Henry Thomas Dolan, Philadelphia, for appellant.
Dewey Hoffman, Philadelphia, for appellee.
Before Rhodes, P. J., and Dithrich, Ross, Arnold and Fine, JJ.
[ 165 Pa. Super. Page 629]
In this habeas corpus proceeding the learned judge of the court below decided that the best interests and welfare of a boy of seven and a girl of five would be served by awarding their custody to the relator, their father.
Upon appeal it is the duty of this Court to 'consider the testimony and make such order upon the merits of the case, either in affirmance, reversal, or modification of the order appealed from, as to right and justice shall belong.' 1917, July 11, P.L. 817, § 1, 12 P.S. § 1874.
'Right and justice' in this case clearly require an affirmance of the order of the court below. We haven't the slightest doubt that if respondent had had her way the boy, Michael, would still be in St. John's Orphan Asylum, Philadelphia, and the girl, Margaret, would still be in St. Vincent's Home, Lansdowne, Pa., where she had placed them and where they remained from on or about September 10 to November 23, 1948. Relator, who was voluntarily contributing $15 a week for the
[ 165 Pa. Super. Page 630]
support of his children, first learned of their plight when he received notice of a hearing on a dependency petition which his wife had filed in the Juvenile Division of Municipal Court.
When the case was called for hearing November 23, 1948, relator appeared and informed the court that he was willing and able to support his children and requested their custody. Respondent then withdrew the dependency petition, the children were returned to her, and she subsequently placed the boy with her sister in Elizabeth, New Jersey, and the girl with her (the mother's) aunt in Philadelphia, where they still are, this Court having ordered that this appeal operate as a supersedeas. The mother does not live with either of the children, but testified that she sees the daughter each evening and the boy twice a month.
Relator, who was in the Marine Corps when he married respondent in San Diego, California, after living in crowded quarters in Philadelphia with his wife's relatives for two and one-half years, decided, since his health became impaired, that it would be better for all concerned if he and his wife and children went to live with his parents on their farm in Sturgis, Michigan. The home to which he will take the children and their mother, if she will only consent to leave the city and live on a farm, is a large modern house, containing five bedrooms, two bathrooms upstairs and a washroom downstairs, fully equipped with an oil-burning furnace and all modern electrical appliances.
We want to be absolutely fair to the mother of these children, but upon consideration of the whole record, including the opinion of the learned judge of the court below who saw and heard the parties, we cannot help but feel that she is placing her own ...