186 A. 229 | Pa. Super. Ct. | 1936
Argued April 20, 1936.
The Act of July 11, 1917, P.L. 817, authorizing appeals to this court in all habeas corpus cases involving the custody of children provides that we "shall consider the testimony and make such order upon the merits of the case, either in affirmance, reversal or modification of the order appealed from, as to right and justice shall belong." This places a heavy responsibility upon us. The duty of deciding which of two persons is to have the custody of the child is especially difficult when the *399
moral fitness of each of them is conceded, and the court below, for whose judgment we have great respect, is divided in opinion. The governing criterion is, in all cases, the welfare and interest of the child: In re Minor Children of Rosenthal,
It may seem harsh to characterize the behavior of the father in this case as "indifference, neglect and abandonment of his offspring," but the circumstances appear to warrant it. It is true, as stated in the majority opinion of the court below, that the child, when only a year old was taken from his custody and that of his parents and older unmarried sister, by decree of the County Court of Allegheny County, and given to its mother "to be kept by her at the house of her stepfather [James M. Cook, Jr.] and her mother in Johnstown, Pennsylvania, until the further order of this Court"; but that does not excuse or condone his utter failure and neglect to visit, call on or even see the child, or make any effort or attempt to do so for nine or ten years. His mere unsupported statement that he did not do so because he knew or felt he would be unwelcome is not sufficient excuse. Had he tried to see the child and been refused permission, the court, on his application, would have rectified the matter and granted him the right to visit and see his child. But neither he nor his parents and sister, with whom the child under the order appealed from would have to live, made any attempt to see him or visit him for nine or ten years. In the meantime, the child's maternal grandmother died, and his mother left her stepfather's home — and has since died — and Mr. Cook and his two daughters, by his first marriage, took charge of him and lavished upon him the care and affection which his natural father and his relations neglected to give him. The majority opinion in the court below concedes this: "Cook, the respondent, is a man of means, has a very fine home, is a man of excellent character, and has two young daughters, both of whom are of excellent character, very well educated and thoroughly accomplished. The environment in the Cook home is excellent. Both Mr. Cook and *402 his daughters are devoted to the boy in every way and desire to keep him." The boy has had the best of care, and an overflowing measure of love and affection. He is happy in his surroundings and with his playmates. He lives in an environment with which he is familiar and with friends and associates he has known all his life. To transplant him at this stage of his life, uproot all his associations, cut off his contacts with those who have reared him ever since he can remember anything, deprive him of the friendship of his playmates of his own age and place him in a city apartment among strange people, some of them advanced in age and none of them having any experience or contact with youths of his own age, could not, in our judgment, be for the welfare and best interests of the child. Before such a step is taken his father and his grandparents, with whom it is proposed he shall live, should take some steps to know the child and to win his affection, so that the break in his life will not be so great and so violent. We are satisfied that Mr. Cook will encourage them in their attempts to win the boy's love and affection, and will afford them full opportunity to do so.
We were informed at the argument of this case that the child has already been placed under the instruction of his father's church and has been received into the communion of that denomination.
Each case of this kind must rest on and be determined by its own facts. But that there is no fixed and invariable rule that a parent is entitled to the custody of his or her child, in all circumstances, provided only he or she is of good moral character, we need only cite, inter alia: Com. ex rel. v. Daven,
The order and decree of the court below is reversed, *403 and it is ordered, adjudged and decreed that the minor child, Henry Martin Boschert, remain in the custody of his foster grandfather, James M. Cook, Jr. It is further directed that the said foster grandfather shall see that the child attends a church of his father's denomination; and that his father and paternal grandparents are given opportunity and encouraged to visit the child, and allowed to have the child visit them in their home at convenient times. This order is subject to the further order of the court below, in the light of this opinion, when the child attains the age of fourteen.
Costs to be paid by the relator, Martin H. Boschert.