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JOSEPH E. H. v. JANE E. H. (12/05/80)

filed: December 5, 1980.

JOSEPH E. H., APPELLEE,
v.
JANE E. H., APPELLANT



No. 931 April Term, 1979 Appeal from the Orders of the Court of Common Pleas of Westmoreland County, Civil Div., at No. 9886 of 1977.

COUNSEL

Henry A. Hudson, Jr., Greensburg, for appellant.

Thomas J. Godlewski, Greensburg, for appellee.

Cavanaugh, Hoffman and Van der Voort, JJ. Cavanaugh, J., filed a concurring and dissenting opinion.

Author: Hoffman

[ 283 Pa. Super. Page 110]

Appellant contends that the lower court lacked jurisdiction to entertain appellee's petition for redetermination of custody of their minor son. Although we disagree, we nevertheless vacate the order of the lower court and remand for further proceedings consistent with this opinion.

On November 11, 1977, appellee-father instituted habeas corpus proceedings in the Westmoreland County Court of Common Pleas seeking custody of the parties' minor son.

[ 283 Pa. Super. Page 111]

At that time the parties, then husband and wife,*fn1 were living separately in Westmoreland County, and appellant-mother maintained custody of their son. After conducting several hearings the lower court, on July 19, 1978, issued an order granting custody of the child to the mother and allowing the father visitation for two hours each Saturday. Visitation was to be supervised for the first three Saturdays and unsupervised thereafter.*fn2 Immediately before the father's first unsupervised visitation was to take place, the mother and son left their home in Westmoreland County and took up residence in Maryland. The father commenced contempt proceedings against the mother for her alleged violation of the court's visitation order, and on August 24, 1978, the court issued a bench warrant for the mother's arrest. The warrant apparently was not executed, and no further actions were taken in the case until August 15, 1979. On that date the father filed a "Petition for Rehearing" in which he sought a redetermination of custody of the parties' son. The court scheduled a hearing on the father's petition for September 14, 1979. On September 12, 1979, the mother filed preliminary objections to the father's petition, alleging that the court was without jurisdiction of the matter because she and her son were residents of Maryland. The court conducted a hearing on September 14, as scheduled, at which it considered the jurisdictional issue and heard testimony from the father on the merits of his petition for redetermination of custody. Neither the mother nor her counsel appeared, although it is undisputed that she had notice of the hearing. The lower court dismissed the mother's preliminary objections and awarded custody of the parties' son to the father. From these orders the mother has taken this appeal.

[ 283 Pa. Super. Page 112]

The mother contends that the lower court was without jurisdiction to entertain the father's petition for redetermination of custody because both she and her son are residents of Maryland.*fn3 Jurisdiction in the present case is governed by the Uniform Child Custody Jurisdiction Act, Act of June 30, 1977, P.L. 29, No. 20, § 1 et seq., 11 P.S. § 2301 et seq. (Supp. 1980-81) (the Act). Section 4(a) of the Act provides that

[a] court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by ...


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