Summary
affirming grant of custody to foster parents against challenge by natural father and step-mother
Summary of this case from Stapleton v. Dauph. Co. Child Care ServOpinion
April 8, 1935.
July 18, 1935.
Parent and child — Custody — Best interests and welfare of child — Rights of natural parents and foster parents — Review by Superior Court — Act of July 11, 1917, P.L. 817.
1. In determining the custody of a child, the predominant inquiry is, what is required to serve the best interests and welfare of the child.
2. In a proceeding by the natural parent of a child to secure custody from its foster parents, the claim of the natural parent is entitled to great consideration, but the custody of the foster parents will be affirmed where there is sufficient evidence that such arrangement is best for the interest and welfare of the child.
3. Under the Act of July 11, 1917, P.L. 817, on appeal from an order entered in a habeas corpus proceeding involving the custody of a child, it is the duty of the Superior Court to examine the evidence in the record.
Appeal, No. 24, April T., 1935, by William Trott, from decree of C.P., Armstrong Co., March T., 1933, No. 294, in case of Commonwealth ex rel. Pearl Gertrude Trott, by her father and next friend, William Trott, v. Mary Wilcox et al.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Affirmed.
Habeas corpus proceeding for custody of child.
The facts are stated in the opinion of the lower court, GRAFF, P.J., as follows:
The relator filed this petition for a Writ of Habeas Corpus to secure the custody of his child, now ten years of age. At No. 196 March Term, 1933, the mother of said child, Catherine Force, filed a Habeas Corpus proceeding to secure the custody of said child, which was dismissed in an opinion heretofore filed.
Pearl Gertrude was born upon October 23, 1923, and a second child, Henry, had been born two years prior thereto. After a separation the relator and his wife were divorced in 1927. Thereafter the children were cared for in part as neglected and dependent children, by the Children's Aid Society of Lawrence County. During 1927 the relator left Pearl Gertrude in the custody of his sister in a small village in West Franklin Township, Armstrong County. This sister permitted the respondents to take possession of the child in November, and shortly thereafter the relator agreed that they might retain the custody of Pearl, subject to the claims of the child's mother. Since this time the child has been maintained at the expense of the respondents, with the exception of small occasional contributions by the parent. The child is well, healthy, happy, and well cared for, in her present home. She receives the proper religious and mental instructions, and now regards the respondents as her parents.
The relator was remarried upon April 3, 1927, to Teresa Blah, who had been divorced from her husband upon December 9, 1921. The record shows that this divorce was obtained from said Teresa Blah on the grounds of adultery. After said divorce was granted, the said Teresa Blah returned to the home of Joseph Blah, and lived with him as his wife, although not married. In 1923 she was arrested upon a charge of manufacturing and possessing liquor, and, after pleading guilty, was released on probation. After the marriage of the relator with Teresa Blah they lived together as husband and wife until 1930, when she obtained a divorce. After a separation of two months she returned with the relator, and lived in his home as a housekeeper until three or four months prior to the hearing in this case, when they were remarried.
We recognize the principle of law that the natural parent of a child is entitled to great consideration, when attempting to secure the custody of such child, and further, that religious training is entitled to weight and consideration; but the predominant inquiry is, what is required to serve the best interests and welfare of the child: Commonwealth ex rel. Weber v. Miller, 84 Pa. Super. 409.
The custody of a minor child to its foster parents will be affirmed where there is sufficient evidence that such arrangement is best for the interest and welfare of the child: Commonwealth ex rel. Brown v. Lane, 90 Pa. Super. 350.
It is true that relator offered evidence by deposition as to the good reputation of himself and present wife, and that they maintain a fitting home in which to bring up the child. However, we must give careful consideration to the testimony of the relator's wife, in attempting to explain the charge of adultery made against her by her former husband, as well as the illicit relationship which existed between them subsequent to the time of the divorce. It is a strange coincidence that subsequent to the time that the relator was divorced from his present wife, and prior to the time of her remarriage, that she also lived with the relator in the capacity of a housekeeper. We are not impressed by the environment to which the child would be subjected in the home of the relator. On the other hand, the respondents are highly respected persons, capable of giving the child a good home, and sufficiently maintaining her. The child herself expressed a preference for the respondents, due, no doubt, to neglect upon the part of her natural parents, and the deep attachment which has now arisen for the respondents.
This case presents one of the most serious matters which can be presented to the court. We are led to the conclusion that the petition should be dismissed.
Petition of relator, father of child, dismissed. Relator appealed.
Error assigned, among others, was order.
Robert E. Ashe and B.A. Sciotto, for appellant.
John W. Rohrer and Harry C. Golden, for appellees.
Argued April 8, 1935.
This is an appeal by the relator from the order of the Court of Common Pleas of Armstrong County, dismissing his petition for writ of habeas corpus for the custody of his daughter, Pearl Gertrude Trott, and remanding her to the custody of the respondents.
We have examined the evidence in the record, pursuant to the duty imposed on us by the Act of July 11, 1917, P.L. 817, and our judgment on the merits of the case agrees with that of the court below. See Petition of Sulewski, 113 Pa. Super. 301, 173 A. 747, with special reference to the cases mentioned on page 310; In re Minor Children of Rosenthal, 103 Pa. Super. 27, 33, 157 A. 342.
The order is affirmed on the opinion of the learned President Judge of the court of common pleas.