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filed: December 21, 1979.


No. 965 October Term 1979, Appeal from the Order of the Court of Common Pleas of Montour County, Civil Division, No. 89-1978.


Donald F. Driscoll, Bloomsburg, for appellant.

John A. Mihalik, Bloomsburg, for appellee.

Spaeth, Hester and Cavanaugh, JJ. Hester, J., files a dissenting statement.

Author: Spaeth

[ 273 Pa. Super. Page 286]

The lower court granted a father's petition for custody of his minor son, Todd. The mother appeals, contending that the lower court erred and that the best interests of Todd will be served by granting custody to her.

The father was eighteen and the mother was sixteen at the time of their marriage in May 1975. Todd, their only child, was born in November 1975. The parties separated in the fall of 1977 and were later divorced. After the separation the father went to live with his parents in their home on Elm Street in Danville, and the mother and Todd went to live with David Diehl, a friend of the mother's, at Diehl's father's house in Danville. The father filed a petition for custody of Todd in February 1978. On March 30, 1978, upon stipulation and agreement of the parties, an order was entered granting custody of Todd to the mother with extensive visitation to the father, including five weeks of visitation during the summer. In August 1978 the father filed a petition asking that the order of March 30th be modified to grant custody of Todd to him. A hearing was held on this petition on January 10, 1979, and on April 26, 1979, the lower court filed an opinion and order awarding custody of Todd to the father. This appeal followed.

The testimony offered at the custody hearing of January 10 was as follows.

[ 273 Pa. Super. Page 287]

Evelyn Lewis, a Children and Youth Services Director for Montour County, testified as to her investigation of the Diehl home and her interview with Todd's mother. Ms. Lewis testified that the home was located in a sparsely populated rural area and was occupied by David Diehl, his father Nelson Diehl, Todd, and Todd's mother. todd had his own room. David Diehl and the mother were living as man and wife, although not legally married. The mother served as a housekeeper for the Diehls and was paid sixty dollars per week for this. From her interview with the mother, during her visit, Ms. Lewis learned that the mother, David Diehl, and Todd would often attend motorcycle meets on weekends. They would sometimes travel to these meets in their van and sleep overnight in the van. Occasionally they would stay at a motel. Ms. Lewis described Todd as a very relaxed and precocious youngster, and said that his "relationship [with the mother] was good . . . [t]he child is thriving." She could not offer an opinion as to Todd's relationship with his father, as she had not observed them together. She did investigate the father's home, but no testimony was elicited from her with respect to it, nor is there otherwise any evidence concerning her investigation in the record before us.

The father testified in his own behalf. He worked five days per week from eight in the morning until five thirty at night, and was living in his parents' home with them and his younger brother. He testified that he had been paying $86 per month in support and that he had always been punctual with the payments. He described his parents' home as a three bedroom house with a very large yard. The house is located only three blocks from an elementary school and there are other families with small children in the neighborhood. He said that his parents and brother got along very well with Todd. On cross-examination he admitted that he often went out drinking at night.

The paternal grandfather testified that Todd and the father got along very well while Todd was staying at his house during the five week visitation in the summer of 1978.

[ 273 Pa. Super. Page 288]

Todd fell and broke his leg while visiting. The paternal grandmother testified that her work schedule could and would be arranged so that someone in the family would always be home with Todd.

The mother testified in her own behalf. She said that she and Todd were now living with David Diehl in Danville. They had moved out of Diehl's father's home in December 1978, and had purchased a two bedroom trailer and a ten acre lot and were starting a home of their own. She testified further that neither she nor Diehl were in a hurry to marry but that they would like to get married and have a child within a year or two. She said that they would probably be married before Todd started school "to make stable parents for him while he's in school." She also said that she and ...

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