John J. Dean, with him John J. Hickton, Pittsburgh, for appellant.
Russell F. D'Aiello, Jr., with him John E. Rydesky, Emporium, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 129]
The sole issue in this case is whether the Court of Common Pleas of Cameron County had jurisdiction and venue to determine custody of a minor child when the child's parents both resided in Cameron County but the child herself resided in Washington County with her paternal grandparents.*fn1 The court below determined that jurisdiction and venue in Cameron County were proper. We agree and, accordingly, affirm.
The facts of the case are not in dispute. Appellant Gary L. Liggitt and Appellee Kimberly A. Liggitt are the parents of one child, Rebecca Lynne Liggitt. The Liggitts separated in July, 1976, and were divorced in April, 1977, by a decree of the Cameron County Court of Common Pleas. The parties agreed between themselves that Mrs. Liggitt would have custody of Rebecca; prior to April, 1977, there had been no formal adjudication concerning the custody of the child.
On March 25, 1977, appellant Gary Liggitt, with appellee's consent, took the child from Cameron County to the home of his parents in Washington County. Since that date, the child has resided with her paternal grandparents and has not returned to Cameron County. The father has continued to live in Cameron County.
On April 4, 1977, appellee filed a petition for writ of habeas corpus seeking the return of the child to her custody. The lower court entered a preliminary order directing appellant to surrender the child and granting custody to the mother. On April 10, appellant filed preliminary objections to the petition alleging that the court did not have jurisdiction and venue over the child and, therefore, could not enter
[ 253 Pa. Super. Page 130]
the custody order. The court dismissed appellant's preliminary objections and this appeal followed.*fn2
Our courts have long held that jurisdiction in child custody matters follows the domicile or residence of a child; when a child's parents are divorced the child's domicile is that of the parent with whom he or she in fact lives. Reilly v. Reilly, 219 Pa. Super. 85, 87, 280 A.2d 639, 640 (1971); Irizarry Appeal, 195 Pa. Super. 104, 108, 169 A.2d 307, 309 (1961), cert. denied, 368 U.S. 928, 82 S.Ct. 363, 7 L.Ed.2d 191 (1961); Commonwealth ex rel. Burke v. Burke, 168 Pa. Super. 578, 580-81, 80 A.2d 87, 88 (1951); Commonwealth ex rel. Camp v. Camp, 150 Pa. Super. 649, 650-51, 29 A.2d 363, 364 (1942). By statute, any common pleas court judge shall have jurisdiction and venue to issue a writ of habeas corpus on behalf of any person alleged to be detained within the judge's judicial district. The Act of May 25, 1951, P.L. 415, § 1, 12 P.S. § 1901. Reilly v. Reilly, 219 Pa. Super. at 88, 280 A.2d at 641. The facts of this case make clear that the child whose custody is at issue is not a resident of Cameron County. Therefore, she must be domiciled or detained within Cameron County if the Cameron County Court is to properly exercise jurisdiction and venue over her.
While the child resided with her mother in Cameron County she was domiciled there. Domicile through the mother terminated, however, when the father, also a domiciliary of Cameron County, permanently removed the child to his parents' home in Washington County.*fn3 We find, however, that ...