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COMMONWEALTH EX REL. HARRY v. EASTRIDGE ET UX. (11/12/52)

November 12, 1952

COMMONWEALTH EX REL. HARRY
v.
EASTRIDGE ET UX.



COUNSEL

Francis H. S. Ede, Pen Argyl, for appellants.

Paul A. McGinley, Allentown, for appellee.

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

Author: Rhodes

[ 172 Pa. Super. Page 50]

RHODES, President Judge.

This is a habeas corpus proceeding which involves the question whether the welfare and best interests

[ 172 Pa. Super. Page 51]

    of the children shall prevail over the application of the general rule that a mother has a prima facie right to the custody of children of tender years. Rigid adherence to this rule may produce unfortunate results. Certainly a woman of questionable conduct who has failed to fulfill her maternal duties should have no preferential claim to the custody of any child. It is essential that a mother attempt to be a good housekeeper; that she properly feed and clothe her children; that she exercise proper supervision over them; that she give them religious training; and that she manifest a maternal interest in their welfare. See Beaver's Appeal, 121 Pa. Super. 159, 161, 182 A. 744. Only the most unusual circumstances and compelling reasons require a child to be nurtured in an environment where there is an absence of such requisites. Minor children, being wards of the state, may be taken from their parents when their welfare so requires. Commonwealth ex rel. Bachman v. Bradley, 171 Pa. Super. 587, 593, 91 A.2d 379.

This action was instituted in Northampton County by relatrix to obtain custody of her two children after she had obtained a divorce from her husband, the father of the children. The children, two girls, were born on October 7, 1946, and December 5, 1947, respectively. The respondents have had the children without interruption since October 7, 1950. From December, 1949, to May, 1950, the older child had lived with them.

At the hearing on relatrix' petition for writ of habeas corpus, it was stipulated that the testimony taken in an adoption case in Lackawanna County between the same parties be made a part of the present record. In reference to that proceeding before Judge Brady in the Orphans' Court of Lackawanna County, it may be said that the decree of the orphans' court refusing the petition for adoption of the two children in

[ 172 Pa. Super. Page 52]

    no way determines that the custody of the children must be given to the relatrix. Oelberman Adoption Case, 167 Pa. Super. 407, 414, 415, 74 A.2d 790. The adoption case was decided on the ground, as the orphans' court found, that the abandonment of the children by the mother had not continued for a period of six months, and, in the absence of necessary consents by both parents, the court refused the decree of adoption. The father had given his written consent to the adoption of both children by the respondents.

Relatrix and her husband lived in Fullerton, Lehigh County, and they had for many years been acquainted with respondents. In October, 1950, relatrix and her husband and other members of relatrix' family asked respondents to take the children as relatrix and her husband were separating. On October 7, 1950, respondents received the children and took them to Scranton where respondents resided at the time. They subsequently moved to Northampton County, the change in residence being required by the employment of respondent-husband with the American Telephone and Telegraph Company. The testimony establishes that respondents took the children with the understanding that they were to be adopted. Relatrix and her husband were divorced on March 26, 1951. There was credible testimony to the effect that much of their marital differences arose because of relatrix' neglect of the children. We are convinced from the evidence that the children were ill-fed, abused at times, and generally not given proper care by relatrix. Since her divorce she has lived in many places in the ...


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