Appeal from order of Court of Common Pleas, Family Division, of Philadelphia, Habeas Corpus, No. 1321, and Domestic Relations, No. 280813, in case of Commonwealth of Pennsylvania ex rel. Madeline Williams v. James Williams.
Ronald J. Brockington, for appellant.
Morton S. Powlen, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Jacobs, J., dissents. Cercone, J., concurs in the result.
[ 229 Pa. Super. Page 328]
Madeline Williams, appellant, filed a petition for a writ of habeas corpus seeking custody of her four year old daughter, Nicole. Appellant and appellee-father*fn1 are both residents of the City of Philadelphia. Prior to March of 1973, the child had been in the custody of appellant, however, the child had been residing with appellant's grandmother (the child's great-grandmother, 64 years of age) (T-3 & T-6) in Burlington, New Jersey. Appellee had visitation privileges two days each week which varied according to his work schedule as a policeman in the City of Philadelphia. This custody and visitation apparently was granted by a court order in May of 1972 (T-5) although the record is not entirely clear in this regard and that order is not in the record.
[ 229 Pa. Super. Page 329]
The child has been living with her great-grandmother in Burlington, New Jersey, either since 1971 as claimed by appellee or since 1972 as claimed by appellant. This arrangement apparently was made necessary because appellant is employed in two jobs which require working hours during the week from 8:45 a.m. to 10:00 p.m., and also because appellant lives in an apartment in the City of Philadelphia with her sister and nephew (T-7 and T-8) in what a probation officer's report described as a two-bedroom apartment (T-9) but appellant described as a three-bedroom apartment. Whatever its size may be, appellant has offered absolutely no testimony that she had any intent to change the child's living arrangements from the home in New Jersey.
The home in New Jersey is occupied by the child's great-grandmother, her husband, appellant's child by a previous marriage*fn2 and, prior to March of 1973, by Nicole. This home is described as a house with two bedrooms (T-6) and a ranch-type house (T-16) with no further detail supplied by the record.
The appellee lives in a house which was the home of the parties prior to their separation and subsequent divorce. He has been living there since 1969 (T-14). Appellee's home has three bedrooms (T-16) and is located at 1830 East Tulpehocken Street in the City of Philadelphia. Appellee lives there alone.
In March of 1973, appellee, on his weekly visitation, brought Nicole to Philadelphia and refused thereafter to return the child to New Jersey. Apparently, appellant made no complaint or inquiry concerning Nicole (T-11) until the filing of the petition for a writ of habeas corpus on March 29, 1973.
Appellant testified that prior to March of 1973, she would go to New Jersey every ...