Opinion
October 1, 1954.
January 14, 1955.
Parent and child — Custody — Mother or father — Child of tender years — Welfare of child — Evidence — Appellate review.
1. The best welfare of a child of tender years is ordinarily obtained by granting custody to the mother.
2. In custody cases, the scope of review of the Superior Court is broad, and its guiding principle is to determine what is best for the welfare of the child.
3. The broad power of review of the Superior Court does not empower it to nullify the fact-finding function of the hearing judge, and it must give weight to the findings of the hearing judge as to credibility.
4. In a habeas corpus proceeding involving, as between its divorced parents, the custody of a child four years of age, in which the respondent father averred that the mother was unfit, it was Held that the court below properly awarded custody to the mother.
Before RHODES, P.J., HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.
Appeal, No. 257, Oct. T., 1954, from order of Municipal Court of Philadelphia County, May T., 1954, No. 186735, in case of Commonwealth of Pennsylvania ex rel. Adeline Hough v. James Hough. Order affirmed.
Habeas corpus proceeding for custody of minor child. Before WILLETS, J.
Order entered awarding custody of child to mother. Father appealed.
Walter T. Darmopray, for appellant.
Maurice M. Green, for appellee.
Argued October 1, 1954.
The relatrix sought and was granted custody of her child by the court below, and respondent has appealed.
The parties were divorced in August 1953, after separating in March 1953. Immediately after the separation the relatrix placed the child, now four years of age, with relatrix's aunt. After two months, the child was placed with a Mrs. Palmerino by mutual consent, relatrix taking the child on weekends and respondent making frequent visits. Early in 1954, the respondent married a relative of Mrs. Palmerino and thereupon took the child into his own home and refused relatrix any visitation rights, whereupon she instituted this action for custody. Relatrix is now living with her aunt and is employed. She testified that she would be present to care for the child during the day, and, when she went to work, her aunt and uncle would be there at night. The evidence discloses that both homes are quite satisfactory.
Respondent, aware of the general rule that a child of tender years will ordinarily be awarded to the mother, contends in this appeal that the mother is unfit. The testimony as to unfitness was supplied by Mrs. Palmerino, who, in the opinion of the trier of fact, was not a disinterested witness. She testified that relatrix delivered the child to her in a very ill-kept condition and that relatrix was frequently intoxicated when visiting the child. The court below chastised relatrix for her use of alcohol but felt that, since she had moved into her aunt's home where she could personally care for the child, she should be awarded custody.
In custody cases the scope of our review is broad, and our guiding principle is to determine what is best for the welfare of the child. However, our broad power of review does not empower us to nullify the fact-finding function of the hearing judge, and we must give weight to the findings of the hearing judge as to credibility. Com. ex rel. Harry v. Eastridge, 374 Pa. 172, 97 A.2d 350. The only argument for respondent is that relatrix is unfit. The testimony on that score did not impress the hearing judge, who questioned the bias of the witness. We are constrained to agree that the evidence against relatrix is unimpressive. The best welfare of a child of tender years is ordinarily obtained by granting custody to the mother. We find no reason to depart from that rule in this case.
Order affirmed.