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M.D. v. B.D. (04/02/84)

submitted: April 2, 1984.

M.D.,
v.
B.D., APPELLANT



No. 141 Philadelphia, 1983, Appeal from Order of the Court of Common Pleas, Civil Division, of Chester County, No. 200 August Term, 1981.

COUNSEL

Mark L. Tunnell, Phoenixville, for appellant.

Joseph J. Neizer, West Chester, for appellee.

Wieand, Johnson and Lipez, JJ.

Author: Wieand

[ 336 Pa. Super. Page 300]

In this appeal from an order awarding custody of a son to his father, the boy's mother contends (1) that the trial court lacked jurisdiction to decide the custody issue and (2) that if it had jurisdiction, the court abused its discretion by separating her son from his baby sister. Finding no merit in these contentions, we affirm.

[ 336 Pa. Super. Page 301]

M.D. was a resident of Pennsylvania; B.D. was a resident of the State of Washington. They were married in Chester County, Pennsylvania, on January 7, 1978. After a brief stay in Washington, M.D., who was then a member of the United States Navy, was transferred to California. M.D., Jr. was born in California on November 4, 1978. Shortly thereafter, M.D. was sent overseas, and B.D. returned with her infant son to Chester County, where they resided with M.D.'s parents until July, 1979. They then returned to California where they were joined by M.D. in September, 1979. When M.D. and B.D. separated in June, 1980, M.D., Jr. lived with his paternal grandparents in Chester County, Pennsylvania. After M.D. was discharged from the Navy on August 5, 1980, he returned to his parents' home in Pennsylvania to join his son. He and his wife then reconciled and she, too, moved to Chester County, Pennsylvania. However, on February 20, 1981, B.D. left the marital home in Chester County and, taking her son, returned to Port Orchard, Washington. Three days later, on February 23, 1981, she commenced an action for divorce in Washington. Her complaint included a prayer for custody of M.D., Jr.

M.D. filed a petition for custody in Pennsylvania on August 12, 1981, and a hearing thereon was set for October 27, 1981. On that day, B.D. failed to appear, and custody of the parties' son was awarded to his father. Armed with the Pennsylvania court's order awarding custody to him, M.D. went to his wife's home in Washington, removed his son, and returned with his son to Pennsylvania. On December 11, 1981, a Washington court awarded custody of M.D., Jr. to B.D.

B.D. then filed a petition to reopen the decree entered by the Court of Common Pleas of Chester County, alleging that that court had lacked jurisdiction to decide the custody issue and that she had not received notice of the prior hearing. The Chester County court determined that Pennsylvania, not Washington, had jurisdiction by virtue of the Uniform Child Custody Jurisdiction Act which had been

[ 336 Pa. Super. Page 302]

    adopted in both states.*fn1 However, the court awarded a new hearing on the issue of custody. After a full hearing, the court's prior order was affirmed on October 21, 1982. B.D. appealed.

Conflicting orders entered by the courts of sister states are one of the evils which the Uniform Act was intended to prevent. The Act's primary purpose was "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 awards. "Finally, [the] Act sought to assure that custody disputes would be heard in the state with which the child and his family have the closest connection." Tettis v. Boyum, 317 Pa. Super. 8, 13, 463 A.2d 1056, 1058 ...


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