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MARSHA DRIBAN GRIEB v. MELVIN DRIBAN (02/15/83)

submitted: February 15, 1983.

MARSHA DRIBAN GRIEB
v.
MELVIN DRIBAN, APPELLANT. MELVIN DRIBAN, APPELLANT, V. MARSHA DRIBAN GRIEB



No. 1144 Philadelphia, 1982, Appeal from the Order of March 19, 1982, In the Court of Common Pleas of Montgomery County, Civil Division No. 82-1191, No. 1145 Philadelphia, 1982, Appeal from the Order of March 19, 1982 In the Court of Common Pleas of Montgomery County, Civil Division, No. 76-13850.

COUNSEL

Mitchel H. Sheinoff, Willow Grove, for appellant.

Richard S. Mailman, Jenkintown, did not submit a brief on behalf of appellee.

Cercone, President Judge, and Johnson and Montemuro, JJ.

Author: Cercone

[ 312 Pa. Super. Page 372]

These are appeals from an order awarding custody of a minor child to his mother, and, to that extent, modifying the prior award of custody to the father. Convinced that the court below accorded controlling weight to the minor's stated preference for his mother without conducting an inquiry on the record into the minor's reasons for such stated preference, we conclude that the lower court applied an incorrect legal standard in the determination of this matter.*fn1 As such, we vacate the order below with directions

[ 312 Pa. Super. Page 373]

    to the lower court to hold a hearing on this matter within thirty (30) days of the remand of the record in this case.

The parties, the natural parents of a minor child, John, were married and then divorced in 1976. On April 28, 1976, the Court of Common Pleas of Montgomery County, awarded custody of said minor to his father, appellant. John thereafter lived with his father until June of 1981, when John ran away to his mother in Ocean City, New Jersey. In December of 1981, John's father filed a custody action in the Chancery Division of the Cape May County Superior Court. That court awarded custody of John to John's mother until the end of that current school semester, and thereafter, until any subsequent order of the Montgomery County Court in the event John's mother commenced proceedings in Montgomery County within nine (9) days of that court's order. Proceedings in Montgomery County were so commenced and John has continued to reside with his mother during and since that time.

The lower court, the Honorable Horace A. Davenport, Judge, ruled:

The court below failed to give appellant any opportunity to make any such showing, however, ultimately holding:

A seventeen year old child, all he needs to do is tell me, "I prefer being with my father," period. "I prefer being with my mother," ...


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