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COMMONWEALTH EX REL. HICKEY v. HICKEY (04/15/70)

decided: April 15, 1970.

COMMONWEALTH EX REL. HICKEY
v.
HICKEY, APPELLANT



Appeal from order of Court of Common Pleas, Family Division, of Philadelphia, No. 13,593 of 1967, in case of Commonwealth ex rel. Jane Kathryn Hickey v. Stefano J. Hickey, Jr.

COUNSEL

Ward F. Clark, for appellant.

Dale J. Penneys, with her Marvin Comisky, and Blank, Rome, Klaus & Comisky, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J. Dissenting Opinion by Watkins, J. Wright, P. J., and Jacobs, J., join in this dissent.

Author: Montgomery

[ 216 Pa. Super. Page 334]

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

[ 216 Pa. Super. Page 335]

    rights 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, 1969, 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

[ 216 Pa. Super. Page 336]

Philadelphia Court of Common Pleas and not challenging the merits of the lower court's order on this appeal, the appellant seeks to pursue his remedies in the Bucks ...


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