Heaver v. Bradley

McWiixiams, J., delivered the opinion of the Court. This squabble over the custody of minor children has been going on for some years and quite likely it will continue for a few more years. Barbara Schell (appellant), now 43, is the only daughter of a successful Philadelphia lawyer. Her parents (her father died in 1961) were able to provide her with all of the necessities of life and many of its luxuries.

She was sent to expensive schools and exposed to the amenities of Philadelphia society. On 6 January 1945 she married Charles E. Bradley (appellee) to whom she had been introduced by her brother. On 6 August 1946 Charles Edward Bradley, Jr. (Chet) was born. His sister, Kendall Van Roden Bradley, was born 22 February 1949.

Peyton Stewart Bradley, who' is the casus belli in this skirmish, was born 26 November 1953. When the Bradleys separated in October 1957 it was agreed that appellant would have the custody of the children subject to appellee’s right to visit them at specified times. The terms of this agreement were not incorporated into the decree of divorce a vinculo which followed on 10 December 1957. Three weeks later appellant married Phillip Heaver, her present husband.

They have one child, Phillip, Jr., born 23 August 1959. Appellee’s second marriage, which took place about a year later, fell apart within six months. He married his third and present wife in November 1962. They now live in Montgomery County and she feels that their marriage, her first, is a “stable and happy” one.

She “enjoys her stepchildren” and she would be willing to give up her job at the World Bank in Washington “to maintain a home for them.” She has had no children. In the summer of 1964 the children visited appellee and his wife. From them he learned that appellant had become an alcoholic and that her husband, Phillip Heaver, during frequent fits of temper, would hurl at the two older children vulgar and obscene epithets and resort, on occasions, to physical violence. Appellee thereupon decided that he would keep the children and ²³⁵ to this end he rented a larger house in Bethesda and arranged for their admission to schools in Montgomery County.

On 4 August 1964 appellant entered Haverford State Hospital. The admission note states, “Chronic alcoholic with uncontrolled drinking and emotional instability. Antagonistic and compulsive behavior. Irresponsible care of young children due to uncontrolled drinking.

Filled with rage and hostility.” On 27 August 1964, while still a patient at the Haverford hospital, she filed a petition in the Circuit Court for Montgomery County praying, among other things, the return of the children to her. Appellee answered the petition and, justifying his refusal to return them, alleged that “it is no longer in the best interests of the children to be in the custody of” appellant. He cited her admission to the Haverford hospital and an admission to another institution for the treatment of alcoholism earlier in 1964. He further alleged that the children “steadfastly refuse to return to the * * * [appellant’s] home and desire to remain in the custody of * * * [appellee].” A day long hearing took place on 30 September 1964 the gist of which will appear in the following excerpts from Judge Shure’s comments: “Well now, Mrs. Heaver and Mr. Bradley, as we all know, these are very unfortunate and distasteful matters to deal with.

This is one of the times when I would be very happy not to be a Judge. I have children and grandchildren, and I have, over the years, before I went on the Bench, dealt with problems involving children and you never know whether you are doing the right thing at the time. I couldn’t help but feel very badly when I talked to these children, and all you had to do was to look at their fingernails. Both of these girls’ fingernails are bitten down as far as they can go.

Both of them. This didn’t come about just because of an alcoholic mother. This came about because these children have been raised to a large extent in a divorce atmosphere, and you both brought that about. That is over and done with long since, and you are both apparently happily married again and for ²³⁶ this we are all pleased, but the children will always have these scars. “Now what we are doing now is not something as the result of a complete hearing, but only pendente lite, just a temporary step until the case can be disposed of on its merits. “Now there are many things that go to make up the present decision which I am about to make.

First of all, I don’t criticize the father at all for doing what he did. I think if I had been the father I would have kept them in the home with the information he had, so he is not to be criticized at all, but we do have a series of circumstances which do not make the decision I have to make too difficult.” * * * “* * * Now money, of course, does not bring happiness and I am not suggesting that because one family makes more than the other that this helps the situation other than the bare physical surroundings. We might as well admit it once again, that everyone in this room is in a different social strata than most of the children in this country, and even in this rich County, where all live a little better.” * * * “We have a very tragic situation involving an alcoholic woman. It took a long time to realize she was one.

Now I have no idea whether she is going to change or not. She hasn’t had a drink for two months and she says, very sincerely I believe, on the stand that she does now understand her problem and is going to lick it.” * * * “If you want to say we take a chance, that is one way, I suppose, to look at it. I cannot, as a Judge in this situation, say that at this time we should not give her a chance. I can’t say, at this posture of the case, that this will not be in the best interest of the children.

I think the children now, at least two of them, do not want to go back with their mother. One of them is ²³⁷ very adamant about it, and one of them is, let’s say, lukewarm, and one of them is very mixed up. We won’t comment on that any further, but the children’s roots are back in Pennsylvania and the mother is back in Pennsylvania, and, at least as far as the two girls are concerned, pendente lite I think they will have to return to this mother. I want them returned immediately, so they can take up their schooling.” “If this woman starts drinking again, and Mr. Heaver, you cannot have a drink around the house at all, if you are going to help her or help the children.

No alcohol in the home at all. “I will just make this pendente lite with a February first date. If I have to reconsider it at that time. In the meanwhile, if this woman goes back and it comes to my attention that she is again drinking in front of these children, I will take them away from her very promptly, because she obviously cannot drink and shouldn’t drink in front of these children, but for their sakes, as well as for hers, I think they should go back, and I will sign the Order.” Judge Shure’s order, signed and filed 14 October 1964, awarded the custody of the two girls, Kendall and Peyton, to the appellant “pendente lite until February 1, 1965.” The appellee was given the custody of Chet, upon the same terms. The order also contained provisions for visitation by both parties.

On 19 November 1964 appellee filed a petition to modify the order of 14 October alleging continued drunkenness on the part of the appellant and her refusal to honor appellee’s visitation rights. There appears to have been a brief hearing in this regard which resulted in an order, 24 November 1964, revising appellee’s visitation rights. On 2 December 1964 appellee, in a petition to have appellant adjudged in contempt of court, alleged another refusal to honor his right to visitation. On 18 December 1964, more testimony was produced in open court.

Once again we resort to excerpts from Judge Shure’s comments: ²³⁸ “I hardly know where to start, because I have talked with all of these children, at great length. I don’t want to betray any confidence that they have placed in me, but it is obvious to me that whatever I say with respect to the observations of any of them, if I repeat it, there is going to be some reprisal, not in punishment, but it is going to be thrown up to' them and this is what they all made clear to me, so I am going to try to be very careful not to breach any confidence. “First, with respect to contempt, I have never found anyone in contempt of Court with respect to visitation rights, unless it should be shown that the person who is charged has actively participated in the refusal. “We have children, fifteen and eleven, girls. You can’t force a child to go with one parent or the other. You can only encourage them to do it and this is as far as you should go.

Now, if the Court ever finds out that one parent is deliberately refusing to let the other parent have this child then, of course, they are in contempt of Court, but there is nothing in this evidence that indicates that the mother participated in the refusal. As a matter of fact, the child came out to the car and went back in. The child just didn’t want to go. This