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COMMONWEALTH PENNSYLVANIA EX REL. ALFRED A. DAVENPORT v. MONTGOMERY COUNTY CHILDREN & YOUTH SERVICES AND JOSEPH ZDUN AND ADA ZDUN (08/27/82)

decided: August 27, 1982.

COMMONWEALTH OF PENNSYLVANIA EX REL. ALFRED A. DAVENPORT
v.
MONTGOMERY COUNTY CHILDREN & YOUTH SERVICES AND JOSEPH ZDUN AND ADA ZDUN, H/W AND KATHY ANN DAVENPORT. APPEAL OF ALFRED A. DAVENPORT



No. 267 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 80-8418.

COUNSEL

Francis T. Dennis, Conshohocken, for appellant.

Catherine M. Lecky, King of Prussia, for Zdun, appellees.

Norman A. Klinger, Norristown, for Kathy Davenport, appellee.

Wieand, McEwen and Popovich, JJ. McEwen, J., files a concurring opinion. Popovich, J., files a dissenting statement.

Author: Wieand

[ 305 Pa. Super. Page 547]

After a full hearing in which a natural mother conceded that she could not care for a four-year-old daughter, the court awarded custody of the child to maternal grandparents in preference to the natural father. The father appealed. We reverse.

Kathy Ann Davenport, a female child, was born January 16, 1977. Her parents, who had been married on May 20, 1976, were separated in June, 1978 and divorced on December 6, 1979. Upon separation, Kathy Ann remained in the custody of her mother who, in turn, resided with her parents, Joseph and Ada Zdun. This housing arrangement continued until April, 1979, when Kathy Ann and her mother moved into an apartment in Norristown. They were joined there in December, 1979, by the mother's boyfriend. On January 17, 1980, because of confirmed reports of child abuse, Kathy Ann's mother signed a voluntary placement agreement giving custody of her daughter to Children & Youth Services of Montgomery County (CYS). That agency placed Kathy Ann with her maternal grandparents. On February 22, 1980, Kathy Ann was declared a dependent child by the Juvenile Division of the Court and placed in the temporary custody of CYS with the understanding that she would continue to reside with her maternal grandparents.

On May 14, 1980, Alfred A. Davenport, Kathy Ann's father, who had learned that his daughter was in the custody of CYS, filed a petition for custody. The maternal grandparents filed a cross-petition, and Kathy Ann's mother intervened. On July 17, 1980, following hearings, temporary custody was awarded to Alfred A. Davenport, Kathy Ann's

[ 305 Pa. Super. Page 548]

    father, but with partial custody in Kathy Ann's mother during the three days each week that her employment did not require her to be away from home.

On January 2, 1981, the maternal grandparents filed a new petition seeking custody of Kathy Ann Davenport. After hearing, an order was entered which awarded custody of Kathy Ann Davenport to her maternal grandparents but with visitation rights to the father.

As a general rule, a change in custody must be based upon a showing of a change in conditions. Commonwealth ex rel. J.J.B. v. R.A. McG., 283 Pa. Super. 185, 188, 423 A.2d 1050, 1052 (1980); Commonwealth ex rel. Swanson v. Barry, 199 Pa. Super. 244, 247, 184 A.2d 370, 372 (1962). At the time of the second hearing, Kathy Ann Davenport's mother was unemployed and did not have an apartment in which to live. The trial court also found that the joint custody arrangement previously ordered had not worked satisfactorily and that the child was ...


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