Commonwealth ex rel. Mathis v. Cooper
146 A.2d 158
Pa. Super. Ct.
1958
Check Treatment

Opinion by

Watkins, J.,

This is a habeas corpus action brought in the Municipal Court of Philadelphia by Anna Mathis, sister of the minor, the relator appellee, against Amy Cooper, maternal aunt of the minor, and Albert Cooper, hеr husband, the respondent appellants, for custody of Albert Millhouse. This appeal is from the order оf the Municipal Court granting the writ and directing the return of the child to South Carolina.

The child is an illegitimate son оf Florence Mill-house, deceased, and E. Y. Mobly. He was born in Johnston, South Carolina, on August 31, 1954. His mother died January 6, 1956, leaving twelve surviving children. After the mother’s death he lived with another sister, Nadine Harris, who presently maintains an eight room house on the grounds of her employer in South Carolina, where two adults and ten minors now live.

Albеrt was brought to Philadelphia to the home of Anna Mathis and by her placed in the custody of the Coopers. There is a conflict of testimony ‍​​‌‌‌​​‌​‌‌​​​‌‌​​​‌​‌‌‌‌‌‌‌‌​​​‌​​‌​‌​​​‌​​​‌‌​‍as to the length of time the child has lived with the appellants. They сlaim one year, the appellee, several months less than that.

As this is a custody matter, the governing сriterion is the welfare of the child: Com. ex rel. Schofield v. Schofield, 173 Pa. Superior Ct. 631, 98 A. 2d 437 (1953). Here, the fitness of the appellants for custody was not discussed by the court below but the record indicates that the child was well cared for during the time the Coopers had him.

Probation officers indicated that the appellants Avere not cooperative Avhen they wanted to investigate their home but the record also ‍​​‌‌‌​​‌​‌‌​​​‌‌​​​‌​‌‌‌‌‌‌‌‌​​​‌​​‌​‌​​​‌​​​‌‌​‍indicates that the appellants were undеr the impression that the officers were at their home to take the child aAvay. The record *115disclоses that the home of the appellants is a three room apartment where they and the child live and that it is adequate.

There is a conflict of testimony concerning the fitness of the appellee but this is clearly irrelevant because the court below directed the child to be returned to South Carolina into the custody of Nadine Harris who lived with her husband, whose name does not appear, and tеn other children. The appellee did not seek custody.

Judge Spalding, in his opinion, indicates that his decision was determined by his belief of the appellee and her witnesses and his lack of confidencе in the testimony of the appellants and the putative father. We would be persuaded to agreе with the court below as to the weight and credibility of these witnesses as he has had the advantage of hеaring and seeing them. However, there was no testimony or evidence ‍​​‌‌‌​​‌​‌‌​​​‌‌​​​‌​‌‌‌‌‌‌‌‌​​​‌​​‌​‌​​​‌​​​‌‌​‍of any kind as to the fitness of Nadinе Harris or her husband for custody. They did not appear and the record is silent as to their respectivе characters, as Avell as their Avillingness, desire and capacity for custody of the four year old сhild. There is no evidence of their employment and their earnings, except some hazy hearsay thаt Nadine is employed as a housekeeper and the husband for some wood company.

In Com. ex rel. Kraus v. Kraus, 185 Pa. Superior Ct. 167, 138 A. 2d 225 (1958), wherе this Court reversed in a custody case, one of the reasons for the decision, as indicated by Judge Weight, at page 174, Avas the failure of any testimony in the record concerning the husband of the one to whom custody was aAvarded, “He Avas not called as a witness and there is no competent testimony concerning his attitude toAvard Leroy. It is in this home that the lower court would place the child.”. Here, neither рarty to whom custody *116was awarded appeared to be examined by the court and the parties.

As to the adequacy of the home to which the award of custody was made, again there is only a sketchy description by the only witness who ever saw it. He testified that “they had an eight room house”; “I don’t know how mаny bedrooms they had”; “there was a living ‍​​‌‌‌​​‌​‌‌​​​‌‌​​​‌​‌‌‌‌‌‌‌‌​​​‌​​‌​‌​​​‌​​​‌‌​‍room and a kitchen I suppose”; “there wasn’t any upstairs, it was all on one floor”. The only thing that seems to be definite in the record was that there were at least two аdults and ten children occupying the home to which this child was to be sent.

The court below indicated that his decision was also determined by a report “from the Department of Public Welfare of Edgefield County, South Carolina, which relates favorably on the home conditions under which the child would live if he were returned to the custody of his sister, Nadine Harris. Such a report must be given consideration.”

Ordinarily reliance by the сourt on reports of court investigators concerning the condition of the parties’ respective homes constitutes reversible error: Com. v. Rubertucci, 159 Pa. Superior Ct. 511, 49 A. 2d 269 (1946). See also Com. ex rel. Mark v. Mark, 115 Pa. Superior Ct. 181, 175 A. 289 (1934) ; Com. ex rel. Balick v. Balick, 172 Pa. Superior Ct. 196, 92 A. 2d 703 (1952). Here, however, the report does not appear anywhere in the record so that it is impossible for ‍​​‌‌‌​​‌​‌‌​​​‌‌​​​‌​‌‌‌‌‌‌‌‌​​​‌​​‌​‌​​​‌​​​‌‌​‍this Court to consider it, and as the court below relied upon it, constitutes reversible error.

Under this record, we are unable to perceive how it was pоssible for the court below to find “we are convinced that it is for the best interest of the child to be returnеd to South Carolina where he will be reared in wholesome, healthy surroundings and where he will *117have the benefit of being reared with his brothers and sisters.”

The order is reversed and it is ordered and decreed that Albert Millhonse remain in the custody of Amy Cooper.