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COMMONWEALTH PENNSYLVANIA EX REL. KATHERINE G. BOWERS v. DAVID WIDRIG (08/12/83)

filed: August 12, 1983.

COMMONWEALTH OF PENNSYLVANIA EX REL. KATHERINE G. BOWERS
v.
DAVID WIDRIG, SR. APPEAL OF KATHERINE G. BOWERS



No. 2898 PHILADELPHIA, 1982, Appeal from an Order Entered September 13, 1982, in the Court of Common Pleas, Civil Division, of Northampton County, No. 1981-C-10013.

COUNSEL

David A. Scholl, Bethlehem, for appellant.

David Widrig Sr., appellee, in propria persona.

Hester, Cavanaugh and Popovich, JJ.

Author: Hester

[ 318 Pa. Super. Page 201]

Once again, we are confronted with a final custody order which rests upon a woefully inadequate record. Due to the fact that the lower court failed to make a comprehensive and searching inquiry into the custodial fitness of the contestants, we are constrained to remand.

The factual and procedural history of this case must be highlighted in order to understand the need for a more thorough hearing. The parties were married in 1970 and divorced in 1972; however, they continued to live together on an intermittent basis following their divorce. Three children resulted from their relationship: David, born July 27, 1970, Cheryl, born March 27, 1972, and John, born April 2, 1973. At all times when the parties were not living together, the mother, appellant herein, had sole custody of the children until August 29, 1981.

On that date, appellant left the children in the care of a babysitter. It is unclear from the record, but apparently the children were removed by their father, appellee herein, to his household. He thereafter retained custody of the three children. Appellant instituted an action in habeas corpus on November 6, 1981, to regain custody of her children. However, on November 20, 1981, a consent order was entered which stipulated that the father was to retain custody of the children provided that the mother be permitted reasonable visitation rights.

On December 8, 1981, appellant filed a petition to modify the order of November 20, 1981, based upon David's and Cheryl's expressed desire to remain with her. On January 8, 1982, the court ordered home evaluation of both parties to be conducted by the Children and Youth Division of Northampton County, with interim custody of the three

[ 318 Pa. Super. Page 202]

    children remaining with appellee. Appellant was granted more liberal visitation rights on March 19, 1982, pending final resolution of the custody matter.

In the early morning hours of July 18, 1982, David and Cheryl, along with bags containing their clothing, were deposited on a street near their great-grandmother's home by appellee's girlfriend.*fn1 Appellant, who was temporarily residing in Texas at that time, immediately returned and resumed caring for her two children. Custody of David and Cheryl has since remained with appellant and is not sought by appellee. However, appellee retained custody of their youngest child, John, and it is custody of this child which is the basis for this action.

On July 23, 1982, appellant filed a petition to modify the interim order which had previously awarded custody of the three children to appellee. At a conference on this matter, a Special Master recommended that temporary custody of John be awarded to appellant, however, appellee refused to agree to this suggestion. The temporary custody of this minor was the subject of a hearing on August 20, 1982, in the Court of Common Pleas in Northampton County. The hearing, scheduled on the Miscellaneous Hearing List, was limited to one hour. At the conclusion of the hearing, the trial judge announced that he would not transfer custody of John on a temporary basis, but would instead render ...


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