Appeal from order of Court of Common Pleas of Erie County, No. 1068 of 1965, in case of Commonwealth ex rel. Marilyn A. Rosequist v. Kenneth E. Rosequist.
R. Stanton Wettick, Jr., for appellant.
Gerald A. McNelis, Jr., for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J.
[ 216 Pa. Super. Page 389]
This is an appeal by Marilyn A. Rosequist, a resident of Allegheny County, from an order of the Court of Common Pleas of Erie County (Criminal Division), which granted Kenneth C. Rosequist, husband-appellee, a resident of Erie County, visitation rights with his five minor children, who are in the custody of the wife-appellant. The order dated October 30, 1969, stated that the appellee ". . . shall have visitation rights with said children in his home, 3745 West Lake Road, Erie County, Pennsylvania, the last weekend of each month,"
[ 216 Pa. Super. Page 390]
and "shall, in addition have the children for a two-week period during July or August of their Summer vacation."
The parties originally lived in Erie County but were separated sometime before August 26, 1965, when the appellant, having moved with the children to Allegheny County, had the appellee arrested in Erie County for nonsupport under the Act of 1939, June 24, P. L. 872, § 733, as amended, 18 P.S. § 4733. A consent order was entered in Erie County on October 6, 1965, providing $35 weekly support of the children and "Visitation for Defendant on alternate Saturday and Sundays. Children may be taken away from home 3 weeks in the summer one-half day at Christmas." The visitation rights were altered by orders entered on December 5, 1966, restricting appellee's visits to "no more than four (4) visits per year" and on June 6, 1967, increasing the visits to alternate Saturdays and Sundays but only in Allegheny County. The lower court's jurisdiction to enter visitation orders, including the one now appealed from, was assumed under the third paragraph of the desertion and nonsupport Act, supra, which states, "The court, after hearing as provided in this section, may also determine and make orders with respect to the right of parents to visit their children."
The parties are not disputing the amount of the nonsupport order. Furthermore, it is well settled that Allegheny County has jurisdiction over the custody of the children. Commonwealth ex rel. Hickey v. Hickey, 216 Pa. Superior Ct. 332, 264 A.2d 420 (1970). The mother previously, on May 29, 1969, had been awarded custody of the children in a habeas corpus proceeding in the Allegheny County Court, which the father unsuccessfully sought to prevent for lack of jurisdiction but from which order no appeal was taken. The Allegheny County Court did not grant visitation rights to the father as part of that order.
[ 216 Pa. Super. Page 391]
Appellant, citing Commonwealth ex rel. Freed v. Freed, 172 Pa. Superior Ct. 276, 93 A.2d 863 (1953), which we followed in our decision in Commonwealth ex rel. Hickey v. Hickey, supra, contends that the Erie County court is without jurisdiction to enter the present visitation order for the reason that it grants possession or partial custody of the children to the father for periods of time, which should be decreed only by the Allegheny County courts, which have exclusive jurisdiction over custody of the children. Appellant also contends that the desertion and nonsupport statute grants jurisdiction of the Erie County court only over visitations or the "right to visit," which, distinguished from custody, means only the right of a parent to visit a child at a certain time for a specified period at the child's domicile. Therefore, the construction of the desertion and nonsupport statute, i.e., specifically the meaning of the words, "the right of parents to visit their children," is the issue before us on this appeal.
The words visit or visitation privileges in custody cases have not been specifically defined in statutes or any court opinions of this Commonwealth that have been brought to our attention. In Commonwealth ex rel. Doyle v. Doyle, 58 Berks 28 (1965), Judge Bertolet, holding that this section of the desertion and nonsupport act could not be used to obtain the jurisdiction of the court over custody matters, stated, at page 29, "The words 'visit' and 'visitation' have seldom been construed to mean 'custody' when referring to who shall have the right to the possession of the child"; but he was not required to decide whether these terms included temporary possession or partial custody. These terms have been used to refer both to where the visiting parent does not ...