No. 2133 October Term, 1978 Appeal from the Order in the Court of Common Pleas of Lehigh County, Civil Action, No. 78-C-1059, Habeas Corpus.
Jeffrey R. Dimmich, Allentown, for appellant.
Michael L. Ozalas, Jim Thorpe, for appellee.
Price, Spaeth and Lipez, JJ. Spaeth, J., concurs in the result.
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This appeal is from the order of the court of common pleas granting custody of two minor boys, Chris, age 14, and Howard, age 16, to their stepmother, appellee. Appellant,
[ 273 Pa. Super. Page 194]
the natural father of the two children contends that the lower court order was error. We disagree and affirm the order of the court of common pleas.
The pertinent facts are as follows. Appellant, his sons, and the boys' natural mother all lived together until the mother died in July of 1972.*fn1 Appellant subsequently met appellee and married her in August 1973. The boys "graciously" accepted her into the family (N.T. 8a), and grew to regard her as a natural mother rather than a stepmother (N.T. 101a). Domestic discord between appellant and appellee developed early in the marriage, and the couple separated numerous times, with the final separation occurring in August of 1977. At that time, appellee left appellant's house and moved into a trailer park. She took the two boys along with her, after they had expressed a desire to live with her rather than with their father.*fn2 Since this move, appellee has been supporting the children alone,*fn3 despite an outstanding court order, which appellant has ignored, compelling him to furnish support for the children (N.T. 35a). At the custody hearing, both boys expressed a strong preference to remain in the custody of appellee.
In its opinion supporting the order awarding custody of the boys to appellee, the trial court found that the children had been closer to and had received greater care, affection and sustenance, both physical and psychological, from appellee, and it concluded that the best interests of the boys would be served by awarding their custody to her.
Appellant contends that under the standard established by this court in the case of In re Custody of Hernandez, 249 Pa. Super. 274,
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A.2d 648 (1977), he, as the natural father of the children in a custody dispute with a third party, i.e. the children's stepmother, has a prima facie right to custody which can be overcome only by the establishment of convincing reasons that the best interests of the children would be served by awarding their custody to her. The order of the trial court, appellant asserts, was in error because the testimony presented established no such convincing reasons. Without determining whether appellee properly fits within the meaning of a third party,*fn4 we hold that the ...