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DAVID NIADNA v. ROBERTA NIADNA (06/14/85)

filed: June 14, 1985.

DAVID NIADNA, APPELLANT,
v.
ROBERTA NIADNA, APPELLEE



Appeal from Order of the Court of Common Pleas, Civil Division, of Schuylkill County, No. S-609-July Term, 1973.

COUNSEL

William R. Mosolino, Orwigsburg, for appellant.

J. Robert Zane, Schuylkill Haven, for appellee.

Wieand, Watkins and Geisz,*fn* JJ.

Author: Wieand

[ 343 Pa. Super. Page 300]

The sole issue in this appeal is whether the hearing court abused its discretion by awarding to the natural mother of a twelve year old girl a right of summer visitation for three weeks at the mother's home in California after the mother had failed to exercise visitation rights under a prior court

[ 343 Pa. Super. Page 301]

    order for almost ten years. We conclude that there was no abuse of discretion and affirm.

David Niadna, the appellant, and Roberta Niadna Emsley, the appellee, were married on November 23, 1968. Roberta was then sixteen years of age, and David was twenty-one. A female child, Heather, was born on July 9, 1972. Marital discord arose, and the parties separated during the summer of 1973 and were divorced in March, 1975. By order of court entered October 14, 1975, custody of Heather was awarded to her father, with weekend and holiday visitations awarded to her mother.*fn1 By that time, Roberta had remarried, and shortly thereafter she moved to California. Still later, Roberta was divorced a second time and again remarried. She presently lives with her third husband and their three sons in southern California. Meanwhile, David remarried also and was again divorced. He now lives with his third wife and Heather in Nuremberg, Schuylkill County.

During the intervening years, according to Roberta's testimony, she attempted to keep in touch with Heather by letters, cards and gifts.*fn2 Between April, 1977 and December, 1978, David sent several photographs of Heather to Roberta, and in August, 1978, Roberta attempted to visit her daughter in Schuylkill County. She was turned away by David. Early in 1983, Roberta wrote to David and requested that she be permitted to visit her daughter at a mutually satisfactory time and place. Her request was ignored. In February, 1984, she filed a petition seeking a modification of the prior visitation schedule so that she might visit her daughter. She conceded that David had been a good parent and did not seek to alter the order of permanent custody. After hearing, the court ordered visitation in California for three weeks in the summer of each year, to commence in August, 1984. The court also directed

[ 343 Pa. Super. Page 302]

    visitation in Pennsylvania at times to be agreed upon by the parties. David appealed.*fn3

Courts do not sanction the estrangement of a child from either parent. Commonwealth ex rel. Newcomer v. King, 301 Pa. Super. 239, 247, 447 A.2d 630, 634 (1982). Therefore, visitation rights of a non-custodial parent will be guarded carefully. In re Lisa and Cynthia, 287 Pa. Super. 255, 259-260, 429 A.2d 1197, 1199 (1981); Spells v. Spells, 250 Pa. Super. 168, 175, 378 A.2d 879, 883 (1977). As a general rule, the fact that a parent has delayed in asserting his or her rights of visitation will not serve as a bar to the right to visit with his or her child. In re Lisa and Cynthia, supra, 287 Pa. Super. at 259, 429 A.2d at 1199; Fernald v. Fernald, 224 Pa. Super. 93, 95, 302 A.2d 470, 471 (1973). A parent will be denied visitation only in those instances where the record shows that the parent is severely mentally or morally deficient so as to constitute a grave threat to the child's welfare. Somers v. Somers, 326 Pa. Super. 556, 559, 474 A.2d 630, 631 (1984); Hughes v. Hughes, 316 Pa. Super. 505, 508, 463 A.2d 478, 479 (1983). See also: Lewis v. Lewis, 271 Pa. Super. 519, 522, 414 A.2d 375, 376 (1979), cert. denied, 449 U.S. 877, 101 ...


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