Commonwealth Ex Rel. Hickey v. Hickey

Opinion by

Montgomery, J.,

This is a custody case in which the father-appellant, Stefano J. Hickey, Jr., a resident of Bucks County, Pennsylvania, challenges the jurisdiction of the Court of Common Pleas of Philadelphia, Family Division, to inquire into the matter of the custody of his minor children, Kathryn, George, and Janice, who live with their mother, Appellee, Jane Kathryn Hickey, whose domicile is in Philadelphia County. The parties are still married but have been maintaining separate residences since November, 1966.

On April 23, 1967, custody of these children originally was awarded to the father by the Court of Common Pleas of Bucks County in consolidated actions of the father’s petition in equity under the Marriage Act of June 26, 1895, P. L. 316, §2, 48 P.S. §92, and the mother’s petition for a Writ of Habeas Corpus. Service of the father’s petition was obtained on the mother in Bucks County where she was temporarily residing, although her permanent residence already had been established in Philadelphia. On appeal we reversed the Bucks County decree and awarded custody of the oldest child, Stefano J. Hickey, III, to the father. Further, we gave the father visitation rights with Kathryn, George, and Janice on alternate weekends from 9:00 a.m., Saturday, until 8:00 p.m., Sunday, and the same *335rights to the mother regarding the oldest child. Commonwealth ex rel. Hickey v. Hickey, 213 Pa. Superior Ct. 349, 247 A. 2d 806 (1968).

Since November 14, 1968, Kathryn, George, and Janice have lived with their mother in Philadelphia, appellant has exercised his visitation privileges, and appellee has enjoyed visitation privileges with Stefano J. Hickey, III.

On May 2, 1969, appellant filed in Bucks County, a Petition to Modify Order which requested visitation rights with the three children every weekend. A hearing was set thereon for June 24, 1969. On June 5, 1969, appellee instituted this action in Philadelphia County, and a hearing was set for June 20, 1969. In her petition appellee alleged that the current visitation schedule “. . . has upset and disrupted the lives and daily routine of the minor children by requiring these children to spend entire weekends away from their home and friends and by subjecting them to the unnecessary burden of having to move themselves and their belongings for every visitation,” and “The health of said children has been adversely affected by reason of Stefano J. Hickey, Jr.’s, failure to assure that the children receive adequate rest during the weekends that they visit with Stefano J. Hickey, Jr.” On June 18, 1969, appellant filed preliminary objections to the Philadelphia County petition, and cited therein the action pending in Bucks County and questioned the jurisdiction of the Philadelphia court. On June 20, 1989, the preliminary objections were overruled and the lower court immediately proceeded on that day to hold a hearing and at its conclusion to enter an order modifying the appellant’s visitation rights by ordering him to return the children on Sundays at 6:00 p.m. instead of 8:00 p.m.

Assigning for error only the question of the assumption of jurisdiction over this custody case by the *336Philadelphia Court of Common Pleas and net challenging the merits of the lower court’s order on this appeal, the appellant seeks to pursue his remedies in the Bucks County action if we should rule in his favor.

It has become well settled in this Commonwealth that jurisdiction of child custody cases follows either the domicile or the residence of the child; and the domicile of the child is that of the parent having custody. Commonwealth ex rel. Mason v. Mason, 213 Pa. Superior Ct. 433, 249 A. 2d 922 (1968) ; Commonwealth ex rel. Freed v. Freed, 172 Pa. Superior Ct. 276, 93 A. 2d 863 (1953). If a parent to whom a court awards custody establishes a new residence in another county, the child acquires the domicile and residence of the parent in that county. Commonwealth ex rel. Freed v. Freed, supra. The county of the domicile of the custodian, who has the power to produce the child within the county, has jurisdiction although tire child is physically outside the county or the Commonwealth. Swigart v. Swigart, 193 Pa. Superior Ct. 174, 163 A. 2d 716 (1960); Commonwealth ex rel. Burke v. Burke, 168. Pa. Superior Ct. 578, 80 A. 2d 87 (1951); Commonwealth ex rel. Teitelbaum v. Teitelbaum, 160 Pa. Superior Ct. 286, 50 A. 2d 713 (1947). Since it aim ears that appellee, who was awarded custody of these children, was domiciled in Philadelphia County at the time that she petitioned the court below, Bucks County lost jurisdiction and jurisdiction of the matter was properly in Philadelphia County.

However, the appellant cites the nonsupport case of Commonwealth ex rel. Williamson v. Williamson, 215 Pa. Superior Ct. 731, 256 A. 2d 134 (1989), followed' in Commonwealth ex rel. Soloff v. Soloff, 215 Pa. Superior Ct. 328, 257 A. 2d 314 (1969), in which we held that a court taking original jurisdiction of nonsupport cases retains jurisdiction throughout any subsequent proceedings. Those cases are distinguishable from cus*337tody matters for the reason that they are' controlled by the Act of July 13,1953, P. L. 431, §10, 62 P.S. §2043.40, which restricts such jurisdiction.. We think that until such time as the Legislature likewise speaks on custody matters, the general case law must be followed,, which in our opinion will most greatly benefit the children, whose welfare is the paramount issue in '.custody matters. Custody orders are always temporary and subject to review to determine the child’s physical, intellectual, moral, and spiritual well being; Irizarry Appeal, 195 Pa. Superior Ct. 104, 169 A. 2d 307, cert. denied, 368 U.S. 928, 82 S. Ct. 363, 7 L. Ed. 2d 191 (1961).

Further, we find no merit in appellant’s argument that the above' principles should be modified on the ground that our' holding here will result in court shopping, whereby disappointed litigants will move from county to county, seeking a favorable court. It has been said that res judicata has little place or strict application in custody cases. Commonwealth ex rel. Moss v. Moss, 159 Pa. Superior Ct. 133, 47 A. 2d 534 (1946). Nevertheless, in custody cases, facts previously litigated in one jurisdiction should be treated as established even though another court may find a result different from the earlier court on the same facts. Commonwealth ex rel. v. Daven, 298 Pa. 416, 148 A. 524 (1930). Therefore, on a subsequent petition, the record of the previous hearing or hearings may be introduced in evidence for the purpose of establishing the previously litigated facts. A change in circumstances since the date of the original custody order will reopen the question of custody both on the law and the merits. Commonwealth ex rel. Freed n. Freed, supra. In any petition for a change in custody or visitation rights the petitioner has the burden of proving a change in circumstances since the original order. Commonwealth ex rel. Ackerman v. Ackerman, 204 Pa. Superior Ct. *338403, 205 A. 2d 49 (1964). Proper respect for these principles by litigants will result in a minimum of court shopping and multiple petitions.

Since the petition of the mother-appellee alleged that there has been a change in circumstances, that the domicile of the appellee now is in Philadelphia County, that she was awarded custody of the children and that they are residing with her, we conclude that the Court of Common Pleas of Philadelphia County had jurisdiction of this case.

Order affirmed.