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decided: August 8, 1974.


Appeal from order of Court of Common Pleas of Montgomery County, No. 8138 of 1973, in case of Frances Gay Davidyan v. Gail Kurt Davidyan.


Nathan L. Posner, with him Howard R. Flaxman, and Fox, Rothschild, O'Brien & Frankel, and Philip D. Weiss, and McTighe, Brown, Weiss, Bonner & Stewart, for appellant.

Arthur R. Littleton, with him Morgan, Lewis & Bockius, and William P. Manning, Jr., and Wright, Spencer, Manning & Sagendorf, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Hoffman, J. Wright, P. J., took no part in the decision of this case. Spaulding, J., took no part in the consideration or decision of this case. Dissenting Opinion by Spaeth, J. Watkins, P. J., joins in this dissent.

Author: Hoffman

[ 229 Pa. Super. Page 497]

This is an appeal from a conditional order granting custody of a minor child to the appellee.

The parties have been separated since January 14, 1973, when the appellee Frances Gay Davidyan refused to return from Scotland where the family had been spending their Christmas vacation. Having her doubts as to the success of her marriage, she remained in Scotland with her eight-year-old son, whom she enrolled in school. After repeated attempts to reunite the family, the appellant Gail Kurt Davidyan, without informing his wife, went to the school and took his son with him to France. When the appellee refused to join them in France upon hearing of the incident, the appellant returned to Philadelphia with his son. On July 5, 1973, the appellee instituted a habeas corpus action in the Court of Common Pleas of Montgomery County.

Only the appellant and appellee testified in the court below. Finding that both parents could equally provide a good home for the child, the court, relying on the "tender years' presumption," awarded custody to the mother. In so doing, the court, however, made its order conditional.

"The mother shall take custody of the boy from the father on August 16, 1973 in order that she can return with him to her home in Scotland, provided she posts security with the Prothonotary . . ., as well as the submission to this Court of evidence from the Court of competent jurisdiction over such cases in Dumbartonshire, Scotland, wherein the mother will reside with the minor subject of this proceeding, that such Court recognizes the retention of jurisdiction over both the cause and the parties hereafter." (Emphasis added).

Before the conditions of the Order of Court could be satisfied, the parties took an appeal to this Court. Pending appeal, a Barrister's Opinion was made part of a Supplemental Record reflecting the educated belief

[ 229 Pa. Super. Page 498]

    of a group of Scotch barristers that, while no procedure was available under Scotch law whereby a Scotch court would provide "evidence" that it "recognizes the retention of jurisdiction" by a Pennsylvania Court, the unified "opinion" was that a Scotch court would regard the jurisdiction of the Montgomery County courts as "pre-eminent", unless immediate emergency relief became necessary.

After reviewing the record in this case, it is obvious to this Court that "fitness" was not a significant factor in making the award of custody conditional. Consistent with the "tender years' presumption", the lower court, determining that both parties were equally capable of providing the minor child with a happy, healthful home, awarded custody to the natural mother.*fn1 The conditional nature of the order, however, reflects a concern that geographical distance should not erode or nullify the rights of the father to continue in a meaningful relationship with his son. This position is not without a mass of precedent holding it against public policy and repugnant to the best interests of minor children, to damage the normal relationship of a child with both parents, denying the child of the affections and counsel of one of the parties. In re Duckworth, 188 Pa. Superior Ct. 232, 146 A.2d 365 (1958); Commonwealth ex rel. Skyanier v. Skyanier, 190 Pa. Superior Ct. 56, 151 A.2d 817 (1959).

In Commonwealth ex rel. Moore v. Moore, 172 Pa. Superior Ct. 255, 94 A.2d 93 (1953), our Court upheld

[ 229 Pa. Super. Page 499]

    a lower court order awarding custody to the natural mother of a minor child. In affirming, the Court approved the direction of the hearing judge that the mother residing in Maryland, deliver to the father living in Clearfield County, Pennsylvania, (the marital domicile) the minor child for visitation one week out of each month. Recognizing that custody had been awarded to the mother because of the "tender years' presumption", and that both parties were equally fit to care for the child, President Judge Rhodes, writing for the Majority, stated at 257-258: "We are of the opinion that the order of the court below does not offend the general rule that the needs of a child of tender years are best served by the mother, the application of which is often an easy solution of the problem without due consideration to the permanent welfare of the child. The order is an effort to make the best out of a situation which, so far as disclosed by the record, is not of relator's [father's] creation. In the exercise of our independent judgment . . ., we believe the court below properly determined that it would not be for the best interest and welfare of the child to allow him to be removed completely from paternal contact and influence. Due to the distance between the present residences of the respective parties, the ordinary provision for right of visitation would be insufficient to maintain any satisfactory paternal relationship. We have said that normally both parents should see their children, and that estrangement of parent and child should be avoided whenever possible. Commonwealth ex rel. Timmons v. Timmons, 161 Pa. Superior Ct. 174, 176, 54 A.2d 75. If changed conditions adversely affect the child's welfare, further action may always be taken."

In the instant case, the mother wishes to take the child to live with her in Scotland. Apprehensive of the possibility that the father should cease to be an influence on ...

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