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MARY ANN SPELLS v. CALHOUN SPELLS (10/06/77)

decided: October 6, 1977.

MARY ANN SPELLS
v.
CALHOUN SPELLS, APPELLANT



No. 64 March Term, 1977, Appeal from the Order of the York County Court of Common Pleas, January 6, 1976, No. 206 October Term, 1973.

COUNSEL

Richard A. Katz, York, with him Alan N. Linder, Pittsburgh, for appellant.

Raymond R. Smith, York, submitted a brief for appellee.

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

Author: Hoffman

[ 250 Pa. Super. Page 170]

Appellant contends that the lower court erred in denying his petition for visitation with his stepchildren. He also argues that the lower court erred by terminating the hearing prematurely. We agree with the latter contention and, therefore, reverse and remand for further proceedings consistent with this opinion.*fn1

Appellant and appellee, who had two children fathered by another man, were married on January 23, 1971. No children resulted from the instant union. The children lived with appellee and appellant for seven or eight months prior to the marriage and for its duration. On July 5, 1973, the parties separated, and on September 5, 1973, appellee filed a complaint in divorce based upon indignities to the person. The contested divorce has not yet been granted. On October 20, 1975, appellant filed a petition in the York County Court of Common Pleas to request that he be permitted to visit his stepchildren, Sherry Keeney, age 8, and Lionel Keeney, age 12. On January 6, 1975, the lower court conducted a truncated hearing on appellant's petition. During the cross-examination of appellant, the court terminated the hearing and did not permit appellee to present any evidence. Immediately thereafter the court stated, inter alia:

"This Court is unaware of any authority which would grant the step-father standing to claim visitation rights. However, we recognize that the rules in this area are changing and being abandoned as the Court seeks the best interests of the child under all the facts of each particular case. We assume for purposes of this Order that Petitioner is not precluded by the absence of any relationship with the children; however, granting him standing does not eliminate

[ 250 Pa. Super. Page 171]

    the fact that the absence of such relationship exists and must be considered as we analyze the other facts here present.

"The parties separated approximately 2 1/2 years ago. Testimony indicates that the Petitioner kept the children for approximately two days, at which time Children's Services took them, against his will, and he saw them one time shortly thereafter for approximately one hour. This is a striking absence of contact. We will not construe it as indicating a lack of interest. Petitioner states that threats were made about lawyers blocking his right to see the children and so forth, which may be justification for failure to pursue this heretofore, but lack of interest or not, the fact remains that the children have not seen the Petitioner for well over two years.

"While we do not doubt Petitioner's statements that he cares for these children and wants to see them, we cannot avoid some sense of feeling that the children are to an extent pawns in an ongoing continuing struggle between the parties. ...


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