J-A22010-17

* Retired Senior Judge specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.R. IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

E.S.C., SR. AND J.C.C.

Appellants No. 612 EDA 2017

Appeal from the Order Entered January 10, 2017

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2014-28814

BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 02, 2017

E.S.C., Sr. (“Father”) and J.C.C. (“Mother”), (collectively “Parents”), 

appeal from the January 10, 2017 order denying their petition to relinquish 

jurisdiction, which requested that the Court of Common Pleas of Montgomery 

County relinquish jurisdiction and transfer this matter to the State of 

Connecticut.1 We affirm. 

____________________________________________

1 We note that, pursuant to Pa.R.A.P. 311(b), an order sustaining venue is 

appealable as of right only if: 

(1) the plaintiff, petitioner, or other party benefiting from the 

order files of record within ten days after the entry of the 

order an election that the order shall be deemed final; or 

(Footnote Continued Next Page)
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We set forth the salient factual and procedural history as follows: 

This case concerns C.C., born on December 17, 2010. The 

child lived in Montgomery County, Pennsylvania, as did his 

mother and father. The child’s father died on July 10, 2012[,] 

and the child’s mother had her parental rights terminated on 

October 22, 2013. The child’s paternal grandparents adopted 

the child on August 20, 2014, and they are now his mother and 

father. On September 1, 2014, mother and child moved from 

Souderton, Pennsylvania to Norwich, Connecticut, while father 

stayed behind in Pennsylvania because of his employment 

schedule. Father commuted from Souderton, Pennsylvania to 

his job at Pfizer, Inc., in West Trenton, New Jersey during the 

week. Father would commute to Connecticut on weekends. 

On October 27, 2014, shortly after mother and child 

relocated to Connecticut, the child’s maternal grandmother 

[(“Grandmother”)], as plaintiff, commenced this custody action 

against the parents, as defendants, seeking shared legal and 

partial custody of the child. . . . On April 8, 2015, the parties

appeared before the [trial court] and presented evidence during 

a full-day hearing on grandmother’s custody complaint. The 

parties on that date reached an agreement by which 

grandmother would have partial physical custody, and that 

agreement was recited on the record and made an order of this 

court. That agreed order was amended, by agreement of the 

parties, by the “Stipulated Order to Clarify Order” filed on 

December 9, 2015. The result was an agreed custody order by 

(Footnote Continued) _______________________

(2) the court states in the order that a substantial issue of venue 

or jurisdiction is presented.

Pa.R.A.P. 311(b). Neither of these requirements has been met herein. 

Nevertheless, this Court has allowed an appeal from an order denying a 

petition to change venue when there were no other claims pending before 

the trial court. See Galgon v. Martnick, 653 A.2d 44, 46 n.1 (Pa.Super. 

1995) (finding order denying petition to transfer venue was final where all 

that remained before court was pending support order). As there are no 

other outstanding matters pending before the trial court, this appeal is 

properly before us. 
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which grandmother would have physical custody of the child one 

weekend every month (three overnights), with an extra day or 

days appended during the three summer months and some 

holidays. 

On October 4, 2016, the parents commenced an action 

against grandmother in Connecticut. It was an action for an 

order of protection, which is Connecticut’s version of 

Pennsylvania’s Protection from Abuse. Parents sought relief 

from the Connecticut court based on their claim that the child’s 

seven year old cousin had committed an act of sexual abuse 

upon him while both children were in grandmother’s care in 

Pennsylvania. Temporary relief was denied as final relief. 

On November 7, 2016, the parents filed to the Superior 

Court, Judicial District of New London at Norwich, Connecticut, a 

“Post-Judgment Motion to Modify, Suspend and/or Provide 

Supervised Access.” By that motion, the parents asserted that 

“it is no longer in the child’s best interest to have unsupervised 

contact with the plaintiff.” The parents asked Connecticut to 

terminate grandmother’s right to partial custody[.] 

In support of their request made to the Connecticut court, 

the parents leveled two charges against grandmother. The first 

was that the child was being exposed to knowledge of the 

existence of his biological mother while in grandmother’s care. 

The second was that the child was being physically endangered 

while in grandmother’s care. More specifically, the parents 

accused grandmother of: (1) failing to “adequately supervise” 

the child while in her care; (2) permitting the child to be “in the 

presence” of the biological mother; (3) permitting the other 

children in grandmother’s custody to “mak[e] statements to the 

[child] about his adoption”; (4) failing to “provide adequate 

arrangements” for the child; (5) having on display in 

grandmother’s home “prominent pictures” of biological mother; 

and (6) permitting all children in grandmother’s custody “to go 

to a local park without an adult.” 

. . . . 

On December 9, 2016, per the [trial court’s] directive, the 

parents filed with this court a prayer for relief styled as a 

“Petition to Relinquish Jurisdiction.” By their petition, the 
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parents asked this court to “relinquish jurisdiction and transfer 

jurisdiction to the State of Connecticut.” 

Trial Court Opinion, 4/13/17, at 1-4 (internal citations omitted). 

Following a hearing on the matter, the trial court denied Parents’ 

petition. Parents filed a timely notice of appeal and complied with the 

court’s order to file a Rule 1925(b) concise statement of errors complained 

of on appeal. The court authored a Rule 1925(a) opinion. This matter is 

now ready for our review. 

Parents raise three questions for our consideration: 

(1) Where the child and the parents do not have a significant 

connection with this Commonwealth and substantial 

evidence is no longer available in this Commonwealth 

regarding the child’s care, protection, training, and 

personal relationships, under 23 Pa.C.S.A. § 5422, 

including because (a) [Parents] and the child now live in 

Connecticut and neither of the parents reside and exercise 

parenting time with the child in Pennsylvania, and 

accordingly, there is no basis to find that a significant 

connection with Pennsylvania exists; and (b) the parents 

and the child all live in Norwich, Connecticut, where the 

child’s teachers, counselor, school, and healthcare 

providers are located, as well as all other witnesses 

regarding the child’s care, protection and training, and 

accordingly there is no basis to find that substantial 

evidence relating to the child’s care, protection, training, 

and personal relationships remains present within 

Pennsylvania; 

(2) Where the child and his parents do not presently reside in 

this Commonwealth, under 23 Pa.C.S.A. § 5422, including 

because: (a) the child and his parents do not presently 

reside in Pennsylvania and instead have lived in 

Connecticut for over two years; (b) parent E.S.C.’s merely 

sleeping overnight in Pennsylvania at most three times per 

week when he is working in New Jersey does not constitute 
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residing in Pennsylvania under 5422 (a)(3), per Section 

5422, Uniform Law Comment, paragraph 2; (c) the child’s 

maternal grandmother’s status as a Pennsylvania resident 

and visitation claimant does not provide a basis for 

conferring exclusive, continuing jurisdiction on this 

Commonwealth, per Section 5422, Uniform Law Comment, 

paragraph 2; and (d) in construing and applying Section 

5422, the trial court properly should have considered the 

above referenced official comments to the Uniform Child 

Custody Jurisdiction and Enforcement Act when 

interpreting that statute which was adopted by 

Pennsylvania several years after the comments were 

published; and 

(3) Because this Commonwealth is an inconvenient forum, 

including because (a) the child and parents have lived in 

Connecticut for over two years; (b) all witness including 

the child’s counselor, teachers and healthcare providers, 

and the parents and the child, are located in the State of 

Connecticut; (c) the State of Connecticut has already 

started proceedings regarding the pertinent issues relating

to maternal grandmother’s visitation with the child, and it 

is the more convenient forum in accordance with the 

applicable statute; (d) Connecticut is the child’s home 

state, and as a general rule, the home state of the child is 

the preferred forum; and (e) since a hearing/proceeding is 

being held in Connecticut, the Connecticut court can make 

a determination that the child no longer resides in the 

Commonwealth of Pennsylvania? 

Appellants’ brief at 4-6. 

Parents’ first and second issues challenge the trial court’s 

determination that it has subject matter jurisdiction over their custody 

dispute. As we observed in B.L. v. T.B., 152 A.3d 1014 (Pa. Super. 2016), 

“[w]hether a court has subject matter jurisdiction is a question of law, for 

which our standard of review is de novo and our scope of review is plenary.” 
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Id. at 1016 (Pa. Super. 2016) (citing S.K.C. v. J.L.C., 94 A.3d 402, 408 

(Pa.Super. 2014)). 

The Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) 

reads in pertinent part: 

(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) or 5423 

(relating to jurisdiction to modify determination) 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 the 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. § 5422(a). 

Parents first contend that the trial court no longer has exclusive, 

continuing jurisdiction over their custody matter. They argue that a 

significant connection with Pennsylvania “no longer exists in the present 

matter.” Appellants’ brief at 15. Parents note that they and the child live in 

Connecticut, and that neither parent resides or exercises parenting time with 

the child in Pennsylvania. Further, Parents specifically dispute that Father 
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resides in Pennsylvania, asserting that he merely sleeps in the state three 

nights a week in order to commute to work in New Jersey. 

In order to undermine the import of Grandmother’s status as a 

Pennsylvania resident, Parents emphasize the official comments to § 5422, 

which note that “a remaining grandparent or other third party who claims a 

right to visitation, should not suffice to confer exclusive, continuing 

jurisdiction on the state that made the original custody determination after 

the departure of the child, the parents and any person acting as a parent.” 

Appellants’ brief at 16 (citing 23 Pa.C.S. § 5422, comment). Parents claim 

that this comment prohibited the trial court from relying on Grandmother’s 

residency or contacts with the child to support ongoing jurisdiction. Finally, 

Parents assert that substantial evidence relating to the child’s care, 

protection, training, and personal relationships does not exist in 

Pennsylvania, as this proof is available only in Connecticut where he 

currently lives. 

After reviewing the certified record and the parties’ briefs, we affirm 

on the basis of the trial court’s opinion. See Trial Court Opinion, 4/13/17, at 

10-11 (concluding that the child, C.C., maintained a significant connection 

with Pennsylvania and that substantive evidence regarding his care, 

protection, training and personal relationships necessarily exists in this 

Commonwealth since Parents raised claims that Grandmother’s care of the 

child within the state was deficient). As noted by the trial court, 
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Grandmother exercises custody over C.C. three nights a week, once every 

month, with extra days during the summer and during holidays. Id. at 2, 6. 

While staying with Grandmother, C.C. lives with four cousins and a halfsister, and regularly spends time with other family members living in the 

area. Id. at 6. Moreover, Parents raised claims implicating Grandmother’s 

care of the child while he lives in Pennsylvania, and those allegations will be 

resolved by examining evidence obtained from his time within the 

Commonwealth. Thus, we find the court did not err in this regard. 

Second, Parents argue that the trial court lacks jurisdiction over this 

matter since Parents and child moved to Connecticut. Parents again rely on 

the commentary to § 5422, which, in this regard, states, “when the child, 

the parents, and all persons acting as parents physically leave the state to 

live elsewhere, the exclusive, continuing jurisdiction ceases.” Appellants’ 

brief at 19 (citing 23 Pa.C.S. § 5422, comment) (emphasis omitted). 

Parents maintain that they do not physically live in Pennsylvania, and that 

Father only sleeps in Pennsylvania three nights a week due to his 

occupation. 

Again, we affirm on the basis of the trial court’s opinion. See Trial 

Court Opinion, 4/13/17, at 11-12 (concluding that Father lives in 

Pennsylvania for three overnights a week, and therefore § 5422(a)(2) does 

not divest the Commonwealth of jurisdiction). The trial court found and the 

record reveals that Parents own a house in Souderton, Montgomery County, 
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which Father uses three days a week. Id. at 5. Although Father lives in 

Connecticut a portion of the week, he also physically resides, for the 

purposes of § 5422(a)(2), in Pennsylvania for the remainder of the week. 

No relief is due. 

Finally, Parents contend, in the alternative, that the trial court erred in 

failing to grant their petition to relinquish jurisdiction since Pennsylvania is 

an inconvenient forum. The UCCJEA reads, in pertinent part: 

(a) General rule.--A court of this Commonwealth which has 

jurisdiction under this chapter to make a child custody 

determination may decline to exercise its jurisdiction at any 

time if it determines that it is an inconvenient forum under 

the circumstances and that a court of another state is a more 

appropriate forum. The issue of inconvenient forum may be 

raised upon motion of a party, the court’s own motion or 

request of another court. 

(b) Factors.--Before determining whether it is an inconvenient 

forum, a court of this Commonwealth shall consider whether 

it is appropriate for a court of another state to exercise 

jurisdiction. For this purpose, the court shall allow the parties 

to submit information and shall consider all relevant factors, 

including: 

(1) whether domestic violence has occurred and is likely to 

continue in the future and which state could best 

protect the parties and the child; 

(2) the length of time the child has resided outside this 

Commonwealth; 

(3) the distance between the court in his Commonwealth 

and the court in the state that would assume 

jurisdiction; 

(4) the relative financial circumstances of the parties;
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(5) any agreement of the parties as to which state should 

assume jurisdiction; 

(6) the nature and location of the evidence required to 

resolve the pending litigation, including testimony of the 

child; 

(7) the ability of the court of each state to decide the issue 

expeditiously and the procedures necessary to present 

the evidence; and the familiarity of the court of each 

state with the facts and issues in the pending litigation. 

23 Pa.C.S. § 5427(a) and (b). Since this argument assumes the 

Commonwealth has jurisdiction over the matter, we apply a discretionary 

standard of review. S.K.C., supra, at 406 (noting, “when a trial court 

possesses subject matter jurisdiction over a child custody dispute, a trial 

court’s decision to exercise that jurisdiction is subject to an abuse of 

discretion standard of review.”). 

Parents do not set forth the relevant factors delineated in § 5427. 

Rather, they simply argue that they commenced proceedings against 

Grandmother in Connecticut, and Pennsylvania is otherwise inconvenient 

since they have lived in Connecticut for more than two years. They maintain 

that many of the witnesses they would call on their behalf dwell in 

Connecticut, including C.C.’s counselor, teachers, and healthcare providers. 

Finally, Parents aver that Grandmother only works part-time, and, as such, 

Connecticut would be a less-inconvenient forum for her. 

Upon review of the certified record, we affirm this issue on the basis of 

the trial court opinion. See Trial Court Opinion, 4/13/17, at 12-15 
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(concluding that the § 5427 factors militate in favor of Pennsylvania 

retaining jurisdiction over this matter). The trial court evaluated the § 5427 

factors in light of the facts of this case and found that factors 3, 4, 5, 6, and 

8 were relevant to this proceeding and weighed in favor of Pennsylvania 

retaining jurisdiction. We agree with that assessment. The court found that 

factor five slightly favored Pennsylvania since, although the parties had not 

entered into a forum selection clause, they had agreed on April 8, 2015, that 

any future custody proceedings would occur in Pennsylvania. Similarly, 

factor eight slightly favored Pennsylvania since the trial court had been 

involved from the early stages of the proceeding. Nevertheless, it observed 

that, although its involvement had not been extensive, it had been far more 

involved than the court in Connecticut. 

In addition, the trial court concluded that factors three and four 

strongly favored Pennsylvania, noting the financial disparity between the 

parties, and the burden Grandmother would endure traveling to Connecticut. 

The court highlighted that Parents retain ownership of a house in the 

Commonwealth. Finally, the trial court determined that factor six was nearly 

dispositive in favor of Pennsylvania, observing that the evidence required to 

resolve the litigation is almost entirely in this state since this matter involves 

Grandmother’s care of C.C. while exercising her visitation rights in 

Pennsylvania. We find that the record supports the trial court’s 
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determination, and thus, it did not abuse its discretion in denying Parents’ 

petition to relinquish jurisdiction. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/2/2017

 
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