178 Pa. Super. 649 | Pa. Super. Ct. | 1955
Opinion by
This is a habeas corpus proceeding instituted on May 19, 1954 by Anne Betters (relatrix), formerly Anne Sheftic, mother of Beverly Sheftic, to obtain custody of the child from Walter J. Sheftic (respondent), father of the child. The lower court, on September 30, 1954, declined the prayer of the petition and continued the custody of the child in the father with the right of visitation to the mother, from which order she appealed.
Theretofore, on March 30, 1951, the lower court had awarded custody to the father with visitation rights to the mother, from which order no appeal was taken. In the opinion accompanying that order, President Judge Lansberry said: “Most of the marital difficulties of these parties was caused by an open and notorious love ‘affair’ on the part of Anne Sheftic with one John Betters, as a result of which Anne Sheftic lost her sense of marital regard for her husband and practically all of her maternal regard for their daughter, .Beverly Sheftic, resulting in her living separate and apart from her husband much', of the time and awáy from her daughter part of that same period of time.”
The relatrix married John Betters on March 15, 1953 and now resides with her new husband at 788 North Center Avenue, Somerset Borough, Pennsylvania, over a liquor store and beer distributing busi
In his present argument, counsel for relatrix concedes the correctness of the original order of March 30, 1951 but contends that, because of changed circumstances in the life of relatrix, custody of the child should now be awarded to her.
Beverly Sheftic was born in Boswell, Somerset County, Pennsylvania, on September 9, 1947 and at the time of the first order she was approximately three and one-half years old. At the time of the last order of September 30, 1954 she was seven years old, and at the time this opinion is being prepared she is nearing the age of eight years. All of her life has been spent in Boswell with the father and his people.
The respondent-father has not remarried. He owns his own six room house in a residential neighborhood in Boswell (occupied by him and his daughter). The home is adjacent to that of his brother, which is occupied by the brother’s wife, two children and respondent’s mother. The home is also adjacent to a large yard about 60 by 75 feet in size, which is a gathering place for the play of the many young children of the neighborhood. The church attended by the family and the parochial school attended by the child are directly across the street from respondent’s home. To assist him in caring for Beverly in his absence when at work during the day he employs Mrs. Helen Miller, a middle-aged woman who lives with her family about a block from respondent’s home. Barbara Miller, her daughter, age 17, also helps care for Beverly and acts principally as a baby sitter. Barbara Miller took care of Beverly in this capacity several years ago, when she was engaged to do so by relatrix herself when she and respondent were still living together as husband
In Somerset there is no parochial school and the child would be obliged to go to a public school and to make new friends. All of the parties are Roman Catholic but the relatrix and her present husband, because of their divorce and remarriage, are not permitted to take communion in the Catholic church.
We agree with the lower court that “Beverly Sheftic is now a well adjusted and happy child. This was not always so. This latter fact was one of the prime considerations resulting in the original determination and order in this case. Time has demonstrated that since she has been in the actual custody and home of her father, she is not the nervous, domineering, restless and uncompanionable child she was prior thereto; her attitudes and personality are now befitting her attractive and personable features and she continues to grow to be a lovable little girl. She has not been ne
What was said by President Judge Rhodes in Com. ex rel. Swartzwelder v. Swartzwelder, 162 Pa. Superior Ct. 366, 369, 57 A. 2d 610, is particularly applicable to the present case: “In the present case, we are of the opinion that the order of the court below cannot be justified solely on the principle that a child of tender years should be committed to the care and custody of its mother. Her right thereto is not absolute; it must yield to the best interest and welfare of the child. Latney’s Appeal, 146 Pa. Superior Ct. 20, 22, 21 A. 2d 521. Moreover, a father’s right is not to be entirely ignored, as it is his obligation to maintain and educate his child. Com. ex rel. Welsh v. Welsh, 96 Pa. Superior Ct. 426, 429. This is especially true if his home in which the child has lived since birth is a comfortable, proper, and satisfactory home, and in which the child receives requisite supervision and adequate care. The court below in its opinion in the present case said: ‘A number of witnesses were called whose integrity can in no way be questioned and they all agree the. Swartzwelder home is well kept, attractive and a good home in which to raise a child; that Frank, Junior, goes to Sunday School; Bible School, is polite, courteous and shows good training.’
“Although the relatrix’ past- conduct-may- not be a compelling reason to deprive her of the custody of the child, it is a factor for.-consideration in connection with the. general situation.We are not convinced, from-an
On the other hand, the prospective home offered by relatrix in Somerset is not as desirable as the home in Boswell. It is a second floor apartment in the commercial section of the borough above a liquor store and beer distributing business. While the present husband of relatrix has adequate earnings to support a family and has indicated his willingness to have Beverly in that home, it is impossible to determine with absolute certainty that he would continue in the future to be so disposed. The usual rule of law to the effect that it is preferable that the custody of a child of tender years be given to the mother is not applicable to this case because when this child most needed the mother’s care, it was not provided. At that time the mother was more interested' in seeking her own pleasure. The father is the one who remained steadfast and provided loving care for the child during the most formative years of its life. The effect of that care
After carefully reading the entire record in this case we come to the independent conclusion that the best interest and permanent future welfare of this child will be attained by leaving custody with the father with reasonable rights of visitation to the mother.
Order affirmed.