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decided: November 22, 1976.



Richard S. Friedman, Harrisburg, for appellant.

Richard C. Angino, Harrisburg, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result. Price, J., files a concurring opinion in which Hoffman and Spaeth, JJ., join.

Author: Cercone

[ 244 Pa. Super. Page 4]

This is an appeal from an order denying appellant, Mrs. Diane Tucker, custody of her natural daughter, Lisa Salinger, six years of age. The child has lived most of her life with appellees, her maternal grandparents, with whom the child presently resides in Steelton, Dauphin County.

Appellant's first marriage on June 1, 1966 ended in divorce approximately two years later as a result of her husband's serious drinking problem. Subsequently, appellant had an affair with another man, became pregnant and gave birth to Lisa out of wedlock. After Lisa was born, appellant and her child lived with appellees, the parents of appellant, for two and one-half years until December of 1971, when appellant entered into her second marriage. Unfortunately, less than six weeks after the marriage, appellant realized her husband was unstable and subjected her to serious beatings. After several separations the parties were divorced in early 1973. During the turmoil of her second marriage appellant returned to her parents' home where the child, Lisa, continued to live during appellant's second marriage.

In July, 1973 appellant met Captain David Tucker, U. S. Army, whom she married on May 17, 1974. Captain Tucker is thirty-six years old and has been in the U. S. Army almost nineteen years. He experienced two unsuccessful

[ 244 Pa. Super. Page 5]

    previous marriages of his own, although he was awarded custody of his two sons from his first marriage.

At the time of this appeal appellant, Captain Tucker, and Captain Tucker's two sons, ages 14 and 15, reside together in New Cumberland at the U. S. Army Depot where Captain Tucker is assigned, and where appellant has been employed as a secretary for approximately ten years. Their residence consists of three bedrooms; appellant and her husband have one, the two boys have one, and Lisa uses the other bedroom during visitation periods.

Appellees, parents of appellant, who are in their "late fifties," are healthy and alert. The grandfather participates with Lisa in sporting activities as well as reading to her and teaching her religion. The grandmother cooks, cleans, helps dress and care for Lisa. Lisa's aunt and uncle live next door to appellees and have two children of Lisa's age. Lisa's teacher testified that Lisa is one of her top students, gets along well with other children, and is emotionally stable and exceptionally mature for her age.

Following appellant's marriage to Captain Tucker on May 17, 1974, appellant took Lisa to live with her new family in New Cumberland, York County. Appellees instituted a habeas corpus action in York County seeking the custody of Lisa. After a two-day hearing, the Honorable Albert G. Blakey, III, in an opinion filed July 10, 1974 awarded custody to the grandparents, and Lisa was returned to them. Judge Blakey determined that because of the natural mother's past history of misconduct, the welfare of the child would be best served in continuing custody with the grandparents so long as appellant was afforded liberal visitation rights. No appeal was taken from Judge Blakey's order. Nine months later appellant instituted the present custody proceedings in Dauphin County where appellees and Lisa reside. This second custody hearing before Judge Warren of Dauphin

[ 244 Pa. Super. Page 6]

County was not de novo, but was limited to a development of the facts and present circumstances of the parties since the time of the prior York County hearing. The fact that appellant had only been married for less than two months at the time of the first hearing was justification for the lower court's re-evaluation of this custody matter on the basis of the presence or absence of sufficient "changed circumstances." Of course, the fact that appellant had been married to Captain Tucker for approximately eleven months at the time of the second hearing was not conclusive of a successful marriage, it was, however, sufficient to bring the facts of this case within those of Auman v. Eash, infra, where a marriage of much shorter duration was found sufficient to establish satisfactory present circumstances. On April 23, 1975 the Honorable Warren G. Morgan of the court below in Dauphin County denied appellant's petition for custody after a hearing held April 11, 1975, thus continuing the custody of Lisa with her grandparents, appellees. This appeal followed.

Essentially, the issue here is whether appellant, the natural mother, is entitled to the custody of her child of tender years.

The appellate courts of this state have set forth general rules of law which govern custody matters such as the one presently before us. The following language of this court in the recent case of Auman v. Eash, 228 Pa. Super. 242, 323 A.2d 94 (1974) is especially pertinent:

"Of paramount concern is the welfare and best interests of the child, which includes consideration of his physical, intellectual, moral, and spiritual well-being. Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972). Subject to this rule is the general principle that a parent is entitled to the custody of his ...

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