Commonwealth Ex Rel. Zaubi v. Zaubi

LARSEN, Justice,

concurring.

I join the majority opinion without reservation. However, I am compelled to respond to the dissenting opinion of Mr. Justice Nix as it unfairly characterizes the majority opinion and distorts the Uniform Child Custody Jurisdiction Act (the Act).

Initially, I cannot fathom where the dissent got the notion that, somehow, the majority opinion has “implicitly resurrected” the tender years doctrine. This notion certainly could not have originated with either the majority opinion or the opinion of the Superior Court as both opinions are based *191entirely and explicitly on the interpretation and application of the Act. If the tender years doctrine was implicitly resurrected, it would behoove the dissent to point out what specific language creates such an implication. That the dissent fails to do so should come as no surprise to anyone, as no such language exists. Indeed, if any “previously repudiated doctrine” has been resurrected, it is the “doctrine” implicit in the dissenting opinion that the courts can be a super-legislature free to ignore even the clearest pieces of legislation.

In fact, the majority opinion is sex-neutral. If the situation of the parents were reversed (that is, if the mother had kidnapped and concealed her children in violation of a valid custody decree, and then attempted to relitigate the issues decided by that decree) the majority interpretation of the Act would compel a decision in favor of the father just as surely as the decision herein in favor of the mother was compelled by the Act. The mere happenstance that the decision was favorable to the mother cannot, without much more, “imply” the resurrection of the tender years doctrine.

Further, the majority opinion does not, as the dissent asserts, disregard the best interests of the child in favor of “our jurisprudential need for greater finality in [custody] decrees.” It simply recognizes that, in the judgment of the legislature in adopting the Act, greater finality in custody decrees is in the best interest of the child. To avoid the unsettling effect on a child’s life of repeated litigation of the same custody issues in diverse jurisdictions, the legislature, through the Act, has mandated that courts of this Commonwealth defer to the findings and conclusions of law of the original trier of fact and modify a custody decree only upon a showing of changed circumstances arising after the entry of that decree.

Moreover, in applying the provisions of the Act, the Superior Court did not, as the dissent also asserts, “ignore” the litany of “facts” presented in the dissenting opinion. Rather, the Superior Court correctly determined that most of the facts on which the Greene County Court based its decision *192had previously been considered by the Danish courts, and had been decided adversely to the father, and that the remaining “facts” were not sufficient to show the existence of “conditions in the custodial household [which] are physically or emotionally harmful to the child,” as required by section 9(b) of the Act.1 11 P.S. § 2309(b). In short, the “facts” were found to be untrue.

Finally, I am amazed at the dissent’s reliance on the limitations of the Full Faith and Credit Clause and on pre-1977 cases to support its argument that courts may reexamine and redecide issues resolved by prior custody decrees. Whatever validity this argument may have had before July 1, 1977, the Act has long since robbed it of its efficacy. In enacting the Uniform Child Custody Jurisdiction Act, the legislature has mandated by statute that courts of this Commonwealth give full faith and credit to valid custody decrees. This statute overrules prior Pennsylvania cases holding to the contrary and may not be judicially tampered with simply because some members of this Court disagree with the method chosen by the legislature to safeguard the best interests of the child.

. The “uncontroverted” testimony to which the dissent refers was given at the Greene County hearing by the father, his mother, and his sister, and purported to describe events during the period when the father’s family was actively engaged in concealing the children from their mother.

. Act of June 30, 1977, P.L. 29 §§ 1 et seq., 11 P.S. §§ 2301 et seq., effective July 1, 1977.