Appeal from order of Court of Common Pleas of Delaware County, No. 5095 of 1972, in case of Virginia A. Coombs v. Russell Montieth Coombs.
Benjamin Paul, for appellant.
I. Raymond Kremer, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Watkins, J. Concurring and Dissenting Opinion by Jacobs, J. Hoffman, J., joins in this concurring and dissenting opinion.
[ 225 Pa. Super. Page 305]
In this case, the wife-plaintiff, Virginia A. Coombs, filed a petition and rule to show cause against her husband,
[ 225 Pa. Super. Page 306]
the appellee, Richard Montieth Coombs, to obtain custody of their three children. At the time of the hearing, all children were under ten years of age. The husband-appellee specially appeared by counsel and attacked the jurisdiction of the court and alleged improper service. By agreement of all concerned, the hearing was restricted to these issues.
At the time the husband and wife were having marital difficulties and were separated but not divorced and there was no existing court order determining custody. The three children had been living with the mother in Delaware County under an alleged oral agreement between the parties giving custody to the mother and visitation rights to the father. At the hearing, counsel for the father denied any such agreement existed and there is no evidence except the testimony of the mother.
The father prior to the separation lived for a time in Delaware County. The couple had lived in Hawaii, Massachusetts and Maryland before coming to Pennsylvania.
On April 29, 1972, the father took the three children to Florida with him. On May 14, 1972, the mother went to Florida with a private detective and removed the children back to Pennsylvania. On May 23, 1972, the father removed the two older children from school in Delaware County and they are with him presently at an unknown address. Both parties admitted that the children are residing with their father.
The youngest child at the time of the hearing was residing with the mother so that so far as this proceeding relates to the child, the matter is moot. Habeas corpus is not the appropriate remedy to obtain custody of a child who is already in the possession of the petitioner. There are appropriate remedies to obtain an order to translate such possession to ...