Davidyan v. Davidyan

Opinion by

Hoffman, J.,

This is an appeal from a conditional order granting custody of a minor child to the appellee.

The parties have been separated since January 14, 1973, when the appellee Frances Gay Davidyan refused to return from Scotland where the family had been spending their Christmas vacation. Having her doubts as to the success of her marriage, she remained in Scotland with her eight-year-old son, whom she enrolled in school. After repeated attempts to reunite the family, the appellant Grail Kurt Davidyan, without informing his wife, went to the school and took his son with him to France. When the appellee refused to join them in France upon hearing of the incident, the appellant returned to Philadelphia with his son. On July 5, 1973, the appellee instituted a habeas corpus action in the Court of Common Pleas of Montgomery County.

Only the appellant and appellee testified in the court below. Finding that both parents could equally provide a good home for the child, the court, relying on the “tender years’ presumption,” awarded custody to the mother. In so doing, the court, however, made its order conditional.

“The mother shall take custody of the boy from the father on August 16, 1973 in order that she can return with him to her home in Scotland, provided she posts security with the Prothonotary ... , as well as the submission to this Court of evidence from the Court of competent jurisdiction over such cases in Dumbartonshire, Scotland, wherein the mother will reside with the minor subject of this proceeding, that such Court recognises the retention of jurisdiction over both the cause and the parties hereafter.” (Emphasis added).

Before the conditions of the Order of Court could be satisfied, the parties took an appeal to this Court. Pending appeal, a Barrister’s Opinion was made part of a Supplemental Record reflecting the educated belief of a group of Scotch, barristers that, while no procedure was available under Scotch law whereby a Scotch court would provide “evidence” that it “recognizes the retention of jurisdiction” by a Pennsylvania Court, the unified “opinion” was that a Scotch court would regard the jurisdiction of the Montgomery County courts as “pre-eminent”, unless immediate emergency relief became necessary.

After reviewing the record in this case, it is obvious to this Court that “fitness” was not a significant factor in making the award of custody conditional. Consistent with the “tender years’ presumption”, the lower court, determining that both parties were equally capable of providing the minor child with a happy, healthful home, awarded custody to the natural mother.¹ The conditional nature of the order, however, reflects a concern that geographical distance should not erode or nullify the rights of the father to continue in a meaningful relationship with his son. This position is not without a mass of precedent holding it against public policy and repugnant to the best interests of minor children, to damage the normal relationship of a child with both parents, denying the child of the affections and counsel of one of the parties. In re Duckworth, 188 Pa. Superior Ct. 282, 146 A. 2d 365 (1958); Commonwealth ex rel. Skyanier v. Skyanier, 190 Pa. Superior Ct. 56, 151 A. 2d 817 (1959).

In Commonwealth ex rel. Moore v. Moore, 172 Pa. Superior Ct. 255, 94 A. 2d 93 (1953), our Court upheld a lower court order awarding custody to the natural mother of a minor child. In affirming, the Court approved the direction of the hearing judge that the mother residing in Maryland, deliver to the father living in Clearfield County, Pennsylvania, (the marital domicile) the minor child for visitation one week out of each month. Recognizing that custody had been awarded to the mother because of the “tender years’ presumption”, and that both parties were equally fit to care for the child, President Judge Rhodes, writing for the Majority, stated at 257-258: “We are of the opinion that the order of the court below does not offend the general rule that the needs of a child of tender years are best served by the mother, the application of which is often an easy solution of the problem without due consideration to the permanent welfare of the child. The order is an effort to make the best out of a situation which, so far as disclosed by the record, is not of relator’s [father’s] creation. In the exercise of our independent judgment . . ., we believe the court below properly determined that it would not be for the best interest and welfare of the child to allow him to be removed completely from paternal contact and influence. Due to the distance between the present residences of the respective parties, the ordinary provision for right of visitation would be insufficient to maintain any satisfactory paternal relationship. We have said that normally both parents should see their children, and that estrangement of parent and child should be avoided whenever possible. Commonwealth ex rel. Timmons v. Timmons, 161 Pa. Superior Ct. 174, 176, 54 A. 2d 75. If changed conditions adversely affect the child’s welfare, further action may always be taken.”

In the instant case, the mother wishes to take the child to live with her in Scotland. Apprehensive of the possibility that the father should cease to be an influence on the child’s development, and believing that maintenance of that relationship could only be insured by assurance from the Scotch court that it would recognize “the retention of jurisdiction” by the Pennsylvania courts, the hearing judge imposed the conditional order now before us. We do not believe that it is our function to question the express mandate of the order, or to minimize the concern of the lower court in imposing the conditions therein. We recognize the right of a hearing judge to exercise his discretion in awarding custody to a parent who wishes to take up permanent residence in a foreign country. We, however, are likewise reminded of a significant body of law which views a resident as preferable to a non-resident.

As our Supreme Court said in the Shoemaker Appeal, 396 Pa. 378, 382, 152 A. 2d 666 (1959) : “If all other factors are approximately equal, the Courts should prefer a resident to a non-resident guardian and custodian, since the former is more amenable to the Court’s continuous watchful eye, supervision and control.” While this Court has questioned the logic or justification of this jurisdiction resolving custody disputes on the basis of the desire of one of the parties to remove a minor child to the jurisdiction of a “sister state”, Augustine v. Augustine, 228 Pa. Superior Ct. 312, 324 A. 2d 477 (1974), we are, perhaps, faced with a more compelling and more evasive situation where the visitation rights of a resident parent are imperiled by a parent wishing to remove the child to a foreign country. See, e.g., Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A. 2d 625 (1972).

The dissenting opinion in the instant case emphasizes the fact that neither party has raised the question of jurisdiction nor attacked the appealability of the order. Citing 17 P.S. §211.503(a), the dissent urges that this Court exercise its discretion to hear the matter so that an ultimate determination can be reached. We are aware that a matter concerning the welfare of a minor child is of great importance and should obtain speedy resolution. The record, however, is devoid of a clear expression of the lower court that absent actual compliance with the conditions set in its order it would accept “substantial compliance” by an “opinion” from a group of local barristers. Because we must concern ourselves with the best interests of this child, and because we are not faced by the parties themselves but see only a cold record of the lower court proceedings, we do not believe that expediency should take the place of our duty to consider what is in this child’s best interests. While the lower court may very well accept the Barrister’s Opinion in satisfaction of its condition, it should be a matter for the hearing judge.

A remanding of this case to the court below is necessitated for two important reasons: (1) As we have often stated it, the trial judge is in a better position to pass upon the ability of the parties, their fitness and the approximate equities, and in all matters of custody “. . . the credibility of witnesses and the weight to be given to their testimony by reason of their character, intelligence, and knowledge of the subject can best be determined by the judge before whom they appear____” Commonwealth, ex rel. Harry v. Eastridge, 374 Pa. 172, 177, 97 A. 2d 350, 352 (1953) ; and, (2) since the visitation rights of the father may be seriously affected by the removal of the minor child from this country to Scotland, public policy requires that “the clearest kind of evidence” and an unambiguous order of custody be entered before we may affirm such determination. See, e.g., Commonwealth, ex rel. Lots v. Lots, 188 Pa. Superior Ct. 241, 146 A. 2d 362 (1958); Commonwealth ex rel. Heller v. Yellin, 174 Pa. Superior Ct. 292, 101 A. 2d 452 (1953).

Because of the great interest a state has in supervising and protecting the interests of minor children in custody disputes, “substantial compliance” may not take the place of actual compliance of a conditional order, unless the lower court says so. If procurement of an advisory opinion is inconsistent with the law or policy of the Scotch court, it is for the lower court, which has received the evidence supportive of the respective positions of the parties, that should enter the final order in light of all the evidence and the equities involved in the particular matter.

Under the circumstances, we exercise our power to raise sua sponte the lack of jurisdiction in a case before us, 17 P.S. §211.503(a), and declare the conditional order to be interlocutory and unappealable.

Appeal quashed, and the matter is remanded to the lower court for its own determination in light of the circumstances.

Weight, P. J., took no part in the decision of this case.

Spaulding, J., took no part in the consideration or decision of this case.

1 The record reveals that upon returning the child to Philadelphia, the father, who is a business executive earning approximately $35,000.00 yearly, enrolled the child in the exclusive Shipley School in Bryn Mawr. The home in which the child is now residing is roomy and quite adequate for the child’s needs. It appears the child is happy and has many friends in the neighborhood. The apparent love of the father equally rises to the love of the mother for this child.