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JANIE V. WARMAN v. PHILIP T. WARMAN. PHILIP T. WARMAN (01/08/82)

filed: January 8, 1982.

JANIE V. WARMAN, APPELLANT AT NO. 1069,
v.
PHILIP T. WARMAN. PHILIP T. WARMAN, APPELLANT AT NO. 1120, V. JANIE WALSH, APPELLANT AT NO. 1143



No. 1069 Pittsburgh, 1980, No. 1120 Pittsburgh, 1980, No. 1143 Pittsburgh, 1980, Appeal from the Orders of the Court of Common Pleas, Civil Division, of Fayette County, 1497 of 1980, GD and 1398 of 1980, GD

COUNSEL

William Radcliffe, Uniontown, for appellant (at Nos. 1069 & 1143) and for appellee (at No. 1120).

Ralph Warman, Uniontown, for appellant (at No. 1120) and for appellee (at Nos. 1069 & 1143).

Cavanaugh, Montemuro and Van der Voort, JJ. Cavanaugh and Van der Voort, JJ., concur in the result.

Author: Montemuro

[ 294 Pa. Super. Page 290]

This child custody action was initiated by a Pennsylvania-resident father for custody of Philip, a nine-year-old son, whose primary residence has been with his California-resident mother since 1975.

The court below found that the exercise of jurisdiction in Pennsylvania would be improper, and it sustained respondent-mother's (the appellee herein) objection to jurisdiction and dismissed petitioner-father's (the appellant herein) habeas corpus petition. We affirm.

HISTORY OF THE CASE

The parents in this action were divorced in 1972. In a Separation Agreement executed by the parties in connection with that divorce, custody of the child was dealt with at length in the following manner:

9. Should the wife secure an absolute divorce, the custody of the issue of the parties, Philip, born November 14, 1970, is hereby given to wife except as hereinafter provided, and wife will maintain, educate, and support the said child out of the allowance hereinafter provided therefore.

10. Upon the removal of wife from the household of husband with the custody of the child, Philip, husband will pay to wife for the care, maintenance, education and support of said child, the sum of forty (40) dollars per week payable weekly in advance. In addition, husband will maintain Blue Cross, Blue Shield, and major medical insurance coverage upon said child. The obligations set forth in this paragraph will terminate on the death of husband.

11. During the portions of the months of June, July and August not encompassed by the regular school year husband will have the custody, charge and care of the child, Philip . . .

[ 294 Pa. Super. Page 29112]

. The child, Philip, shall have the right to decide free of influence or persuasion by either of the parties hereto, the parent with whom he desires to reside after attaining the age of fourteen years, and on such decision the parent whom the child shall select shall thereupon have the right to the custody, care and charge of such child.

13. Should wife at any time relinquish to husband the custody rights set forth in paragraph nine above, whether such relinquishment is made pursuant to paragraph twelve or for any other reason, wife will have the rights now secured to husband in paragraph eleven.

14. This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania.

In 1975, the mother and son moved to California. Visitation to the father was liberal. Philip ordinarily left California the day after school ended and returned the day before the new fall term started. Additionally, Philip spent a number of holidays such as Christmas and Easter with his father.*fn1 The child spent increasing amounts of time with his father over the years -- nine weeks in 1977, twelve weeks in 1978 and sixteen weeks in 1979.

On May 15, 1980, the mother, in the California court, filed for reduction of the visitation previously agreed upon. She alleged that it would be in the best interests of the child to change the approximately three months summer visitation with the father to a single month, so as to allow the child to continue activities in his home area.

The Superior Court of California, County of Sonoma, at a hearing on June 6, 1980, at which both parents were represented in oral argument by counsel, ordered a modification of visitation. This order reduced the summer vacation visitation from three months to two months and set a date for Philip's return to California for August 15, 1980.

[ 294 Pa. Super. Page 292]

On August 11, 1980, the father filed this custody proceeding in the Pennsylvania court. On the same date his lawyer wrote to the mother and informed her that the child would not be returned to California.

On August 15, 1980, the mother filed contempt proceedings in the California jurisdiction for the father's failure to return the child, pursuant to the June 6, 1980, California order. A hearing was held on August 27, 1980, in California, again with legal representation for both parents, and the California court ordered the child returned forthwith.

The mother flew to Pennsylvania immediately. The order of the California court was filed in Pennsylvania on August 28, 1980, the same day that the father filed a Petition to Strike or Open the California decree.

On the same date, accompanied by a Constable and having in her possession a copy of the California order, the mother picked up the child at school and returned to California.

A full hearing on custody was scheduled by the Pennsylvania court, but by order of September 9, 1980, a hearing was granted solely for the purpose of determining jurisdiction on the date of September 15, 1980. By order of October 30, 1980, the Pennsylvania court held that proper exercise of jurisdiction lay with the California court, and the father's action in this Commonwealth was dismissed. Father appealed.

ANALYSIS OF THE LAW

History of the Present Act

The present Pennsylvania statutory structure created to deal with problems of child custody consisted originally of two separate acts. The Uniform Child Custody Jurisdiction Act, June 30, 1977, P.L. 29, No. 20, Sec. 1, eff. July 1, 1977, 11 P.S. Sec. 2301-2325, was designed to provide measures for dealing with inter-state and international custody problems. The Commonwealth Child Custody Jurisdiction Act, April 28, 1978, P.L. 108, No. 47, eff. June 28, 1978, 11 P.S. Sec. 2401-2424, was by contrast, designed to handle child custody

[ 294 Pa. Super. Page 293]

    problems intra-state. The two acts have since been consolidated in Title 42 Pa.C.S.A. Sec. 5341-5366, 1980, Oct. 5, P.L. 693, No. 142, Sec. 201(a).

Much of the Pennsylvania Act follows the Uniform Law approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1968. Some thirty-eight states have adopted the law; however, it is not a "reciprocal" law and is in full operation in each state regardless of its enactment in other states. See Comment of Commissioners, 9 Uniform Laws Annotated, p. 114, West Publishing Co. 1979.

Construction and Purposes of the Act

The Act has three major bases for jurisdiction which can be briefly mentioned here before further analysis: Section 5344(a)(1) provides for "home state" jurisdiction; Sec. 5344(a)(2) provides for jurisdiction based on "significant contacts" among the various parties to the custody action and the locale in which the action has been brought; Sec. 5344(a)(3) provides for " parens patriae " jurisdiction for emergency situations in which a child is abandoned, abused or dependent.

It is easy to see that the existence of three quite different bases for jurisdiction, in an area of the law with the emotional impact of child custody, could prove to be a constant source of false hope to non-custodial parents. A loving parent has little problem in convincing himself or herself that the established custody is harmful, and that however evil disruption of children's lives may be in general, that this case presents the exception, and that only good can result from snatching or retaining the child, or from persuading a new jurisdiction to accept a Petition for Custody.

Added to the parental viewpoint of the righteousness of a unilateral move to improve the child's life, are the further puzzles of interpreting the child's reaction to pressure by the two most important people in his world. Few children want to displease either parent, and the ...


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