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DIANE SWEENEY v. EDWARD SWEENEY (03/28/76)

decided: March 28, 1976.

DIANE SWEENEY, APPELLANT,
v.
EDWARD SWEENEY



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Family Division, Domestic Relations Branch at No. DR 73-00212. No. 1346 October Term 1975.

COUNSEL

Howard M. Goldsmith, Philadelphia, for appellant.

Edward J. Morris, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, concurs in the result.

Author: Spaeth

[ 241 Pa. Super. Page 236]

This is an appeal from an order awarding custody of a six year old boy, Edward, Jr., to his father. Because the lower court's order made no provision for visitation by the mother, the record must be remanded.

I.

Edward, Jr., was born to appellee and appellant, who were husband and wife, on June 16, 1970. In the fall of 1971, appellee and appellant separated, with appellant retaining custody of Edward.*fn1 On December 22, 1972, appellee took Edward from the home of the babysitter who cared for Edward while appellant worked to his home in Philadelphia.*fn2 He then arranged to have Edward cared

[ 241 Pa. Super. Page 237]

    for in a day care nursery center during his own working hours.

On January 16, 1973, appellant filed a petition for a writ of habeas corpus in the Philadelphia Court of Common Pleas. A hearing was held on February 27, 1973. The hearing judge issued a temporary order granting appellant visitation but refused to decide the issue of custody until the homes of both parents had been investigated. Further hearings were held on June 5 and 12. Appellee testified that he had enrolled Edward at the day care center, and the judge ordered an investigation of the center. It was also brought out at the hearings that a male friend of appellant stayed overnight during Edward's visitation. The judge against refused to decide the issue of custody, but at his urging it was agreed that Edward would live with appellee from Sunday evening through Friday morning and would continue to attend the day care center, and that appellant would pick Edward up at the center on Friday afternoon and return him to appellee Sunday evening.

On November 27, 1973, appellant's petition for habeas corpus and a petition that appellee be held in contempt for failure to abide by the order of June 12 were heard, with a further hearing on November 30. The evidence showed that a female friend of appellee stayed overnight while Edward was in appellee's care. For the third time, the judge refused to decide the issue of custody, instead entering the following order, referred to by both parties in their briefs as "split visitation:"*fn3

By agreement: Father is to pick up child from Sunday 6 p. m. to have child until Friday. Mother will pick up child from Day Care Center on Friday afternoon and will have the child until Sunday evening until 6 p.

[ 241 Pa. Super. Page 238]

    m. at which time father will pick up child from mother's residence. This formula schedule and time schedule will continue. On Christmas mother will have child all day 12-23-73, 12-24-73 (12-25-73) until 12:00 noon on 12-25-73 at which time father will pick up child from mother's residence and will have child until 12/29/73 at 6:00 p. m. At that time he will return child to mother's residence. In addition it is the Order of this Court that at no time shall the child be in the same room or presence of either Frank Michner [ sic ] during the time child is with mother or Carol Spear during the time child is with father. Review in four months from the date hereof at the request of either party or counsel.

On July 23, 1974, pursuant to the provision for further review, counsel for appellant wrote the judge, asking that he hear the petition for habeas corpus and make a final award of custody. In response, counsel was advised that the judge was no longer sitting in the Domestic Relations Division, and that it would therefore be necessary for another judge to hear the case. The judge to whom the case was then assigned, and from whose order the present appeal is taken, noted that the case would take all day, placed it on a special list, and heard testimony on December 18, 1974, almost two years after Edward had been taken by appellee. By this time, the parties were divorced, appellant had married the male friend who had stayed overnight with her, and appellee the female friend who had stayed overnight with him.

The December 18 hearing was extensive. Both parties testified, as did three witnesses for appellee and appellee's new wife. The judge interviewed Edward, then 4 1/2 years old, in chambers, without the presence of counsel for either side and without a court reporter. He interviewed Edward for a second time on January 16, 1975, again without counsel present and without a court reporter. On April 30, 1975, a further hearing was held,

[ 241 Pa. Super. Page 239]

    so that appellant's new husband and two additional witnesses might testify. The judge then entered the following order:

AND NOW, this 7th day of May 1975, after hearings had and testimony heard, the Court awards custody of EDWARD SWEENEY, ...


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