      (A) court of this Commonwealth may not exercise its jurisdiction
      under this subchapter if. at the time of the commencement of the
      proceeding, a proceeding concerning the custody of the child has
      been commenced in a court of another state having Jurisdiction
      substantially in conformity with this chapter unless the proceeding
      has been terminated or is stayed by the court of the other state
      because a court of this Commonwealth Is a more convenient forum
      under section 5427 (relating to Inconvenient forum).

23 Pa. C.S.A. § 5426(0) (emphasisadded). As explained above, Saudi Arabia

no longer had jurisdiction under the UCCJEA at the time Father Initiated

proceedings there on April 17, 2014.       Therefore, because a child custody

proceeding had not been commenced in another state "having jurisdiction

substantially in conformity with (the UCCJEA,)"this Court finds that Subsection

(a) of Section 5426does not apply.




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        D. This Court's Prior Decision regarding Jurisdiction

        Father's final argument is that because this Court hod already made an

 "initial custody determination" on April 4, 2014 by finding that it lacked

Jurisdiction to address Mother's First Complaint, this Court continues to lack

Jurisdiction with respect to Mother's Second Complaint. See Father's Brief, at p.

3 (citing 23 Pa. C.S.A. §§ 5406, 5421).                This argument ls flawed because the

Jurisdictional determination with respect to Mother's First Complaint was not an

"initial child custody determination" as Father suggests In his Brief. Tt)e UCCJEA

defines a "child custody determination" as:

        A judgment, decree or other order of a court providing for legal
        custody, physical custody or visitation with respect to a child. The
        term includes a permanent, temporary, Initial and modification
        order. The term does not include an order relating to child support
        or other monetary obligation of an individual.

23 Pa. C.S.A. § 5402. An "initial determination" ls defined as "(t)he first chlld

custody determination concerning a particular child."                     Id.   As these sections

make clear, a determination with respect to jurisdiction Is not on "Initial child

custody determination."? As such, this Court finds that Sections 5406 and 5421,




        7. Even if the April 4, 2014 Jurisdictional determination with respect to Mother's First
Complaint is considered a "chlld custody determination." under Father's reasoning.
Pennsylvania courts would never be able to exercise Jurisdiction. even If Father never Initiated
custody proceedings or waited several years to Initiate child custody proceedings in Saudi
Arabia following entry of the April 4. 2014 Order. Clearly. this result would be Inconsistent with the
goals of the UCCJEA and the Legislature's definition of "home stote."




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read together, do not prevent this Court from finding that it has jurisdlctlon over

Mother's Second Complaint.a

II. REGISTRATION OF THE SAUDI ARABIA CUSTODY ORDER

        On July 25, 2014, pursuant to 23 Pa. C.S.A. § 5445(0), Father filed a request

to have the July 17, 2014 Saudi Arabia Custody Order of Court, which gave

Father sole custody of the parties' daughters, registered In Allegheny County.

On August 11, 2014, pursuant to 23 Pa. C.S.A. § 5445(d), Mother filed an

objection to said registration, arguing that the Saudi Order should not be

registered because 1) Saudi Arabia did not have jurisdiction under the UCCJEA

to enter sold Order, and/or 2) the Order violates Pennsylvania public policy. See

Plaintiff's Responseto Defendant's Reply to Rule to Show Cause Brief, at pp. 16-

18. Under Section 5445(d), a Court shall decline to register a foreign custody

order if the person contesting registration establishesthat:

       (1) the issuing court did not have jurisdiction under Subchapter B
       (relating to jurisdiction);

       (2) the child custody determination sought to be registered hos
       been vacated, stayed or modified by a court having jurisdiction to
       do so under Subchapter B; or



        8. In further support of Father's argument tho! the Jurlsdlctlonol determination regarding
Mother's First Complaint was binding on her Second Complaint. Father argues that "l(t) parties
were permitted to continue to repeatedly request a determlnotlon of Initial custody jurisdiction It
would encourage parents to hold children In a Jurisdiction in order to forum shop ( . . ) Father
should not be punished by losing custody jurisdiction based on the length of the Court process."
Father's Brief. at p. 3. This Court realizes that there was a lengthy delay In deciding whether It
hod Jurisdiction over Mother's First Complaint. Nevertheless, Father's argument Is without merit,
because, as stated above. in order to preserve "home state" status In Saudi Arabia, Father
should have Initiated simultaneous custody proceedings In Saudi Arabia within six months of
learning that his daughters were not returning. Nothing prevented him from doing so.




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        (3) the person contesting registration was entitled to notice, but
        notice was not given in accordance with the standards of section
        5408 (relating to notice to persons outside Commonwealth), In the
        proceedings before the court that Issued the order for which
        registration is sought.

23 Pa. C.S.A. § 5445(d).           Here, the Saudi Order is not entitled to registration

because Saudi Arabia did not have Jurisdictionto enter the initial chlld custody

determination when Father initiated proceedings there on April 17, 2014.

        Assuming arguendo that Saudi Arabia did have jurisdiction to make the

initial child custody determination, this Court still declines entry of the Order in

Allegheny County under principles of comity, as said Order violates Pennsylvania

public policy. A cursory review of the Saudi Order (attached hereto as Exhibit

"A") reflects that the basis for awarding sole custody to Father is Inconsistent

with Pennsylvania public pollcv.? In pertinent part, the Saudi Order reads as

follows:

        First, (t)he non-Muslim shall not have right of custody of a Muslim,the
        scholars emphatically supported this, lbn Al Qayem stated In Zad
        (5/410) 'The custodian's care ls that a child be grown up and
        educated on his religion of Islam, and after maturity is so difficult for
        him/her to leave It.'




         9. The parties intended to call experts to testify regarding this issue. At the conclusion of
the October 9, 2014 hearing, the parties agreed that the Court would first decide the
Jurisdictional Issue and, if necessary, a second date would be scheduled for the parties to call
experts to testify regarding the pubUc policy issue. The Court finds that due to Its Jurisdictional
flndlng stated herein. and Its reasonsfor declining entry of the Saudi Order. no expert testimony Is
necessary on this Issue.




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       Second, (t)he Companions        view that the custody of each girl who
       attains the seventh year of age is with her father, Al lnsaf stated
       (24/ 490): 'if a girl completes the seventh year of age she should stay
       with her father.' Al Bahouti stated in Al Kashaf (5/502): 'the custody
       of a girl who attains the seventh year or more of age Is with her
       father till puberty.'

       Third, (o)n the Sharlah basis if either parent desires to live in a
       remote country, priority for ch/Id custody shall go to the father,
       whether the traveler Is the father or mother, as stated by Al Merdawl
       In Al lnsaf (24/480).

       Fourth, (t)he female after attaining seventh year of age shall have
       no choice and she should stay with her father ti/I marriage,
       providing the custody aim Is to protect her, and the father Is often
       more careful In protecting his daughter which Is why she is engaged
       through him. Therefore she should remain under his care for her
       own safety to guard her against any immoral acts.

      Fifth, In custody, the benefit of the person under custody has priority
      for issuing ruling in custody disputes. The two girls were born in the
      Kingdom of Saudi Arabia, and it Is priority for them to stay in the
      Kingdom of Saudi Arabia rather than any other country, in particular
      their brother Mohammad Is living with their father, the plaintiff for
      the whole family to live under the same roof.

      On all the above mentioned, I have issued the ruling that the
      custody of the two girls May & Maria shall be with the plaintiff.

See Kingdom of Saudi Arabia, Ministry of Justice, Order of Court dated July 17,

2014, at pp. 5-6 (emphasis added) (errors In original).    These provisions,which

appear to be the basis for the Saudi Court's award of sole custody to Father

("On all of the above mentioned ... "), clearly do not reflect public policy in

Pennsylvania. Therefore, even if Saudi Arabia did have jurisdiction In this custody




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matter. this Court declines to register the July 17. 2014 Order of Court under

principles of   comnv.»
Ill. CONCLUSION

        For the reasons set forth above. this Court finds that It has Jurisdiction over

Mother's Second Complaint for Custody pursuant to 23 Pa. C.S.A. § 5421 (a) and

declines registration of the Saudi Arabia Custody Order of Court dated July 17,

2014 pursuant to 23 Pa. C.S.A. § 5445(d)(l) and under princlples of comity.

Accordingly, this Court enters the following Order:




         lO. Some of our sister states have declined to defer to certain countries and/or register
custody orders similar to the Saudi Arabia Order sub Judice under prlnciples of comuv, See e.g.,
All v. Ali. 652 A.2d 253. 260 (N.J. Super.. 1994) (refusing lo recoonbe and enforce a Gazo Court
custody decree based in Islamic/Sharia law); Tatoragosl 11. rotaragosl. 477 S.E,2d 239. 246 (N.C.
App .. 1996)(findlng Turkish/Islamic law not In conformity wlfh Nortt1 Carollno low rn custody
proceeding); Amin v. Bakhaty. 812 So.2d 12. 23 (Lo. App. I Cir .• 200l)(decllnlng to e><lend comity
toward the Egyptlon/lslamlc legal system in custody proceeding), Charora v Yatlm. 937 N.E.2d
490. 497-99 (Mass. App. Ct. 2010)(chlld custody deterrnlnotlon by 1he Lebanese Joaforlte Court
was not decided under law In substantial conformity with Massachusetts low governing child
custody cases. and thus was not entitled to comity).




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