All posts by Michael Kuldiner

Transfering Jurisdiction in Custody Cases in Pennsylvania

Our firm was recently involved in a case where  we had to defend our client's custody jurisdiction in Pennsylvania and prevent Mother from transferring it to a neighboring state.


The Respondent (Father) in the instant case resided in Pennsylvania. The Petitioner (Mother) recently move to New Jersey.  The parties are the parents of one child.

On or about November 2009, an initial order of Court was entered by the Court memorializing a custody agreement between the parties and since 2012, the instant court has presided over numerous hearings with respect to the custody of the parties’ child.  In 2014, Judge directed that Mother would be allowed to relocate to New Jersey and awarded primary physical custody because the distance between the two households does not allow for continuing a shared custody arrangement during the school year.”  [Emphasis added].  The Order also states that the parties share legal custody.    A subsequent Order of August 21, 2014, states that “Mother shall have primary custody of the child during the school year and Father shall have primary custody of the child during the summer.” [Emphasis added].


Petitioner argues that under UCCJEA, 23 Pa.C.S.A. § 5401, et seq., Pa.R.C.P. 1910.2 and Pa.R.C.P. 1915.2, the instant Court should relinquish jurisdiction and transfer custody to New Jersey.

            The UCCJEA in relevant parts are as follows:

  • 5421. Jurisdiction

            (a) General Rule. — Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth has  jurisdiction to make an initial child custody determination only if:

            (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 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 5428 (relating to jurisdiction declined by reason 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 paragraph (1) or (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).

23 Pa.C.S. § 5421(a).

  • 5422.  Exclusive, continuing jurisdiction.

(a)  General rule.--Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth which has made a child custody determination consistent with section 5421 (relating to initial child custody jurisdiction) or 5423 (relating to jurisdiction to modify 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.

(b)  Modification where court does not have exclusive, continuing jurisdiction.--A court of this Commonwealth which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 5421.

23 Pa.C.S. § 5422(a).

  • 5427. Inconvenient forum.

(a)  General rule.--A court of this Commonwealth which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion or request of another court.

(b)  Factors.--Before determining whether it is an inconvenient forum, a court of this Commonwealth shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

 (1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) the length of time the child has resided outside this Commonwealth;

 (3) the distance between the court in this Commonwealth and the court in the state that would assume jurisdiction;

 (4) the relative financial circumstances of the parties;

 (5) any agreement of the parties as to which state should assume jurisdiction;

 (6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

  (7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

  (8)  the familiarity of the court of each state with the facts and issues in the pending litigation.

23 Pa.C.S. § 5427

      One of the main purposes of the UCCJEA was to clarify the exclusive, continuing jurisdiction for the state that entered the child custody decree. See 23 Pa.C.S.A. § 5422, cmt; see also Bouzos-Reilly v. Reilly, 980 A.2d 643, 645 (Pa.Super.2009).

       Under the plain meaning of section 5422(a)(1), a court that makes an initial custody determination retains exclusive, continuing jurisdiction until neither the child nor the child and one parent or a person acting as a parent have a significant connection with Pennsylvania and substantial evidence concerning the child's care, protection, training, and personal relationships is no longer available here.

  "Significant connection" is not defined in the UCCJEA. "Significant" is defined as "having meaning" or "important." MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 1091 (10th ed. 1997). "Connection" is defined as "the state of being connected," or "a relation of personal intimacy."   Rennie v. Rosenthol, 995 A.2d 1217 (Pa.Super.2010).  Pursuant to the plain and ordinary meaning of the phrase "significant connection," exclusive, continuing jurisdiction is retained under section 5422(a)(1) as long as the child and at least one parent have an important or meaningful relationship to the Commonwealth.  Id at 1220-22. 

Petitioner’s allegations that because Respondent now lives in Bucks County and therefore neither the child nor the parties have any significant connections to Philadelphia is without merit.  The language is clear the child and at least one parent have an important or meaningful relationship to the Commonwealth. (emphasis added).  As Petitioner very well knows, the Commonwealth encompasses both Philadelphia County and Bucks County, Pennsylvania.  Notwithstanding Petitioner’s decision to ignore the plain language of the UCCJEA, Respondent and minor child had and continue to have significant connections in both Philadelphia and Bucks County, PA.  Respondent has primary custody during the summer in this Commonwealth. Up until recently, Respondent lived in Northeast Philadelphia and is now residing in Feasterville, PA which is only a few miles from his prior home.  The minor child’s extended family live in both Philadelphia and Bucks County.

Furthermore, the Petitioner omitted the fact that she must show substantial evidence that the child’s care, protection, training and personal relationships are not available in the Commonwealth. [emphasis added].  None of Petitioner’s assertions are substantial in the slightest and most, if not all of her allegations are incorrect.

With respect to Petitioner’s allegations of an inconvenient forum, Section 5427 of the UCCJEA lists the factors a court must consider in determining whether jurisdiction is an inconvenient forum.  Petitioner has not satisfied her burden regarding the eight factors and, in fact, most of the factors only support Respondent’s position that the Commonwealth of Pennsylvania should retain jurisdiction.  This matter originates from the parties’ initial custody agreement (factor 5), and the entire history of this custody matter which involved multiple hearings and Orders occurred in the Commonwealth of PA, Philadelphia, County (factors 6, 7, 8).  The remainder of the factors either do not apply (1) or both parties are on essentially equal footing (2, 3, 4).

The courts allowed the transfer of jurisdiction, however, Father appealed.  After revieewing Father's brief, Superior Court remanded the case back to Philadelphia for further review of the case.

If you're not sure if you can transfer jurisdiction in a custody case, refer the case law above and consult with a custody lawyer.


A tale of a Two-Year Separation Case in Pennsylvania

After a full day trial over a dispute as to the date of separation court sides with.....(see below)


Wife and Husband were married in the early nineties and had one child from this marriage. Due to irreconcilable differences, Wife filed for Divorce.

It is Wife’s assertion that Husband is alleging a date of separation in 2014 in order to avoid the inclusion of the value of the marital assets between 2014 and 2016.  Husband’s contention that finances were the only reason Husband and Wife were “forced” to live together is without merit in light of his financial means.  The fact that Husband is so reliant on the parties being forced to live together when the Courts have opined that a common residence is not a bar to living separate and apart indicates that Husband is well aware that the parties displayed and demonstrated their usual behaviors and actions as a married couple and parents and is simply trying to cloud that fact with information that has no bearing on prevailing law.  There was absolutely no intent on Husband’s part to dissolve the marriage as evidenced by his behavior during the course of 2014 and 2015.  In fact, Husband located a marriage counselor at one point for them to attend which is something that a great deal of married couples do during the course of marriage.

Until their separation in 2016, the parties conducted their marital life in the exact same manner as they have always done.  Husband’s work schedule necessitated long hours and the parties always slept separately.  There is no dispute that Husband caused marital issues during a period of time and Wife was disappointed and angered which is more typical than not in the course of marriage and certainly a Husband and Wife may experience marital problems without being separated.  Nagle v. Nagle, 799 A. 2d 812, 819 (Pa: Superior Court 2002).



            At issue is the date of separation of Husband and Wife.  Husband filed a 3301(d) Affidavit attesting that the parties have lived separate and apart for a period of at least two year as provided under 23 Pa.C.S.A. § 3301(d)(1) of the Divorce Code.  Husband has alleged the parties separated in 2014.  Wife asserts that the date of separation, (if not the date that service of the divorce complaint


The Divorce Code defines "separate and apart" as "cessation of cohabitation, whether living in the same residence or not. In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served.  23 Pa.C.S. § 3103.   The presumption is established upon the filing and serving of a divorce complaint unless an earlier date can be substantiated through the presentation of evidence confirming an earlier date.

“It is the party attempting to rebut the presumption has the burden of proof.” CW v. LV788 A.2d 1002 (Pa.Super. 2001).  Therefore, in the instant matter, Husband bears the burden of proving by the preponderance of the evidence that the parties ceased cohabitation on the date he asserts the parties separated.

The Court has defined "cohabitation" as "the mutual assumption of those rights and duties attendant to the relationship of husband and wife." Britton v. Britton582 A.2d 1335 (Pa. Super. 1990) (internal quotation marks and citations omitted).  Additionally, a cessation of cohabitation must include an element of intent to cease the marital relationship.

Compare Mackey v. Mackey, 376 Pa.Super. 146, 545 A.2d 362 (1988) in which the parties had private living quarters, no public social life together, and had ceased sexual relations, the parties lived “separate and apart” and Britton v. Britton, 400 Pa.Super. 43, 582 A.2d 1335 (1990) in which the parties shared a joint checking account and had a social life as husband and wife.

Husband never demonstrated an independent intent to dissolve their marriage and, more importantly, did not manifest and communicate any intent to Wife.  For purposes of the Pennsylvania divorce statute, "Physical separation alone does not satisfy the separate and apart requirement. . . " Sinha v. Sinha, 515 Pa. 14, 526 A.2d 765, 767 (1987). An independent intent to dissolve the marital union must be "clearly manifested and communicated to the other spouse." Id.   In Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945 (1984), this court held that “cohabitation” means “the mutual assumption of those rights and duties attendant to the relationship of husband and wife.” Id., at 47, 483 A.2d at 948.  Thus, the gravamen of the phrase “separate and apart” becomes the existence of separate lives not separate roofs (emphasis added).  During the period of time Husband maintains the start of “new lives” there was no intent on his part to terminate the marriage.  In fact, the parties continued to have joint bank accounts, filed their tax returns together, went on numerous family vacations, attended social events as a couple, celebrated the holidays together, received birthday and anniversary gifts and even went food shopping together.  Until 2016, there had been no affirmative indication by Husband or Wife their intention to live separate and apart.  See Wellner v. Wellner, A.2d 1278, 1281 (Pa.Super, 1997).   Furthermore, and most importantly, in the context of how Husband and Wife always conducted their marriage, the parties maintained their normal and customary routine as Husband and Wife.

After a full day of testimony from several witnesses from Husband and Wife’s side, the courts ruled in Wife’s favor citing Frey v Frey to be the case on point.

Some factors which have been considered in determining the parties’ intent have been:

  1. How much time the parties spent at the marital residence.
  2. Whether the parties slept in the same room.
  3. Whether the parties ate meals together.
  4. Whether or not the parties took vacations and outings together and whether or not those outings were for the child’s benefit only.
  5. Whether or not the parties gave the appearance that everything was fine for their child’s sake.
  6. Whether the parties lived separate lives.
  7. Whether the parties had sexual relations.

Frey v Frey, 821 A.2d 623 (Pa. Super. 2003).  See also Mackey v. Mackey, 545 A.2d. 362 (Pa. Super. 1988).

It is important to establish the date of separation if there are non-marital assets or if the other party will not consent to the divorce.  If you want to make the date of separation clear, the best way to do so is by filing the divorce complaint.

Dara Burns, Esquire


The Law Firm of Michael Kuldiner, P.C. is pleased to announce that Dara Burns has joined the firm as an associate.

Dara Burns joins the firm with over a decade of experience in civil litigation and family law.  Dara’s practice will focus on Real Estate, Civil Litigation and Estate Planning. She will also continue to practice in the areas of divorce, custody, adoption, and protection from abuse.

Prior to relocating to Bucks County in 2008, Dara was a litigation associate at one of the nation’s top law firms in Washington, D.C.  She focused her practice on securities litigation, anti-trust matters and government investigations.  Dara began her family law practice as the staff attorney for the Network of Victim Assistance (NOVA) legal services program in Bucks County.  Most recently, Dara practiced family law at a firm in Montgomery County.

As a full service firm, the Law Offices of Michael Kuldiner, are equipped to handle a wide range of complex legal issues for individuals, families, businesses and organizations. For more information on this firm, located at 922 Bustleton Pike in Feasterville, call 215-942-2100 or visit

spousal spying

Spousal Spying in the Commonwealth of Pennsylvania

If you are contemplating divorce, you may be of the mind that would should engage in a course of spousal spying. If that is what you are considering, you most definitely are not alone. The reality is that many individuals facing problems in their marriages, or the prospect of divorce, engage in spousal spying. The reality is that taking this course of action can be problematic and even illegal in some cases.

Spousal Spying: Telephone Interception

One area in which individuals engage in spousal spying involves telephone communications. You may be thinking about the possibility of recording or otherwise intercepting telephone communications in order to collect evidence for a divorce proceeding.

The reality is that telephone call interception generally is illegal in the commonwealth of Pennsylvania. If you engage in this type of activity, even when your own spouse is the target, you can be charged with a Class C felony.

Exceptions to Telephone Interception Prohibition

There are three primary exceptions to the prohibition against intercepting phone calls in Pennsylvania, including when such an interception involves spousal spying. First, this type of interception may be considered appropriate if it involves collecting information about a crime of violence. In other words, the interception may be deemed legally permissible if targeted communication involves a crime of violence. This includes a crime of violence previously committed or one that appears to be in the planning stages.

The second exception involves telephone calls and similar communications to emergency services. Finally, an exception exists if both or all parties to the transmission agree to it being intercepted and recorded.

Reasonable Expectation of Privacy

In order for the prohibition against interception to be at issue, the spouse involved in the communication must have a reasonable expectation of privacy. For example, if your spouse is yelling into a phone for all around to hear, he or she would not have a reasonable expectation of privacy. However, if your spouse were whispering in another room, that individual would indeed have a reasonable expectation of privacy.

Pennsylvania child custody

Myths About Gender and Pennsylvania Child Custody

There was a point historically when mothers were favored as the primary custodians of minor children in divorce proceedings. In other words, these was a presumption that mothers are more fit or qualified to be the primary caretakers of children than were fathers. The reality is that in all jurisdictions in the United States, decisions regarding.

The Law and Judicial Practices in Pennsylvania Child Custody Cases

Although the law in Pennsylvania, and elsewhere in the United States, renders decisions regarding child custody gender neutral, a good many individuals still believe otherwise. Time and again, litigants come to Pennsylvania courts in divorce cases believing that mothers have an advantage over fathers in custody cases.

Courts not only work to follow the mandates of the law when it comes to child custody decisions and gender neutrality, judges generally work towards ensuring that the appearance of gender neutrality is also evident in a given case. In fact, if a court improperly made a decision regarding child custody utilizing gender as the underlying reason for the determination, that court order would be flawed and subject to revision or being overturned on appeal.

Standard in Pennsylvania Child Custody Cases

Pennsylvania courts utilized a gender neutral standard known as the best interests of the child standard when making custody decisions in divorce and paternity cases. The standard focuses on ensuring that a particular custodial arrangement is designed to advance and further the best interests of the child.

Considerations in Determining the Best Interests of the Child

A Pennsylvania court focuses on a number of factors when determining what is in the best interests of a child in a Pennsylvania child custody case. Gender is not on the list.

Factors on the list include which parent historically has been the primary caretaker of the child, the residential situation of the parents as well as the physical, mental and emotional health of the parties and the child. Custody decisions, based on an application of these factors, are made on a case by case basis.

Legal Representation

Although custody determinations are to be made without regard to gender, there are other issues in these types of cases that can prove complicated and challenging. A divorcing parent is best served to retain the services of a capable Pennsylvania divorce attorney.

alimony in Pennsylvania

The Truth About Alimony in Pennsylvania Divorce Case

A common area within the confines of Pennsylvania divorce law in which myths abound is in regard to alimony. Alimony in Pennsylvania is subject to some fairly strict guidelines established by law. A person contemplating divorce, with an interest in alimony in Pennsylvania, needs to be generally versed in what is myth and what is reality in regard to this element of divorce law.

Common Myths About Alimony in Pennsylvania

Perhaps the most prevalent myth associated with alimony in Pennsylvania is that this type of financial assistance is awarded automatically in divorce cases. Indeed, a fairly consistent corollary of this myth is that a person is able to obtain one year of alimony payments for every three years of marriage. No such formula exists for determining the availability of and calculating alimony.

Another recurring myth is that alimony is not gender neutral in the commonwealth. This contention is that women are able to receive alimony while men usually will not qualify. In fact, the determination of alimony in Pennsylvania is made on a gender neutral basis. A variety of factors come into play, but gender is not one of them.

As noted, these simply are not accurate descriptions of alimony in Pennsylvania. And, again, it is crucial for a person contemplating divorce to understand accurately the essential elements of alimony in Pennsylvania as outlined in the law.

Standards for Alimony in Pennsylvania

Pennsylvania law sets forth no specific mandate regarding how much a person should be paid for alimony or how long alimony payments should occur. Alimony decisions are made at the discretion of the court on a case by case basis in divorce proceedings.

The award of alimony is based on a consideration of the financial needs of one of the spouses. This determination is made after the marital assets and debts are divided between the parties by the court.

A court can award alimony if a party is not able to meet reasonable living expenses based on that individual’s ability to earn an income. In addition, the value of the marital assets set aside to that individual is also taken into consideration by the court.

The Value of Legal Representation

When it comes to making a claim for alimony in Pennsylvania, a person in a divorce case to put his or her self in the best position to prevail by retaining capable counsel. A Pennsylvania divorce lawyer will schedule an initial consultation to discuss this and other issues.


Family Law Attorney
Shauna Quigley

The Law Firm of Michael Kuldiner, P.C. is pleased to announce that Shauna Quigley has joined the firm as an associate. Ms. Quigley concentrates her practice on Family Law, including divorce, property distribution, support, custody and protection from abuse, Estate Administration and Civil Litigation.

Prior to joining the Firm, Shauna practiced law at a general practice firm in Bucks County where she specialized in family law and civil litigation.  Shauna joins the firm with several years of experience in family law, estate and civil litigation.

Ms. Quigley is admitted to practice in the Commonwealth of Pennsylvania, State of New Jersey and United States District Court for the Eastern District of Pennsylvania.  Prior to joining the firm, Ms. Quigley practiced law at a general practice firm in Bucks County where she specialized in family law and civil litigation. She previously served as a Judicial Law Clerk for the Honorable Eugene Maier of the Court of Common Pleas of Philadelphia.

Ms. Quigley represents her clients with compassion and understanding during what is one of the most challenging times of their lives.


The Divorce Spectrum

Not all divorces are “created equally.” In fact, psychologists and legal professionals have crafted a divorce spectrum that illustrates the different types of divorces. The divorce spectrum focuses on factors that include the complexity of a particular case, the emotional state of the parties as well as the actual state of the relationship between spouses seeking to end a marriage.

The Nuclear Divorce

The Nuclear Divorce is one in which the parties seem to want to pursue a scorched earth policy. The spouses assume a take no prisoners posture when it comes to addressing issues in the case.

In reality, the Nuclear Divorce element of the spectrum is not as commonplace as many people might assume. A Nuclear case exists when the parties face a highly complex divorce case. The parties are also highly emotionally charged, in deep turmoil over the end of the marriage and their other spouse. Finally, the relationship between the parties is so degraded that it has become impossible for them to speak to one another or communicate in any constructive manner.

Divorce Decree Playbook

Most divorces fall into the middle of the divorce spectrum. These divorces are so commonplace that they appropriately can be called part of the Divorce Decree Playbook.

At this point on the spectrum, the divorcing couple face a variety of easier to resolve as well as more complex issues. Emotions are not necessarily in check all of the time, but the parties are able to communicate in some manner fairly effectively. The relationship between the parties has turned colder, but they do not disdain one another.

The Make It Work Out Divorce

At the other end of the spectrum from the Nuclear Divorce is the Make It Work Out Divorce. In this situation, the parties sometimes able to pursue an uncontested divorce. Even if the divorce proves to be not fully uncontested, any disputed issues can be negotiated and settled without tremendous drama.

The Make It Work Out Divorce proves to be more commonplace than many individuals would imagine. A Make It Work Out case exists when the parties have a fairly simple set of issues to resolve in the case. Emotions are in check, generally speaking, at this point on the divorce spectrum. Finally, the parties commence a divorce case with a decent enough relationship. In fact, oftentimes a Make It Work Out case features parties that still love one another. The marriage just was not working for one reason or another.

Keep in mind that no matter where a case commences on the divorce spectrum, circumstances can move it in another direction. A Nuclear Divorce can calm down while a Make It Work Out Divorce can degrade.

child custody hearing

Five Tips to Prepare for a Child Custody Hearing

A child custody hearing represents one of the most significant of proceedings held in divorce and paternity cases. Because of the significant nature of a child custody hearing, a parent needs to be well prepared for the proceeding. There are five key tips to bear in mind when preparing for a child custody hearing.

Obtain and Organize Documents

The evidence presented at a child custody hearing usually includes various types of documents. As part of preparing from a child custody hearing, a parent needs to make certain that he or she has obtained appropriate documentation support in support of his or her position regarding a custodial arrangement. Moreover, a parent must be certain to place the documentation in a logical, appropriate order for presentation to the judge during the court hearing.

Prepare Testimony

Both parents involved in a custody dispute typically testify at a child custody hearing. In fact, oftentimes the testimony of the parents represent the most important evidence to be presented at this type of judicial proceeding.

Part of preparing for a custody hearing involves a parent focusing on his or her testimony. In addition, a parent must be ready and able to respond to cross-examination put forth by the parent. Cross-examination can include tough questioning, and a parent must be braced for that prospect.

Identify and Prepare Witnesses

Other individuals are likely to be important witnesses in a custody hearing. These people oftentimes include family members and professionals, like social workers. These witnesses need to be identified well in advance of a hearing. The need to be subpoenaed by the court to ensure that they appear. These witnesses must be properly prepped in advance of the hearing date as well, and not subjected to a last minute update on the case.

Understand Basic Procedures

A parent must also make certain that he or she has a basic understanding of the hearing process. Most courts offer written resources explaining the custody hearing process for people who do not have legal representation.

Engage Capable Legal Counsel

Although a parent has the right to represent his or her self in a custody hearing, that typically is not the wisest course of action. Ideally, a parent retains the services of an attorney with experience in family law, divorce and custody matters.

Preparation leaves a parent in the best possible position to make a strong case in a custody hearing. The lack of preparation can literally doom a parent’s chances of prevailing at a custody hearing, even when the weight of the evidence otherwise would have been on that individual’s side.