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COMMONWEALTH EX REL. ALFRED A. DAVENPORT v. MONTGOMERY COUNTY CHILDREN AND YOUTH SERVICES AND JOSEPH ZDUN AND ADA ZDUN (07/08/83)

decided: July 8, 1983.

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



No. 21 E.D. Appeal Docket, 1983, Appeal from the Judgment dated August 27, 1982, of the Superior Court of Pennsylvania at No. 267, Philadelphia, 1981, Reversing the Order dated January 14, 1981, of the Court of Common Pleas for the County of Montgomery, at No. 80-8418, HABEAS CORPUS (Custody), Pa. Super. , 451 A.2d 781 (1982)

COUNSEL

Catherine Miraglia Lecky, King of Prusia, for appellant.

Norman A. Klinger, Francis T. Dennis, Jr., Norristown, for appellees.

Roberts, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., did not participate in the consideration or decision of this matter.

Author: Flaherty

[ 501 Pa. Page 473]

OPINION OF THE COURT

This is an appeal from an order of the Superior Court reversing a custody award entered by the Court of Common Pleas of Montgomery County in favor of the maternal grandparents with visitation rights in the father. Superior Court reversed, ruling that custody should be awarded to the natural father and remanding the cause to the lower court to set appropriate visitation rights for the grandparents. The grandparents sought review by this Court which was

[ 501 Pa. Page 474]

    granted, and, for the reasons that follow, we reverse the order of Superior Court, 305 Pa. Super. 545, 451 A.2d 781 (1982), and reinstate the hearing court's order.

Kathy Ann Davenport was born January 16, 1977, the daughter of Kathy and Alfred Davenport. Marital difficulties resulted in the separation of the Davenports in June 1978 whereupon mother and Kathy Ann moved into the home of the maternal grandparents, the Zduns. The Davenports were subsequently divorced on December 6, 1979.

In April 1979, Kathy Ann and her mother moved into an apartment; they were joined there in December, 1979 by the mother's boyfriend. On January 17, 1980, on confirmed reports of child abuse, Kathy Ann's mother signed a voluntary placement agreement giving custody of Kathy Ann to Children & Youth Services of Montgomery County (hereafter "CYS"). That agency placed Kathy Ann with her maternal grandparents.

After discovering Kathy Ann's residence with the grandparents, the father filed a petition seeking visitation on March 25, 1980. He visited Kathy Ann on four occasions through June, 1980. On May 14, 1980, the father filed a petition seeking custody; the mother intervened as an interested party and the grandparents cross-petitioned for custody. Following hearings, the father was awarded temporary custody, with partial custody in with the mother, Kathy Ann alternatively spending three days with her father, and three days with her mother. During the periods of partial custody of the mother, Kathy Ann usually stayed with her maternal grandparents.

During this period of shared custody, Kathy Ann appeared unhappy and developed nervous symptoms attributed to the constant shifting between households. All parties agree the child has not flourished under this arrangement. Kathy Ann's changed condition ...


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