Liz Billies Published Article From Pennsylvania Bar Association Family Law Section
June 18, 2021 • By Elizabeth Billies
Superior Court Determines That Trial Court Misapplied UCCJEA
W. & N.L. vs. L.S. vs. B.L., 1423 MDA 2020 — Non-Precedential Superior Court Opinion
It is no secret that we live in an increasingly transient society. In addition to moving couches and TVs, some parties also bring along their foreign custody orders. What should a party do if they want to modify that order? The Superior Court provided a great reminder as to the rules regarding subject matter jurisdiction in custody actions in W. & N.L v. L.S. v. B.L. Here, the court overturned the trial court’s finding that Pennsylvania was the appropriate jurisdiction to adjudicate the grandparents’ custody action because: (1) the original state (South Carolina) had never ceded jurisdiction to the commonwealth; and (2) father still resided in the original state.
The facts of the case are as follows: L.S. (“mother”) and B.L. (“father”) were married in South Carolina and resided there with their two children until 2018, when the parties separated. On or about January 23, 2020, the parties entered into a custody agreement. As part of that agreement, mother and father agreed that mother could move to Stewartstown, Pennsylvania, and reside there with the children. The agreement also afforded father specific rights regarding visitation and communication. At the time of the agreement, father was (and still is) in the military. While the parties did sell the marital residence located in South Carolina, father continued to reside in the state both after the agreement was entered and during the pendency of this case. However, father is technically a legal resident of Texas. He files taxes in Texas and his driver’s license is registered in that state. Mother continues to live in Pennsylvania.
On or about June 29, 2020, W. & N.L. (“paternal grandparents”) filed a complaint for custody against the parties in York County, Pennsylvania, where mother resides. The decision does not explain why the grandparents chose to file in York County, instead of South Carolina. In response, mother filed objections, arguing both that the trial court had no subject matter jurisdiction in this case and that the grandparents had no standing to file such a custody complaint. In support of her position, mother stated that South Carolina was still the appropri- ate jurisdiction for this matter, as the children still had contacts in that state because father continued to reside there. After hearing, the trial court entered an order stating that the grandparents did have standing to file such a custody action in York County, that York County had subject matter jurisdiction over these parties, and that Pennsylvania was “the more convenient forum.” Mother filed for reconsideration of this decision and a second hearing was held. However, mother’s objections were again overruled on Nov. 2, 2020. In addition to finding that Pennsylvania had subject matter jurisdiction and that the grandparents had standing to pursue this action, the court, sua sponte, temporarily transferred father’s custodial rights to the grandparents pursuant to 51 Pa.C.S.A. §4109, the statute which governs custody proceedings during military deployment. The court said that transfer would be for “as long as father wishes.” Mother appealed this decision.
Mother’s appeal centered on two issues. First, mother asserted that the trial court erred in transferring juris- diction from South Carolina to Pennsylvania, given that, inter alia, father still lived there and South Carolina had never ceded jurisdiction to the commonwealth. Second, mother appealed the trial court’s sua sponte transfer of father’s custodial rights to the grandparents, as such a transfer was done without agreement and without consideration of the custody factors. Mother explained that this transfer was, in essence, a modification of the January 23, 2020, custody agreement and thus a full analysis of the custodial factors was required.
The Superior Court’s decision primarily focused on mother’s first issue for appeal. In support of her position, mother explained that South Carolina still had exclusive and continuing jurisdiction over the case. No party had gone to South Carolina asking for the court to transfer jurisdiction to Pennsylvania. As South Carolina had never said that they no longer had jurisdiction, jurisdiction cannot simply be taken away without their input. Further- more, father still lives in South Carolina. In short, mother argued that South Carolina should get to determine if Pennsylvania is the more convenient forum for the parties, not a Pennsylvania court.
The Superior Court agreed with mother that Pennsyl- vania did not have jurisdiction to modify custodial rights with regards to the grandparents’ custody claim. In order to make their determination, the court painstakingly re- viewed and applied the UCCJEA (the Uniform Child Custody Jurisdiction and Enforcement Act). The court explained that a trial court can only modify another state’s custody order if they have jurisdiction to make an “initial custody determination” and that no parents or people acting as parents reside in the other state. See 23 Pa.C.S.A. §5423. The court explained that the purpose of the UCCJEA was to clarify that the court that entered the initial child custody decree had exclusive and continuing jurisdiction unless anyone with custodial rights to the children no longer resided in that state. There was no question that father still resided in South Carolina. However, to get around this fact, the trial court had analogized father’s situation in South Carolina as akin to an out-of-state college student away at school. The trial court reasoned that South Carolina was not his permanent home and thus, they had jurisdiction to adjudicate the grandparent’s custody claim.
The Superior Court disagreed with the trial court’s analogy. Although father does have a Texas driver’s license and pays taxes in Texas, he has lived in South Carolina consistently since the parties’ separation and, at this time, had no plans to move back to Texas or to move to another state. Also, and perhaps even more impor- tantly, South Carolina never ceded jurisdiction to Pennsylvania. Instead of asking for South Carolina to relinquish jurisdiction, the grandparents filed in Pennsylvania first.
The Superior Court stated that only South Carolina can decide that they no longer have jurisdiction. Pennsylvania cannot make that decision, nor can a party, in this case father, give consent to the appropriateness of another jurisdiction. Based on the above, the court found that Pennsylvania had no subject matter jurisdiction in this case and thus, they vacated all of the orders and remanded the case back to the trial court with these instructions. Because they vacated all of the orders in the matter, the Superior Court did not reach a decision on the second point as to whether the court inappropriately transferred father’s custodial rights to the grandparents without a full analysis of the custody factors. However, in a final footnote, the Superior Court did state that it did appear that mother was correct in her appeal of this, as well. While father is on active duty, he is not deployed. Thus, 51 Pa.C.S.A. §4109 is not applicable here.
This case is a great reminder that, before filing anything, we as practitioners must make sure that we are filing in the appropriate jurisdiction. If a client comes to you with a foreign decree, we must ascertain whether jurisdiction in Pennsylvania or the other state is appropriate before anything is filed. If we do not do so, we are in danger of wasting our client’s time and money. While there certainly are strategic reasons for filing in one jurisdiction versus another, this case makes it clear that a party in a custody case cannot consent to a new juris- diction without the original jurisdiction first relinquishing its right to decide the matter. Also, what remains to be explained in this decision is why the grandparents did not just file in South Carolina themselves. Were they told that they were not able to do so? Was there a strategic reason why Pennsylvania would have been a better forum for their claims? While strategy and motives play into many decisions that we make as family law practitioners, the Superior Court makes it clear that such maneuvers will not be allowed when they are in violation of the UCCJEA and our jurisdictional rules.
Elizabeth Billies is a partner at the Lansdale, Pennsylvania based law firm of Dischell Bartle & Dooley PC, where she exclusively practices family law, specializing in complex financial matters. She is the past president of the Doris Jonas Freed Matrimonial Inn of Court and is an active member of the Pennsylvania Bar Association and Montgomery Bar Association Family Law Sections. Ms. Billies is a graduate of the University of Wisconsin-Madison and Villanova University School of Law. In her spare time, she writes about all things family law on her blog, The Divorce Lawyer Life, https://thedivorcelawyerlife.com. She can also be reached at ebillies@dbdlaw.com or at 215-362-2474.
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