Appeal from order of Court of Common Pleas of Clearfield County, No. 75-38-CD, in case of Commonwealth ex rel. Sharon Jane Veihdeffer v. Howard Frederick Veihdeffer, Jr.
Michael Bresnahan, for appellant.
James A. Naddeo, and Belin, Belin & Naddeo, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J.
[ 235 Pa. Super. Page 448]
This is an appeal from an order of the Court of Common Pleas of Clearfield County dismissing a petition for a Writ of Habeas Corpus.
The appellant-wife, Sharon Jane Veihdeffer, and the appellee-husband, Howard Frederick Veihdeffer, Jr., separated in November, 1974. The children of the marriage, seven, five and four years of age, respectively, remained in the custody of the father. The parties entered into an agreement on January 5, 1975 drawn by the counsel for the husband which provided for a certain property settlement and gave custody of the three children to the father with liberal visitation rights to the wife.
On January 11, 1975, the wife brought her petition for the Writ of Habeas Corpus to obtain custody claiming that she entered into the agreement under a misapprehension. The court below dismissed the Writ with the following order without any findings or opinion:
"Now, January 22, 1975, following hearing had into the above-captioned Petition for Writ of Habeas Corpus, and it appearing that the matter is covered by an agreement dated January 3rd, 1975, and there being no reason existing for the Court to override said agreement, it is the Order of this Court that said Petition for Writ of Habeas Corpus be and is hereby dismissed. And it is further Order of this Court that liberal, reasonable visitation rights be granted unto the Petitioner herein; failing which, the Court will specifically set the time."
It is well settled that an agreement between the parties as to custody is not controlling but should be
[ 235 Pa. Super. Page 449]
given weight taking into consideration all the circumstances. It is conceded by counsel for the appellee that the court below is not bound by a contractual agreement pertaining to the custody of children. Commonwealth ex rel. Children's Aid Society, Guardian v. Gard, et ux., 362 Pa. 85, 66 A.2d 300 (1949). A child cannot be made the subject of a ...