No. 2012 October Term, 1976, Appeal from the Order of the Court of Common Pleas of Chester County, Pennsylvania, at No. 95 April Term, 1976., Civil Action, Law.
Charles B. Smith, West Chester, for appellant.
Lawrence H. Rudnick, Coatesville, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 255 Pa. Super. Page 509]
This appeal arises from the lower court's order denying appellant's habeas corpus petition for custody of his four minor children and permitting custody to remain with the children's mother. Appellant contends that the best interests of the children require transfer of their custody to him. Because we are unable to exercise our appellate function on the present state of the record, we vacate the order of the lower court and remand for further proceedings.
Appellant and appellee were married August 18, 1966. The children of this marriage were born in 1967, 1969, 1971 and 1972. Appellant left the marital domicile in July, 1973, and the parties were divorced in September, 1974. The children have resided with their mother since the separation, and appellant pays fifty-five dollars per week toward their support.
The father testified at the hearing below that he currently resides with his present wife and their child, and his wife's two children from a prior marriage. He is employed as an electrician and also holds two part-time jobs. There is no indication in the record of his earnings, although his wages were being attached for support at the time of the hearing. He briefly mentioned in his testimony that appellee suffers from recurring blood clots in her legs, a condition necessitating that he care for the children during the mother's hospitalization. Appellant also testified that if he is awarded custody of the four children, he intends to add three bedrooms to his trailer.
The mother testified that she lives in a three bedroom trailer with the four children. Two children sleep in each of two bedrooms, and appellee and the man she lives with sleep in another. Appellee's sources of income are apparently public assistance and support from appellant. She testified that she has lived with three men since separation from her
[ 255 Pa. Super. Page 510]
husband, although several others have slept on the sofa in her trailer, and she intends to marry the man with whom she is currently living.
The court below received conflicting testimony concerning the condition of the children, and the trailer where they live. Two of appellee's neighbors testified that the children are always dirty and hungry, that they frequently wear the same unwashed clothing for long periods of time, and that appellee's trailer is filthy. Appellee's sister, however, testified that the children are well-fed and well-dressed, and appellee testified that the trailer is no longer infested with roaches.
There was also testimony at the hearing concerning molesting of one or more of the children by appellant's deceased father ...