Commonwealth ex rel. Skyanier v. Skyanier

151 A.2d 817, 190 Pa. Super. 56, 1959 Pa. Super. LEXIS 615

• Court: Superior Court of Pennsylvania
• Decided: June 10, 1959
• Docket: Appeal, No. 174
• Status: Published

Opinions

Opinion by

Gunther, J.,

This appeal is from an order of the Municipal Court of Philadelphia, allowing visitation to Maurice Skyanier, father of a five yfear old daughter.

Maurice Skyanier and Lois Skyanier were married on December 22, 1951, and their daughter Cynthia was born on October 11, 1958. The parents were separated sometime in October 1958, and the wife and child went to live with the maternal grandparents, where they reside at the present time. On November 25, 1958, the father filed a petition for visitation, averring that he had made every effort to see his daughter, but that the mother refused him permission. The lower court, on January 21, 1958, made an order allowing the father to have the child from Friday to Sunday every weekend. The court was of the opinion that the best interest of the child will be served by maintaining a close relationship with both parents.

Has the lower court abused its discretion by making an order allowing the natural father the right of visitation and partial custody of his minor child on each weekend from 4:00 P.M. Friday, to 4:00 P.M. Sunday?

The record discloses that on December 8, 1958, counsel for the respondent stated to Judge Kallick as follows: “If there can be no reconciliation then I say to you, sir, it is Mrs. Skyanier’s position that she wants her daughter to know her father and, as far as possible, to have a normal relationship, as normal as possible with a broken home. Also, the young lady is 5 years of age. I have no objection to the husband seeing his daughter whenever he wants and without limitations.”

Both the petitioner and respondent live in the city of Philadelphia. The petitioner seeks custody of the child on weekends to take her to his home, where he is living with his parents. To this arrangement the respondent objects because she blames the petitioner’s parents for breaking up her marriage. She contends that her in-laws have a very undesirable effect on her daughter, causing her to become discontented and irritable. Arthur Kahn, father of the respondent, corroborated his daughter’s testimony concerning the condition of his granddaughter, when she returns from the weekend visits to the home of the paternal grandparents.

The paternal grandparents and a great aunt testified that they loved the child very much, and denied saying anything to the child concerning her mother, or upsetting her in any way.

There is no question of fitness of either parent in this case.

The lower court found that the respondent did not prove that the visits to the home of the paternal grandparents would not be to the best interest of the child.

The respondent testified that the petitioner loves his child very much, but complained that the child came home from these visits upset and nervous. The doctor to whom the child was taken advised that it could be a form of nervousness and nothing to get alarmed about, because children of her age have such tendencies.

Can the Appellate Court interfere when there has been no abuse of discretion?

In Commonwealth ex rel. Knouse v. Knouse, 146 Pa. Superior Ct. 396, 22 A. 2d 618, Judge (now President Judge) Rhodes stated as follows: “In this type of case we have recognized that weight is to be given to the fact that the parties are likely to be known to the lower court, and that it has had a better opportunity to pass upon their ability and character than we have.”

Judge Wright, in Leonard v. Leonard, 173 Pa. Superior Ct. 424, 98 A. 2d 638, held that although the children were emotionally upset after some of the visits at the court nursery, the Court does not consider this unnatural under the circumstances.

In determining the custody of a child, the normal relationship with both parents should be maintained. Commonwealth ex rel. Moss v. Moss, 159 Pa. Superior Ct. 133, 47 A. 2d 534.

In Commonwealth ex rel. Turner v. Strange, 179 Pa. Superior Ct. 83, 115 A. 2d 885, Judge Woodside states: “The appellant does not seek complete custody of the children, nor under the evidence would she be entitled to it. She does seek, and is entitled to the right to see her children. She asks that she 'be allowed the privilege of visitation and partial custody of the children one day a week and on alternate holidays.’ ” On page 87 of the same opinion, the Superior Court added that the lower court, better than we, can determine When, where, and under what circumstances visitations can best be made.

The hearing judge is the one who has an opportunity to observe the witnesses, to judge their motives, to observe their demeanor and to decide wherein lies the best interest of the child involved.

In the case of Commonwealth ex rel. Moore v. Moore, 172 Pa. Superior Ct. 255, 94 A. 2d 93, the lower court awarded custody of the child to the wife, subject to the direction that the child be delivered to the father on a specified Monday of each month and returned to the respondent the following Sunday. The order of the lower court was affirmed by this Court.

We agree with the lower court that to sustain the position taken by the respondent in this case would not serve the best interest of the child. In giving the father of the child the opportunity to see her for only a few hours at the home of the respondent mother would not be to the best interest of the child because of the ill feeling between the mother and father. We fail to see that the lower court abused its discretion in awarding partial custody to the father.

The order is affirmed.