J-A29043-14

2014 PA Super 255

* Retired Senior Judge assigned to the Superior Court.

T.A.M.,

 Appellant

 v.

S.L.M. and D.M.S.,

 Appellees

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 844 WDA 2014 

Appeal from the Order Entered April 21, 2014

in the Court of Common Pleas of Erie County 

Civil Division at No(s): 13476-2013

BEFORE: FORD ELLIOTT, P.J.E., ALLEN, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.: FILED NOVEMBER 07, 2014

T.A.M. (Father) appeals from the order entered by the trial court 

dismissing his complaint for custody after the trial court concluded that 

Pennsylvania lacks jurisdiction to modify a custody determination. Upon 

review, we vacate the order of the trial court and reinstate Father’s 

complaint for custody.

S.L.M. (Mother) and Father are the natural parents of Child, who was 

born in September of 2004. Mother and Father, both of whom lived in 

Tennessee, were separated, and the two shared custody pursuant to an 

order entered in Tennessee. It is undisputed that on February 28, 2011, 

Mother dropped Child off at Father’s residence, and Mother has not been 

seen since. Furthermore, it is undisputed that police are actively 
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investigating Mother’s disappearance as a homicide, and Father is 

considered a person of interest in the case. D.M.S. (Maternal Grandmother), 

a resident of Erie County, Pennsylvania, initiated a custody action, shortly 

thereafter, in Tennessee to obtain custody of Child. After a trial, the 

Tennessee court granted Maternal Grandmother custody of Child, and Child 

was permitted to relocate to Maternal Grandmother’s residence in Erie 

County, Pennsylvania. Child has lived there since that time.

Father was permitted to have supervised visits with Child under the 

supervision of his parents (Paternal Grandparents). On October 11, 2012, 

Maternal Grandmother filed an emergency motion to suspend Father’s 

visitation. In that motion, Maternal Grandmother alleged that Father and 

Paternal Grandmother urged Child to burn down Maternal Grandmother’s 

home and provided matches to assist Child in doing so. A hearing was 

conducted in Tennessee; the trial court found Child’s testimony about the 

incident credible and suspended visitation. 

On December 6, 2013, Father filed a complaint for custody of Child 

against Mother and Maternal Grandmother in Erie County, Pennsylvania. In 

the complaint, Father alleged that Pennsylvania should assume jurisdiction 

of this case because he has resided in Palm City, Florida since June of 2013, 

Maternal Grandmother and Child have resided in Pennsylvania since 2011, 

and Mother’s whereabouts are unknown.

A custody trial was scheduled for March 10, 2014. On 

March 6, 2014, Maternal Grandmother filed an Amended Pre-
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Trial Narrative Statement indicating a challenge to jurisdiction 

and attaching a Motion to Review Visitation and Child Support 

filed in the Tennessee Court. The Motion was scheduled for 

hearing on April 10, 2014 in Tennessee. On the morning of 

March 7, 2014, [the Erie County trial court] received from Judge 

Lee Russell, Circuit Judge for the Seventeenth Judicial District of 

Tennessee, correspondence which indicated that, along with the 

Motion to Review Visitation and Child support, Judge Russell 

received a copy of Father’s Complaint for Custody filed in 

Pennsylvania. In his correspondence, Judge Russell explained 

that Father’s representation to [the trial court] of the Tennessee 

court’s “willingness to defer jurisdiction to Pennsylvania” was a 

misrepresentation. As a result, [the trial court] entered a March 

7, 2014 Order staying the Custody Trial in order to give the 

Tennessee Court the opportunity to address its continuing 

jurisdiction at the April 10, 2014 hearing.

Subsequent to the April 10, 2014 hearing date, [the trial 

court] contacted the Tennessee Court and confirmed that the 

April 10, 2014 hearing went forward as scheduled and that no 

order was entered to relinquish jurisdiction of custody.

On April 21, 2014, [the trial court] issued its Order 

dismissing Father’s Complaint for Custody. As detailed in the 

April 21st Order, the Tennessee Court has not relinquished 

jurisdiction and [the trial court] lacks jurisdiction to modify the 

Tennessee Court’s child custody determination.

Trial Court Opinion, 6/4/2014, at 2 (footnote omitted; citations omitted).

Father timely filed a notice of appeal, along with a concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). On 

appeal, Father presents two issues for our review.

1. Did the [trial court] misapply the law in dismissing a 

Custody Complaint filed by [Father] in the location defined by 

law as the Home State of [Child] merely because the former 

home state judge declined to “relinquish jurisdiction?”

2. Did the [trial court] err in not recognizing Pennsylvania 

as the most appropriate jurisdiction to adjudicate custody of 
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[Child] regardless of the Home State issue and the existing 

Tennessee custody action?

Father’s Brief at 4 (suggested answers omitted).

We are guided by the following standard of review.

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 that 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 trial court misapplied the law 

or failed to follow proper legal procedures.

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

v. Lucas, 882 A.2d 523, 527 (Pa. Super. 2005) (citation omitted)).

It is undisputed that this matter is governed by the Uniform Child 

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

5482. Specifically, the issue of interstate jurisdiction to modify a custody 

determination is governed by section 5423, which provides the following.

Except as otherwise provided in section 5424 (relating to 

temporary emergency jurisdiction), a court of this 

Commonwealth may not modify a child custody determination 

made by a court of another state unless a court of this 

Commonwealth has jurisdiction to make an initial determination 

under section 5421 (a)(1) or (2)[1](relating to initial child 

custody jurisdiction) and:

 

1 This statute provides the following.

(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:
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(1) the court of the other state determines it no 

longer has exclusive, continuing jurisdiction under 

section 5422 (relating to exclusive, continuing 

jurisdiction) or that a court of this Commonwealth 

would be a more convenient forum under section 

5427 (relating to inconvenient forum); or

(2) a court of this Commonwealth or a court of 

the other state determines that the child, the 

child’s parents and any person acting as a 

 

(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;

23 Pa.C.S. §5421(a)(1) and (2).
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parent do not presently reside in the other 

state.

23 Pa.C.S. § 5423 (emphasis added; footnote added).

The trial court analyzed these statutes as follows.

[The trial court] is prohibited from modifying Tennessee’s 

custody determination unless Pennsylvania has initial child 

custody jurisdiction and either (1) Tennessee determines that it 

no longer has exclusive, continuing jurisdiction or that 

Pennsylvania would be a more convenient forum; or (2) 

Pennsylvania determines that all parties have moved away from 

the initial decree state.

Considering Judge Russell’s March 6, 2014 correspondence 

in conjunction with his decision to proceed with the Motion to 

Review Visitation and Child Support filed in the Tennessee Court, 

it is clear beyond argument that Tennessee has not relinquished 

jurisdiction of the case. More specifically, the Tennessee Court 

has not determined either that it no longer has exclusive, 

continuing jurisdiction or that Pennsylvania would be a more 

convenient forum.

It is further clear that [the trial court] cannot make a 

finding that all parties have moved away from Tennessee.... [The 

trial court] is incapable of entering a finding that Mother does 

not presently reside in Tennessee.

Trial Court Opinion, 6/4/2014, at 4. 

We hold that the trial court abused its discretion in concluding that it 

cannot make the determination that “Mother does not presently reside in 

Tennessee.” Id. As Father points out, Mother’s 

missing status and, as the Tennessee court asserted, the 

likelihood of her demise, was the only basis for [Maternal 

Grandmother] to have any standing to obtain custody. [Mother] 

is not an actual party in either proceeding, and the prospect that 

she may still be alive and in Tennessee cannot be the basis to 

maintain that state’s jurisdiction, as a parent who has been 
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missing for 3 years does not have “a significant connection” to 

that state[.]

Father’s Brief at 11.

The comment to the section 5423 makes clear,

[t]he modification state is not authorized to determine that the 

original decree state has lost its jurisdiction. The only 

exception is when the child, the child’s parents, and any 

person acting as a parent do not presently reside in the 

other state. In other words, a court of the modification state 

can determine that all parties have moved away from the 

original state.

23 Pa.C.S. § 5423 (Comment) (emphasis added). 

This important exception to section 5423 is consistent with the 

UCCJEA’s effort to prioritize a child’s home state as being the preferred basis 

for jurisdiction. See R.M. v. J.S., 20 A.3d 496 (Pa. Super. 2011). The 

UCCJEA defines “home state” 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 

persons mentioned. A period of temporary absence of any of the 

mentioned persons is part of the period.

23 Pa.C.S.A. § 5402.

Instantly, there is no question that Pennsylvania is Child’s home state. 

She has been living with Maternal Grandmother in Pennsylvania for three 

years. At this point, all evidence related to Child’s well-being is in 

Pennsylvania. Moreover, based on the sad circumstances of this case, it is 
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likely that Mother currently does not reside in Tennessee, or possibly any 

state at all. 

Thus, Pennsylvania is the home state pursuant to section 5421. No 

parent or person acting as a parent still resides in Tennessee (Maternal 

Grandmother resides in Erie, Father resides in Florida, and Mother has not 

been heard from since February 28, 2011 and may well be dead). 

Therefore, under section 5423, a Pennsylvania court has jurisdiction to 

modify the order of the Tennessee court.2 See J.K. v. W.L.K., __ A.3d __, 

2014 WL 5040279 (Pa. Super. filed October 14, 2014).

Order vacated. Father’s complaint for custody reinstated. Case 

remanded for proceedings consistent with this opinion. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/7/2014

 

2 Maternal Grandmother asserts that Father is judge-shopping, willing to 

play an away game in the home court of Maternal Grandmother, just to get 

away from Judge Lee Russell, the Tennessee judge who has found Father to 

be a despicable individual. The judge-shopping charge may well be true, but 

it is irrelevant to the jurisdictional issue. Moreover, we have no doubt that 

the courts of this Commonwealth are fully capable of discerning the facts 

applicable to Child’s best interests.
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