Ben Bernstein, Philadelphia, for appellant.
Walter N. Kennedy, Jr., Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, and Arnold, JJ.,
[ 167 Pa. Super. Page 58]
This is a habeas corpus proceeding for the custody of a five-year-old child born out of wedlock. The court below found that the mother, the relatrix, had abandoned the baby when two months old, and that it would be to the best interest and permanent welfare of the child to allow her to remain with respondent. From this decree the mother has appealed.
The child was born March 19, 1944. Approximately two months later appellant begged respondent to take the baby, since she was unable to provide a home for her. Nothing was said as to appellant's future plans for the baby and respondent remained away from work for several days to find a suitable nursery. The child has been nurtured by respondent, who is the only mother the child has known. The putative father acknowledged the child, and commencing probably in October, 1945, has given appellant sums of money, stated variously in the testimony as $10 to $15 a week for its support. However, there is nothing in the record to indicate respondent received any of this money.
Appellant's excuse for her infrequent visits to see her child was that respondent moved about and she was unable to locate her. This appears unlikely in the light of respondent's testimony that she moved only three times during the last five years. A mutual friend of the parties, Mrs. Saunders, testified she had lived
[ 167 Pa. Super. Page 59]
across the street from respondent since 1942, and they visited daily. Appellant could easily have learned of respondent's change of address had she been so inclined. Mrs. Saunders was present when the baby was given to respondent, and she testified appellant did not visit the child or even attend the christening.
Two and one-half years after relinquishing custody of her child, appellant instituted this action. At the original hearing in October 1946 she informed the court that by the first of the year she and the putative father would be married, and the trial judge accordingly withheld decision in the case. But they were not married until November 27, 1948. Subsequent to the first hearing appellant contributed $7.50 for the support of the child but this practice lasted only 21 weeks. She has paid nothing since March 26, 1947, because, as she said, 'I didn't see the use of paying it when I didn't have custody of the child.'
It is conceded that the natural mother and respondent are equally fit and of good moral character. Their living conditions and station in life are practically equal and the difference between their earning capacity is not sufficient to affect our decision. Appellant did state she would discontinue her employment to care for the child, while in respondent's custody the child must be kept in a nursery during the day. However, the strong ties of affection which have bound this child to its foster mother cannot be entirely disregarded. Commonwealth ex rel. Children's Aid Society v. Gard, 362 Pa. 85, 66 A.2d 300. The burden is upon appellant to establish that the decree of the court below is, under the evidence, manifestly erroneous or based on a mistake of law. Commonwealth ex rel. Minnick v. Wilson, 159 Pa. Super. 230, 48 A.2d 27.
As a general rule the mother has a prima facie right to the custody, care and companionship of a child of tender years. Commonwealth ex rel. ...