Commnonwealth ex rel. Buckner v. Barr

Opinion by

Gunther, J.,

This is a habeas corpus proceeding involving the custody of a five year old child. The action was instituted by the natural mother against the respondents, who are no blood relation to the child, but who have had actual custody for over four years. The court below awarded custody to the relatrix.

Relatrix was married November 4, 1944 at the age of sixteen and gave birth to two children, one in 1945 and the one in question in June, 1947. In May, 1948 she and her husband separated and the children were placed in the home of a friend of the husband, who happened to be the daughter of respondents. The children remained with respondents’ daughter in Philadelphia for two months; then the younger one was given to respondents for a few months. Subsequently the husband took both children to Seattle, Washington, for a while; and finally, in November, 1948 the younger child was returned to respondents in Pittsburgh, where he has remained. During this period relatrix visited her relatives in New York and upon discovering that her two children had been taken to Seattle, Washington, set out for that state, arriving many months later. Once there, she secured, and has maintained, custody of her older child. In October, 1950 she came to Pittsburgh and, since that time, has vigorously sought custody of her younger child. The child’s father is, and has been, in the navy, stationed in Tennessee, and cannot possibly take care of his children.

The burden here rests upon respondents to establish that the order of the court below is, under the evidence, erroneous or based on a mistake of law. Commonwealth ex rel. Shaak v. Shaak, 171 Pa. Superior Ct. 122, 90 A. 2d 270, An independent examination of the record reveals no such error of the court below.

Our primary concern is for the best interests and welfare of the child and custody will be awarded accordingly. In deciding that question, we are guided by the rule that prima facie the natural mother is entitled to custody, and departure from this rule will be allowed only by impelling reasons (Com. ex rel. Shelly v. Sigler, 172 Pa. Superior Ct. 207, 92 A. 2d 898), such as, for example, abandonment by the mother: Com. ex rel. Haller v. Hanna, 168 Pa. Superior Ct. 217, 77 A. 2d 750; neglect: Com. ex rel. Harry v. Eastridge, 172 Pa. Superior Ct. 49, 91 A. 2d 910; or moral laxity: Com. ex rel. Shaak v. Shaak, supra. No such compelling reasons of unfitness of the mother appear in this record. No charges of immorality were made against relatrix, nor were there any serious charges of neglect. Respondents rest their case wholly on allegations of abandonment and unfitness of the home relatrix would provide.

Relatrix was uncontradicted in her testimony that her husband threw her bodily from their home in Philadelphia; that, being without money, she then visited her mother in New York; that on her return she discovered her children were in the State of Washington and that she immediately set out for that state. She further testified that she was required to hitch-hike across the country and thus it took her many long months to arrive at her destination. When she arrived in Seattle she forthwith took possession of her older child and wrote to respondents in Pittsburgh demanding the return of the other child. Except for one letter sent by registered mail, she received no reply to several letters. She finally came to Pittsburgh, secured the help of the Legal Aid Society, and instituted these proceedings.

We do not feel that such a record shows any settled intent or purpose to abandon her children and to fore-go all parental duties. Her constant pursuit of her children, oyer a considerable period of time, evinces quite the opposite purpose and intent. Respondents make the unsupported allegation that relatrix showed no desire to be with her children for a period of three and one-half years. The evidence establishes that the separation occurred in May, 1948 and the first meeting with respondents occurred in November, 1950 — a period of two and one-half years. Relatrix’ testimony satisfactorily explains the lapse of time; it is quite understandable that a young girl whose marriage had broken up and who was penniless would be bewildered and not act with the speed and decisiveness of someone more mature. That she did act, however, with the settled purpose of reclaiming her children is clear from the evidence. Further, the evasive testimony of one of respondents tends to substantiate the fact that relatrix did write her several times but received no answers.

The fitness of relatrix’ present home is established by the evidence. She is now remarried, and living in the State of Washington with a husband who has signified his willingness to adopt both children. Reports from social agencies there indicate a very satisfactory reputation for relatrix’ husband and a good home. Respondents imply that the distance to Washington casts some doubt upon the desirability of relatrix’ home and of removing the child from the jurisdiction. We have, however, sufficient testimony to show the satisfactory qualifications of the child’s new surroundings and removal from the jurisdiction is not a controlling factor. Com. ex rel. Haller v. Hanna, supra.

We are presented, therefore, with a situation in which we must choose between two homes of equally good environment; nor can anything be said against any of the parties personally. The result is that we must apply the general rule that the mother has a primary claim to her child and award custody accordingly. The reluctance of respondents to relinquish a child they have come to love is understandable, but our sympathy for them must not stand in the way of this mother’s rights. The child may, of course, suffer a temporary wrench of emotion, but it is better that the break should occur now while he is still of a tender age.

Judgment affirmed.

Judge Dithbioh concurs in the result.