188 Pa. Super. 313 | Pa. Super. Ct. | 1958
Opinion by
This is an appeal by Mildred M. Insogna, the appellant, mother of the minors, from the order of the Court of Common Pleas of Elk County, awarding custody of the minor children, Regina Galloway, age 7, and James Galloway, age 5, to the appellees, Harold Galloway, the paternal uncle, and Jeanne P. Galloway, his wife.
Charles Galloway and Mildred Galloway, now Insogna, were married December 10, 1939. Regina was born December 6, 1950 and James, April 4, 1952. Two older children, Robert was born on May 19, 1941 and Dolores on August 20, 1942. It was a stormy marriage and they separated in 1944. The two youngest children were left with the appellees and have been with them ever since. The older children were left with another paternal uncle and presently Dolores is living with her mother and Robert with his father.
In July, 1955 the parents were divorced and the same month, July 21, 1955, the appellant married Domenic Insogna. A child, Patricia Ann, was born of this marriage and at the time of the hearing was fifteen months old. Charles Galloway has not remarried.
The appellant had lived at 6707 Hamilton Avenue, Pittsburgh, Pennsylvania. Shortly before the hearing the Insognas rented and moved into a house having six rooms, three of which are bedrooms and a bath, located at 1108 South Braddock Avenue, Swissdale, Pennsylvania. Appellant, her husband, their infant-daughter and her daughter occupy the premises. The appellees own their oavii home on South Street, a residential area in Ridgway, Pennsylvania. The house has eight rooms, four of which are bedrooms and a bath. This is occupied by the appellees, the minors and two
The record discloses that the Galloway family have an excellent reputation in the community; and the court below found that the children were well and lovingly cared for and are well adjusted in the existing family situation. “It is basic and fundamental that the paramount consideration is the welfare of the children and that all other considerations, including the rights of parents, are subordinate to the children’s physical, intellectual, moral, spiritual and emotional well being.” Com. ex rel. McNamee v. Jackson, 183 Pa. Superior Ct. 522, 525, 132 A. 2d 396 (1957). “While natural parents have the primary right to a child’s custody, there is no fixed or invariable rule that a natural parent, even though of good moral character, is entitled to custody under all circumstances. Each case must finally rest and be determined by its own facts.” Com. ex rel. Kraus v. Kraus, 185 Pa. Superior Ct. 167, 170, 138 A. 2d 225 (1958). See also: Com. ex rel. Bradley v. Bradley, 188 Pa. Superior Ct. 108, 146 A. 2d 1452 (1958).
It may be presumed to be for the best interest of the child to be in the custody of its parents, and particularly the mother in the case of young children. Compelling reason must appear before a natural parent will be deprived of custody. Com. ex rel. Keenan v. Thomas, 151 Pa. Superior Ct. 131, 30 A. 2d 246 (1943). See also: Cochran Appeal, 394 Pa. 162 (1958), in which the Supreme Court reversed the decision of this Court, in 187 Pa. Superior Ct. 79, 142 A. 2d 499 (1958). In that case, however, the contest was between natural parents and an institution. We are,
The court below properly placed great emphasis on the failure of the appellant’s training and control of the older boy Robert, who was in her custody since the separation. It found that he “became involved in the juvenile court, was beyond the control of his mother, did not get along with his stepfather, Domenic Insogna, and left his mother and went to live with his father early in 1957 and has lived with him ever since.” Robert Galloway, who was sixteen at the time of the hearing, testified to the domestic turmoil and violence that he witnessed in the Insogna home. Most certainly the experience of Robert in the custody of his mother had considerable weight in the determination of what was best for the welfare of the youngest children. Domenic Insogna corroborated Robert concerning the turmoil and violence in the home. He testified that his wife struck him, cut him and scratched him and that while they were fighting the furniture was upset.
We are inclined to give great weight to the findings of President Judge Trambley, of the Court below, who had the opportunity of seeing and hearing the parties and the witnesses and is in a much better position to pass upon their ability and character than we are in examining the cold record. Com. ex rel. Knouse v. Knouse, 146 Pa. Superior Ct. 396, 22 A. 2d 618 (1941).
We believe the following findings of the court below are justified:
“21. That as a result of a private investigation into the affairs of the Insognas made by this court, the court takes judicial notice of the fact that about the month of April, 1957, Domenic Insogna filed a divorce action against his wife in Allegheny County, Pennsylvania and that this case was still pending at the time of the hearing, which fact was not revealed to the court by the petitioners.”
The appellant complains that the decision of the court below, in part at least, was based on information obtained by means of a private investigation. In Com. ex rel. Oncay v. Oncay, 153 Pa. Superior Ct. 569, 34 A. 2d 839 (1943), a child custody case, we said at page 570: “We must point out again . . . that reports of in
In Com. ex rel. Newel v. Mason, 186 Pa. Superior Ct. 128, 140 A. 2d 365 (1958), we awarded custody to foster parents as against the father on the paramount consideration of the welfare of the child, and held that custody orders have always been subject to modification, and the fact that the new marriage has existed only since 1954 and in view of the prior marital troubles of the parties, that at least for the present, and until more time passes to test this marriage, the welfare of the child can best be served by remaining in the home she knows and had learned to love. Here, the appellant’s remarriage took place in 1955 and there is evidence of almost current trouble and discord between the parties so that the same reasoning prevails. See also: Com. ex rel. McDonald v. McDonald, 183 Pa. Superior Ct. 411, 132 A. 2d 710 (1957).
Order affirmed.