Opinion
October 24, 1928.
December 13, 1928.
Parent and child — Habeas corpus — Discontinuance of proceedings — Allowance by Court.
An order of Court approving the discontinuance of habeas corpus proceedings to determine custody of a minor child and dismissing the writ, will be affirmed where it appears that such action will be for the welfare of the child.
The order complained of was within the discretion of the court, and resulted in allowing the child to remain with the respondent. As the primary object of the law is the welfare of the child, and a continuance of the action would not result in the advancement of that object, the order of the Court will be affirmed.
Appeal No. 244, October T., 1928, by defendant from judgment of Municipal Court of Philadelphia County, May T., 1928, No. 2421 H.C. in the case of Commonwealth ex rel. Benedict Gimbel, 3rd, by his father and next friend, Benedict Gimbel, Jr., v. Ethel Nathanson Gimbel.
Before PORTER, P.J., HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Affirmed.
Petition for habeas corpus. Before LEWIS, J.
The opinion of the Superior Court states the case.
The court approved the discontinuance of the proceedings. Respondent appealed.
Error assigned was the decree of the court.
Francis Shunk Brown, and with him Charles McVeigh Willits and Ira Jewell Williams, for appellant.
James Gay Gordon, and with him Charles Edwin Fox, for appellee.
Submitted October 24, 1928.
The relator and the respondent were husband and wife. The latter obtained a divorce on February 10, 1928. The proceeding in which this appeal was taken was a writ of habeas corpus, issued on the petition of the relator to obtain the custody of a son of the parties, aged at the time about three years. An answer was filed by the respondent asserting the right of the latter to retain the custody of the child for reasons not necessary to be here repeated. After the answer was filed the relator, by his counsel, directed a discontinuance of the proceeding, which was approved by the court. The writ was dismissed and the child remanded to the custody of the respondent.
This appeal is from the allowance of the discontinuance.
The case was submitted on the record and briefs filed. Consideration of these satisfies us that the order complained of was within the discretion of the court. It resulted in the continuing of the custody of the child in the respondent. As the primary object of the law is the welfare of the child, we are not convinced that a continuance of the action would result in the advancement of that object.
The appeal is therefore dismissed.