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J. C. S. v. D. M. S. AND D. D. (05/16/80)

filed: May 16, 1980.

J. C. S., APPELLANT,
v.
D. M. S. AND D. D.



No. 1579 April Term 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Family Division at No. M 623 of 1978.

COUNSEL

Neil J. Marcus, Monongahela, for appellant.

Chris F. Gillotti, Pittsburgh, for appellees.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Spaeth

[ 277 Pa. Super. Page 614]

This is a case involving the custody of two children. Generally stated, the issue is what effect, if any, the lower court should have given a North Carolina custody order.

Appellant father Joseph S. and appellee mother Donna S. are the parents of two children, Kathryn, born February 11, 1971, and Thomas, born November 21, 1974. The father and mother separated in May 1977. Custody of the children went to the mother, pursuant to a separation and custody agreement dated May 31, 1977, and she and the children went to live in Elizabeth City, Pasquotank County, North Carolina. On April 3, 1978, the father and mother were divorced by decree of the District Court of Guilford County, North Carolina. The agreement of May 31, 1977, was approved by the District Court and incorporated into the divorce decree.

On August 1, 1978, the father filed a motion in the District Court of Guilford County to change the separation and custody agreement so as to grant him custody of the children; the motion alleged that because of changed conditions, this would be in the children's best interest. On August 3 or 4, the District Court issued an order restraining the mother from removing the children from North Carolina until a custody hearing was held. The mother was served with this order in Pasquotank County. However, she was advised by counsel that the service was not effective, and on August 4, she left Pasquotank County and took her children to McKeesport, Allegheny County, Pennsylvania. While the mother and children remained in Pennsylvania, the District Court of Guilford County awarded the father custody of the children, and terminated his child support obligations.

On October 31, 1978, the father filed a petition in the Court of Common Pleas of Allegheny County, alleging that pursuant to the Uniform Child Custody Act, Act of June 30, 1977, P.L. 29, No. 20, § 1 et seq., eff. July 1, 1977, 11 P.S. § 2301 et seq., the court should enforce the order of the District Court of Guilford County. After a hearing on November 16, at which both father and mother were present

[ 277 Pa. Super. Page 615]

    and represented by counsel, the court entered an order denying the petition. The father has appealed from that order.

The lower court concluded that the District Court of Guilford County lacked jurisdiction to rule on custody of the children, and that therefore its custody order was unenforceable. The court acknowledged that according to the Uniform Act, a Pennsylvania court is required to recognize and enforce the custody decree of the court of another state when a certified copy of the decree is filed with the Pennsylvania court, and when the court of the other state has assumed jurisdiction "under factual circumstances meeting the [Act's] jurisdictional standards." Section 14 of the Act, supra, 11 P.S. § 2314. However, the lower court found that the District Court of Guilford County had failed to meet those standards.

The Uniform Act's jurisdictional standards are stated in section 4 of the Act, supra, 11 P.S. § 2304, as follows:

§ 2304. Jurisdiction

(a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(1) this State:

(i) is the home state of the child at the time of commencement of the proceeding; or

(ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State;

(2) it is in the best interest of the child that a court of this State assume jurisdiction because:

(i) the child and his parents, or the child and at least one contestant, have a significant connection with this State; and

[ 277 Pa. Super. Page 616]

(ii) there is available in this State substantial evidence concerning the child's present or future care, protection, ...


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