Case Update (12 Sept 2025): OMalley v. Isquierdo; Pennsylvania retains Custody Jurisdiction, and relies on Brazilian Hague Abduction ruling to do so
The parties are parents to one child, born September 2020 in Pennsylvania. The child resided with her parents in Pennsylvania from birth until April 30, 2021. On May 1, 2021, the parties traveled to the Mother’s home country of Brazil for an intended one-month visit. They were planning on returning and moving to New Jersey upon return. Instead, the Mother retained the child in Brazil, and the Father returned, moving back to Pennsylvania, signing a lease for a new apartment. On June 14, 2021, upon his return, he filed a custody petition in the Court of Common Pleas of his Pennsylvania county. The following month, the parties entered an agreed order in that Court. The Father also sought an emergency order to return the child from Brazil, and pursued a request to return the child using the Hague Abduction Convention. The Brazilian Hague Abduction court order indicated the USA was the child’s habitual residence, and resolved that custody should be decided in the USA. The Father moved to New Jersey sometime after he filed the Pennsylvania custody case. In subsequent years, the Pennsylvania court issued subsequent custody orders. In November 2024, the Father filed a petition to modify custody with the Pennsylvania court. In that petition, the Father first acknowledged before the Pennsylvania court that he was a resident of New Jersey (and had been for some time), which caused the court to inquire as to whether it had jurisdiction to modify the prior Pennsylvania order. It is undisputed that the child has resided in Brazil continuously since May 1, 2021.
On appeal, the Pennsylvania appellate court concluded that it had initial jurisdiction to issue the order in 2021 - that it was the child’s home state. In determining whether it had jurisdiction to modify its prior order, it properly cited to the Uniform Child Custody Jurisdiction and Enforcement Act. The trial court had concluded it was divested of jurisdiction to modify the original Pennsylvania custody order as everyone had left the state. But, on appeal, the appellate court said that the trial court did not adequately examined the Brazilian Hague order, which seemingly indicated, even though it was not a custody case, that it had no jurisdiction to render a custody order in the Brazilian courts. The Pennsylvania appellate court took this as the Brazilian courts declining jurisdiction over custody. This means that even if everyone left Pennsylvania, divesting it of modification jurisdiction, the child’s new home state of Brazil has apparently declined to exercise its jurisdiction, on the ground that Pennsylvania is a more convenient forum (clearly no one can file in New Jersey as the child has never stepped foot into New Jersey).
The Pennsylvania appellate court, finding that everyone left Pennsylvania, but that the child’s new home state of Brazil (where the child has resided for the last six months prior to the Father filing his modification petition in Pennsylvania) declined to exercise its jurisdiciton in lieu of Pennsylvania as a more appropriate forum, ordered that it may proceed. It stated “[i]f we were to apply the trial court’s reasoning …, we would reach the illogical result that no state or country has jurisdiction to consider the custody issues because Brazil is the only state or country that has jurisdiction as the child’s home state under the UCCJEA, but Brazil has clearly divested itself of jurisdiction, deferring to the United States, to resolve custody issues.” The court also opined that it did not want to reward the Mother’s behavior.
