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COMMONWEALTH EX REL. ROBERT W. SHEE AND CATHERINE P. SHEE v. RICHARD A. HOLEWSKI AND MARY ANN HOLEWSKI (01/11/83)

submitted: January 11, 1983.

COMMONWEALTH EX REL. ROBERT W. SHEE AND CATHERINE P. SHEE
v.
RICHARD A. HOLEWSKI AND MARY ANN HOLEWSKI, APPELLANTS



NO. 630 PITTSBURGH, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, of Beaver County, at No. 1923 of 1980.

COUNSEL

George E. James, Beaver Falls, for appellants.

John J. Petrush, Beaver, for appellees.

Cercone, President Judge, and Popovich and Van der Voort, JJ.

Author: Van Der Voort

[ 316 Pa. Super. Page 511]

This case involves the petition of Robert W. and Catherine P. Shee for visitation with their grandchildren, Matthew and Richie Holewski. On January 30, 1981, the lower court heard the testimony of eight witnesses, and, on February 4, 1981, ordered the grandmother to undergo counseling with Family Services, and ordered Family Services to prepare a written report for the court. On May 7, 1981, after considering

[ 316 Pa. Super. Page 512]

    the report, the lower court awarded visitation to the grandparents and established a visitation schedule for 1981 and 1982. The father and adoptive mother, Richard A. and Mary Ann Holewski, have appealed to our court from this order. The case was submitted to this panel on January 11, 1983.

Catherine Shee was the mother of Elena Holewski, who died on July 13, 1977, leaving two children, Richie and Matthew. Their father, Richard Holewski, married his present wife, Mary Ann Holewski, on May 27, 1978, and the couple have lived with the two children in question and with two children of Mary Ann's first marriage since this date. In July of 1980, Mary Ann legally adopted Richie and Matthew. Through mid-1980, appellants permitted appellees to visit with their grandchildren, and apparently strived mightily to maintain friendly relations with the grandmother. The testimony indicates that there was no friction between appellants and the grandfather, and also that one of the grandmother's sons visited frequently and was generally on friendly terms with appellants, even after the grandparents filed the petition initiating this case. Discord apparently ensued from the grandmother's inability to accept the fact that her daughter was dead and that the children had a new mother. The grandmother frequently argued with appellants, and evidently repeatedly upset the children by telling them that they should not call Mary Ann their mother. The youngest child developed a speech impediment, which only began to subside when appellants discontinued sending the children to the grandparents' house for visits. The record is full of evidence upon which the lower court might have based a denial of the grandparents' (or at least the grandmother's) petition. The lower court, however, granted "visitation" (actually partial custody) to the grandparents.

The paramount concern in any child custody or visitation dispute is the welfare and best interests of the child. Spells v. Spells, 250 Pa. Superior Ct. 168, 175, 378 A.2d 879, 883 (1977). Applying this principle is frequently very difficult,

[ 316 Pa. Super. Page 513]

    particularly when grandparents are involved. In Com. ex rel. Flannery v. Sharp, 151 Pa. Superior Ct. 612, 30 A.2d 810 (1943), the child's father died and the mother and child resided with the paternal grandparents for three years before the mother remarried. When the grandparents brought an action for partial custody, the lower court granted their petition, even though the testimony established the grandparents' "derogatory acts and conduct, their interference with the child's upbringing and the harmful effect upon the child." 151 Pa. Superior Ct. at 615, 30 A.2d 810. Our court reversed, stating:

Despite the fact that grandparents may have become so deeply attached to a child that it will be a real hardship to be deprived of his society, sympathy for them cannot be permitted to interfere with the best interest and future welfare of the child . . . . Such custody, as between parent and grandparents, must be exclusive and uninterrupted, even to the refusal of visitations, ...


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