No. 941 April Term, 1976, Appeal from the Order of the Court of Common Pleas of Mercer County, Civil Action-Law, Pennsylvania at No. 526 C.D. 1976.
Henry E. Sewinsky, Sharon, with him Rodgers, Marks & Perfilio, Sharon, for appellant.
Thomas G. Wallace, Columbus, Miss., with him Geoffrey Paul Wozman, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Spaeth, J., files a concurring opinion in which Cercone, J., joins. Hoffman, J., files a dissenting opinion. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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In this custody case a Mississippi court on January 26, 1976, following a hearing at which the mother-appellant did not appear because, she says, her attorney told her to take the child and leave the state, permanent custody was awarded to the father. Later on May 6, 1976, a Rhode Island Court after hearing dismissed the mother's petition for custody, awarded custody to the father and ordered the child delivered to him forthwith.
The father-appellee then filed this writ of habeas corpus in Mercer County Pennsylvania seeking custody. Both parties appeared at the hearing on this petition and the lower court afforded appellant ample opportunity to offer testimony to show any change in circumstances that had occurred since the Mississippi hearing. She offered none, and the court again decreed that the father should have custody.
The only argument now advanced by the appellant is that the lower court based its decree on the Full Faith and Credit precept without the benefit of a hearing on the merits.
This argument is not supported by the record. The lower court exercised its independent judgment based on facts disclosed at the hearing in arriving at its determination to
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give full faith and credit to the Mississippi and Rhode Island custody orders. Irizarry Appeal, 195 Pa. Super. 104, 169 A.2d 307 (1961) and Friedman v. Friedman, 224 Pa. Super. 530, 307 A.2d 292 (1973).
SPAETH, Judge, concurring:
I believe several different situations should be noted:
First: Suppose both parents litigate in State A the issue of which one of them should have custody of the child, and custody is awarded to one parent. If the other parent then nevertheless, by trick or force, takes the child to State B, or if the child is there on a visit and the parent refuses to return the child, in my opinion the court in State B should give full faith and credit to the award of custody entered by the court in State A. To say that the court in State B is free to re-examine the issue of which parent should have custody can only encourage resort to force: it is the same as saying to the parent disappointed by the award entered by the court in State A, "If somehow you can get the child out of State A and into State B you can have the court in State B try the custody case all over."
I suggest that what I have just said is supported by Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (1968), where it was said that "the Full-Faith-and-Credit clause . . . would seem to require every Court in Ohio to give full faith and credit to the Pennsylvania Court's Custody Order and, in the absence of substantial and important changed circumstances, an Ohio Court should not be permitted to ignore or nullify or modify the Pennsylvania Court's Custody Order." Id., 429 Pa. at 525, 241 A.2d at 341. While this statement
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implies that full faith and credit will not be given where there are "substantial and important changed circumstances", it seems to me that where the "changed circumstances" derive from the act of one parent in wrongfully taking, or refusing ...