No. 47 Pittsburgh, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. C 2133 of 1976.
Nikki Ann Tufano, Pittsburgh, for appellant.
John A. Knorr, Pittsburgh, for appellee.
Spaeth, Hester and Shertz, JJ. Shertz, J., concurs in the result. Decision was rendered prior to Shertz, J., leaving the bench of the Superior Court.
[ 294 Pa. Super. Page 260]
Presently before the court is appellant-father's appeal from the order of the lower court awarding general custody of the parties' minor children (Carrie, born 8/2/73 and James, born 3/31/75) to the appellee-mother.*fn1
The relevant facts may be summarized as follows:
The appellant, Scott McCann and the appellee, Nancy Domian were married on January 11, 1973. Two children were born of the marriage: Carrie Lynn, born August 2, 1973 and James Scott, born March 31, 1975. A final separation between the parties occurred in July, 1976 and a decree in divorce issued on July 27, 1977. Pursuant to an agreement between the parties, the appellee/mother retained custody of the children with partial custody in the appellant/father. After the divorce, mother and children lived in
[ 294 Pa. Super. Page 261]
a two bedroom apartment for approximately 6 months until January 1, 1978 at which time they moved in with the maternal grandparents, for financial reasons.
The appellant, Scott McCann, married his present wife, Kathleen, in August, 1977. One child has been born of this marriage, who was 2 years of age at the time of the hearing. Kathleen's child of a prior marriage, age 4 at the time of the hearing, was also living with the McCanns.
In April, 1978 the appellee Nancy Domian, went to Florida for a short stay, leaving the children with their maternal grandparents, with whom they had been living. After exercising his normal weekend partial custody rights, the appellant/father failed to return possession of the children. In May, 1978, upon her return from Florida, the appellee and her father removed the children from the appellant's yard where they had been playing. The extent to which force was used in this instance is a matter in dispute. A short time later, in June, 1978, Scott and Kathleen McCann attempted to forcibly remove the children from the appellee while they were attending a fair with their mother and aunt at a department store parking lot. Assistance was rendered by store personnel and the McCandless Township police. Prior to this incident, a custody hearing had been scheduled for June, 1978. At that time, a consent agreement was reached between ...