Commonwealth Ex Rel. Lucas v. Kreischer
299 A.2d 243
Pa.
1973
Check Treatment

Opinion by

Mr. Justice Eagen,

This action involves the custody of three children, ages nine, eight and six years, 1 born of the marriage of Zane B. Kreisеher and his then wife, Bonita. The Court of Common Pleas of Columbia County, after an evidentiary hearing, awarded custоdy to the father with visitation rights to the mother. On appeal the Superior Court affirmed without opinion. Judge Hoffman filеd a dissenting opinion in which Judges Spaulding and Cercone joined. See 221 Pa. Superior Ct. 196, 289 A. 2d 202 (1972). We granted allocatur and now reverse.

The facts are not in dispute and may be summаrized as follows:

The litigants, a Caucasian couple, separated in January 1969, while living in Downingtown, Chester County, Pennsylvаnia. Immediately ‍​‌‌‌‌‌‌‌‌​​‌​‌‌​​​​​‌‌​​‌‌‌​‌‌​‌​​‌‌​​‌‌​​​‌​‌​‌‍following the separation, the three children remained with the mother for about three and оne-half weeks, but were then taken to *354 live temporarily with the maternal grandparents in Columbia County, becausе the mother experienced difficulty in establishing a suitable residence. In March 1969, following an aborted hearing in аn action for custody in Chester County, the parties agreed that the children would be placed in the custody of the paternal grandparents, also residents of Columbia County. In May 1969, the children took up residence with the father in a house trailer in Columbia County.

In September 1969, the father phoned the mother and requested that she takе the children to live with her, which she did. At the time, she was sharing an apartment in Willow Grove, Montgomery County, with Leroy S. Lucas, a black man. The parties were divorced in January 1970 and shortly thereafter the father married a Caucasiаn woman. In June 1970, the mother married Lucas.

From September 1969 until June 1970, the father made only two attempts to see thе children. On June 13, 1970, with permission of the mother he took the children to his residence for a week’s visit. He then refused to give up custody and the mother instituted this action.

The father and his present wife now reside in Berwick, Columbia County, in a house they own. Both ‍​‌‌‌‌‌‌‌‌​​‌​‌‌​​​​​‌‌​​‌‌‌​‌‌​‌​​‌‌​​‌‌​​​‌​‌​‌‍are employed and a fifteen-year-old female serves as baby sitter during their working hours.

The mother and her present husband live in a rented two-room apartment in Willow Grove. Both are employed on the same shift in an industrial plant. If the children are returned to the mother’s custody, arrangements to rent a larger apartment will be effected.

The trial court found that the mother and her present husband “are fit persons to havе custody of the children”, but concluded that because of the physical character and rural locаtion of the residence of the father, along with the possibility that the children *355 would be the victims of the “almost universal prejudice and intolerance of interracial marriage”, the children’s interests would be best served by continuing to reside with the father.

In its opinion, the court stated that the benefit of geographical location is а “highly controversial issue, . . ., and is not conclusive one way or the other.” The basic reason for the court’s ruling in grаnting ‍​‌‌‌‌‌‌‌‌​​‌​‌‌​​​​​‌‌​​‌‌‌​‌‌​‌​​‌‌​​‌‌​​​‌​‌​‌‍custody to the father ivas the existence of the interracial marriage of the mother and the possiblе detriment that might result to the children from living with the mother under such circumstances.

In Pennsylvania, supported by the wisdom of the ages, it has long been the rule that in the absence of compelling reasons to the contrary, a mothеr has the right to the custody of her children over any other person, particularly so, where the children arе of tender years. See Commonwealth ex rel. Fox v. Fox, 216 Pa. Superior Ct. 11, 260 A. 2d 470 (1969); Commonwealth ex rel. Kraus v. Kraus, 185 Pa. Superior Ct. 167, 138 A. 2d 225 (1958); and Commonwealth v. Addicks, 5 Binn. 520 (1813). In fact, that the best interests of children of tender years will be best served under a mother’s guidance and control is one of the strongest presumptions in the law. Commonwealth ex rel. Logue v. Logue, 194 Pa. Superior Ct. 210, 166 A. 2d 60 (1960). In the instant case, the record is cоmpletely barren of any evidence that the children here involved will suffer from living with the mother under the existing circumstances. Significantly, the children have evidenced no ill will towards the mother or concern over her second marriage, and no social problems, such as bias or prejudice, ensued while they were under her carе from September 1969 to June 1970. The real issue posed by this appeal is, whether a subsequent interracial marriаge by the mother, in and of itself, is such a compelí *356 ing reason as will warrant a court in denying her ‍​‌‌‌‌‌‌‌‌​​‌​‌‌​​​​​‌‌​​‌‌‌​‌‌​‌​​‌‌​​‌‌​​​‌​‌​‌‍the custody of her children. We rule it is not.

As noted by Judge Hoffman in his dissenting opinion below, there has been a marked increase in the United States in recent years of interracial marriages and trans-racial adoptions, and sociologicаl studies establish that children raised in a home consisting of a father and mother who are of different races dо not suffer from this circumstance. Cf. Stingley v. Wesch, 77 Ill. App. 2d 472, 222 N.E. 2d 505 (1966); Potter v. Potter, 372 Michigan 637, 127 N.W. 2d 320 (1964); Mixed Race Adoptions, The Open Door Society First International Conference, Address of Mr. Clayton H. Hagen, Supervisor, Adoption Unit, Lutheran Social Service of Minnesota, 1970. We agree wholeheartedly with Judge Hoffman’s statement that “in a multiracial society such as ours racial prejudice and tension are inevitable. If . . . children are raised in a happy and stable home, they will be able to coрe with prejudice and hopefully learn that people are unique individuals who should be judged as such.”

Since there is no compelling reason in this record why the mother should be denied custody, the rulings of the courts below werе in error. After the mother has established living quarters adequate and suitable for a family of five, custody should be awarded to her with liberal visitation rights to the father.

The orders of the courts below are reversed, and the recоrd is remanded to the court ‍​‌‌‌‌‌‌‌‌​​‌​‌‌​​​​​‌‌​​‌‌‌​‌‌​‌​​‌‌​​‌‌​​​‌​‌​‌‍of original jurisdiction with directions to proceed consonantly with this opinion.

Mr. Justice Pomeroy and Mr. Justice Manderino concur in the result.

Notes

1

These were the ages of the children at the time of the hearing in the trial court in July 1971.