No. 93 March Term 1978, Appeal from the Order of the Court of Common Please of York County, Pa. Criminal Division, In No. 77 S. 607.
Allen H. Smith, York, for appellant.
No brief filed or appearance entered for appellee.
Cercone, Spaeth and Lipez, JJ.
[ 267 Pa. Super. Page 237]
This is an appeal from an order of the lower court denying a mother's petition for custody of her minor son, Shane, and awarding custody to the father. On this appeal the mother contends that the best interests of Shane will be served by granting custody to her.
The parties were separated in 1977 and divorced in March 1978. Shane was their only child. The mother had custody of Shane during the separation; by an order of the lower
[ 267 Pa. Super. Page 238]
court entered on March 25, 1977, the father was granted certain visitation rights. Under this order, on every other weekend Shane would be left with his father on Friday and returned on Sunday. The father and several witnesses who testified on his behalf said that the mother often failed to come on time for Shane's return to her. The mother said that she left Shane with his father for longer than the required visitation period because she was begged to do so by the father and his friends. In any event, in January 1978, after one particularly long visit with his father, Shane was removed from the apartment by his mother and thereafter was not returned for any more visits. On March 14, 1978, the court entered an order reinstating the visitation order of March 25, 1977, and on April 26, 1978, a hearing was held on the mother's petition for custody.
The mother testified that she lived with her parents in an eight room house in Brodbecks, and that if Shane were to live with her, he would have his own room. She testified that she worked, and that during the time she was at work her mother would take care of Shane. She admitted that she had a boyfriend but denied that she was living with him. She testified that during Shane's stay with his father, Shane shared a bed with his father and his father's girlfriend, Donna Eisenhart. According to her, after returning from a visit with his father, Shane appeared nervous and upset and had trouble sleeping. The mother also testified that she discovered some bruises on Shane's back and that the father had a drinking problem. She admitted that she had violated the order concerning visitation. The lower court heard no testimony with respect to the condition of the mother's parents' house in Brodbecks or the ability of the mother's mother to care for Shane.
The father disputed the mother's testimony concerning the bruises on Shane's back and his drinking problem. He testified that he was living in York in a five room apartment (two bedrooms), which he shared with Donna Eisenhart and his brother Eugene. He also testified that his mother and step-father lived in an apartment upstairs, and that if custody
[ 267 Pa. Super. Page 239]
were given to him, Donna Eisenhart would take care of Shane while he was at work, and on those days when Ms. Eisenhart could not be home, his mother would take care of Shane. There was some testimony to the effect that the father's mother had had a physical problem in the past but was now capable of caring for Shane. The father admitted that Ms. Eisenhart was pregnant with his child. He also admitted that Shane had shared a bed with them, but he said that this had happened only on those nights when Shane had had trouble ...