Concurring and Dissenting Opinion by
Spaeth, J.:I agree that Scott was not a “resident” of or “domiciled” in Pennsylvania. The difficulty I have with the lead opinion is that it makes “present” mean “present on the day the petition was filed.” I think it means, “present on the day the petition was heard.” To hold otherwise *348will, I fear, simply encourage a parent to detain a child until the prothonotary’s office opens and a petition can be filed.
Although, in my view, the court below did have jurisdiction, it should have chosen not to exercise that jurisdiction by dismissing the father’s petition and leaving him free to apply to the New Jersey court for a change of custody as Scott’s best interests appeared to that court to demand.
The propriety of dismissing the petition was indicated in Irizarry Appeal, 195 Pa. Superior Ct. 104, 169 A.2d 307, cert. denied 368 U. S. 928 (1961). There the facts were as follows: The father and mother of two boys were lifelong residents of Puerto Rico. When they were divorced the Puerto Rico court awarded custody of the boys to the father. The mother moved to Delaware County, Pennsylvania, and married a member of the Delaware County bar; the father remained in Puerto Rico, and also remarried. Twice he sent the boys to visit their mother; the third time he sent them the mother kept them, and, with her husband representing her, filed in the Delaware County Court a petition for their custody. The father appeared by counsel and challenged the court’s jurisdiction. The court held it had jurisdiction and on the father’s appeal this court affirmed. In doing so, however, this court said (per Watkins, J.):*
“There is merit in the contention of [the father] that the extension of the rule in the Schofield case [Commonwealth ex rel. Schofield v. Schofield, 173 Pa. Superior Ct. 631, 98 A.2d 437 (1953) ] may well invite cases of legalized abduction and may result in the inclusion in custody orders of injunctive restriction on visitation.
“And too, what was said in 4 A.L.R. 2d 7, at pg. 15 [Annot., Jurisdiction to Award Custody of Child *349Having Legal Domicil in Another State]: 'Generally where a court of a state is passing upon its own jurisdiction to award custody of a child that is physically present, though domiciled elsewhere, it is likely to be motivated by the doctrine of parens patriae and to proceed to decide for itself what is for the best interests of the child, and if there is in existence a valid judgment of another state awarding such custody, to give at least lip service to the binding effect thereof by limiting the court’s consideration of the merits to conditions which have changed since that foreign judgment was rendered — all too frequently such changed conditions being found to exist in favor of a local citizen,’ is especially pertinent here, where one of the interested parties, the husband of the petitioner, is an attorney-at-law and as such an officer of the court. The hearing on the merits should be conducted with the above comments in mind.” Id. at 109-110, 169 A.2d at 309-310.
These remarks are pertinent here. While the father did not abduct Scott, by keeping him he both violated the visitation agreement and ignored an injunction entered by the New Jersey court.
After examining numerous cases the author of the annotation in 4 A.L.R. 2d, supra, concluded:
"In a few cases, notably those from the state of Washington, it has been the policy of courts, on finding the child within its borders but domiciled in another state, not to decide the question of proper custody on the merits — barring exceptional cases of temporary custody arising out of immediate emergency — but to grant or remand the child to the last lawful custodian without prejudice to the claimant applying to the courts of the state of domicil for a change of custody, as the best interests of the child may appear to demand.
"It is submitted that the adoption of such a policy by the courts generally would tend to discourage kid*350napping by parents or evasion of the jurisdiction of the domicil by physical removal elsewhere. To be sure, the courts generally profess to condemn such conduct, but so long as a party has reason to believe that he may fare better in a foreign court, the assumption of jurisdiction by foreign courts will tend to encourage the practice.” 4 A.L.R. 2d at 15.
This statement of policy, which is at least implicit in Irizarry Appeal, supra, should have been followed here. Nor is this conclusion inconsistent with Scott’s best interests. Certainly his best interests must be our principal concern. The New Jersey Court, however, was neither distant nor uncivilized. One may be sure that it would have been diligent in deciding what Scott’s best interests demand. Furthermore, those interests are “hardly served by fleeing sheriffs, dodging process, and flouting law.” Note, Jurisdictional Bases of Custody Decrees, 53 Harv. L. Rev. 1024, 1030 (1940) (footnote omitted). It is futile to admonish young people to respect the law if we do not respect it ourselves. Scott is 14 and must understand his position. His father has set him a poor example indeed. I think we should make it plain that the father’s petition will not be heard, whether it is filed during one of Scott’s visits, or a day or so before Scott arrives.
Cercone, J., joins in this opinion.
Weight, J., would have quashed the appeal; Montgomery, J., dissented.