Boback, T. v. Pershing, C. v. Boback, M.

2024 Pa. Super. 30, 311 A.3d 1126

• Court: Superior Court of Pennsylvania
• Decided: February 21, 2024
• Docket: 855 WDA 2023
• Status: Published

Opinion

J-S46003-23

2024 PA Super 30

TRENTEN J. BOBACK : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTINA M. PERSHING : : : No. 855 WDA 2023 v. : : : MICHELE L. BOBACK AND JEFFREY R. : BOBACK : : Appellants :

Appeal from the Order Entered June 30, 2023 In the Court of Common Pleas of Cambria County Civil Division at No(s): No. 2014-177

BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.

OPINION BY DUBOW, J.: FILED: February 21, 2024

Appellants, Michele L. Boback and Jeffrey R. Boback (“Paternal

Grandmother” and “Paternal Grandfather”; collectively, “Paternal

Grandparents”), appeal from the June 30, 2023 order entered in the Cambria

County Court of Common Pleas that found that the Commonwealth of

Pennsylvania no longer possesses exclusive, continuing jurisdiction of the

custody proceedings involving now-twelve-year-old J.M.B. (“Child”) under the

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

ordered the prothonotary to transfer the case to the Circuit Court, Family J-S46003-23

Court, Bullitt County, Kentucky, where both Child and her father, Trenten J.

Boback (“Father”), live. Upon review, we affirm.

This case has a long history of custody litigation with which the parties

are familiar, so we need not repeat it in detail here. Relevant to this appeal,

Father and Christina M. Pershing (“Mother”) (collectively, “Parents”) are

parents to Child. Parents were in a relationship when Child was born in

November 2011, but Parents never married. Paternal Grandparents played a

significant role in caring for Child for the first eight years of her life due to

Father’s young age and military assignments,1 as well as Mother’s work

schedule. On July 17, 2018, via a consent order, Parents consented to

Paternal Grandparents intervening in their custody matter.

On February 5, 2020, the trial court entered a custody order granting

shared legal custody to Father and Mother, primary physical custody to Father,

and partial physical custody to Mother and Paternal Grandparents. On

December 9, 2020, Father filed a petition for contempt and special relief

alleging that Paternal Grandmother was inappropriately disparaging Parents

to Child during her custodial time. In response, Paternal Grandparents filed a

petition for modification of custody and a motion for contempt.

On February 10, 2022, after a hearing, the court restricted Paternal

Grandparents’ custodial time to supervised physical custody during the

summer and holidays, at Parents’ discretion. This Court affirmed both custody ____________________________________________

1 Father enrolled in the United States Army Reserve prior to Child’s birth and

was seventeen years old when Child was born.

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orders. See T.B. v. C.M.W., 240 A.3d 934 (Pa. Super. 2020) (non-

precedential decision); Boback v. Pershing, 285 A.3d 932 (Pa. Super. 2022)

(non-precedential decision).

Notably, at the time that the court entered the February 10, 2022

custody order, Mother lived in Indiana, Father and Child lived in South

Carolina,2 and Paternal Grandparents lived in Pennsylvania. Parents were

both married to other people, had additional children, and were co-parenting

Child amicably. On March 7, 2023, Father and Child moved to Kentucky in

compliance with transfer orders received from the United States Army.

On April 27, 2023, Paternal Grandparents filed another petition to

modify custody requesting primary physical custody of Child. In response, on

May 15, 2023, Father field preliminary objections challenging Paternal

Grandparents’ standing to pursue custody. On May 22, 2023, the trial court

sua sponte issued a Rule to Show Cause to all parties to show (1) why the

Cambria County Court of Common Pleas has not lost exclusive, continuing

jurisdiction under the UCCJEA, and (2) why this case should not be transferred

to the county and state where Father resides. Paternal Grandparents filed a

timely response, while Father filed an untimely response.

On June 30, 2023, the trial court ordered that Pennsylvania no longer

possesses exclusive, continuing jurisdiction under the UCCJEA because neither

parent, nor a person acting as a parent, resides in Pennsylvania. Order, ____________________________________________

2 Father moved to South Carolina on August 12, 2020, in compliance with transfer orders received from the United States Army.

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7/30/23. The court further ordered that jurisdiction properly belongs in

Kentucky in the county where Father and Child reside and ordered the Cambria

County prothonotary to transfer to case to the Circuit Court, Family Court,

Bullitt County, Kentucky, within 31 days. Id.

Paternal Grandparents timely appealed. Both Paternal Grandparents

and the trial court complied with Pa.R.A.P. 1925.

Paternal Grandparents raise the following issues for our review:

1. Did the trial court err in finding that the Court of Common Pleas of Cambria County, Pennsylvania, had lost exclusive and continuing jurisdiction under the UCCJEA after failing to give appropriate weight and consideration to Paternal Grandparent’s in loco parentis status to the child?

2. Did the trial court fail to consider the child’s significant ties to Pennsylvania in determining jurisdiction of the matter no longer appears in Pennsylvania?

3. Did the trial court fail to consider the significant ties of the case to Pennsylvania in determining jurisdiction of the matter no longer appears in Pennsylvania?

Paternal Grandparents’ Br. at 4.

A.

A trial court's decision that it retains or relinquishes exclusive,

continuing jurisdiction over a custody determination pursuant to Section 5422

of the UCCJEA implicates the court’s subject matter jurisdiction and is purely

a question of law. S.K.C. v. J.L.C., 94 A.3d 402, 408 (Pa. Super. 2014).

Accordingly, this Court’s standard of review is de novo and our scope of review

is plenary. Id. Moreover, “[i]t is well-settled that the question of subject

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matter jurisdiction may be raised at any time, by any party, or by the court

sua sponte.” B.J.D. v. D.L.C., 19 A.3d 1081, 1082 (Pa. Super. 2011) (citation

omitted).

This Court has explained, “[t]he purpose of the UCCJEA is to avoid

jurisdictional competition, promote cooperation between courts, deter the

abduction of children, avoid relitigating custody decisions of other states, and

facilitate the enforcement of custody orders of other states.” A.L.-S. v. B.S.,

117 A.3d 352, 356 (Pa. Super. 2015) (citation omitted). Section 5422

provides, in relevant part, that a court that has made an initial child custody

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 this 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)(1-2) (emphasis added). Notably, “Section 5422

is written in the disjunctive, and, therefore, [] the trial court [i]s required only

to determine whether the child[] fail[s] one of the jurisdictional tests set forth

in Section 5422(a)[.]” T.D. v. M.H., 219 A.3d 1190, 1195 (Pa. Super. 2019)

(emphasis added).

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Instantly, the trial court determined that Pennsylvania no longer

possesses exclusive, continuing jurisdiction pursuant to Section 5422(a)(2)

and, therefore, we will concentrate our analysis on this subsection. The

comment to Section 5422 explains that “[c]ontinuing jurisdiction is lost when

the child, the child’s parents, and any person acting as a parent no longer

reside in the original decree state.” 23 Pa.C.S. § 5422 cmt. Section 5402 of

the UCCJEA defines “person acting as a parent” as “[a] person, other than a

parent, who:

(1) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and

(2) has been awarded legal custody by a court or claims a right to legal custody under the laws of this Commonwealth.

23 Pa.C.S. § 5402 (emphasis added). The UCCJEA further defines “physical

custody” as “[t]he physical care and supervision of a child.” Id.

Notably, “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.” Id. at § 5422

cmt. Moreover, “when making a determination under [S]ection 5422, the trial

court must rely upon the factual circumstances as they existed when the

modification petition was filed.” T.D., 219 A.3d at 1197 (citation omitted).

Finally, the comments to Section 5402 of the UCCJEA direct a court to

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determine the issue of whether someone is “‘a person acting as a parent’

under its own law.” 23 Pa.C.S. § 5402 cmt.

In their first issue, Paternal Grandparents aver that the trial court erred

when it failed to consider their in loco parentis status. Paternal Grandparents’

Br. at 4. Paternal Grandparents concede that Child and Parents do not live in

Pennsylvania. Id. at 13. However, they argue that they qualify as a “person

acting as a parent” under Section 5422(a)(2) and, therefore, Pennsylvania

should retain exclusive, continuing jurisdiction. Id. at 14. They further argue

that they meet the Section 5402 definition of “person acting as a parent”

because they (1) were awarded periods of supervised physical custody with

Child and (2) claim a right to legal custody of Child in their April 27, 2023

petition for modification of custody where they request primary physical and

shared legal custody. Id. at 16. Paternal Grandparents essentially contend

that the trial court’s award of supervised physical custody of Child to them

qualifies them as having “physical custody of the child” under Section 5402

and satisfies the definition of “person acting as a parent” under the same

Section.

Paternal Grandparents ask this court to interpret Section 5402 of the

UCCJEA. “The basic tenet of statutory construction requires a court to

construe the words of the statute according to their plain meaning.” R.M. v.

J.S., 20 A.3d 496, 505 (Pa. Super. 2011). “Words and phrases shall be

construed according to rules of grammar and according to their common and

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approved usage[.]” 1 Pa.C.S. § 1903(a). “When the words of a statute are

clear and free from all ambiguity, the letter of it is not to be disregarded under

the pretext of pursuing its spirit.” Id. At § 1921(b). Finally, we must presume

that “the legislature did not intend an absurd or unreasonable result.”

Raymond v. Raymond, 279 A.3d 620, 630 (Pa. Super. 2022).

In this case, since February 10, 2022, Paternal Grandparents’ custodial

time has been restricted to supervised physical custody during the summer

and holidays, at Parents’ discretion. Section 5322 of the Custody Act defines

“supervised physical custody” as “[c]ustodial time during which an agency or

an adult designated by the court or agreed upon by the parties monitors the

interaction between the child and the individual with those rights.” 23 Pa.C.S.

§ 5322. Section 5322 further explains that the term “supervised physical

custody” can be used interchangeably with “visitation.” Id. As stated above,

the UCCJEA defines “physical custody” as “[t]he physical care and supervision

of a child.” 23 Pa.C.S. § 5402.

To qualify as a “person acting as a parent” under Section 5422, the

Paternal Grandparents would have had to provide for the “physical care and

supervision” of Child for a period of six consecutive months preceding the filing

of their petition to modify custody. As the trial court emphasizes, “[a] person

with only supervised physical custody can hardly be considered to have

physical care and supervision of the child when the interaction itself is

supervised.” Trial Ct. Op., dated 6/30/23, at 6. We agree. Paternal

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Grandparents simply cannot provide for the physical care and supervision of

Child when someone else is required to be present to supervise their periodic

interactions with Child.

Moreover, the fact that Paternal Grandparents had in loco parentis

standing at an earlier state of the proceedings is of no moment because, as

stated above, the trial court must rely upon the factual circumstances as they

existed when the modification petition was filed. Furthermore, Paternal

Grandparents fail to identify any section of the UCCJEA that confers exclusive,

continuing jurisdiction based on in loco parentis standing, and this Court is

aware of none.

In sum, the trial court did not err when it found that the state of

Pennsylvania no longer possessed exclusive, continuing jurisdiction over this

custody proceeding under the Section 5422(a) of the UCCJEA, which permits

a court to relinquish jurisdiction if both parents, the child, and any person

acting as a parent live out of the state of Pennsylvania. Section 5402 defines

“person acting as a parent,” inter alia, as a person who has had physical

custody of a child for a period of six consecutive months in the year

immediately preceding a custody petition. Instantly, Parents and Child live

out of the state and the Paternal Grandparents do not qualify as a “person

acting as a parent” pursuant to Sections 5402 and 5422 because the court

has restricted them to periods of supervised physical custody, which merely

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equates to periods of visitation with Child rather than the care and supervision,

or physical custody, of Child. However, our analysis does not stop here.

B.

Section 5422 permits a Pennsylvania court “which has made a child

custody determination and does not have exclusive, continuing jurisdiction”

to modify that custody determination “if it has jurisdiction to make an initial

determination under [S]ection 5421.” 23 Pa.C.S. § 5422(d). Section 5421

vests a court with initial jurisdiction where:

(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 the 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 section 5428 (relating to jurisdiction declined by reasons 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;

(3) all courts having jurisdiction under paragraphs (1) and (2) have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum to determine the custody of the child under section 5427 or 5428; or

(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).

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23 Pa.C.S. § 5421. Relevant to this appeal, the UCCJEA defines “home state”

as “[t]he 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.” 23. Pa.C.S. § 5402.

Instantly, the trial court determined that Pennsylvania did not have

jurisdiction to make an initial custody determination under Section 5421 and,

therefore, did not have jurisdiction to modify the custody determination

pursuant to Section 5422. Rather, the trial court found that Kentucky had

jurisdiction to make an initial custody determination under Section 5421 and,

thus, proceeded to transfer jurisdiction. Upon review, we adopt the trial

court’s analysis, as stated below, as our own:

Although Kentucky is not Child’s home state, neither Father, Mother, Child, nor a person acting as a parent presently resides in South Carolina or resided in South Carolina when Paternal Grandparents filed the Petition for Modification. Likewise, and as stated above, neither Father, Mother, Child, nor a person acting as a parent resides in Pennsylvania. No state has jurisdiction under Section 5421(a)(1). Kentucky appropriately has jurisdiction under Section 5421(a)(2) because Father has primary physical custody of Child and both have moved to and plainly intend to live in Kentucky. Indiana is the only other viable state to receive jurisdiction. However, because Father has primary physical custody of Child (and has had the same for several years), evidence, including but not limited to educational and most medical records, will be in Kentucky.

Trial Ct. Op. at 8 (footnotes omitted). Accordingly, we agree that the trial

court lacked jurisdiction to modify custody under Section 5421 and discern no

error with the trial court’s transfer of jurisdiction to Kentucky.

C.

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In conclusion, the trial court did not have exclusive, continuing

jurisdiction to modify custody pursuant to Section 5422 nor initial jurisdiction

to modify custody pursuant to Section 5421 of the UCCJEA. Accordingly, the

court did not err when it relinquished jurisdiction to Kentucky, where Child

and Father currently reside. In light of our disposition, we decline to address

Paternal Grandparents’ remaining issues.

Order affirmed.

DATE: 02/21/2024

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