No. 326 Harrisburg, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Franklin County, No. F.R. 1982 - 39.
Niles Benn, Dillsburg, for appellant.
Ronda Faye Somers, appellee, in propria persona.
Wickersham, Wieand and Cercone, JJ.
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Larry D. Somers, in an appeal from an order granting him visitation with three children, challenges the reasonableness of a condition imposed by the court which disallows
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visitation "between the hours of 9:30 o'clock p.m., and 9:00 o'clock a.m., in the presence of Mrs. Marilyn Bowers or any other member of the opposite sex to whom he is not related by blood or marriage." We will cause the order to be modified and as modified will affirm the order granting visitation.
Larry D. Somers, appellant, and Ronda Faye Somers, appellee, were married in 1969 and thereafter became the parents of three children: Todd, born December 28, 1969; Heather, born January 14, 1975; and Jaime, born September 5, 1978. The parties were separated in March, 1981, after which the children continued to live with their mother in New Franklin, Franklin County. Immediately following separation, appellant moved into the home of his parents in Chambersburg. This arrangement continued only for a short period, and appellant then took a two room apartment in Dillsburg, York County. While appellant resided with his parents, appellee had no objection to a liberal and flexible schedule for visitations by appellant. After appellant had moved to Dillsburg, however, appellee objected to visitations outside of Franklin County because appellant's girl friend, a divorcee with two children, resided in Dillsburg. Appellant respected appellee's wishes and visited his children in appellee's home; but he filed a petition seeking a court order allowing broader visitation. After hearing, the court entered an order confirming primary custody in appellee and granting appellant rights of visitation on alternating weekends and for two weeks during each summer vacation period. The court also imposed the restriction which appellant finds objectionable.
"In a visitation proceeding, as in one for custody, the singular concern is the interest and welfare of the children involved." In re Stuck, 291 Pa. Super. 61, 63, 435 A.2d 219, 220 (1981), citing Commonwealth ex rel. Barbara M. v. Joseph M., 286 Pa. Super. 51, 428 A.2d 567 (1981). In Bury v. Bury, 312 Pa. Super. 393, 458 A.2d 1017 (1983), we said:
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"We recognize that in matters such as the hours of a visitation, great deference should be given to the hearing judge, who is in a better position than we to assess the particular circumstances. However, we must also recognize that to fulfill our own responsibility, we should not accept a finding that is not supported, or is contradicted, by the record."
Id., 312 Pa. Superior Ct. at 397, 458 A.2d at 1019, quoting Scarlett v. Scarlett, 257 Pa. Super. 468, 473, 390 A.2d 1331, 1334 (1978). See: Nancy E.M. v. Kenneth D.M., 316 Pa. Super. 351, 357, 462 A.2d 1386, 1389 (1983). A parent's visitation rights should not be limited in the absence of record evidence that the parent "possess[es] such severe mental or moral deficiencies as to constitute a grave threat to the welfare of the child." Id., citing Commonwealth ex rel. Peterson v. Hayes, 252 Pa. Super. 487, 381 A.2d 1311 (1977). "[A] parent may not be denied custody or even visitation solely because of an involvement in a meretricious relationship." Commonwealth ex rel. Drum v. Drum, 263 Pa. Super. 248, 250, 397 A.2d 1192, 1193 (1979), citing Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976) and Commonwealth ex rel. Sorace v. Sorace, 236 Pa. Super. 42, 344 A.2d 553 (1975). See: Brooks v. Brooks, 319 Pa. Super. 268, 275, 466 A.2d 152, 156 (1983). Reasonable conditions, however, may be imposed upon visitations by a parent. Commonwealth ex rel. Drum ...