Opinion
March 18, 1969.
June 12, 1969.
Parent and Child — Custody of children — Young children — Custody as between mother and father.
HOFFMAN, J., filed a dissenting opinion, in which JACOBS, J., joined.
Argued March 18, 1969.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 1193, Oct. T., 1968, from order of Court of Common Pleas of Montgomery County, No. 68-3894, in re custody of Angela Ruth Schwab and Charles Jeffrey Schwab, minors. Order affirmed.
Proceedings upon petition of father for custody of minor children. Before LOWE, J.
Order entered awarding custody to petitioner, with visitation rights in the mother. Respondent, mother, appealed.
C. George Milner, for appellant.
Raymond M. Seidel, with him Walton Coates, and High, Swartz, Roberts Seidel, for appellee.
Order affirmed.
In the instant case, the lower court awarded the custody of two children, Angela, age seven, and Charles, age four, to the father, a Pennsylvania resident. The testimony reflects that the mother was devoted, of good moral character and had provided a fine home for the children. The prima facie right of a mother to her young children is one of the strongest presumptions in our law. For the reasons stated in my dissenting opinion in Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa. Super. 114, 245 A.2d 663 (1968), I would reverse the order of the court and award custody of the young children to their mother.
It would also appear that the lower court based its decision in great part on the fact that the mother lived outside of the Commonwealth, in New York City. There are cases which have indicated that our courts should favor granting custody to a parent who resides within this Commonwealth. To the extent that such doctrine ever truly represented the law in this Commonwealth, I would reject it. Moreover, in the circumstances of this case, there would appear to be no reason for this factor to have been considered or given the great weight accorded it by the lower court. Cf. Proctor v. Proctor, 213 Pa. Super. 171, 245 A.2d 684 (1968).
JACOBS, J., joins in this dissenting opinion.