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REILLY v. REILLY (06/22/71)


decided: June 22, 1971.


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.


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 is through the use of

[ 219 Pa. Super. Page 88]

    the writ of habeas corpus. In re: Minor Children of Rosenthal, 103 Pa. Superior Ct. 27, 157 A. 342 (1931). Once it is determined that Pennsylvania courts have jurisdiction over the subject matter in a child-custody action, and habeas corpus is the procedural method used to obtain custody, it is necessary to turn to the statutory provisions governing writs of habeas corpus to determine which court in Pennsylvania has authority to hear the case. These statutory provisions are contained in the Act of May 25, 1951, P. L. 415, § 1, 12 P.S. § 1901, which provides, inter alia : "Any judge of a court of common pleas within this Commonwealth shall have jurisdiction, at any time, to issue a writ of habeas corpus upon application by, or on behalf of, any person (hereinafter called the relator) alleged to be unlawfully imprisoned or detained in any penitentiary, prison, reformatory, house of detention, mental institution, or any other place, (a) within the judge's judicial district or (b) outside of his judicial district, if relator was committed by action of any court of the judge's judicial district . . . ."*fn1 In Commonwealth ex rel. Tiscio v. Martin, 180 Pa. Superior Ct. 462, 120 A.2d 307 (1956), cert. denied, 352 U.S. 856 (1956), this Court interpreted this statute: "The Act of May 25, 1951, P. L. 415, sec. 1, 12 P.S. sec. 1901, relating inter alia to venue in habeas corpus proceedings provides for general jurisdiction in any judge of a court of common pleas of this Commonwealth, but limits the venue to a judge of the judicial district wherein the relator is confined or to the judge of the judicial district responsible for relator's commitment. . . ." (Emphasis added.)

[ 219 Pa. Super. Page 89]

    rel. Burke v. Burke, supra.*fn4 Burke involved a situation where the child, although domiciled in Pennsylvania, resided, at the time the action was brought, outside of Pennsylvania. This Court directed the court in the district in which the respondent resided to hear the case. Although clearly the child was not physically restrained or physically present in that district, the respondent who had control over the child and was the restrainer did reside in the district. Thus, a child, who is controlled by a person who resides in a district is, in effect, restrained within that district; the district in which the restrainer resides, therefore, has venue. Commonwealth ex rel. Hickey v. Hickey, 216 Pa. Superior Ct. 332, 264 A.2d 420 (1970).*fn5

In the instant case, the child at the time the writ of habeas corpus was brought was not restrained in, nor did he reside in, Blair County. The father who allegedly had unlawful custody of the child, but was the person controlling the child and the only one who could produce the child, did not reside in Blair County and Blair County did not have jurisdiction over him. The fact that control of the child was gained by trick is of no import.*fn6 Thus, Blair County did not have venue to hear the case.

Order reversed and petition dismissed.


Order reversed and petition dismissed.

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