No. 2335, October Term, 1978, Appeal from the Order of July 20, 1978 of the Court of Common Pleas of Centre County, No. 1978 - 1672
Winifred H. Jones-Wenger, Philipsburg, for appellant.
Michael Bresnahan, State College, for appellee.
Price, Spaeth and Lipez, JJ.
[ 270 Pa. Super. Page 172]
This is an appeal by a mother from an order granting a father's petition for custody of the parties' minor son, Brian.
The parties were married in 1974 and separated in 1976. Brian was born in May, 1976, after the separation but before the parties' divorce in July, 1976. The mother had custody of Brian and she took him to live with Ed Smith, her boyfriend. Her relationship with Smith was not a very happy one; there were frequent arguments, and sometimes the mother was physically abused. Brian was not abused, however; in fact, there was evidence that Smith treated Brian very well.
[ 270 Pa. Super. Page 173]
In November, 1977, when Smith's abuse of her had become intolerable, the mother took Brian to live with the father's parents, Mr. and Mrs. Joseph McCann, at their home in Julian. Brian remained with the McCanns from November 19 to November 30. On November 30 the mother took Brian to live with her at her mother's hotel and bar, the Reed House in Osceola Mills. She soon had to leave her mother's apartment, however, because of her mother's complaints about her relationship with Robert Earnest. On December 7 Brian was returned to the McCanns, and he remained with them until January 7. During that month the mother had gone to live with her father and had become reconciled with Ed Smith. On January 7 she went to the McCanns' home and took Brian back with her to live with Ed Smith. Brian continued to visit the McCanns every weekend while he was living with Ed Smith. In February, 1978, Brian's father moved back into his parents' home. On April 19, 1978, the mother again left Ed Smith and both she and Brian moved into the McCanns' home. The mother only stayed a few weeks, however, when she was asked to leave by Mr. McCann because of her relationship with Tom Roberts, her latest boyfriend. The mother left the McCanns' home and went to live with Roberts; Brian remained with his father and the McCanns', and was still living with them at the time of the custody hearing.
The father testified that he was living with his parents in their three bedroom home in Julian. Brian and he shared one bedroom; his parents shared another; and his fourteen year old sister Patricia occupied the third bedroom. He testified that his job as truck driver required his absence from the home for three to four full days per week. During the time he was at work his parents and his sister took care of Brian. He admitted that he had not paid the hospital bills for Brian's birth until the time of the custody petition, and that he had been derelict in paying Brian's support. He also admitted that he had failed to visit Brian when he was first born, and that he had denied paternity.
[ 270 Pa. Super. Page 174]
The father's parents both testified that they wanted Brian to remain with them, and that the relationship between Brian and his father had grown stronger while Brian was living in their home. They testified that their working hours were 8:00 a. m. to 4:00 p. m. for Mr. McCann and from 5:30 p. m. to 1:30 a. m. for Mrs. McCann; Mrs. McCann also worked part time at the local post office. She testified that she soon would be leaving both jobs, however, and that she had already given notice. Patricia took care of Brian when neither her nor her father were at home. Mr. McCann was questioned about his health and admitted to having had a heart attack some eight years earlier and to having to use glycerine pills on occasion. Photographs of the interior and exterior of the McCanns home were offered in evidence.
The mother testified that she was living with Tom Roberts in a three bedroom house that he had purchased in Port Matilda. She said that they planned to get married as soon as Roberts's divorce was completed. Roberts ...