186 Pa. Super. 128 | Pa. Super. Ct. | 1958
Opinion by
These are appeals from the order of the Court of Common Pleas of Crawford County, granting custody of a minor child, Kathleen Della Newel, to her father, John B. Newel, who had instigated the habeas corpus proceedings against Adam Mason and Blanche Mason, husband and wife, the latter, by blood, her paternal grandmother.
At the time of the action the child was in the custody of the Masons, and after its institution the mother of the minor, Elaine Eddy, became an intervening respondent, so that the court below had the problem of determining a contest for custody involving the grandmother, the mother and the father. In this opinion we will so designate the parties.
The facts concerning the parties to the litigation are indeed complicated and we are constrained to say that all of the parties fall short of the expected standards that courts would like to find in deciding custody cases.
The child was born on July 19, 1951 so that at the time of the order on April 18, 1957 she was almost six years old, and at the present time, being still with her grandmother, the appeals acting as a supersedeas, almost seven years old. The respondent, Blanche Mason, is the mother of the relator, John B. Newel. She has been married four times. Her first husband, James
Blanche Mason consented to the adoption of her son, John B. Newel, who took the name of his adopted parents. He was born July 10, 1929 and his father died thirteen months after his birth. She explains her consent to the adoption of Newel, as well as later placing her other five children in homes, on the economic situation and her unfortunate marriage to Richards. Newel’s adoption took place when he was 28 to 30 months old. However, despite the adoption, Newel kept in touch with his natural mother and prior to his marriage visited her constantly, lived with her at different times and still refers to her as “mom”. Mrs. Mason is 55 years of age.
Adam Mason was married and divorced before he married Blanche Mason. He is 59 years of age, a carpenter by trade and a good provider. His children by his prior marriage are married. The Mason household consists of the respondents and the child.
It certainly cannot be said from the record that John Newel, who is 28 years of age, had a good record as a father and husband. He and his wife separated in December, 1952 and about Christmas of the same year the minor child was left in the custody of the Masons. The Newels were divorced in the fall of 1953 and in January 29, 1954 the relator married Sylvia Raye, who is 35 years of age and the mother of 4 chil
With this kind of record it seems clearer than ever that all the relationships involved must bow to the principle enunciated by this Court in the recent cases of McNamee v. Jackson, 183 Pa. Superior Ct. 522, 132 A. 2d 396 (1957) and McDonald v. McDonald, 183 Pa. Superior Ct. 411, 132 A. 2d 710 (1957), where it was held in the latter case, at page 525 that: "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."
The minor in this case was about one and one-half years old when she was left with her grandmother and since that time v. to the present date has been reared by her. It has been admitted that during that time she has had a good home and has been well cared for. At her impressionable age we certainly must consider the severe emotional effect of pulling v. the roots of the environment to which she has become accustomed, in sending her thousands of miles away to a home described as inaccessible, to live with and among strangers. See Com. ex rel. Children's Aid Society, Gdn., v. Gard, 362 Pa. 85, 66 A. 2d 300 (1949).
We agree with the court below in disposing of the mother’s claim to custody. Her sudden change from appearing as a witness for the Masons, and her desire that the custody of the child remain with them, to an intervening respondent, smacks of nothing more than an attempt to thwart the possibility of her former husband obtaining custody. There is nothing in the record of her conduct to recommend any consideration of her petition. It may be true that she has reformed but it would certainly take more time than has passed since her marriage to Eddy to determine the permanence of the reformation.
The relator’s contribution to the support of his child from December 25, 1952 to the date of the hearing amounted to $25 and according to the record only $5 of this amount was for the support of his child, the. other $20 was a repayment of a debt. The evidence did not disclose any contribution by the mother. It might be further noticed that until the institution of this action neither parent paid any attention to this child, so that the course of conduct by both the mother and
There was certainly a pattern of extreme neglect and lack of parental interest by both parents from December 1952, until just before the time of the hearing. The record certainly sustains the position that, of the parties involved, the Masons were the best fitted for custody. The court below made a point that their age was a consideration that weighed his opinion. It may be true that they may discover a busy, active teen age girl needs the care of younger, vigorous parents but before the Masons get to that age, the child will have reached the age where she can decide for herself with whom she would rather be. '
Custody orders have always been subject to modification and the facts that the new marriage of the father has existed only since 1954; that he and his wife were both married before and divorced; the difference in age of his new wife; the ages of the children that make v. the home; the apparent crowded condition of the home; the new business venture out in the wilds of Arizona; the time that is needed to be given by the father and his wife to the business, if it has a possibility of success; all these things seem to emphasize, that at least for the present and until more time passes to test this marriage and the new business venture, the welfare of this child can be best served by remaining in the home she knows and has learned to love, with the Masons.
Recognizing the rule that prima facie the parent is entitled to custody and that great weight must be given to the trial court’s judgment because he had the opportunity to evaluate the fitness of the parties, we are still of the opinion that it would be to the best interest of this child to remain with the Masons. To paraphrase' Judge Woodside’s statement in McDonald v. McDon
The order is reversed and it is ordered and decreed that Kathleen Della Newel remain in the custody of Adam and Blanche Mason.