Appeal from order of Court of Common Pleas of York County, May T., 1972, No. 326, in case of Commonwealth ex rel. William M. Spriggs, Jr. v. Glenda L. Carson.
J. Ross McGinnis, with him William C. Gierasch, Jr., and Stock and Leader, for appellant.
Nevin Stetler, with him Stetler & Gribbin, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Hoffman, J., did not participate in the consideration or decision of this case. Dissenting Opinion by Price, J. Spaeth, J., joins in this dissenting opinion.
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Glenda L. Carson, the mother, appeals from the order of the lower court granting custody of her son to appellee, William M. Spriggs, Jr., the boy's father.
The facts of this case present an exhausting and enervating tug-of-war between a mother and a father over the custody of their boy, Jeffrey, in which both parties were on occasions guilty of precipitate and impetuous conduct relating to the custody of the child.
This melancholy narrative begins with the marriage of the parties in York County in 1964. Jeffrey, six and one-half years old, and Christine, 9 years old, are the children of this marriage. In 1968 and 1969, the mother became ill with a mental depressive condition, the result of marital difficulties and stresses, which caused her several times to threaten to take her life.
In February, 1970, the parties separated and the children remained with the father, the mother taking them on weekends and whenever she was needed. The mother testified in this case that this arrangement was in the best interests of the children since she had not
[ 229 Pa. Super. Page 12]
entirely recovered from the effects of her debilitating illness and because financially it was better for the children to stay with the father at that time. Under these circumstances the actions of the mother were justifiable and in no way jeopardized her position as the proper custodial parent for the children. Commonwealth ex rel. Staunton v. Austin, 209 Pa. Superior Ct. 187 (1966).
The parties were divorced in June of 1970 and the mother remarried on February 16, 1971. On May 5, 1971, having established a new home and feeling once again able to care for her children, the mother informed the father that she wanted custody of the children and on May 8, 1971, the parents discussed an arrangement under which the mother would have custody. The father said he wanted to discuss the matter with an attorney. On March 9, 1971, the mother had the children at a shopping mall in York when she met the father and began to discuss with him again the custody arrangement. The father, rather than meet and work out the problem that faced the family, gathered up the children, and after a physical struggle between the mother and father, he succeeded in getting the children into a car. On the same day he drove to his aunt's home in Florida and eventually to the home of his parents in Florida, where he still resides. Through a private investigative service, the mother learned that her children were living in Florida, and she filed an action in Florida for custody of the children. On February 1, 1972, an informal hearing in chambers was conducted by the Florida court attended by all the parties and their respective witnesses. At this hearing, a Dr. Dunlevy, psychologist, said there was hostility between the mother and her daughter, Christine, and although the mother and her present husband, Mr. Carson, were not called by the judge to testify, the court entered a temporary order awarding custody to the father with
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"abundant visitation" to the mother while she was in Florida, and during the summer months upon her return to Pennsylvania. The order provided for a review of the matter after the 1972 summer visitation. The mother visited with the two children on the evening of the hearing. During the next several days, a conflict arose between the mother and her mother-in-law at whose home the children were staying. The mother-in-law, Mrs. Spriggs, would not permit the mother to either see or visit with her daughter Christine. Mrs. Spriggs contended that because there was an estrangement between the mother and the daughter which caused the daughter to become upset, distraught and unwilling to see her mother, she refused to allow the mother to visit with her daughter. Under these circumstances, several days after the hearing the mother left for Pennsylvania with her son Jeffrey. As a result of this action on the part of the mother, the mother was found in contempt of ...