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COMMONWEALTH EX REL. MCDONALD ET UX. v. SMITH ET UX. (01/17/52)

January 17, 1952

COMMONWEALTH EX REL. MCDONALD ET UX.
v.
SMITH ET UX.



COUNSEL

Harry A. Estep, James T. Philpott, Pittsburgh, for appellant.

Alan D. Riester, William W. Milnes and Brandt, Riester & Brandt, all of Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Ross

[ 170 Pa. Super. Page 255]

ROSS, Judge.

This is a habeas corpus proceeding involving the custody of a four-year-old child. The contest for custody is between the father and the maternal grandparents.

The father, Dale E. McDonald and Dorothy Smith, daughter of Charles G. and Florence Smith, the appellees, were married on March 17, 1944. One child,

[ 170 Pa. Super. Page 256]

Penelope Ann, was born of this marriage on September 22, 1947. The mother died on November 7, 1947, and after her death McDonald went to live with her parents, taking the child with him. He lived with them until he married Jessie Wilson on December 16, 1949, at which time he established a home with his second wife.

The Smiths, the maternal grandparents, refused to permit McDonald to take Penelope Ann with him and he thereupon, on December 19, 1949, petitioned for a writ of habeas corpus to obtain custody of his daughter. The writ was issued and a hearing was held at the conclusion of which an order for custody was entered on January 4, 1950, awarding 'general custody' of Penelope Ann to her father 'with right of visitation in [the] maternal grandparents, who may have the said child with them at their contemplated home * * * on each subsequent weekend period hereafter from 7 P. M. Friday until 7 P. M. of the next Sunday evening * * *.' It was further provided that the Smiths were to have the child with them for two consecutive weeks in July or August of each year and for one week in the fall or winter season.

The order was substantially complied with by McDonald for a period of approximately 16 months. The record discloses only three occasions when the child was not handed over to the Smiths for the weekend. On two of these occasions the child was ill and under the care of a physician; on the third occasion McDonald refused to give the child up for Christmas. This latter incident led the Smiths to take steps to have the father cited for contempt, but the matter was apparently adjusted without formal action by the court.

On May 10, 1951 the father, joined by his present wife, filed a petition for rehearing in the custody case, asking that the ...


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