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COMMONWEALTH EX REL. EDINGER v. EDINGER ET AL. (11/12/52)

November 12, 1952

COMMONWEALTH EX REL. EDINGER
v.
EDINGER ET AL.



COUNSEL

I. Emanuel Meyers, Solomon Hurwitz and Hurwitz, Klein & Meyers, Harrisburg, for appellants.

Arthur Berman, Samuel Handler and Compton, Handler, & Berman, Harrisburg, for appellee.

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

Author: Hirt

[ 172 Pa. Super. Page 94]

HIRT, Judge.

In this habeas corpus proceeding the lower court awarded custody of two minor children, ages 8 and 5, to their mother, the relatrix, subject to the right of respondent their father, Vance Whitney Edinger, to have the children for seven hours each Saturday and for the period of two weeks each year in the month of August. Both the home of relatrix, with her widowed mother, and the home of the husband's parents where he would maintain the children are suitable places and both parents have affection for their children. In general the needs of children of tender years are best served by their mother. But the right of a mother to custody of young children is not absolute; it must yield to their best interests and welfare. Commonwealth ex rel. Swartzwelder v. Swartzwelder, 162 Pa. Super. 366, 57 A.2d

[ 172 Pa. Super. Page 95610]

. With much reluctance we in the performance of our duty are bound to say that there is a single but compelling reason for a reversal of the order.

Vance Whitney Edinger married the relatrix in November 1943 after his induction into the Air Force. They lived together for but two months when he was sent overseas as a fighter pilot.

A son was born in August 1944 during his absence. Following his return in May 1945, and his subsequent discharge, they lived together in Middletown, Pennsylvania. The relatrix testified that their marriage disintegrated because of her husband's unsympathetic attitude toward her; and that her husband's conduct coupled with the shock of the sudden death of her father induced the premature birth of her second son in April, 1947. Two months later she became mentally deranged and was then committed to the State Hospital in Harrisburg on the certificate of two physicians. She was discharged on October 28, 1948 and has not had a recurrence of a manifestation of her mental illness. Since then she has made her home with her mother. She obtained a court order on her husband for her partial support and informally was given the right to have the children for three hours every Sunday when accompanied by a responsible person. Under this arrangement she has seen the children not more than ten times. She says that she stopped going to her husband's home to get the children because of the upsetting effect on her of his hostile attitude toward her. She had not attempted to see her children for two years prior to the hearing in this case.

Relatrix has had various employment following her discharge from the hospital, and continuously since August 1949 she has held a responsible position at the Middleton Air Depot without evidencing any indication of mental instability.

[ 172 Pa. Super. Page 96]

The insurmountable fact in the way of an affirmance of the order is the seriousness of relator's mental illness. The type of her insanity was paranoid schizophrenia. Tragedy not uncommonly results from the involuntary acts of such paranoiacs. A permanent cure may be possible in such cases, regardless of differences of medical opinions on the subject, but the ...


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