Duffy, McTighe & McElhone, Norristown, for appellant.
J. Stroud Weber, Dist. Atty., Norristown, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 123]
This is a habeas corpus proceeding instituted by Mary T. Shaak, mother of Roberta Christine Shaak, to obtain custody of the child from Robert C. Shaak, a paternal uncle of the little girl. At the hearing in the Court of Common Pleas of Montgomery County, Roland H. Shaak, father of the child, was joined as a party respondent. The court below dismissed the petition and awarded custody to Robert C. Shaak with right of visitation to the parents, and from this order the relatrix, Mary T. Shaak, has appealed.
The relatrix and Roland H. Shaak were married on March 12, 1946 in Las Vegas, Nevada. Prior to her marriage relatrix had borne two illegitimate children. Roland H. Shaak was not the father of these children. The first child, LaDonna, born March 20, 1941, was kept by relatrix and was adopted by Shaak after his marriage to relatrix, The second child, born in February 1946, was 'put out for adoption' by the relatrix because 'I didn't see how I could take care of another child at that time'.
Following their marriage the couple came to live with Shaak's father in his home at Bethel, Berks County, Pennsylvania. There they remained for only a month, at which time Shaak left for Panama to take
[ 171 Pa. Super. Page 124]
a job and relatrix went to live with her mother in Wichita, Kansas.
In December of 1946 the relatrix joined Shaak in Panama and he testified that shortly thereafter he noticed 'symptoms of a disease', and, upon visiting a doctor, learned that he had a venereal disease. Shaak testified that his wife transmitted the disease to him. Relatrix, on cross-examination, admitted having a venereal disease when she went to Panama. On February 14, 1947, the child, Roberta Christine, was born.
Relatrix, Shaak and the child returned to Pennsylvania from Panama in May of 1950. They lived with Shaak's father until June, when all three went to Wichita. Shaak remained there for only a week and then returned to Pennsylvania to locate a home for his family. Shaak started to built a home in Fredericksburg and, when it was partially completed and 'liveable', sent for relatrix and the child. The relatrix came east with the child. In ten days, after intercourse with his wife, Shaak found that he had again contracted a venereal disease. He accused his wife of transmitting the disease to him and she, according to her own testimony, did not deny it because 'I was so mixed up'. Relatrix testified that she told Shaak that she had had intercourse with another man before coming to Fredericksburg because 'he would not have believed' that she hadn't 'anyway'.
This occurrence led to the final separation of relatrix and Shaak. At this time, in October 1950, they entered into a separation agreement by the terms of which relatrix was to have custody of the child LaDonna and Shaak was to keep Roberta Christine with him. Thereafter relatrix went alone to Wichita, where she presently resides, and Shaak remained in Pennsylvania with the child. Shaak took Roberta to a cousin, ...