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October 1, 1952



Charles G. Helwig, Henry L. Snyder, Snyder, Wert & Wilcox, Allentown, for Catherine K. Bradley.

A. T. Gillespie, Linn H. Schantz, Allentown, for Luther R. Bachman.

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

Author: Rhodes

[ 171 Pa. Super. Page 589]

RHODES, President Judge.

This is a habeas corpus proceeding involving the custody of a girl aged thirteen and a half years, and a boy aged eleven and a half years, children of divorced parents. The proceeding was instituted by the father, relator, in which the mother is the respondent. Both parties have appealed from the order of the court below awarding general custody of the children to the respondent, with temporary custody to the relator as specified in the order. The order provided, inter alia, that relator be granted temporary custody on alternate week-ends, beginning Friday and ending Sunday evening; on one afternoon each week, commencing after school during the school term, and commencing at 1:30 in the afternoon during the summer, until 8:00 or 9 o'clock in the evening; for a period of two consecutive weeks in the summertime for vacation purposes; and that there be a suitable division of custody of Christmas Day and other holidays. Relator was also given the privilege of visiting the children if they were confined to respondent's home because of illness. The limited custody on the part of relator was granted subject to the restriction that no one shall be present with the children during these periods except relator and his mother.

Relator in his appeal objects only to the restriction placed on his custody, and contends that such restriction is impractical, unnecessary, and creates 'a most unnatural [condition] * * * embarrassing to the father and perplexing to the children.' Respondent in her appeal contends that the court below erred in enlarging the custodial privileges of relator as contained in a written agreement entered into by the parties in 1945, and asks that, if it is found that the circumstances warrant, further limitations of such custody be duly imposed.

[ 171 Pa. Super. Page 590]

Relator and respondent were married on May 7, 1937. They have two children who are the subjects of the present proceeding. Respondent obtained a divorce from relator on May 13, 1946. The parties had separated in January, 1944, and effected a reconciliation in July, 1944, for the benefit of the children. They finally separated in 1945, and on December 10, 1945, they entered into a written agreement making a property settlement and providing for the custody and support of the children. Relator, who is now forty-five years of age, has not remarried. Respondent married a William Bradley on April 13, 1948, but at the time of the hearing in the court below had permanently separated from him. She continues to reside with the children in a ten-room house owned by her, which had been the marital domicile of the parties. Relator is a business man and active in community affairs. That respondent is a devoted mother and a fit person to have custody of the children is not questioned.

Under the terms of the agreement of 1945, respondent retained general custody of the children. But relator was to have the children once during the week after school hours; one day during each weekend, on alternate Saturdays and Sundays; and during the summer months for a vacation not exceeding one week, providing the children were accompanied by some one approved by respondent. Under the agreement the relator generally exercised the privilege of having the children during the week and on week-ends. However, he did not take advantage of the opportunity to take the children for a summer vacation because he did not feel that he could provide a chaperone suitable to respondent.

Respondent refused a request by relator for more extended custody of the children, and on May 21, 1949, he petitioned the court below for a writ of habeas

[ 171 Pa. Super. Page 591]

    corpus. When respondent was asked during the hearing why she objected to permitting relator to have the children over night, she stated: 'Several reasons. I thought they were too young * * * I felt, staying away would be harmful to their physical and mental health, and * * * since Mr. Bachman admitted his homosexual ...

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