No. 2734 October Term 1978 Appeal from the Order in the Court of Common Pleas of Northumberland County, No. CV-78-1793., Civil Action, Law.
Delano M. Lantz, Harrisburg, for appellant.
Marvin Rudnitsky, Selinsgrove, for appellee.
Spaeth, Brosky and Van der Voort, JJ. Van der Voort, J., files a dissenting statement.
[ 277 Pa. Super. Page 582]
This appeal arises from an order granting custody of appellant's daughter, Juliet, to appellee, her mother.
-- HISTORY OF THE CASE --
The parties were married on July 12, 1969, and lived in Sunbury, Pennsylvania, where appellant was a senior high school teacher, and appellee participated in semi-professional theatrical productions. Juliet was born on May 10, 1971, and is the only child of the marriage. Marital problems arose, and in the fall of 1973 the parties separated. Appellant remained in Sunbury; appellee took Juliet with her to New York. Appellant's consent to appellee's custody of Juliet was memorialized in a written agreement between the parties dated December 7, 1973. On January 4, 1974, appellee obtained a divorce from appellant.
From the date of the parties' separation until October 1975, Juliet was with appellee. During this period, appellee received from appellant $20 a week in support, which was supplemented by public assistance. Appellant visited Juliet occasionally. By September 1975, appellee had decided that to escape her poverty she would enlist in the armed services. When she was informed that she would not be allowed to keep Juliet with her during the initial six to eight months after enlistment, she asked appellant to assume temporary custody of Juliet for this period. Appellant refused, stating that he would take Juliet only if his custody were made "permanent." Appellee reluctantly acceded to appellant's terms, and on October 4, 1975, the parties entered into a
[ 277 Pa. Super. Page 583]
second written agreement, this one giving appellant "permanent custody" of Juliet. Soon thereafter Juliet moved into appellant's household.*fn1 About this time, appellee was accepted into the United States Navy on a delayed enlistment basis, and on May 7, 1976, she entered active service.
From October 1975 to the present, Juliet has been living with appellant, appellant's new wife, Susan, and Ryan, Susan's son by a previous marriage.*fn2 Also appellant and Susan have had a daughter, Brooke, who was four months old at the time of the hearings below. It is clear from the record that appellant has taken good care of Juliet. Juliet is doing well in school, has friends in the neighborhood, and appears to be happy. She has her own bedroom painted in her favorite colors and characters. She and Ryan, who is approximately eighteen months younger than she, are fast playmates, and she is proud of her new sister Brooke. Appellant has been a good father, who spends his evenings at home (except when he has a meeting to attend), takes his family on outings to state parks and the seashore, spends time playing with his children, organizes family activities, and is providing for Juliet's moral education. Furthermore, he has demonstrated qualities that are appropriate for Juliet to emulate. He has a record of public service as an athletic coach, a foster parent, and chairman of Juvenile Court Services, has voluntarily undergone potentially fatal surgery to donate one of his kidneys to his sister, and has been honored on several occasions as teacher of the year in his district. Susan, in her own right, has provided proper care for Juliet, and both she and appellant make a concerted effort to avoid favoritism in their relationships with their children. Although Susan works as a learning disabilities
[ 277 Pa. Super. Page 584]
teacher, her working conditions are such that she has been able to respond immediately to emergencies in her family.
Appellee does not question appellant's fitness as a parent. Her position is that appellant is not serving Juliet's best interests because he has unreasonably interfered with Juliet's right to visit and spend time with her. As appellee forcefully stated during the hearings below:
I believe that I have been denied the right to see my child and that she has been denied the right to know me. I think that my position in her life has been blocked out, that I am invisible, and I am not regarded by her father and her step-mother. I am not taken into consideration and I believe that I have a great deal to offer Juliet . . . .
To understand this statement, it is necessary to summarize the evidence regarding the visits that have (and have not) occurred between Juliet and appellee since appellant was given custody of Juliet.*fn3
As already noted, Juliet moved into appellant's household in October 1975. The parties agreed that appellee would not see Juliet for several months after the move in order to allow Juliet time to adjust to her new surroundings. Appellee's first visit with Juliet was on December 14, 1975, for one day. Appellee then asked if she might see Juliet at Christmas, and appellant refused. Appellee then asked if she might have Juliet with her for a week in January, and appellant again refused. Appellant claimed the visits would be psychologically damaging for Juliet. Appellee then secured legal counsel to protect her right to visit Juliet. Through counsel's intervention, appellant ultimately permitted appellee to have Juliet from January 31 to February 8, 1976. It is noteworthy that at one point during the negotiations
[ 277 Pa. Super. Page 585]
between the parties concerning this visit, appellant suggested that appellee should take Juliet back permanently. Several days later, when appellee accepted the suggestion, appellant withdrew it.
Appellee's next visit with Juliet was in March. It lasted for a weekend, and evidently was without incident. After appellee entered the Navy on May 7, 1976, she did not see or communicate with Juliet for several months. Their next visits were on October 9-10 and December 10-12, 1976. These visits also were without incident, except that a dispute arose concerning appellee's request to visit Juliet at Christmastime. On December 12 appellant told appellee that she would not be permitted to visit Juliet at Christmastime. He withdrew the permission he had previously given, which understandably upset appellee, for she had already taken military leave to visit Juliet at Christmastime and had made arrangements with her family in connection with the visit. Appellee therefore again retained counsel, and eventually ...