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COMMONWEALTH EX REL. BURKE v. BIRCH ET AL. (09/26/51)

September 26, 1951

COMMONWEALTH EX REL. BURKE
v.
BIRCH ET AL.



COUNSEL

Daniel Krause, Emanuel Amdur, Krause & Boreman, Pittsburgh, for appellants.

Roy T. Clunk, George H. Ross, Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Rhodes

[ 169 Pa. Super. Page 538]

RHODES, President Judge.

Richard L. Burke, by this habeas corpus proceeding, seeks to secure from respondents the custody of

[ 169 Pa. Super. Page 539]

    his five and one-half year old son. Respondents are the maternal grandparents with whom the mother, relator's wife, was living at the time of her death. The court below, while acknowledging respondents' fitness and devotion to the child, awarded custody to the relator. Respondents have appealed to this Court.

The court below, in its opinion, has made the following pertinent comparison of the parties: 'While still married to Michael's mother, he [relator] had an affair with another woman who bore him a child and whom he later married (following the death of his first wife) in order to give the child a name. Then, while divorce proceedings were pending to dissolve the second marriage, he lived with still another girl, whom he married when the divorce was finally made absolute. * * * Mrs. Ellen Birch, the grandmother, is of impeccable character and her devotion to Michael is also completely undeviating and ever-continuing.' Relator's claim to custody of the child would seem to be based solely on the fact that he is the father and thirty years of age, while the grandparents are considerably older.

Of course, in cases of this type, every court recognizes that the prime consideration is the best interest and welfare of the child, including his physical, intellectual, moral, and spiritual well-being. Com. ex rel. Children's Aid Society v. Gard, 162 Pa. Super. 415, 419, 58 A.2d 73, affirmed 362 Pa. 85, 66 A.2d 300; Com. ex rel. Graham v. Graham, 367 Pa. 553, 559, 80 A.2d 829. Experience is the basis for the principle that a parent is prima facie entitled to custody. Com. ex rel. McTighe v. Lindsay, 156 Pa. Super. 560, 562, 40 A.2d 881. However, the parent's prima facie right to custody may be forfeited if convincing reasons appear that the best interest and permanent welfare of the child will be served by awarding custody to someone else. Com. ex rel. Logsdon v. Logsdon, 156 Pa. Super. 85, 87, 39 A.2d 461. 'An infant is the ward

[ 169 Pa. Super. Page 540]

    of the state and the latter may take the custody of the child away from even its own parents when the welfare of the child so demands.' Com. ex rel. Children's Aid Society v. Gard, 362 Pa. 85, 92, 66 A.2d 300, 304.

In reviewing the proceedings as provided by the Act of June 11, 1917, P.L. 817, § 1, 12 P.S. § 1874, it is for us to 'consider the testimony and make such order upon the merits of the case * * * as to right and justice shall belong.' In coming to our conclusion, we are not unmindful that the ...


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