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ROBERT HEMENWAY v. SYLVIA HEMENWAY (02/27/81)

filed: February 27, 1981.

ROBERT HEMENWAY
v.
SYLVIA HEMENWAY, APPELLANT



No. 65 October Term, 1979, Appeal from Order of the Court of Common Pleas, Civil Division, of Tioga County at Nos. 1107 and 1110 of 1977.

COUNSEL

Lenore M. Urbano, Williamsport, for appellant.

Mark M. Wilcox, Philadelphia, for appellee.

Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Wickersham and Hoffman, JJ. Price, J., files a concurring and dissenting statement.

Author: Cavanaugh

[ 284 Pa. Super. Page 482]

The question before us is whether, absent a finding of dependency and full compliance with the Juvenile Act procedures, the lower court may properly award custody subject to the supervision of the County Children's Services. We hold that it may not.

The parties to this action, Robert and Sylvia Hemenway, were married to each other twice. Both marriages ended in divorce. During their first marriage Cammy was born and Robert, Jr. was born during their second marriage. This present action was commenced by a complaint for divorce and custody of both children filed by Robert Hemenway. Sylvia Hemenway filed an answer and counterclaim in divorce also requesting custody of both children. After hearings the lower court awarded custody of Cammy to her father and entered the following order as to the custody of Robert, Jr.: "The custody of Robert Hemenway, Jr., is awarded to the mother subject to supervision by the Children's

[ 284 Pa. Super. Page 483]

Services of Tioga County." Children's Services was not a party to this action. Mrs. Hemenway appeals from this order arguing that the lower court had no power to condition custody on agency supervision where an adjudication of dependency had not been made.

Mr. Hemenway does not challenge the award of custody, nor does Mrs. Hemenway appeal from the order of the Court insofar as it awards custody of Cammy to Mr. Hemenway. Therefore, we will only address the adjudication as to Robert, Jr.

The precise question raised by appellant was answered by this court in the recent decision of In re Frank, 283 Pa. Super. 229, 423 A.2d 1229 (1980), which is controlling here. In that case the mother petitioned the court for an order confirming her custody of two of her five children. The children's father did not oppose the petition. Following a hearing the court awarded custody to the mother subject to temporary supervision by Children's Services. However, the action had not been brought under the Juvenile Act, 42 Pa.C.S.A. ยงยง 6301 et seq. The procedures required by the Act were not followed nor were the children shown to be dependent. Thus we held that absent compliance with the Juvenile Act, the lower court was not empowered to order a disposition providing for the children's supervision. We stated:

The issue before us is . . . very narrow. It is this: When may the court, as a condition of a decree granting custody require the parent to submit to the intervention of an agency of the State ? And to this question, the Legislature has given a plain answer: The court may require submission to the intervention but if, and only if the requirements of the Juvenile Act are satisfied. And see Ellerbe v. Hooks, [490 Pa. 363, 416 A.2d 512 (1980)]; In re ...


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