157 A. 345 | Pa. Super. Ct. | 1931
Argued April 22, 1931. Appellant, the father of three minor children, now living with their maternal grandparents, instituted habeas corpus proceedings in the court below for the purpose of securing their custody. By this appeal we are asked to reverse the order of DOM, J., remanding *14 the children to the custody of the grandparents. Our duty in reviewing such proceedings is prescribed by the Act of July 11, 1917, P.L. 817, which directs that we "shall consider the testimony and make such order upon the merits of the case, either in affirmance, reversal, or modification of the order appealed from, as to right and justice shall belong." The case therefore falls within that difficult class of cases which demands of us the most careful, and indeed anxious, consideration; we are not reviewing a money judgment or one affecting the property rights of the parties but dealing with a situation in which the natural emotions of a parent and grandparents are factors and the ultimate welfare of the children is involved. We may not content ourselves with merely ascertaining whether there was evidence supporting the conclusions of the court below; in addition to considering the circumstances as they now exist, we must contemplate, as far as humanly possible, the probabilities of the future.
The decision of the learned judge of the court below was arrived at after a most careful consideration of the testimony and with the advantage of having seen and heard the parties. We know his opinion expresses the results of a conscientious effort to interpret the testimony fairly and apply thereto established principles of law, but, upon performance of our statutory duty, we cannot escape the conclusion that he has attached undue importance to a so-called "agreement" (hereinafter referred to) between the parents and grandparents relative to the custody of the children and has failed to give sufficient weight to the legal presumption (Heinemann's Appeal,
As a result, the father's visits to his children became less frequent and were finally discontinued and he did not see them until December, 1929, when he made demand for their custody. From December, 1927, appellant neglected to make the monthly payments and is now indebted to the grandparents in a sum of more than $2,000. With respect to this matter he testified that he owed the grandparents money but had "made them an offer of a monthly and partial payment, which they refused at the time," and continued: "Q. In November or December, 1929, when they demanded the money, did they say you could have the children if you paid the money they demanded? A. Yes; when I paid the money I could have the children." This testimony was not specifically denied by the respondents, but we find nothing in the evidence which would justify an inference that their motive in refusing to surrender the children was primarily mercenary. *17
Appellant married Miss Murphy on September 5, 1929, and they are now living in Edgewood in a new six-room, brick and tile house, with modern conveniences and furnished throughout. The lot has been conveyed to appellant and his wife, who furnished part of the money for its purchase; the record does not show how much is owing on the property. Excellent school facilities are within half a mile of the home. The fitness of appellant and his wife to have the custody of his children is not questioned in any way; he is a steady worker and has an annual income of approximately $2,200. His reply to the question whether he planned for the children when building the house was, "I did. Before the house was built it was planned with that idea that there would be room enough for these three children, and that is the way it was built." His present wife testified that it is her desire "to be a mother" to the children. On the other hand, the home of the grandparents is also a proper place for the rearing of the children; the grandmother and other members of the family are entitled to unreserved commendation for the manner in which they assumed and have discharged the responsibility of their care and education. The grandfather and his son are engaged together in business and have an annual income of about $2,500. The court below says in its opinion that it was stated at the argument, and not denied, that the grandmother also has an independent income but there is no evidence on the record relative to this matter. Fortunately, there are no religious differences between appellant and respondents. We have, therefore, the case of a father, who, having been compelled by circumstances to surrender the custody of his children to their grandparents, has now established another home and is desirous of resuming their custody and discharging his obligation to maintain and educate *18 them; his attitude, as expressed by him, is, "They are my children and I have the place to take care of them and I want them with me."
It has been repeatedly held that the father's legal right to the custody, care and companionship of his children grows out of his obligation to maintain and educate them and is not to be interfered with except for the most substantial reasons affecting their welfare: Com. ex rel. v. Blatt,
As an alternative it was suggested that, if his withdrawal of support was not to be construed as a binding relinquishment, then it must be interpreted as an act of abandonment, persisted in for upwards of two years. We think, when the testimony is read and considered as a whole, this conclusion is not fully warranted. We do not condone the failure of appellant to make the payments but, as we stated in Com. ex rel. v. Brown,
The decree of the court below remanding the children to the custody of the respondents is reversed and the record remitted with instructions to enter a decree transferring the custody, control and care of the children to their father.