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DANIEL K. D. v. JAN M. H. (FORMERLY D.) (06/18/82)

filed: June 18, 1982.

DANIEL K. D., APPELLANT,
v.
JAN M. H. (FORMERLY D.)



NO. 1588 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division of Cumberland County at No. 1245 of 1977.

COUNSEL

Thomas J. Williams, Carlisle, for appellant.

Wayne F. Shade, Carlisle, for appellee.

Cavanaugh, McEwen and Beck, JJ. McEwen, J., concurred in the result.

Author: Beck

[ 301 Pa. Super. Page 39]

Appellant, the natural father of two children, appeals an order of the Court of Common Pleas of Cumberland County which dismissed his petition to modify a court order awarding custody of his children to Appellee, the children's natural mother. We affirm.

Following their marriage in 1969, Appellant and Appellee had two children -- Alisa Marie born January 8, 1970, and Gwendolyn Ann born April 28, 1973. On January 3, 1976, Appellant and Appellee were divorced and agreed in writing inter se, each with the advice of counsel, that Appellee should have custody of their two children subject to certain visitation rights of Appellant. In April of 1980 Appellant filed a custody petition which caused the parties' custody agreement to be reformulated and incorporated into a consent order*fn1 issued by the court of common pleas on June 9, 1980, following an appearance by the parties before the court without a formal hearing. Pursuant to the consent order Appellee obtained "custody" of the children while Appellant acquired "temporary custody" of the children two of every three weekends during the academic year, four weeks during summer vacation, approximately one-half day of both Christmas and Easter, alternate children's birthdays and other holidays.

On April 9, 1981, Appellant filed a petition to modify the extant custody order, alleging that a substantial change in circumstances had occurred since the consent order was

[ 301 Pa. Super. Page 40]

    entered. After a three-day hearing during which Appellant, Appellee, the parties' current spouses, the two children, and numerous other witnesses testified, the court "confirmed" custody of the children in Appellee and dismissed Appellant's petition for modification.

Appellant argues on appeal that the court of common pleas erred (1) in placing the burden of proof solely upon him rather than equally upon both natural parents and (2) in evaluating the effect of the alleged changed circumstances upon the children's welfare.

The first inquiry in a custody modification proceeding is whether, since the entry of the existing custody order,*fn2 there has been a substantial change in circumstances that would justify a court's reconsideration of the custody disposition. Morris v. Morris, 271 Pa. Super.Ct. 19, 412 A.2d 139 (1979); In re Custody of Phillips, 260 Pa. Super.Ct. 402, 394 A.2d 989 (1978); Commonwealth ex rel. Hickey v. Hickey, 216 Pa. Super.Ct. 332, 264 A.2d 420 (1970), allocatur refused, May 25, 1970. The burden of proving a substantial change is upon the party seeking modification of the custody order. Commonwealth ex rel. Zaubi v. Zaubi (Zaubi I), 275 Pa. Super.Ct. 294, 418 A.2d 729 (1980), aff'd on other grounds, 492 Pa. 183, 423 A.2d 333 (1981) (affirmed under Section 5364(f) of the Uniform Child Custody Jurisdiction Act, 42 Pa.C.S.A. ยง 5364(f): jurisdiction declined by reason of petitioner's misconduct); Hickey.

In his petition for modification Appellant averred generally that circumstances had changed since entry of the consent order and averred specifically that Appellee intended to remove ...


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