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MICHAEL J. MAHONEY v. B. KATHRYN MAHONEY (07/17/86)

filed: July 17, 1986.

MICHAEL J. MAHONEY,
v.
B. KATHRYN MAHONEY, APPELLANT



Appeal from the Order of the Court of Common Pleas, Civil Division, of Centre County at No. 1985-1222

COUNSEL

Steven S. Hurvitz, State College, for appellant.

H. Denning Mason, III, State College, for appellee.

Wickersham, Brosky and Watkins, JJ.

Author: Wickersham

[ 354 Pa. Super. Page 587]

Appellant, B. Kathryn Mahoney, appeals from the order of the court below awarding to appellee, Michael J. Mahoney, physical custody of the parties' son, Sean Michael Mahoney.

Appellant and appellee were married on August 30, 1974. It was the second marriage for each. Sean was born on July 27, 1975. During the marriage, appellant and appellee lived together with Sean and Benjamin Craighead, appellant's son from her prior marriage, in State College, Pennsylvania. Appellant, a clinical psychologist, taught at Pennsylvania State University on a parttime basis, and appellee was a professor of psychology at the same institution.

The parties separated in September of 1978, reconciled for a one year period in 1979 and then separated again in May of 1980. They divorced in December of 1980. Following their divorce, the parties agreed on a custody plan under which Sean would live with appellant from Wednesday to Saturday and with appellee from Sunday to Wednesday.

[ 354 Pa. Super. Page 588]

This arrangement was followed by the parties until appellee accepted a position on the faculty at the University of California in January of 1984, necessitating his move to Santa Barbara. The parties then negotiated an agreement under which Sean was to spend the school term, 1985-86, with appellant in Pennsylvania and summer vacation with appellee in California. This agreement could not be finalized, however, and appellee ultimately filed a petition for Sean's custody.

The Honorable Charles C. Brown, Jr., President Judge of the Court of Common Pleas of Centre County, upon consideration of the petition and testimony presented by both parties at a two-day hearing, entered an order granting joint legal custody to both parents and physical custody to appellee. The court subsequently stated reasons in support of its order, filed September 20, 1985, and issued an opinion, making findings of fact and conclusions of law on November 21, 1985. Appellant filed this timely appeal to our court presenting the following issues for our review:

I. Did the trial court err in awarding primary physical custody to the father in spite of the doctrine against separating siblings where no compelling reasons which favor separating the brothers were presented?

II. Did the trial court err in giving substantial weight to the slight preference of the child to live in California where there were no reasons offered in support of the preference, the preference was marked by ambivalence and where the testimony demonstrated that the preference was influenced by pressure from the father?

III. Did the trial court err in finding that the best interests of the child lie in an untested environment with the father where the testimony demonstrated that he was thriving in a ...


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