Argued October 22, 2014
Appeal from the Order of the Court of Common Pleas, Erie County, Criminal Division, No(s): 13476-2013. Before KELLY, J.
Gerald J. Villella, Erie, for appellant.
John R. Evanoff, Erie, for appellees.
BEFORE: FORD ELLIOTT, P.J.E., ALLEN, and STRASSBURGER,[*] JJ.
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 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 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 ...