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COMMONWEALTH EX REL. HICKEY v. HICKEY (11/14/68)

decided: November 14, 1968.

COMMONWEALTH EX REL. HICKEY
v.
HICKEY, APPELLANT



Appeals from order of Court of Common Pleas of Bucks County, Dec. T., 1967, Nos. 62 and 129, in cases of Commonwealth ex rel. Stefano J. Hickey, III et al. v. Jane Kathryn Hickey; and Commonwealth ex rel. Stefano J. Hickey, III et al. v. Stefano J. Hickey, Jr.

COUNSEL

Marvin Comisky, with him Dale J. Penneys, Joseph J. Zapitz, and Blank, Rudenko, Klaus & Rome, for appellant.

Ward F. Clark, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 213 Pa. Super. Page 350]

This case involves the custody of four minor children, Stefano J. Hickey, III, age 13, Kathryn Hickey, age 12, George Hickey, age 7, and Janice Hickey, age 3.

Mr. and Mrs. Stefano J. Hickey, Jr. were married on October 23, 1954 and moved to Warminster Township in Bucks County in 1958. The marriage was apparently a happy one until 1966. On November 2, 1966, Mrs. Hickey moved to an apartment in Warminster, taking the four children with her. It is clear that at that time Mr. Hickey sought the return of his wife and children. Moreover, as the lower court stated: "It is also apparent from the record that the parties exercised perhaps an unusual degree of intelligence and maturity in working out the father's visitation rights during that period of time."

In November of 1967, Mrs. Hickey moved with the four children to an apartment in Philadelphia. The two boys were transferred to Philadelphia schools. Janice remained at home. Kathryn, who is a slow, and perhaps retarded child, continued in a special program in the Hart School in Warminster. There was some question, not fully resolved, as to whether Kathryn will be permitted to continue in that class by reason of her residence in Philadelphia. A psychiatrist testifying for the husband stated, however, that he imagined that similar programs were available in Philadelphia.

In November of 1967, Mr. Hickey took the children to his home, ostensibly for a weekend visit, and failed

[ 213 Pa. Super. Page 351]

    to return them. Instead he filed a petition under the Marriage Act of June 26, 1895, P. L. 316, § 2, 48 P.S. § 92, seeking legal custody of the children.

Mrs. Hickey then petitioned the County Court of Philadelphia for a writ of habeas corpus. On November 6, 1967, the Philadelphia Court, ex parte, awarded custody of the children to Mrs. Hickey, pending a full hearing, while the Bucks County Court granted temporary custody to Mr. Hickey. The Supreme Court apparently determined the jurisdictional conflict in favor of Mr. Hickey when it denied Mrs. Hickey's petition for a writ of mandamus.

Subsequently, after a full hearing in Bucks County in April of 1968, the lower court placed the permanent custody of the three oldest children in the father and the permanent custody of Janice, the youngest, in the mother. Visitation rights were similarly provided for both parents. Appeal was taken to our Court. After argument on a petition for supersedeas, we revised the lower court's order by placing the custody of Stefano J. Hickey, III with the ...


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