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CUSTODY TAMMY JOANNE MYERS (09/27/76)

decided: September 27, 1976.

IN RE CUSTODY OF TAMMY JOANNE MYERS, A MINOR. APPEAL OF MARY CATHERINE NEEDHAM


COUNSEL

Harry S. Geller, Chambersburg, for appellant.

David S. Dickey, Greencastle, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Watkins, President Judge and Van der Voort, J., dissent.

Author: Price

[ 242 Pa. Super. Page 227]

Following a hearing on the matter, the lower court awarded custody of Tammy JoAnne Myers, a minor, to her paternal grandmother and step-grandfather. Appellant is the natural mother of the child involved. Although Charles Stephen Myers, the natural father, is listed as an appellee, he does not seek custody but rather contends that it should be awarded to the paternal grandparents. For the reasons which follow, we conclude that the lower court improperly deprived appellant of custody of her child. We will, therefore, reverse the order of the lower court and award custody of Tammy JoAnne Myers to appellant.

Appellant and Tammy's father were married in 1968. Tammy was born September 21, 1969, in Germany where her father was stationed while in the armed services. The father was transferred to Viet Nam in February, 1971, and appellant and the child returned to Chambersburg, Pennsylvania. Appellant and her husband did not again cohabit, and they were divorced on June 12, 1974. While still married to Charles Myers, appellant gave birth to another daughter on December 8, 1972. This child was fathered by one Gary McClure.

On July 5, 1974, appellant married Russell Needham, who was at the time on parole. Sometime after, Needham violated the conditions of his parole and was imprisoned. Since the last hearing before the lower court, appellant has given birth to a third daughter, fathered by Needham.

[ 242 Pa. Super. Page 228]

Until September, 1974, appellant alone cared for her two daughters. However, in September, 1974, appellees Mr. and Mrs. Brenner volunteered to take Tammy into their home in Waynesboro, Pennsylvania, and enroll her in the Head Start school program there. Tammy had been in the Chambersburg Head Start program the previous year. Appellant agreed to the proposal because she was working and was having difficulty hiring baby sitters for Tammy. The child was to remain with appellees during the school week and live with appellant over the weekends.

This arrangement proved satisfactory until January, 1975, when appellant received information that appellees were considering filing a petition to obtain permanent custody of the child. Appellant then refused to allow the child to return to appellees' house, but subsequently reversed this position. On January 17, 1975, appellees Mr. and Mrs. Brenner did file a petition for custody.

On February 4, 1975, upon stipulation of all parties, the lower court entered an order granting joint custody. This order was to remain in effect only until the end of the Head Start school term, at which time either party could petition the court for a change in the order without a showing of changed circumstances. On April 23, 1975, appellant filed a petition for undivided custody. A hearing on the matter was held on June 19, 1975.

The record clearly indicates that both parties have a genuine love and affection for the child and that both parties are vitally concerned with the child's best interests. The testimony also reveals that Tammy had adjustment problems in relation to her interaction with her peers and other people around her, and that she had experienced problems in performing at an acceptable level in school. In addition, there is an indication that her health was somewhat impaired when ...


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