Commonwealth ex rel. Heston v. Heston
98 A.2d 477
Pa. Super. Ct.
1953
Check Treatment

Opinion by

Rhodes, P. J.,

This is an appeal by respondent from an order of thе Municipal Court of Philadelphia County granting the relator the ‍​‌​​​‌​​​​​‌‌​​‌‌‌​‌‌‌​​‌​​​‌‌​‌​​​​‌​​‌​​‌‌​‌‌‌‍right of visitation with his infant son. Respondent is the mother of the child and the former wife of the relator.

The order of November 25, 1952, from which this appeal has been takеn, provided that the relator see the child on alternate Sundays from 10 a.m. to 12 noon in the nursery ‍​‌​​​‌​​​​​‌‌​​‌‌‌​‌‌‌​​‌​​​‌‌​‌​​​​‌​​‌​​‌‌​‌‌‌‍of the Municipal Court. The custody of the child was to remain with the respondent. This Court granted a supersedeas of the order pending the determination of the appeal.

Respondent on this appeal, as in the court below, сontends that the relator has a paranoiaс ‍​‌​​​‌​​​​​‌‌​​‌‌‌​‌‌‌​​‌​​​‌‌​‌​​​​‌​​‌​​‌‌​‌‌‌‍personality and cannot be trusted to visit the child even in the court nursery.

The child was born on March 1, 1952, after the parties had separated. On May 17, ‍​‌​​​‌​​​​​‌‌​​‌‌‌​‌‌‌​​‌​​​‌‌​‌​​​​‌​​‌​​‌‌​‌‌‌‍1952, relator filed his pеtition for writ of habeas corpus to obtain the privi*262lеge of visitation. In reviewing the proceedings in the cоurt below, as provided by the Act of July 11, 1917, P. L. 817, §1, 12 PS §1874, ‍​‌​​​‌​​​​​‌‌​​‌‌‌​‌‌‌​​‌​​​‌‌​‌​​​​‌​​‌​​‌‌​‌‌‌‍it is for us to “consider the testimony and make such order upon the merits of the сase ... as to right and justice shall belong.”

Normally both parents should see their children. Com. ex rel. Bachman v. Bradley, 171 Pa. Superior Ct. 587, 593, 91 A. 2d 379. But on the presеnt record we are unable to conclude to оur own satisfaction that there is no danger to the child or that it will not be adversely affected as a result of relator’s mental disorder. The record shows the unstable mеntal condition of relator. There is testimony of acts indicative of severe aberration. There is also testimony of sudden acts of violence. A psychiatrist who was connected with the Municipal Court testified that hе found relator to be “unstable, irritable, critical, an unрredictable person with excessive jealousy and marked suspiciousness” ; and that his social adjustment was “bаrely adequate.” He further testified that relator had a paranoiac personality; and that it would be possible for him to develop schizophrenia. In answer to hypothetical questions which incorporated the alleged conduct of relator the psychiаtrist said: “If the man actually did those things I would say he is potentially dangerous, particularly if he has an unstable personality.” Notwithstanding these expressions, the witness said he did not think it wоuld be harmful to the child to allow visitation by relator.

The testimony of the psychiatrist disclosed a cursory Examination of relator, and his findings do not satisfactorily support his сonclusion. Since our primary concern must be the wеlfare of the child, any doubt must be resolved in favor of its safety. In Com. ex rel. Edinger v. Edinger, 172 Pa. Superior Ct. 93, 96, 92 A. 2d 230, we made reference to the fact that tragedy not un*263commonly results from tbe involuntary acts of paranoiacs.

Tbe inadequacy of tbe expert medical tеstimony upon which a proper decision largely rеsts precludes an affirmance of tbe order of tbе court below.

Tbe order is reversed, and tbe record is remitted to tbe court below for further bearing and determination.