Appeal from the Order of the Court of Common Pleas of Butler County at Ms. D. No. 76-045, Book 40, Page 255.
George H. Hancher, Zelienople, for appellant.
Norman D. Jaffe, Butler, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Hoffman and Spaeth, JJ., concur in the result. Van der Voort, J., did not participate in the consideration or decision of this case.
[ 249 Pa. Super. Page 136]
This is an appeal from the lower court's order directing appellant Lori L. Kniess to transfer custody of the parties' three year old son, Paul Eugene Jones, Jr., to her ex-husband, appellee Paul E. Jones, Sr. We affirm.
The parties herein were married in December of 1973 and resided in this Commonwealth for a short period. Their son was born in 1974 in Pennsylvania. Appellee, a naval aviation mechanic, was transferred to California where the family lived until the latter part of 1974. Appellee subsequently obtained a divorce in the Superior Court of the State of California for Kings County. In conjunction with the interlocutory decree entered in December of 1974, appellant was awarded temporary custody of the couple's son. Appellant returned to Pennsylvania with the child and moved into her parents' home in Harmony. A final decree of divorce was entered in California in 1975.
[ 249 Pa. Super. Page 137]
Appellant remarried and, with the consent of appellee, instituted proceedings for the adoption of Paul, Jr. by appellant's second husband. After two months this marriage broke up and the adoption proceedings were halted. Appellant's second husband subsequently obtained a divorce. Upon learning of the break-up of the second marriage, appellee, through local counsel, petitioned the Court of Common Pleas of Butler County for a writ of habeas corpus. The writ was issued but it was never served because appellant had left Butler County with her child and another man and had travelled to Florida.
A few days after appellant's departure, her parents travelled to Florida, recovered the child and brought him back to Pennsylvania. According to their testimony, the child was to live with them until appellant obtained employment and could care for the child. Near the end of March, 1976, appellant returned to her parents' home.
On April 2, 1976, appellee and his current wife arrived in Pennsylvania. After a short visit, they took the child to California without appellant's consent. Appellant followed and obtained temporary custody through a Kings County court order. As a condition of this temporary custody, appellant was required to remain in Kings County for three days pending a final hearing. Contrary to the advice of her California counsel, appellant returned to Pennsylvania with the child and did not personally participate in the California proceedings which followed.
A hearing was held in California on August 16, 1976. Based primarily on a Probation Department report, the court found that appellant was "not a suitable person to have custody . . . and that the child's health and welfare require[d] that his custody and control be with . . . [appellee] who is a fit ...