No. 2405 October Term, 1979 Appeal from the Order of the Court of Common Pleas of Lackawanna County, Civil Division, No. 722 May Term, 1978.
Louis S. Criden, Philadelphia, for appellant.
Charles W. Craven, Scranton, for Commonwealth, appellee.
Wickersham, Hoffman and Van der Voort, JJ.
[ 283 Pa. Super. Page 186]
Appellant-mother contends that the lower court improperly awarded the parties joint custody of their minor son less than two weeks after denying appellee-father's petition for a writ of habeas corpus. We are unable, however, to consider the merits of her appeal because the record is incomplete in several critical respects. Accordingly, we vacate the order of the lower court and remand the case for proceedings consistent with this opinion.
The parties' son was born on December 23, 1973. The parties, formerly husband and wife, separated shortly thereafter,*fn1 and in March, 1974, the lower court awarded custody of the child to the mother. At that time both of the parties resided in or around Scranton. In August, 1977, the lower court amended its previous order, but continued custody in the mother.*fn2 In May, 1978, the father filed a petition for habeas corpus which the lower court denied in an order dated September 11, 1978.*fn3 On July 11, 1979, the father filed the petition for a writ of habeas corpus at issue in this appeal. In that petition the father alleged specific changes in circumstances which he claimed warranted either a grant of custody to him alone or to the parties jointly. Among the changed circumstances specified in the petition was the mother's move to Philadelphia to attend law school. The lower court conducted hearings, and on October 24, 1979, denied the father's petition. In an opinion accompanying its order, the court carefully evaluated the evidence presented
[ 283 Pa. Super. Page 187]
at the hearings and concluded: "[W]e fail to find that [the father] has proven a substantial change in circumstances affecting the best interests and welfare of this child sufficient to require modification of the prior order" of custody. Nevertheless, twelve days after denying the father's petition, the court entered an order sua sponte*fn4 which read, in pertinent part, as follows:
AND NOW, this 5th day of November, 1979, in consideration of the change of residence of the child to Philadelphia and in consideration of the mandate of Scott v. Scott, 240 Pa. Super. 65, 368 A.2d 288 (1976) in cases such as this, the Order of this Court dated October 24, 1979 is hereby vacated sua sponte and the Order dated September 11, 1978 is modified as follows:
1. Joint custody of [J. J. B., Jr.], a minor child, be and is hereby awarded to the child's natural mother, [R. A. McG.], and [J. J. B., Sr.], the child's natural father. Visitation rights as such are hereby vacated and abolished.
The remainder of the order directed the parties to cooperate regarding necessary medical ...