M.E.V. v. R.D.V. No. 916 WDA 2012
Father filed for divorce in New Jersey, including a count for custody in his divorce complaint. Six weeks later, Mother filed a complaint for custody in Pennsylvania, where Mother had lived with the children for the preceding 6 months. Father filed preliminary objections claiming that he filed first; therefore, New Jersey had jurisdiction over the custody issue. The trial court overruled the preliminary objections and Father appealed.
The Superior Court analyzed the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to determine whether Pennsylvania had jurisdiction to determine the issue of whether it has subject matter jurisdiction. The trial court concluded that Father did not “initiate a custody action” in NJ because there was no custody proceeding scheduled or pending, and not custody determination had been made as of the date Mother filed. The Superior Court disagreed and held that Father’s filing of his divorce complaint, which included a count for custody, constituted the commencement of a custody action in New Jersey. The trial court erred in failing to stay the Pennsylvania proceeding and contact the New Jersey Courts, giving them an opportunity to decline or exercise jurisdiction. The Superior Court also concluded that Mother’s move to Pennsylvania was temporary and, therefore, Pennsylvania was not the children’s home state.