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DAVID ZELLAT v. RUBY ZELLAT (03/27/86)

filed: March 27, 1986.

DAVID ZELLAT, APPELLANT,
v.
RUBY ZELLAT, A/K/A/ RUBY MCBRIDE A/K/A RUBYE ZELLAT



APPEAL FROM THE ORDER ENTERED MARCH 6, 1985 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CIVIL NO. D.R. #81-18204

COUNSEL

Moira Dunworth, Philadelphia, for appellant.

Cirillo, Montemuro and Popovich, JJ.

Author: Cirillo

[ 351 Pa. Super. Page 625]

This child custody action was initiated by appellant, a Pennsylvania resident, for the custody of his daughter Jessica. Jessica's residence has been with her Tennessee resident mother since October 1, 1983.

The trial court found no basis for the assumption of jurisdiction and it sustained appellee-mother's preliminary objection to jurisdiction and dismissed appellant-father's complaint for custody and visitation. We affirm.

Jessica Rae Zellat was born on January 8, 1980 of the marriage of David and Ruby Zellat. The appellee filed a divorce complaint containing a request for custody in Philadelphia

[ 351 Pa. Super. Page 626]

Common Pleas Court on July 31, 1981. On September 26, 1983, the mother filed a report of child abuse with the Pennsylvania Department of Public Welfare. The department investigated the report and issued its own report on November 28, 1983 indicating that the child had been abused while in the care of one of the parents. The report did not indicate which parent inflicted the abuse. On October 1, 1983, the child was removed from Philadelphia by her mother and taken to Tennessee, where mother and child continued to live until the time of this appeal. On February 9, 1984, a Tennessee court issued an order restraining the father from any contact with the child. The father appeared before the Tennessee court to contest the restraining order which was subsequently dismissed. By an order dated August 1, 1984, the Tennessee court granted appellant limited visitation rights under the supervision of the Tennessee Department of Human Services pending further review by the court. The Tennessee court reissued the restraining order on October 18, 1984 based on a detailed assessment of the case by a clinical psychologist appointed by the Tennessee Department of Human Services. This order provided for possible future review by the Tennessee court but precluded any contact between appellant and the child.

On July 17, 1984, appellant filed a complaint in the Court of Common Pleas of Philadelphia County for custody, partial custody, or visitation. Appellee filed a petition to dismiss the complaint, alleging that the Pennsylvania court did not have jurisdiction over the custody action and that Tennessee had previously exercised jurisdiction. The trial court dismissed appellant's complaint following a jurisdictional hearing. This appeal followed.

Appellant raises three issues for our determination: 1) whether the 1981 filing of a complaint for divorce and custody by appellee-wife in Pennsylvania may serve as the basis for the exercise of "home state" jurisdiction by a Pennsylvania court in a subsequent proceeding instituted by appellant-husband to gain custody of a child who has been

[ 351 Pa. Super. Page 627]

    absent from Pennsylvania for over six months; 2) whether the State of Tennessee is the appropriate forum to decide the issue of child custody; and 3) whether the Tennessee court exercised jurisdiction over the custody proceeding for the purposes of the Uniform Child Custody ...


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