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09/19/97 MELTEM UMAR DINCER v. FEHMI DINCER

September 19, 1997

MELTEM UMAR DINCER, APPELLEE
v.
FEHMI DINCER, APPELLANT



Appeal from the Judgment of Superior Court entered September 5, 1995 at 0904 & 0905PHL95 affirming in part and vacating in part the Order of the Court of Common Pleas of Montgomery County, dated March 7, 1995, at 94-24367. Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Madame Justice Newman.

The opinion of the court was delivered by: Newman

MADAME JUSTICE NEWMAN

DECIDED: September 19, 1997

We granted allocatur in this case to determine if the Court of Common Pleas of Montgomery County (trial court) properly held that the Commonwealth is not the appropriate forum for a custody action involving children born and raised in a foreign country.

FACTS

Meltem Dincer (Mother) is an American citizen of Turkish descent who was born and raised in Montgomery County. Fehmi Dincer (Father), is a Turkish citizen who met Mother while he was a student at Drexel University in Philadelphia. The parties married in Ankara, Turkey in 1982, and settled immediately in Belgium, where Father had already worked for two years as a civil engineer for the Supreme Headquarters of the Allied Powers of Europe (SHAPE), the military arm of NATO. They have three children, all of whom were born in Belgium: a daughter, XXXXX [Minor child's name excised by VersusLaw], born in 1985; a son, XXXXX [Minor child's name excised by VersusLaw], born in 1986; and another daughter, XXXXX [Minor child's name excised by VersusLaw], born in 1991. At the time the instant action began, the two older children were attending the British school on the SHAPE base, and the youngest daughter was enrolled in a Belgian kindergarten.

Every year the children would visit their maternal grandparents in Montgomery County for a month, and their paternal grandparents in Turkey for a month. *fn1 On December 8, 1994, Mother and the children traveled to Pennsylvania, with round-trip tickets to return to Belgium on December 29, 1994. However, on December 23, 1994, Mother filed a Complaint for Custody and Petition for Special Relief in the trial court. *fn2 The court entered an Order the same day granting physical custody to Mother "on a temporary basis, without prejudice," because Father did not have notice or the opportunity to participate in any proceedings. The Complaint, Petition and Order were served on Father on January 16, 1995. The trial court scheduled a hearing for March 6, 1995 on the issue of jurisdiction of the custody matter, and Father received notice on February 16, 1995.

Father filed for divorce and custody in the Tribunal de Premiere Instance, Mons, Belgium on February 1, 1995. Mother received notice of a custody hearing scheduled in Belgium for February 22 and 23, 1995, but she did not appear. Following the proceedings, the court issued an Order dated March 1, 1995, granting "provisional" custody to Father, and he registered this Order with the Prothonotary of Montgomery County.

The trial court held a hearing on March 6, 1995, and heard testimony from both Father and Mother about the family's life in Belgium. *fn3 Father and Mother are Muslim, but in recent years Father has become more observant, and prays five times a day. He reads to the children daily from the Koran, although he does not go to the mosque on a regular basis. Both parties testified that Father insists that the family speak only Turkish at home, and Father testified that although he prefers that the children watch Turkish television, he does not prevent them from watching videotapes of American cartoons and movies. The parties agreed that Husband bought a newly constructed home in Turkey in 1993, but differed as to the reason for the purchase. Husband testified that because of possible reductions at SHAPE due to the end of the Cold War, he wanted to have a home for his family as a contingency plan. He stated that upcoming cuts would not affect his job, and that he intends to stay in Belgium as long as possible. Mother testified that Father intends to move to Turkey with the children.

Following the hearing, the trial court determined that Belgium, and not the Commonwealth of Pennsylvania had jurisdiction of the matter pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), 23 Pa.C.S.A. §§ 5341 - 5366. Accordingly, it vacated the ex parte Temporary Custody Order, noting that the Belgian court's Order granting "provisional" custody to father must be given comity. The court, sua sponte, issued a supersedeas to its Order, allowing the status quo to remain during the pendency of an appeal. Mother appealed the trial court's determination regarding jurisdiction to the Superior Court, and Father appealed the grant of the supersedeas. On September 5, 1995, the Superior Court affirmed the grant of the supersedeas, but vacated the Order as to jurisdiction, and remanded for additional findings of fact.

During the pendency of the appeal, the Belgian Court held a hearing on the custody action, which both parties and their counsel attended. The court considered the testimony of the parties, the transcript of the Montgomery County proceedings of March 6, 1995, the Opinions of the trial court and the Superior Court and the report of Mother's custody evaluator, Dr. Anthony Pisa. The court issued an Order on October 17, 1995, saying that it had jurisdiction of the matter, and awarding custody to Father. Mother did not appeal the Order of the Belgian Court, but remained in Pennsylvania with the children.

Discussion

UCCJA

The trial court's jurisdiction is controlled by Section 5344(a) of the UCCJA, which provides in relevant part:

Section 5344. Jurisdiction

(a) General rule. --A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody ...


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