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REILLY v. REILLY (06/22/71)

decided: June 22, 1971.

REILLY
v.
REILLY, APPELLANT



Appeal from order of Court of Common Pleas of Blair County, June T., 1970, No. 313, in case of Sylvia A. Reilly v. Clair J. Reilly.

COUNSEL

Harold E. Miller, with him Thomas I. Myers, for appellant.

Benjamin I. Levine, Jr., with him Nelson, Campbell & Levine, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 219 Pa. Super. Page 86]

The sole and narrow issue in this child-custody case is whether the Court of Common Pleas of Blair County has the authority to hear the controversy.

Appellant is the father and appellee is the mother of an 11-year-old son. The parents are divorced, the appellee living in Altoona, Blair County, and the appellant living in Camp Hill, Cumberland County. The boy lived with appellee in Altoona for approximately five years prior to September 5, 1970. On that date appellant picked up his son. He took him to Johnstown to visit the boy's paternal grandmother and then took him to Camp Hill. On September 16, 1970, appellee petitioned for a writ of habeas corpus in Blair County. After a hearing, which appellant did not attend, the court awarded custody to appellee based solely on her testimony and directed appellant to return the child to appellee. Appellant, by filing preliminary

[ 219 Pa. Super. Page 87]

    objections, then challenged the jurisdiction of the court in Blair County alleging that the court of Cumberland County had jurisdiction.

The only witnesses at the hearing on the preliminary objections were appellant and appellee, and we will not disturb the hearing judge's finding that appellant acquired the boy by trick. On factual matters, the hearing judge is far better able to assess credibility and weight of testimony than we are. Commonwealth ex rel. Shroad v. Smith, 180 Pa. Superior Ct. 445, 119 A.2d 620 (1956). Appellant testified that appellee understood that the boy was going to live with him in Camp Hill, while appellee testified that appellant had permission to take the boy to Johnstown for the weekend and was told not to take him to Camp Hill. The lower court determined that the boy's legal residence and domicile had for some time been with appellee in Altoona; that, since appellant had acquired his son by ruse or trick, the child's legal residence and domicile continued to be Blair County and thus Blair County had jurisdiction.

It is true that the jurisdiction of the subject matter in a child-custody case, i.e., the right to custody of the child, follows either the domicile of the child or the residence of the child. Commonwealth ex rel. Camp v. Camp, 150 Pa. Superior Ct. 649, 29 A.2d 363 (1942). Furthermore, when parents are divorced or separated, the child takes the domicile of the parent with whom he lives in fact. Commonwealth ex rel. Burke v. Burke, 168 Pa. Superior Ct. 578, 80 A.2d 87 (1951). When a child either lives in Pennsylvania or is domiciled in the Commonwealth, Pennsylvania courts have jurisdiction to determine which parent is entitled to custody of the child.

It has long been recognized that the usual method of obtaining custody of a child ...


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