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JAMES HENRY CARPENTER v. RACHEL BRINK CARPENTER AND BERNADETTE B. BRINK (03/30/84)

filed: March 30, 1984.

JAMES HENRY CARPENTER, III, JAMES HENRY CARPENTER, JR., AND EVELYN CARPENTER, HIS WIFE, APPELLANTS,
v.
RACHEL BRINK CARPENTER AND BERNADETTE B. BRINK



NO. 1519 PHILA. 1983, Appeal from the Order in the Court of Common Pleas of Chester County, Orphans No. 235 April Term 1983

COUNSEL

William Caprio, III, Williamsport, for appellants.

John F. Pyfer, Jr., Lancaster, for appellees.

Spaeth, President Judge, and Brosky and Hoffman, JJ.

Author: Spaeth

[ 326 Pa. Super. Page 573]

This is a child custody case. The trial court vacated its temporary custody order, and stayed the custody proceeding before it, on the ground that it should defer to a trial court in Massachusetts, which was exercising its jurisdiction to decide custody. We affirm.

Appellant, James Carpenter, III, is the father of two boys, one born September 9, 1981, the other, August 22, 1982. Appellants James Carpenter, Jr., and Evelyn Carpenter are the paternal grandparents of the children. Appellee Rachel Carpenter is the mother and appellee Bernadette Brink the maternal grandmother of the children. The children lived with their parents in Atglen, Chester County, until September 1982, when their father was placed in the Allenwood Federal Penitentiary. The children continued to live with their mother in Atglen until April 5, 1983, when their mother voluntarily relinquished custody of them to their maternal grandmother, who on the same day took them to Massachusetts to live with her. On April 8 the

[ 326 Pa. Super. Page 574]

    maternal grandmother filed a petition for custody of the children with a court in Massachusetts. The Massachusetts court granted the maternal grandmother temporary custody of the children for 90 days, and ordered that a hearing be held on June 15 to determine custody; the court also issued a temporary restraining order prohibiting the paternal grandparents*fn1 from removing the children from Massachusetts.

On April 14, 1983, the children's mother was taken into custody and placed in the Lancaster County prison. The children's father instituted divorce proceedings the same day.

On April 15, 1983, appellants petitioned the trial court in Chester County for temporary custody of the children. On April 18 the court, unaware of the Massachusetts custody order, issued an order granting temporary custody to appellant and scheduled a custody hearing for June 6.

On May 6, 1983, the trial court in Massachusetts entered jurisdictional findings of fact and conclusions of law in support of its April 8th order. Appellees then petitioned the trial court in Chester County for a stay of the custody proceeding before it on the ground that the Massachusetts court was already exercising its jurisdiction to decide custody. On May 20 the court granted appellees' petition for a stay and vacated its April 18th order granting temporary custody to appellants. The appeal now before us is from this order of May 20.*fn2

The Uniform Child Custody Jurisdiction Act (UCCJA) was enacted in Pennsylvania (with only insubstantial

[ 326 Pa. Super. Page 575]

    changes in wording) by the Act of June 30, 1977, P.L. 29, No. 20, now found at 42 Pa.C.S.A. ยง 5341 et seq. Section 5344(a)(1), (2) provides:

(a) General rule. -- A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(1) this Commonwealth:

(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 ...


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