OPINION
PER CURIAM.
Mr. Justice O’Brien, Mr. Justice Roberts, Mr. Justice Pomeroy and Mr. Justice Packel affirm the contempt order against Donald McKinney. Mr. Justice Pomeroy, Mr. Justice Nix, Mr. Justice Manderino and Mr. Justice Packel reverse the contempt order against Linda McKinney.
EAGEN, C. J., did not participate in the consideration or decision of this case.
[3]*3PACKEL, J., filed an opinion in support of per curiam order.
ROBERTS, J., filed a concurring and dissenting opinion in which O’BRIEN, J., joins.
NIX, J., filed a concurring and dissenting opinion.
MANDERINO, J., filed a concurring and dissenting opinion.
OPINION IN SUPPORT OF PER CURIAM ORDER
PACKEL, Justice.
A divorce and custody award to a mother in New York, followed by her moving to Florida, culminated in this Pennsylvania proceeding by the Florida mother to obtain physical custody of her son. The service or attempted service of a writ of habeas corpus upon the father at his home in Pennsylvania was described by his wife, the stepmother of the child, as the handing of legal papers to her, which she refused to accept.
Another writ of habeas corpus commanding the stepmother to produce the child in court some twenty-five days later was served upon her as she was picking up the child at elementary school. At the first hearing the stepmother testified that she told her husband about the writs. She also stated that they lived in their Pennsylvania home until the father and child moved out within twenty-four hours after the service of the last writ and that she did not know where in New York her husband and the child were living.
A second hearing was held to show cause why the wife and the husband should not be held in contempt for failing to obey the writs. Notice of the hearing was given to the husband by mail to his New York lawyer. At this hearing the stepmother again testified that her husband had taken the child and that she had no custody or control over the child thereafter. The court entered a final order finding the father and stepmother in contempt of court and concluded:
[4]*4“We assess a civil penalty designed to compel the delivery of the child in Court at the rate of $100 every 7 days from this date until the child is produced and hearing may be had.”
The Superior Court affirmed the order per curiam.
After this Court granted a petition for allowance of appeal the father and stepmother filed a petition to modify, supplement and amend the record, alleging that subsequent to the appeal to the Superior Court the father had sought a change in the New York custody decree. It also alleged that the New York court, after a custody hearing in which the mother and her counsel had appeared, modified the original order so that the father was awarded custody of the child on April 11, 1977. The mother filed an answer to the petition to this Court which did not deny her participation in the New York hearing but denied the effectiveness of that proceeding in this Commonwealth.
The case presents three broad issues: first, the question of jurisdiction in the threefold aspect of the basis for asserting jurisdiction, the effectuation of service and the reasonableness of notice; second, the liability of a spouse for non-compliance with an order to produce a stepchild in the physical custody of her husband; and, third, the effect, if any, of a subsequent contested custody order of an extra-state court upon a pre-existing contempt order of a local court.
I. Custody Jurisdiction Over an Absent Parent
The recognized bases for the judicial assertion of jurisdiction in child custody cases include the physical presence of the child in the state, the domicile of the parties to the controversy, and the domicile of the parent who has physical custody. Conflict of Laws, Restatement 2d, § 79, cited with approval in Commonwealth ex rel. Logan v. Toomey, 241 Pa.Super. 80, 359 A.2d 468 (1976). No problem exists in this case as to the basis for jurisdiction because, at the inception of the proceedings, the child was living in Pennsylvania and the father, who has physical custody, was domiciled in Pennsylvania. Domicile is a recognized basis for the asser[5]*5tion of jurisdiction. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940).
The more serious question presents itself as to the subjection of the father to Pennsylvania jurisdiction in that there is no return of seryice by the sheriff. Custody proceedings can properly be commenced under our ancient proceeding for habeas corpus. The Act of February 18, 1785, 2 Sm.L. 275, § 1, 12 P.S. § 1873, provides for service as follows:
“And whenever the said writ shall, by any person, be served upon the officer, sheriff, jailer, keeper or other person whatsoever, to whom the same shall be directed, by being brought to him, or by being left with any of his under officers or deputies, at the jail, or place where the prisoner is detained . . . ” (emphasis added).
Its broad scope of applicability to any “keeper” is matched by its provision for service upon any deputy where the person is “detained.” “Deputy” would include any agent who is holding custody for the parent. The Act of May 25, 1951, P.L. 415, § 4,12 P.S. § 1904, also deals with service and notice of a writ of habeas corpus, stating:
“Service of the writ or the rule to show cause, as the case may be, shall be made forthwith in such manner as the judge may direct, anywhere in the Commonwealth, upon the warden, superintendent or other person in charge of the penitentiary ... or other place in which the relator is imprisoned or detained.”
These broad provisions are to be compared with the ordinary civil rule for service at the domicile of a defendant by leaving a copy with an adult member of the household. Pa.R.C.P. 1009(b)(2)(i). It is unnecessary to decide which provision is applicable because they are each of the same import.
The contention that the writ or a copy was not left with the stepmother is adequately met by her testimony as to her refusal to accept the writ and by her knowledge of what it was about, which information was admittedly given to her husband. Service cannot be negated by refusing to accept [6]*6papers, and whether the refusal is by the defendant or a representative is immaterial. Compare Pincus v. Mutual Assurance Co., 457 Pa. 94, 321 A.2d 906 (1974), where the return of service showed that the recipient whose name was required refused to state his name.
It is true that residents cannot attack a sheriff’s return when it recites facts showing that service has been effected. Hollinger v. Hollinger, 416 Pa. 473, 206 A.2d 1 (1965). The absence of a return that service has been effected, however, is not conclusive of non-service upon a court which hears facts establishing the validity of the service. In Goodman v.
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OPINION
PER CURIAM.
Mr. Justice O’Brien, Mr. Justice Roberts, Mr. Justice Pomeroy and Mr. Justice Packel affirm the contempt order against Donald McKinney. Mr. Justice Pomeroy, Mr. Justice Nix, Mr. Justice Manderino and Mr. Justice Packel reverse the contempt order against Linda McKinney.
EAGEN, C. J., did not participate in the consideration or decision of this case.
[3]*3PACKEL, J., filed an opinion in support of per curiam order.
ROBERTS, J., filed a concurring and dissenting opinion in which O’BRIEN, J., joins.
NIX, J., filed a concurring and dissenting opinion.
MANDERINO, J., filed a concurring and dissenting opinion.
OPINION IN SUPPORT OF PER CURIAM ORDER
PACKEL, Justice.
A divorce and custody award to a mother in New York, followed by her moving to Florida, culminated in this Pennsylvania proceeding by the Florida mother to obtain physical custody of her son. The service or attempted service of a writ of habeas corpus upon the father at his home in Pennsylvania was described by his wife, the stepmother of the child, as the handing of legal papers to her, which she refused to accept.
Another writ of habeas corpus commanding the stepmother to produce the child in court some twenty-five days later was served upon her as she was picking up the child at elementary school. At the first hearing the stepmother testified that she told her husband about the writs. She also stated that they lived in their Pennsylvania home until the father and child moved out within twenty-four hours after the service of the last writ and that she did not know where in New York her husband and the child were living.
A second hearing was held to show cause why the wife and the husband should not be held in contempt for failing to obey the writs. Notice of the hearing was given to the husband by mail to his New York lawyer. At this hearing the stepmother again testified that her husband had taken the child and that she had no custody or control over the child thereafter. The court entered a final order finding the father and stepmother in contempt of court and concluded:
[4]*4“We assess a civil penalty designed to compel the delivery of the child in Court at the rate of $100 every 7 days from this date until the child is produced and hearing may be had.”
The Superior Court affirmed the order per curiam.
After this Court granted a petition for allowance of appeal the father and stepmother filed a petition to modify, supplement and amend the record, alleging that subsequent to the appeal to the Superior Court the father had sought a change in the New York custody decree. It also alleged that the New York court, after a custody hearing in which the mother and her counsel had appeared, modified the original order so that the father was awarded custody of the child on April 11, 1977. The mother filed an answer to the petition to this Court which did not deny her participation in the New York hearing but denied the effectiveness of that proceeding in this Commonwealth.
The case presents three broad issues: first, the question of jurisdiction in the threefold aspect of the basis for asserting jurisdiction, the effectuation of service and the reasonableness of notice; second, the liability of a spouse for non-compliance with an order to produce a stepchild in the physical custody of her husband; and, third, the effect, if any, of a subsequent contested custody order of an extra-state court upon a pre-existing contempt order of a local court.
I. Custody Jurisdiction Over an Absent Parent
The recognized bases for the judicial assertion of jurisdiction in child custody cases include the physical presence of the child in the state, the domicile of the parties to the controversy, and the domicile of the parent who has physical custody. Conflict of Laws, Restatement 2d, § 79, cited with approval in Commonwealth ex rel. Logan v. Toomey, 241 Pa.Super. 80, 359 A.2d 468 (1976). No problem exists in this case as to the basis for jurisdiction because, at the inception of the proceedings, the child was living in Pennsylvania and the father, who has physical custody, was domiciled in Pennsylvania. Domicile is a recognized basis for the asser[5]*5tion of jurisdiction. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940).
The more serious question presents itself as to the subjection of the father to Pennsylvania jurisdiction in that there is no return of seryice by the sheriff. Custody proceedings can properly be commenced under our ancient proceeding for habeas corpus. The Act of February 18, 1785, 2 Sm.L. 275, § 1, 12 P.S. § 1873, provides for service as follows:
“And whenever the said writ shall, by any person, be served upon the officer, sheriff, jailer, keeper or other person whatsoever, to whom the same shall be directed, by being brought to him, or by being left with any of his under officers or deputies, at the jail, or place where the prisoner is detained . . . ” (emphasis added).
Its broad scope of applicability to any “keeper” is matched by its provision for service upon any deputy where the person is “detained.” “Deputy” would include any agent who is holding custody for the parent. The Act of May 25, 1951, P.L. 415, § 4,12 P.S. § 1904, also deals with service and notice of a writ of habeas corpus, stating:
“Service of the writ or the rule to show cause, as the case may be, shall be made forthwith in such manner as the judge may direct, anywhere in the Commonwealth, upon the warden, superintendent or other person in charge of the penitentiary ... or other place in which the relator is imprisoned or detained.”
These broad provisions are to be compared with the ordinary civil rule for service at the domicile of a defendant by leaving a copy with an adult member of the household. Pa.R.C.P. 1009(b)(2)(i). It is unnecessary to decide which provision is applicable because they are each of the same import.
The contention that the writ or a copy was not left with the stepmother is adequately met by her testimony as to her refusal to accept the writ and by her knowledge of what it was about, which information was admittedly given to her husband. Service cannot be negated by refusing to accept [6]*6papers, and whether the refusal is by the defendant or a representative is immaterial. Compare Pincus v. Mutual Assurance Co., 457 Pa. 94, 321 A.2d 906 (1974), where the return of service showed that the recipient whose name was required refused to state his name.
It is true that residents cannot attack a sheriff’s return when it recites facts showing that service has been effected. Hollinger v. Hollinger, 416 Pa. 473, 206 A.2d 1 (1965). The absence of a return that service has been effected, however, is not conclusive of non-service upon a court which hears facts establishing the validity of the service. In Goodman v. Ancient Order of United Workmen, 211 Minn. 181, 183-84, 300 N.W. 624, 625 (1941), the court pointed out that the fact of service is the important thing in determining jurisdiction and added that “proof of service may be defective or even lacking, but if the fact of service is established jurisdiction cannot be questioned.” In Commonwealth ex rel. Zimbo v. Zoretskie, 124 Pa. Super. 154, 188 A. 365 (1936), it is pointed out that procedural irregularities such as the non-filing of a return of service will not stand in the way of a habeas corpus proceeding for custody to be decided on the merits. There is no serious question as to the husband having been given notice of the two hearings. His wife testified as to giving him notice and in addition notice was mailed to the husband’s attorney in New York. The reasonableness of the steps taken to give notice to the father is unquestionable.
II. Liability for Uncontrollable Non-Compliance with Habeas Corpus
The propriety of the service of a writ upon a representative has been heretofore dealt with. It does not follow, however, that such an agent is to be held in contempt for non-compliance. The contempt in this case was specifically stated to be a civil contempt to effectuate production of the child before the court. It does not behoove the court in attempting to bring about compliance to impose penalties upon one who has no control over compliance. We are past [7]*7the day when a spouse is to be subjected to an economic loss because of action or inaction by his or her spouse.
This case is to be contrasted with Commonwealth ex rel. Lowry v. Reed, 59 Pa. 425 (1868). In that case a grandfather was properly held in civil contempt notwithstanding his contention that the child was in the custody of his wife, who was the grandmother of the child. The court refused to give effect to his assertion that the child was not in his custody or under his control. In the instant case there is no question under the evidence but that the child was in the physical custody and control of the husband. There is no justifiable basis for the conclusion that the stepmother was responsible for the nonproduction of the child at a hearing. Furthermore, civil contempt to be warranted must be so conditioned that the contemnor has the power to purge himself or herself of the contempt. Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977).
III. The Impact of an Extra-State Determination upon Civil Contempt
The purpose of the contempt order was to induce the bringing of the child before the court so that an immediate change of physical custody could be made, if warranted. Prevention of that assertion of power by the court warranted its civil contempt order against the husband. A difficult question is the effect which could be given to a determination by the New York court while the contempt order was in effect in view of the fact that the mother had appeared in that proceeding in which it appears that custody was changed and was awarded to the father.
The courts below did not consider this issue because it arose after their determinations. We recognize that full faith and credit of custody decrees as a matter of good conflict of laws must be matched by current circumstances as to what is good for the child. “The welfare of the child is always the overriding consideration. For this reason, probably the majority of courts have not felt themselves bound by full faith and credit, even in the absence of changed condi[8]*8tions, to enforce without question of provisions of a custody decree rendered in another State.” Conflict of Laws, Restatement 2d, § 79 p. 239. Whether a contempt order should remain in effect after subsequently contested litigation causes a possibly inconsistent situation could be resolved after a factual determination by the hearing court. Among other things, its review can include determinations of the substantive question as to what is best for the child or whether a Pennsylvania court procedurally should make a determination on the merits as to a controversy between a Florida mother and a New York father.