A. S. Fingold, Reuben Fingold, and Fingold & Fingold, all of Pittsburgh, for appellant.
C. Joseph Recht, Herman Recht, and Recht & Recht, all of Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross and Gunther, JJ.
[ 167 Pa. Super. Page 493]
This is a habeas corpus proceeding instituted by the mother, relatrix, to obtain custody from the father, respondent, of Albert William Cooper, the three and one-half year old son of the parties. The court below,
[ 167 Pa. Super. Page 494]
after hearing, awarded custody of the child to the mother and granted visitation rights to the father. The father now appeals from that order. A supersedeas was allowed by the court below so that, pending this appeal, the child is presently with his father.
In cases dealing with the custody of children, we are required, in the exercise of an independent judgment based upon the evidence, to consider the testimony and make such order upon the merits of the case 'as to right and justice shall belong'. Act of July 11, 1917, P.L. 817, § 1, 12 P.S. § 1874. A most careful examination of the testimony establishes that the best interests and welfare of the child, always the paramount consideration in such matters, will best be served by awarding custody of the child to the mother with rights of visitation in the father.
The parties were married in January, 1945, while the respondent was home on furlough from military service. Relatrix lived with her husband's parents in Gill Hall, Allegheny County. The respondent was discharged from the military service in December, 1945, at which time the parties occupied a three room apartment on the second floor in the home of respondent's parents. The child was born on January 19, 1947. In July, 1949, relatrix and the child went to live with relatrix' mother in Fredericksburg, Virginia. Respondent followed relatrix to Fredericksburg about a month later and after attempting unsuccessfully for approximately a month to secure gainful employment returned to the home of his parents in Allegheny County, taking the child with him without relatrix' knowledge or consent.
Where, as here, the controversy is between the father and the mother in determining which will have custody, it has been held that unless compelling reasons appear to the contrary the needs of a child of tender years are best served by being with its mother, regard
[ 167 Pa. Super. Page 495]
being had to the fitness of such parent as well as to the best interests of the child. Act of June 26, 1895, P.L. 316, 48 P.S. § 92; Commonwealth ex rel. Lucchetti v. Lucchetti, 166 Pa. Super. 530, 72 A.2d 617; Commonwealth ex rel. Levinson v. Levinson, 162 Pa. Super. 563, 59 A.2d 625; Commonwealth ex rel. Derr v. Derr, 148 Pa. Super. 511, 514, 25 A.2d 769; Commonwealth ex rel. Lamberson v. Batyko, 157 Pa. Super. 389, 43 A.2d 364. This rule has been applied even where the father is able to supply superior physical surroundings and ...