Appeal from order of Court of Common Pleas of Montgomery County, No. 66-15339, in case of Russell Bynum Proctor v. Marion King Proctor.
James F. McClure, Jr., with him Thomas B. K. Ringe, Jr., and Ringe, Peet & Mason, and McClure & McClure, for appellant.
George C. Corson, Jr., for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Hoffman, J.
[ 213 Pa. Super. Page 172]
This case is an appeal from a custody order of the Court of Common Pleas of Montgomery County.
The parties were married and resided in Georgia; a daughter, Holly, was born of that marriage, in December, 1959. In February, 1966, the parties separated and Holly remained with her mother, Mrs. Proctor. In June, 1966, a Georgia court action to obtain custody of Holly was instituted by her father. Subsequently, Mrs. Proctor was advised by her attorney that she had been awarded temporary custody of Holly by the Georgia court, which retained continuing jurisdiction. That same day, Mrs. Proctor filed a libel for divorce in Georgia, and, together with Holly, left Georgia. After a three week stay in Maryland, they moved into the home of Mrs. Proctor's parents in Montgomery County, Pennsylvania, where they have resided for the past two years.
On August 20, 1966, the Georgia Superior Court of Camden County, proceeding under a cross bill filed by Dr. Proctor, in the divorce action, entered an order awarding temporary custody of Holly to Dr. Proctor. He then came to Pennsylvania with his attorney and served a copy of the order on Mrs. Proctor on August 27, 1966. A hearing upon these actions in Georgia was held on November 7, 1966, which resulted in the awarding of permanent custody of Holly to Dr. Proctor.
On December 14, 1966, Dr. Proctor instituted a Petition for Custody of Holly in the Common Pleas Court of Montgomery County. On October 10, 1967, that court entered an order awarding custody of Holly to Mrs. Proctor with reasonable visitation rights allowed Dr. Proctor. That order is now on appeal.
[ 213 Pa. Super. Page 173]
This case presents the following questions: (1) Is Pennsylvania bound by the Georgia custody order of November, 1966, (2) If not, what disposition should be made?
Appellant asserts that the full faith and credit clause Article IV, Section 1, of the United States Constitution requires Pennsylvania to enforce the decree of the Georgia court awarding permanent custody to Dr. Proctor. He is mistaken, even though under Pennsylvania law Georgia had proper jurisdiction on November 17, 1966 to determine the custody of Holly who was not then physically resident there.*fn1
The United States Supreme Court has pointed out in New York ex rel. Halvey v. Halvey, 330 U.S. 610 at 615 (1947), and reiterated in Kovacs v. Brewer, 356 U.S. 604 at 607 (1958), that it is clear with respect to custody decrees "that the State of the forum has at least as much leeway to disregard the ...