No. 2613 PHILADELPHIA, 1982, Appeal from an Order of the Court of Common Pleas, Civil Division, of Elk County, No. 82-97.
Gordon J. Daghir, St. Marys, for appellant.
Patrick J. Kronenwetter, Emporium, for appellee.
Hester, Popovich and Hoffman, JJ. Popovich, J., concurs in the result.
[ 317 Pa. Super. Page 11]
Presently before us is a custody dispute which raises questions relating to jurisdiction and statutory interpretation. The father is appellant herein, the lower court having granted custody of the couple's two minor children to appellee, the natural mother.
As in all custody cases, a recital of this particular family's background is necessary in order to evaluate the issues raised herein. The parties were married while both were members of the military forces. Two children were born to them, a daughter named Jimmie Tettis on January 28, 1977, and a son, Peter J. Boyum, on January 15, 1979. Their assignments stationed them in San Angelo, Texas, in September of 1979. Shortly thereafter, appellee removed herself
[ 317 Pa. Super. Page 12]
from the family abode and established a separate residence in that city. By Order of Court, the parties were divorced on May 14, 1980. Appellant received uncontested primary custody of the children, who had resided with him continually since their mother's departure. Appellee visited them on a daily basis until March, 1981, when she returned to her hometown, St. Mary's, in Elk County, Pennsylvania.
Appellant delivered the children to appellee for two extended visits, once in 1981 for four months and in April, 1982. Prior to the planned return of the children, appellee filed a petition in the Court of Common Pleas of Elk County, Pennsylvania, seeking custody pursuant to the Uniform Child Custody Jurisdiction Act (hereinafter "U.C.C.J.A."), 42 Pa.C.S.A. § 5341 et seq. A hearing was held on July 9, 1982, at which time both parties were present and testified. Custody was thereafter awarded to appellee on August 5, 1982. It is from that Order which appellant perfects this appeal.
Appellant raises two issues on this appeal:
1) whether jurisdiction existed in the Court of Common Pleas of Elk County, Pennsylvania, in light of a prior custody order from the State of Texas, and
2) if so, whether the facts of this case show such changed circumstances as to warrant transfer of custody from appellant to appellee.
We will address each of these issues seriatim; however, before we do so, a brief review of the purposes of the U.C.C.J.A. is in order.
The legislature, in drafting this law, sought to alleviate certain problems which have inevitably resulted from the ever-increasing number of divorces. Primarily, this Act was intended to deter abductions, unilateral removal, and improper retention of children by one of the parents in order to thwart a custody award or to gain an upper hand in the custody fight. The legislature also attempted to promote cooperation and facilitate the enforcement of foreign custody decrees by avoiding jurisdictional conflicts with courts of other states and relitigation of foreign custody
[ 317 Pa. Super. Page 13]
awards. Finally, this Act sought to assure that custody disputes would be heard in the state with which the child and his family have the closest connection. 42 Pa.C.S.A. § 5342(a)(1)-(8). Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa. Super. 294, 418 A.2d 729 (1980), aff'd. 492 Pa. 183, 423 A.2d 333 (1980).
Generally, a court in this Commonwealth has jurisdiction to make a child custody determination by initial or modification decree if:
(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth;
(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training, and personal relationships of the child;
(3) the child is physically present in this ...