403 Pa. 55 | Pa. | 1961
Opinion by
This appeal attacks the propriety and validity of an orphans’ court decree
A marriage, short in duration but long in unhappiness, is the background of this litigation. On September 27, 1956, after a two weeks’ courtship, Charles Bendrick, 38 years old, and Lillian Kish, 21 years old, were married. From that date until they were divorced on March 4, 1960 — three years and six months ■ — the couple lived together only three and one-half months. Of this marriage, two children were born; Evelyn Marie, born May 18, 1957 and Michael Charles (the child whose custody is contested) born January 1, or 4, 1959.
When the child, Michael Charles, was eight months old, Mrs. Bendrick (then separated from her husband), without her husband’s knowledge or consent but motivated by what she believed would be the child’s best interests, gave the child to a Reverend and Mrs. White, a married couple who were at the time personally unknown to Mrs. Bendrick. The Whites live in Dublin Township, Huntingdon County, where the Reverend White is the pastor of an Assembly of God Church. When the child was given to the Whites, the latter were informed that Mrs. Bendrick did not know her husband’s whereabouts. With the aid of counsel, the Whites sought, by mail, to inform the child’s father that the child was in their custody and to request his consent to an adoption of the child. A letter to this effect addressed to Mrs. Bendrick’s paternal home in Hummelstown, Pa. was allegedly remailed by Mrs. Bendrick to Bendrick’s paternal home in Andreas, Pa. Bendrick states that he never received this letter and that it was only after a long and diligent search that he was able to discover the whereabouts of his child.
Presumptively, a child’s welfare is best served when the child is in the custody of its parent or parents (Cochran Appeal, 394 Pa. 162, 165, 145 A. 2d 857; Com. ex rel. Harry v. Eastridge, 374 Pa. 172, 175, 97 A. 2d 350; Com. ex rel. Galloway v. Galloway, 188 Pa. Superior Ct. 313, 316, 146 A. 2d 383) and, prima facie, a parent is entitled to the custody of his or her child (Com. ex rel. Newel v. Mason, 186 Pa. Superior Ct. 128, 133, 140 A. 2d 365; Com. ex rel. McNamee v. Jackson, 183 Pa. Superior Ct. 522, 525, 132 A. 2d 396). However, the paramount and all important factor in child custody cases is the welfare of the child (Cochran Appeal, supra, 164; Com. ex rel. Graham v. Graham, 367 Pa. 553, 559, 560, 80 A. 2d 829; Com. ex rel. Horton v. Burke, 190 Pa. Superior Ct. 392, 395, 154 A. 2d 255) and, if such welfare will be best served by the award of the child’s custody to one who is not its parent, then the right of the parent may be forfeited: Com. ex rel. Children’s Aid Society, Gdn. v. Gard, 362 Pa. 85, 92, 93, 66 A. 2d 300; Com. ex rel. Lotz v. Lotz, 188 Pa. Superior Ct. 241, 246, 146 A. 2d 362; Com. ex rel. Kraus v. Kraus, 185 Pa. Superior Ct. 167, 170, 138 A. 2d 225. Our present task is to determine whether the welfare of this child will be best served by awarding its custody to the Whites or to Bendrick, the child’s father.
Furthermore, Bendrick’s proposed plan for the care and custody of this child is not impressive. Bendrick, a construction worker who travels about from one job to another and works only seasonally, ordinarily would be at his home only on weekends and the care of this child would fall for the most part on his brother and sister-in-law, aged 52 and 49 years respectively, .who live in Andreas, Pa., with Bendrick’s seventy-one year old mother. Even if his conduct improved, Bendrick would still not be in a position to properly and adequately care for this child and he would have to rely on others for that purpose. Bendrick’s plan for this child contains no assurance that the child’s best interest will be served; without such assurance a court is not justified in transferring the custody of this child.
In sharp contrast to what Bendriek has done in the past and proposes to do in the future for this child’s welfare is the child’s present environment. On the one hand, we have instability and insecurity; on the other, stability and security. The White home— wherein live not only the child and Whites but Whites’ five year old adopted daughter — furnishes this child with not only the appropriate physical and spiritual atmosphere conducive to the well being of the child but with the love and affection denied the child from his birth by his natural father. To substitute the child’s present environment for the nebulous and uncertain environment now suggested by
Bendrick raises the question of the religious difference between the child and Whites, the child having been baptized a Catholic and Whites being Protestants. Proper religious training of a child is most important and a factor which must be given the most serious consideration in child custody cases: Com. ex rel. Stack v. Stack, 141 Pa. Superior Ct. 147, 153, 15 A. 2d 76. However, such factor, while of great weight, is not controlling: Com. ex rel. Burke v. Birch, 169 Pa. Superior Ct. 537, 539, 83 A. 2d 426; Oelberman Adoption Case, 167 Pa. Superior Ct. 407, 415, 74 A. 2d 790. As a general rule, courts should endeavor to place the custody of a child with persons of the same religious faith, but, bearing in mind the paramount importance of the general welfare of the child, courts may, in the exercise of a sound discretion, place a child in the custody of persons of a different religious faith if the child’s welfare so demands. A proper religious atmosphere is an attribute of a good home and it contributes significantly to the ultimate welfare of a child. That a proper religious atmosphere prevails in Whites’ home is beyond question. Whether such atmosphere prevails in Bendrick’s home is not clarified by this record.
Decree affirmed. Costs on Bendrick.
Suit for the custody of the child was originally instituted in the common pleas court of Huntingdon County. The parties then stipulated that initial steps had been taken in adoption proceedings in the orphans’ court of that county and the common pleas count certified the custody suit to the orphans’ court. Under the Orphans’ Court Act of 1951, as amended (1951, August 10, P. L. 1163, art. Ill, §301(8) ; 1955, August 4, P. L. 302, No. 116, §1; 1956, February 10, P. L. (1955) 1022, §3; 1957, July 11, P. L. 791, §1; 20 P.S. §2080.301), the orphans’ court is given exclusive jurisdiction to determine “the right to the custody of a minor in connection with any proceeding for his adoption . . . .”
Bendrick himself last attended ckurch six months prior to the hearing and both his brother' and sister-in-law only infrequently attend services.