NO. 1181 PITTSBURGH, 1980, Appeal from Order of the Court of Common Pleas, Civil Action - Law, of Westmoreland County, at No. 3128 of 1980
Ross S. Bash, Greensburg, for appellant.
Thomas Anton, Greensburg, for appellee.
Cavanaugh, Montemuro and Van der Voort, JJ.
[ 295 Pa. Super. Page 172]
This custody action was initiated by the natural mother of three children: one aged twelve and twins aged ten, who were retained in this Commonwealth by their natural father after a vacation spent with him. This retention of the children was contrary to the custom followed by the parents but was in conformity with an order of the court of the Pennsylvania jurisdiction issued in 1973.
Upon extensive review of the matter, we conclude that the lower court, in this instance, correctly assumed jurisdiction, and then having done so, made its determination of the best interests of the children in a manner reasonably within its discretion. We, therefore, affirm the decision below.
The parents were divorced by decree of a court of the State of Virginia in January 1973. By decree of that court, the custody of the children was awarded to the mother.
Approximately a year later, both parents had relocated to Westmoreland County, Pennsylvania, and a consent order was entered by both parents in the court of that county whereby custody of the children was transferred to the father.
[ 295 Pa. Super. Page 173]
Although the mother now denies having signed this consent order of December 1973, the clear testimony of a witness to the signing established that the mother did so after full discussion with the attorney who prepared the papers. (R. N.T. 241(a)ff).
A. Well, I remember it most of all because she was a foreign lady and also while I was in there you [husband's attorney] explained to her what this Petition was all about and if she understood that she was giving up custody of her children, and you asked her several times if she knew what she was doing by signing this paper and she said yes she was going to . . . I believe Argentina, and she felt that the custody of her children should be in the hands of her husband, that she thought they would be better off here and also because of the education system in the United States.
Q. Did she as a matter of fact sign this paper?
A. Yes she did. I watched her sign the paper after you had asked her several times if she was sure this is what she wanted and if she understood what she was doing. (R. 295a)
Despite the agreement which transferred custody to the father, the actual, physical custody of the children remained with the mother. She returned to Argentina with the children, who have since spent the school year in Buenos Aires and have spent approximately four months of vacations yearly with their father. This pattern continued from 1974 to December 1979.
In December of 1979 the father, as usual, supplied roundtrip air tickets to the children for their vacation visit.*fn1
In early January the father telephoned the mother and informed her that he intended to retain the children permanently. In April of 1980 the mother initiated this action as a ...