Appeal from Order of the Court of Common Pleas, Civil Division, of Lackawanna County, No. 87-Civ-2396.
Mark A. Momjian, Philadelphia, for appellant.
Michael J. Barrett, Scranton, for appellee.
Rowley, Wieand and Montemuro, JJ.
[ 375 Pa. Super. Page 205]
The issue in this appeal is whether the trial court abused its discretion by refusing to exercise its jurisdiction to hear a custody dispute, notwithstanding the presence of the child in Pennsylvania, which is also the home state of the child, in deference to the courts of New York, where the child's mother now resides and where the child was temporarily hospitalized for sophisticated treatment.
Stuart Menachem Joselit and Susan Pearl Joselit were married on March 25, 1985 in Bronx County, New York. After their wedding, they moved to Scranton, Pennsylvania, where Stuart had made his home several years before his marriage. On May 21, 1986, Susan gave birth to a son, Ephraim, in Pennsylvania. The infant child developed various medical problems and received treatment at a Pennsylvania hospital. When the infant's condition worsened, the
[ 375 Pa. Super. Page 206]
treating physician in Pennsylvania advised the parents to seek more sophisticated treatment in New York City. On January 29, 1987, Ephraim, then eight months old, was admitted to Babies Hospital (Columbia Presbyterian Hospital) in Manhattan, New York, for evaluation and treatment. There, the child's treatment appeared to be impeded by interference not immediately identifiable. Complications developed. As a result of careful investigation by the hospital staff, it was ascertained that the incidents of interference occurred only when the mother was alone with the child. On March 16, 1987, the mother voluntarily committed herself to a New York hospital for psychiatric treatment. Thereafter, Ephraim's condition improved, and, on March 27, 1987, he was discharged from the hospital. He remained temporarily in New York, however, staying at the home of his paternal grandparents so that he could be near the hospital in the event of additional complications. When his condition had improved sufficiently, he returned with his father to Scranton, Pennsylvania, on July 15, 1987.
Meanwhile, Stuart and Susan Joselit had separated. On May 21, 1987, Stuart commenced the instant action in divorce in Lackawanna County. In the same action, he sought a decree confirming custody of his son.*fn1 On June 17, 1987, Susan Joselit also commenced an action for divorce, but her action was brought in the Supreme Court of Kings County, New York. She, too, requested custody of the parties' child.
On July 21, 1987, Susan filed a motion in the Court of Common Pleas of Lackawanna County requesting dismissal of Stuart's custody action on grounds that the New York Supreme Court was a more appropriate forum. On August 25, 1987, the trial court granted this motion. The court "determined that Pennsylvania [was] the home state for deciding the issue of custody," but concluded nonetheless that "Kings County, New York [was] the more convenient
[ 375 Pa. Super. Page 207]
forum for adjudicating the issue." Stuart Joselit appealed.*fn2
Because Pennsylvania is the child's home state, it is clear that the courts of this Commonwealth have jurisdiction to hear and decide a dispute regarding his custody. The Uniform Child Custody Jurisdiction Act (U.C.C.J.A.), at 42 Pa.C.S. § 5343, defines the "home state" of the child as
[t]he state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, or in an institution, for at least six consecutive months, and in the case of a child less than six months old the state in ...