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JAMES JOHN M. v. ANNA MARIE M. (09/28/84)

filed: September 28, 1984.

IN THE INTEREST OF JAMES JOHN M., A MINOR. WALTER GEORGE M.,
v.
ANNA MARIE M., APPELLANT



No. 973 Pittsburgh, 1981, Appeal from the Order of August 28, 1981 in the Court of Common Pleas of Cambria County, Civil Division, No. 1975-899-J-66-75.

COUNSEL

W. Patrick James, Johnstown, for appellant.

Stephen L. Dugas, Johnstown, for appellee.

Cercone, President Judge and Wieand and Beck, JJ. Wieand, J., concurs in the result.

Author: Cercone

[ 333 Pa. Super. Page 419]

This appeal is taken from the order of the Court of Common Pleas of Cambria County granting custody of James John M., a ten year old boy, to his father; Walter George M., the instant appellee. Appellant, Anna Marie M., the maternal grandmother of James and the person with whom he has resided since the death of his natural mother in December, 1974, argues that the hearing judge below erred in framing the custody issue pending before the court in terms of the absence of convincing reasons why appellee-father should be deprived of his prima facie right to custody of his child. In addition, appellant urges that the record contains factors overlooked by the hearing judge which afford the court with convincing reasons why custody of the child should remain with appellant.

James is the sole child resulting from the marriage of appellee and the late Barbara M., appellant's daughter. James was born on September 24, 1971 and resided with his parents until the death of his mother on December 15, 1974;

[ 333 Pa. Super. Page 420]

    circumstances indicated that her death may have been caused by strangulation. Immediately subsequent to his mother's death, he lived with his parents' neighbors, but since that time James has resided continuously with appellant.

On February 3, 1975, appellant filed a petition with the Court of Common Pleas of Cambria County for award and confirmation of custody, to which appellee responded with a habeas corpus petition. The petitions were consolidated by the lower court which, after conducting a hearing, entered an order, dated March 22, 1976, continuing the custody of James in appellant subject to the visitation rights conferred upon appellee.

Subsequently, on August 31, 1976, appellee married his present wife, Deborah N., who had custody of two young children from a previous marriage. From this union was born a child, Michael.

Following his marriage to Deborah N., appellee, on December 17, 1977, filed a petition for a rehearing with the lower court. The court conducted two hearings and ruled, on June 2, 1978, that convincing reasons remained to justify the belief that James' best interests would be served by denying appellee's petition and by continuing custody in appellant, maternal grandmother. Appellee appealed from that decision to the Superior Court. We remanded the case with instructions that the court below render a more detailed opinion. Pursuant to our directive, the court conducted yet another hearing on August 8, 1979, ruling upon the conclusion of that proceeding that custody of James should continue to reside in his grandmother.

Finally, the matter was placed once again in the hands of the Court of Common Pleas of Cambria County when both appellant and appellee filed petitions for rehearing. Having conducted the requested hearing, the lower court, by order and opinion dated August 27, 1981, ruled that James' best interests could be adequately accommodated in the households of either appellant ...


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