A recent published decision issued on November 7 addressed the question of how a Pennsylvania Court is to act when a Court of another state refuses to relinquish jurisdiction. The facts are absorbing to say the least.
Mother and Father gave birth to a child in Tennessee. They separated and Tennessee entered a shared custody order. In late February, 2011 Mother left the child with Father and disappeared. Father remains a “person of interest” in the context of what is being treated as a homicide. Maternal grandmother, a resident of Erie, Pennsylvania travelled to Tennessee and secured an Order permitting her to relocate the child to her home in this state. Father was awarded visitation under the supervision of his own parents by the Tennessee Court.
In October, 2012 Maternal Grandmother filed an emergency petition to suspend visits with Father alleging that Father had told the now seven year old child to burn down grandmother’s house and gave him matches to do so. The Tennessee Court heard the matter and suspended visits.
In December, 2013, Father filed in Erie County, PA to assume jurisdiction and modify. In part, he states that he moved to Florida six months earlier. Mother has never been found. The child has been resident in Pennsylvania since some time in 2011. The Pennsylvania Court scheduled the matter for March, 2014. A week before the trial, Maternal Grandmother filed to challenge jurisdiction and attached her request to have the matter heard in Tennessee in April, 2014. One day after the challenge to Pennsylvania jurisdiction was lodged; the Tennessee trial court wrote to the Pennsylvania Court observing that if Father had represented Tennessee’s position as one of deferring jurisdiction that was not an accurate recital of the circumstances. The Pennsylvania Court stayed its proceedings in deference to Tennessee. A hearing was held in Tennessee in April and it would appear that that state did not relinquish jurisdiction. In the wake of those proceedings the Erie County judge dismissed the case as Tennessee was still acting.
Father appealed. A three judge panel opinion by Hon. Eugene Strassburger reversed. The interesting factual challenge here was what status one ascribes to the “missing” parent. If presumed alive, her last know residence was Tennessee. The general rule of the Uniform Child Custody Jurisdiction and Enforcement Act is found at 23 Pa.C.S. 5423. It says that Pennsylvania may modify the decrees of other states where those states relinquish jurisdiction OR a court determines that the child, the parents or other contestants do not presently reside in the state which had original jurisdiction. The Court making that assessment can be either the Pennsylvania Court before whom the modification is pending or the original court of jurisdiction. Here, Judge Strassburger notes that the only potential litigant with a present Tennessee connection is the missing Mother and that her failure to appear anywhere in more than three years could not form a basis to assume that she was still alive, let alone resident in Tennessee. The Court then notes that the current incarnation of the Uniform Act places even greater emphasis upon “home state” jurisdiction in preference to significant contact jurisdiction. By all accounts, Father is in Florida, mother remains missing and the child has lived with her Maternal Grandmother in Pennsylvania for three consecutive years. The case belongs in Pennsylvania and deference to the original jurisdiction court was not to rule the day.
T.AM. v. S.L.M. and D.M.S. 844 WDA 2014, 2014 Pa.Super. 255.
Note: The caption lists Mother as a party to the Pennsylvania proceeding.