January 17, 1952
COMMONWEALTH EX REL. SCHRIM ET AL.
SMITH ET AL.
Louis Little, Henry Kauffman, Pittsburgh, for appellants.
Louis L. Kaufman, Frank D. Di Cenzo, Jr., Pittsburgh, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 390]
On a writ of habeas corpus brought by her parents against appellants, the court awarded custody of Linda Schrim (born in 1949) to the parents, and the respondents appealed.
[ 170 Pa. Super. Page 391]
Both Linda Schrim and her sister, Sherry, were born to the mother while she was unmarried. Subsequently the father of these two children married the mother and thus legitimatized them. Sherry lives with her parents.
The respondents first obtained custody of Linda from the mother when she was quite ill following a Caesarean operation.
It is conceded that no question of abandonment arises in this case.
The only question raised is the fitness of the parents. While the mother had two illegitimate children, yet these were made legitimate by the marriage. It is urged that the father, before he married the children's mother, had an affair with a married woman. These facts are not determinative of the issue. The condition of the home of the parents is concededly good. There is no question that the parents are exceedingly found of this child and desire her to live with them. The husband is employed in the city of Pittsburgh and has a take home pay of about $75 a week. The parents are entitled to custody unless they are unfit. Certainly the fact that this child was born out of wedlock, and that thereafter the father and mother married, is no reason to deprive them of custody. The moral lapse of the father, before his marriage, is likewise insufficient to deny the parents custody.*fn1
Judge Ellenbogen, writing for the court below, went to great pains to determine what was for the welfare of this child, and we agree with him. The welfare of the child will undoubtedly be promoted by being brought up by her own parents and with her sister, however much such order may grieve the respondents.