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DAVID A. MCANALLEN v. MARY E. MCANALLEN (04/12/82)

argued: April 12, 1982.

DAVID A. MCANALLEN
v.
MARY E. MCANALLEN, APPELLANT



No. 883 Pittsburgh, 1981, Appeal from the Order of September 3, 1981, Court of Common Pleas, Butler County, Civil Action, Law, No. MSD 79-154.

COUNSEL

Jane Fay L. Hepting, Chicora, for appellant.

Gwilym A. Price, III, Butler, submitted a brief on behalf of appellee.

Hester, Johnson and Popovich, JJ. Hester, J., files a concurring statement.

Author: Johnson

[ 300 Pa. Super. Page 407]

Appellant (Mother) appeals from an order granting custody of both daughters, Tina and Lisa, to Appellee (Father). The lower court denied Appellant's motion for a stay pending appeal, but our court, per MONTGOMERY, J., granted the stay to allow Appellant to have custody of Tina pending appeal. For the following reasons, we reverse the lower court's order regarding Tina.

[ 300 Pa. Super. Page 408]

I. FACTS

Appellant and Appellee were married in July, 1975, when Appellant was 16 years old and Appellee was 18 years old. Tina, their first child, was born on February 6, 1976; Lisa was born on September 12, 1978. Appellant and Appellee separated in November, 1978, and were subsequently divorced. When the custody order was entered on September 3, 1981, Tina was six years old and Lisa was almost three years old.

Appellee has remarried and is the father of a child who was 4 months old at the time of the hearing. Also, at the time of the hearing, Appellant had had a non-marital relationship with another man (Ed) for 2 years and 5 months. Ed and Appellant also have a daughter who is younger than Lisa. Both Ed and Appellant testified that they had postponed their marriage plans until Ed would have a job.

After her separation from Appellee, Appellant, together with Tina and Lisa, returned to her mother's home until April, 1979, when Appellant and Ed established their home together. On May 3, 1979, Appellee was ordered to pay support for Tina and Lisa. A few days later, Appellee refused to return the children to Appellant after the children had spent the weekend with Appellee. Two weeks later, Appellee returned Tina to Appellant because Tina did not want to stay with Appellee.

Appellee filed a petition for custody, and Appellant filed an answer and a cross-petition for custody. At a conference on January 30, 1980, a consent order, which granted custody of Lisa to Appellee and custody of Tina to Appellant, was signed by the lower court.

In February, 1980, after Appellee threatened to move to Texas with Lisa, both parties filed motions; and a second conference was scheduled for March, 1980, before a master. At the recommendation of the master, on March 14, 1980, the judge ordered home evaluations and psychological examinations and continued the proceedings. On August 15, 1980, another conference was held before the master who, after considering the aforesaid reports and evaluations, recommended

[ 300 Pa. Super. Page 409]

    that custody of Tina should remain with Appellant and custody of Lisa should remain with Appellee. After several continuances and other motions, a full custody hearing was commenced on April 30, 1981, and concluded on July 14, 1981. On September 3, 1981, the trial judge signed an order granting Appellee custody of both Tina and Lisa.

In addition to Appellant and Appellee, sixteen witnesses testified at the custody hearing. The former supervisor of the abuse unit for Children and Youth Services testified concerning Lisa's failure to thrive in April, 1979, as well as the evaluations of Appellant's home in late April/May, 1980. The witness testified that conditions in Appellant's home in 1980 were very good and that Appellant had "excellent control" over the children. The witness also testified that both children were functioning well in their respective homes and, consequently, she saw "no reason to uproot either of those children to perhaps satisfy the desires of the parents."

The Domestic Relations Officer/Home Study Investigator testified that Appellant and Ed lived in a "large and quite adequate" apartment. He described Appellant and Ed as "two very cooperative people who seemed [sic] to have a stable relationship with each other and with the children . . . ."

Both the Social Service Coordinator for the Headstart Program and Tina's Headstart teacher testified concerning Appellant's and Ed's intense involvement and volunteer work with Headstart. Tina's teacher also testified concerning the "good interaction" between Tina and Appellant. The Parent Involvement Specialist with Headstart testified regarding Appellant's leadership, her ability as an organizer, and her ability to relate very well with others on all levels.

The coordinator of the Parent Infant Center at Butler Hospital stated that both Appellant and Ed "do an excellent job" of parenting. The assistant coordinator of the Parent Infant Center described how Appellant always planned in advance to being ...


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