No. 608 October Term 1979, Appeal from the Order of the Court of Common Pleas of Monroe County, Civil Division at No. 914 Oct. Term, 1977.
Gerald I. Roth, Allentown, for appellant.
Richard F. Stevens, Allentown, for appellee.
Spaeth, Cavanaugh and O'Kicki, JJ.*fn* Cavanaugh, J., concurs in the result. O'Kicki, J., files a dissenting statement.
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This is a child custody case. The lower court awarded custody to the father, and the mother now appeals. We have concluded that we should remand for further proceedings. Four matters in particular require discussion.
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The father and mother were married in April 1973, and had one child, Katherine, who is the subject of this litigation. The record does not indicate the date of Katherine's birth, but in the briefs to us she is said to be 7 years old. The mother had had a child by a prior marriage, Monica. Neither does the record indicate the date of Monica's birth, but at a hearing in November 1979, she said that she was 16 years old. The family lived in Stroudsburg, Pennsylvania.
Marital difficulties developed, and in January 1978 the father filed a petition for writ of habeas corpus, praying the court "to determine the issue of [Katherine's] custody as between the parents." The mother filed an answer, alleging that "since both Petitioner and Respondent reside in the same home with their minor child [Katherine], the question of custody is moot," and that the petition should therefore be dismissed. It appears that the writ issued, but no hearing was held. Instead, on February 24, 1978, on the father's motion, the matter was continued generally.
On September 18, 1978, the father filed a petition alleging, among other things, that the mother had "secreted" Katherine, and he had been "unable to locate her;" that the mother was "originally from Columbia [ sic ], South America and had contacts there as well as in Spain where she frequently visits;" that the mother had threatened to take Katherine to Spain, and had told the father that he would never see Katherine again; that he believed that Katherine "either [was] or [would] soon be in Florida at 7720 S.W. 98th Court, Miami, Florida, 33173, the home of one Howard Bannister, a paramour of [the mother's];" and that he believed that the mother would "move [Katherine] again" if she learned of the petition. Attached to the petition was a form of order, which the lower court completed and and signed, ex parte, as follows:
AND NOW, this 18th day of September, it is ordered that custody of [Katherine]*fn1 is awarded to [the father]
[ 280 Pa. Super. Page 375]
until the 2nd day of October, 1978, when the matter of the custody of [Katherine] will be heard by the Court of Common Pleas of the Forty-third Judicial District, Monroe County, Commonwealth of Pennsylvania, at which time, [the father] shall, if he has been able to locate the child, bring her person before the Court.
On October 2, 1978, the hearing set by this order was held. The only witness was the father. It appears from his testimony that he hired a private investigator, who found out where Katherine went to school in Miami, and that he flew to Miami, went to the school, introduced himself to Katherine's teacher as her father, took her from the school and brought her back to Pennsylvania. (N.T. 12-13, 10/2/78). At the conclusion of the hearing, the court continued the matter to a date to be set after consultation with counsel, and ordered that temporary custody be continued with the father. (N.T. 57, 10/2/78)
We cannot condone the procedure initiated by the father and adopted by the lower court. By its order of September 18, 1978, the lower court virtually deputized the father as its officer, directing him to "locate [Katherine] [and] bring her person before the Court." Child custody disputes are as bitter as any disputes that a court decides. An order such as the lower court's can only exacerbate that bitterness; indeed, in other circumstances the order might have led to violence. Suppose, for example, that the mother had come to the school in response to a call from Katherine's teacher. One can imagine the sort of quarrel that might have erupted between the mother, trying to keep Katherine with her, and the father, cloaked with the authority of the lower court's order, and claiming the right to take Katherine away with him.
One of the purposes of the Uniform Child Custody Jurisdiction Act, Act of June 30, 1977, P.L. 29, No. 20, § 1 et seq., eff. July 1, 1977, 11 P.S. § 2301 et seq., is to prevent unilateral action by one parent. Thus, Section 2(a)(5) of the Act, 11 P.S. § 2302(a)(5), provides that the Act is intended to "deter abductions and other unilateral removals of children
[ 280 Pa. Super. Page 376]
undertaken to obtain custody awards." Instead of issuing an ex parte order deputizing the father to find Katherine and bring her back to Pennsylvania, the lower court should have complied with the procedures set forth in the Act. Section 4 of the Act, 11 P.S. § 2304, provides in part as follows:
(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:
(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 ...