173 Pa. Super. 124 | Pa. Super. Ct. | 1953
Lead Opinion
Opinion by
This is a habeas corpus proceeding involving the custody of a five year old child. The action was instituted by the natural mother against the respondents, who are no blood relation to the child, but who have had actual custody for over four years. The court below awarded custody to the relatrix.
Relatrix was married November 4, 1944 at the age of sixteen and gave birth to two children, one in 1945 and the one in question in June, 1947. In May, 1948 she and her husband separated and the children were placed in the home of a friend of the husband, who happened to be the daughter of respondents. The children remained with respondents’ daughter in Philadelphia for two months; then the younger one was given to respondents for a few months. Subsequently the husband took both children to Seattle, Washington, for a while; and finally, in November, 1948 the younger child was returned to respondents in Pittsburgh, where he has remained. During this period relatrix visited her relatives in New York and upon discovering that her two children had been taken to Seattle, Washington, set out for that state, arriving many months later. Once there, she secured, and has maintained, custody of her older child. In October, 1950 she came to Pittsburgh and, since that time, has vigorously sought custody of her younger child. The child’s father is, and has been, in the navy, stationed in Tennessee, and cannot possibly take care of his children.
The burden here rests upon respondents to establish that the order of the court below is, under the evidence, erroneous or based on a mistake of law. Commonwealth ex rel. Shaak v. Shaak, 171 Pa. Superior Ct.
Our primary concern is for the best interests and welfare of the child and custody will be awarded accordingly. In deciding that question, we are guided by the rule that prima facie the natural mother is entitled to custody, and departure from this rule will be allowed only by impelling reasons (Com. ex rel. Shelly v. Sigler, 172 Pa. Superior Ct. 207, 92 A. 2d 898), such as, for example, abandonment by the mother: Com. ex rel. Haller v. Hanna, 168 Pa. Superior Ct. 217, 77 A. 2d 750; neglect: Com. ex rel. Harry v. Eastridge, 172 Pa. Superior Ct. 49, 91 A. 2d 910; or moral laxity: Com. ex rel. Shaak v. Shaak, supra. No such compelling reasons of unfitness of the mother appear in this record. No charges of immorality were made against relatrix, nor were there any serious charges of neglect. Respondents rest their case wholly on allegations of abandonment and unfitness of the home relatrix would provide.
Relatrix was uncontradicted in her testimony that her husband threw her bodily from their home in Philadelphia; that, being without money, she then visited her mother in New York; that on her return she discovered her children were in the State of Washington and that she immediately set out for that state. She further testified that she was required to hitch-hike across the country and thus it took her many long months to arrive at her destination. When she arrived in Seattle she forthwith took possession of her older child and wrote to respondents in Pittsburgh demanding the return of the other child. Except for one letter sent by registered mail, she received no reply to several letters. She finally came to Pittsburgh, secured the help of the Legal Aid Society, and instituted these proceedings.
The fitness of relatrix’ present home is established by the evidence. She is now remarried, and living in the State of Washington with a husband who has signified his willingness to adopt both children. Reports from social agencies there indicate a very satisfactory reputation for relatrix’ husband and a good home. Respondents imply that the distance to Washington casts some doubt upon the desirability of relatrix’ home and of removing the child from the jurisdiction. We have, however, sufficient testimony to show the satisfactory qualifications of the child’s new surroundings and removal from the jurisdiction is not a controlling factor. Com. ex rel. Haller v. Hanna, supra.
We are presented, therefore, with a situation in which we must choose between two homes of equally good environment; nor can anything be said against
Judgment affirmed.
Dissenting Opinion
Dissenting Opinion by
I dissent from the majority opinion in this habeas corpus proceeding for the custody of the minor child Lawrence Kenneth Eastman. In the application of the rule that a mother has a prima facie right to the custody of a child of tender years, the welfare of the child has been totally ignored. The child was born on July 12, 1947, in Philadelphia, and, with the exception of the first six months, relatrix has not been with the child. In fact, she abandoned her two children in Philadelphia while her husband was serving in the United States Navy. Until November, 1950, she evidenced no concern about the child. The father of the child, who is still in the United States Navy, desires the custody of his son to remain with the respondents.
Relatrix now lives in the State of Washington with her second husband, who did not appear or testify in these proceedings. To conclude that it is proper to remove this child from his present surroundings where he has lived for nearly five years, without knowing relatrix, to an isolated farm in the State of Washing
It is not a matter of sympathy for respondents, but it is a vital factor in this child’s present and future well-being that he remain with respondents. The majority opinion concedes that the child may “suffer a
