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filed: February 13, 1981.


No. 1892 October Term, 1979, Appeal from an Order of the Court of Common Pleas of Chester County, Civil Division-Custody, No. 222 July Term, 1979


Fronefield Crawford, Jr., West Chester, for appellant.

George J. Brutscher, Kennett Square, for appellee.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Hester

[ 284 Pa. Super. Page 403]

In this child custody proceeding, the mother appeals from an order of the court below establishing permanent custody in the father. For the reasons which follow, we will reverse.

Pertinent facts adduced at the hearings below were as follows. The parties, James Robert and Joan Parks, were married in July, 1972 and resided in Kennett Square, Chester County, Pennsylvania. One child resulted from the

[ 284 Pa. Super. Page 404]

    marriage: Becky, born November 30, 1972, the subject of the instant dispute. Marital difficulties developed and the couple separated in June, 1976 with Mrs. Parks and Becky moving into her mother's home and thence to an apartment in Kennett Square. The parties entered into a written agreement at this time whereby custody of Becky was given to Mrs. Parks, with the father retaining broad visitation privileges. Mrs. Parks was employed as a bank teller and arranged for a baby sitter during the day. The Parks' were divorced in December, 1976.

In the Fall of 1977, Mrs. Parks moved with Becky to Roswell, Georgia, a suburb of Atlanta, where they resided with Mrs. Parks' aunt and uncle, Nancy and Bob Kimbell. Becky attended kindergarten and lived with her mother there until May, 1978. At that time, Becky came back to Pennsylvania to spend the summer with her father, in accord with the custody and visitation agreement.*fn1 Her mother, meanwhile, remained in Roswell and attempted unsuccessfully to enroll her in the first grade there for the Fall. Since Becky would not turn six until after school opened in September of that year, Georgia law forbade her from entering first grade. Thus in August, 1978, the parties mutually agreed that it would be in the child's best interests for her to remain with her father so she could enter first grade in Pennsylvania. Once that was accomplished, there would be no impediment to admitting her into the second grade the following year in Georgia. R.R. 19-22.

In September, just before school began, Mrs. Parks visited her daughter in Kennett Square and, at the end of her stay, prepared to return to Georgia. As her former husband drove her to the airport, he showed her, for the first time, a document he had prepared relating to custody of Becky. The parties had previously discussed this new agreement

[ 284 Pa. Super. Page 405]

    and Mrs. Parks, thinking the agreement only granted temporary custody to her husband for that school year, readily signed the paper. In reality, this document established permanent custody of Becky in her father.

During the subsequent school year, Becky lived with her father in his one-bedroom apartment in Kennett Square. Mrs. Parks travelled to Pennsylvania three times to visit her daughter. On July 15, 1979, during the fourth and final visit, the parties had a confrontation in Mr. Parks' apartment concerning Becky's return to Georgia. Mr. Parks insisted that he retain permanent custody of his daughter while Mrs. Parks was adamant that Becky live with her in Georgia. The argument ended with Mr. Parks ordering his former wife out of the apartment and expressing his intent that she never see Becky again. Mrs. Parks spent the night at her mother's home nearby.

The next day, Mr. Parks took Becky to the home of his sister, Donna Ifert, while he went to work. Mrs. Parks dropped by to take Becky to her regular swimming lesson and, following a phone call to Mr. Parks, Mrs. Ifert released Becky to her mother. Mrs. Parks proceeded immediately to consult legal counsel, whereupon the instant petition to establish custody was filed on her behalf in the Court of Common Pleas, Chester County. The appellant-mother then returned with Becky to Georgia. Hearings on the petition were held on August 14 and 15, 1979. The following day the court entered an order dismissing the mother's petition for lack of jurisdiction, citing "the Uniform Child Custody Jurisdiction Act, 11 P.S. § 2309(a), and the Commonwealth Child Custody Jurisdiction Act, 11 P.S. § 2409(a)." R.R. iva. The court's order also stated that custody shall be with the father. An opinion in support of the order followed in which the court again stated it denied jurisdiction, citing the Uniform Act, and then proceeded to the merits to establish custody in appellee. This appeal ensued.*fn2

[ 284 Pa. Super. Page 406]

In Lewis v. Lewis, 267 Pa. Super. 235, 242, 406 A.2d 781, 783-4 (1979) we summarized the law governing a proceeding of this type:

It is settled that the paramount concern in a child custody proceeding is to determine what is in the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Sipe v. Shaffer, 263 Pa. Super. 27, 396 A.2d 1359 (1979). In a contest between parents, each party bears the burden of proving that an award to that party would be in the best interests of the child. In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977). The award must be based on the facts of record and not on mere presumptions; in ...

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