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COMMONWEALTH EX REL. EARL R. D. v. LINDA H. S. APPEAL EARL R. D. (03/05/82)

filed: March 5, 1982.

COMMONWEALTH EX REL. EARL R. D.
v.
LINDA H. S. APPEAL OF EARL R. D.



No. 1923 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Lehigh County, Civil Division, at No. 78-C-2449

COUNSEL

Richard Orloski, Allentown, for appellant.

Thomas J. Turczyn, Allentown, for appellee.

Spaeth, Brosky and Van der Voort, JJ.

Author: Brosky

[ 297 Pa. Super. Page 80]

Appellant, Earl D., instituted a habeas corpus action against appellee, Linda S., in the Court of Common Pleas of Lehigh County, Pennsylvania, seeking to obtain custody of a child whom he claimed to be his son, Zachary O. S. Personal service was made on Linda S., then a Pennsylvania resident, on August 28, 1978. Counsel for Linda S. filed an appearance on September 1, 1978. On August 6, 1979, Linda S. filed a petition to dismiss the action asserting that the court lacked jurisdiction. A hearing was held on September 10th through 12th, 1979 at which the court held that it did not have jurisdiction over the case and therefore granted the petition to dismiss. This appeal followed. We remand to the trial court for reasons stated herein.

On May 13, 1977, Linda S. gave birth to Zachary S. at the Chapel Hill Memorial Hospital in Chapel Hill, North Carolina. Linda S. was not married at the time she gave birth. For some time prior to the birth of Zachary S., Linda S. and Earl D. had lived together in Pittsboro, North Carolina. Shortly after Zachary S.' birth, Linda S. moved with her child from North Carolina to Route 1, Wescosville, Lehigh County, Pennsylvania. They resided in Pennsylvania from June, 1978 to March, 1979. During this time, the habeas corpus petition was served on Linda S. On March 27, 1979, Linda S. married Peter R. in Vermont. She and her son resided in Vermont up until the time of argument of this appeal. Linda S. was a registered nurse employed in Vermont up until the time this appeal was argued.

On September 1, 1978, Linda S. filed an answer to Earl D.'s petition for habeas corpus in which she admitted that she had cohabitated with Earl D., but denied that Earl D. was the father of Zachary S. On September 19, 1978, Earl D. filed interrogatories upon Linda S. seeking to determine

[ 297 Pa. Super. Page 81]

    the date of the child's birth, the duration of time of the admitted cohabitation, and the identity of the putative father of the child. Linda S. filed timely objections to the interrogatories which were subsequently resolved by the parties who agree to submit themselves, the putative father, Peter R., and the child, to a blood test.

The tests completed in the winter and spring of 1979, indicated that Earl D. could not be excluded as father of the child but that Peter R. was excluded from being father of the child. The motion to dismiss the action commenced by Earl D. was filed on August 6, 1979. On September 12, 1979, the trial court held that the best interests of the child would be served if the State of Vermont assumed jurisdiction in the case pursuant to the Uniform Child Custody Jurisdiction Act, 11 Pa.S.A. § 2301 et seq. (hereinafter U.C.C.J.A.).

Earl D. raises three issues on appeal which include:

1. Whether the trial court erred in holding that it had no jurisdiction over the matter under the U.C.C.J.A.?

2. Whether the trial court erred in holding that the action was filed in an inconvenient forum and that Vermont was the convenient forum?

3. Whether the trial court erred in refusing to permit testimony from a North Carolina lawyer as to that state's custody law?

The U.C.C.J.A. provides for jurisdiction of 11 Pa.S.A. § 2304 which states:

§ 2304. Jurisdiction

(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:

(1) This State:

(i) is the home state of the child at the time of commencement of the proceeding; or

(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

[ 297 Pa. Super. Page 82]

    by a person claiming his custody or for other reasons, and a parent or person acting as parent ...


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