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KAREN ELLINGSEN v. CHARLES F. MAGSAMEN (12/28/84)

filed: December 28, 1984.

KAREN ELLINGSEN
v.
CHARLES F. MAGSAMEN, APPELLANT



No. 00322 HARRISBURG, 1983, Appeal from an Order in the Court of Common Pleas, Civil Division, of York County, No. 77-S-3037.

COUNSEL

Edward R. LeCates, York, for appellant.

Harry M. Ness, York, for appellee.

Wickersham, Watkins and Hester, JJ.

Author: Hester

[ 337 Pa. Super. Page 17]

This case involves a traditional custodial dispute between the mother and the father of two young children. Rebecca Ann was born on August 24, 1975, and Christopher Scott was born on January 14, 1977. The parties separated on September 20, 1977 and were divorced one year later. Since that time, the children have lived for extended periods of time with each parent and have been "snatched" at various times by the non-custodial parent. The order currently presented for our review awards shared legal and physical custody of the children to both parents, with physical custody of the minors to be retained by the mother during the academic school year, and custody to be transferred to the father during the summer months. Visitation is alternatively provided to the other parent during weekends and holidays. From this decision, the father appeals.

It is apparent from the procedural history and the past custodial arrangements in this case that both parties are concerned, loving parents who each desire very much to reside with their children. The children initially lived with their mother following their parents' separation. The father, who is domiciled in York, Pennsylvania, refused to surrender custody after a period of visitation, and caused the mother to institute legal proceedings to regain her children. By Order of Court dated April 20, 1978, custody of Rebecca and Scott was awarded to their mother with visitation rights granted to the father.*fn1

In February of 1981, the father violated the court order and retained custody of the children after a period of visitation. A Petition to Establish Custody was immediately filed by the father and served upon the mother who had moved to Baltimore, Maryland. Having unsuccessfully sought legal redress for the father's unlawful retention of the children, the mother ignored the hearing and planned to simply retain physical custody as soon as practical. The father was, in fact, awarded legal custody with visitation

[ 337 Pa. Super. Page 18]

    rights vested in the mother, and the mother thereafter refused to return the children after a visit in June of 1981.

Although the father attempted to enforce the court order, the mother had fled her residence and moved with the children about the country. When he discovered their presence in Baltimore during the Christmas holidays, he regained custody of the children.

From January, 1982, until December, 1982, there was little contact between the children and the mother, who spent that year furthering her education so as to enhance her employment prospects. In December, 1982, she filed a Petition for Custody, and was immediately awarded temporary visitation rights. Following a full hearing in June, 1983, the court entered the shared custody award which is the subject of this appeal.

The father, appellant herein, advances two issues for our review. He initially challenges the lower court opinion as lacking a thorough and comprehensive analysis of the record and specific reasons for its ultimate decision. Secondly, he questions whether the lower court's decision serves the best interests of ...


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