Argued November 19, 1947. This is a habeas corpus proceeding involving the custody of a child. The proceeding was instituted by the mother-relatrix to obtain possession from the father-respondent of their six-year-old son. The court below awarded to the relatrix the custody of their child subject to the right of the respondent, the father, to have the child visit his home for such periods as may be mutually agreed upon by the parties or determined by the court.
On February 21, 1946, relatrix filed her original petition for writ of habeas corpus. A compromise was reached *368 between the parties, and in pursuance of a stipulation the court made an order on April 12, 1946, confirming respondent's custody and allowing relatrix to have the child with her at specified times. On March 24, 1947, relatrix filed a petition seeking reconsideration of the order and an award of custody of the child to herself. Relatrix in this petition averred that she should have custody of the child as the respondent was not a fit person to have custody of their son. After hearing, the court on August 13, 1947, made the order from which respondent has appealed.
In this type of case we are required to consider the testimony and make such order upon the merits of the case as to right and justice shall belong. Act of July 11, 1917, P.L. 817, § 1, 12 Pa.C.S.A. § 1874; Com. ex rel. Kreiling v. Kreiling,
The child was born on September 30, 1941. The next day after birth the child was taken into the home of respondent in Huntingdon, Pennsylvania, and from the time he was eight days old until November 30, 1945, relatrix resided there. During this time relatrix was employed. Respondent's mother and a sister also live with him and assist in the supervision and care of the child. Respondent was discharged from the army on July 24, 1945. On November 30, 1945, relatrix surreptitiously left respondent's home and took the child with her to the home of her aunt and uncle who live near Philadelphia. Without recourse to any legal proceedings, respondent gained possession of the child and returned with him to their home in Huntingdon. On March 27, 1946, *369 respondent filed his libel in divorce against relatrix. The parties were divorced in September, 1946.
Respondent has a responsible position with the Owens Corning Fiber Glass Corporation at Huntingdon, and owns his own home. His salary is $250 to $260 per month. On September 28, 1946, relatrix accepted employment with the Bell Telephone Company at Darby, Pennsylvania, and since that time has lived with her aunt and uncle in a suburb of Philadelphia. She testified that her salary at the time of the hearing was $200 to $225 per month, but that an increase had been granted which would make it $250 a month.
In general, the needs of a child of tender years are best served by its mother, and, unless compelling reasons appear to the contrary, such child should be committed to the care and custody of its mother. Com. ex rel. Gates v. Gates,
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'sAppeal,
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 examination of the testimony, that relatrix has sustained the averment of her petition that respondent is not a fit person to have the custody of their child. As to individual fitness, there may be no substantial basis for choosing between them. But we are of the opinion that the interest and welfare of this child will be best subserved if he remains under his father's care, and the present living arrangements which have been conducive to the happiness and well-being of the child are continued. See Com. ex rel. Goldbaumv. Goldbaum,
The order of the court below is reversed, and the record is remitted with directions to enter an order awarding the custody of the child, Frank B. Swartzwelder, Jr., to the father, Frank B. Swartzwelder, subject to the right of the mother to visitation and limited custody at proper and reasonable times.