Relocating Parent Must Get Permission for Interstate Move

Custody relocation cases are among the hardest decisions that judges face. When parents cross state lines to relocate, the courts must decide which judge has jurisdiction, before addressing the substantive question of where the children will live. These issues were met head-on by Superior Court Judge Eugene Strassberger, of Allegheny County, in M.E.V. v. R.D.V., 2012 PA Super 233 (October 23, 2012).

A good decision conveys a satisfying sense of justice and fair play; that’s what we get in Judge Strassburger’s opinion. The parents in this case were married in New Jersey, where they resided with their two young children. When the wife learned that her husband had an affair, she moved to Erie, Pennsylvania, where her extended family lived. Before she moved, she reached an agreement with her husband, that she would move temporarily and re-evaluate in six months. Five months later, she told her husband that she was never coming back. He filed a divorce action in New Jersey. She filed a custody action in Pennsylvania. He filed preliminary objections to the wife’s custody proceeding, claiming that Pennsylvania did not have jurisdiction. The Erie trial court overruled his objections, finding that Erie was the children’s “home state” under the UCCJEA, the Uniform Child Custody Jurisdiction Enforcement Act. Father took an appeal to the Superior Court, who reversed the trial court’s decision.

Judge Strassburger relied upon the “first in time” rule, a principle enunciated under the UCCJA, a law that preceded the UCCJEA in governing interstate jurisdiction over custody actions. Both of these laws were enacted to prevent jurisdiction conflicts between the states, resulting in conflicting custody decisions. The first in time rule, cited in Harcar v. Harcar, 982 A.2d 1230, 1237-38 (Pa. Super. 2009), states that no other court should undertake a custody case if there is a proceeding in another state. In fact, the Superior Court held, Pennsylvania does not even have the power to decide if it has jurisdiction over a custody case, if there is a divorce or custody case pending in another state.

The Erie trial court abused its discretion, therefore, when it held a hearing to decide whether it had jurisdiction over the custody action and found that Pennsylvania was the children’s home state. Under the UCCJEA, the Erie court should have called the New Jersey court first to decide which court had jurisdiction.

Judge Strassburger also held that Pennsylvania was not the children’s “home state” under the UCCJEA. Under that law, a state is the children’s home state if they have resided there for six months or more. In this case, the mother moved the children to Erie in June and then told her husband that she would not return to New Jersey in November. She filed her custody action in Erie in January, after her husband had filed for divorce in November.

The Superior Court held that the six month residency for “home state” custody jurisdiction did not include periods of temporary residence. The Erie trial court found that the children did not reside in Pennsylvania temporarily from June until January, but Judge Strassburger cited extensive testimony by the mother, in which she admitted to telling her husband that she was staying temporarily. The Judge also wrote: “Mother would have had no need to tell Father she was not going to go back to New Jersey if she always had intended the move to be permanent.”

What’s so pleasing about the Superior Court’s opinion in this case is the sense of fair play. Often, our courts are unwilling to restore the status quo after a “noble experiment” by parents or spouses, even when they have agreed to start from square one if it doesn’t work out. For instance, a father who agreed to pay for one year of parochial preschool was ordered to pay for a full private school education, even though the preschool was on a trial basis only.  Another example: the courts would not honor a written agreement between spouses to preserve a date of separation while they attempted to reconcile their marriage. Justice and a sense of fair play tell us that the courts should honor the agreements and intentions of the parties when they try to work things out for themselves. Many times the courts refuse to restore the parties to their original positions when things don’t work out; in this case, the Superior Court held the parties to their words.