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COMMONWEALTH EX REL. GARDNER ET AL. v. EASTMAN (01/20/53)

January 20, 1953

COMMONWEALTH EX REL. GARDNER ET AL.
v.
EASTMAN



COUNSEL

Kenneth W. Rice, Meadville, for appellant.

Raymond P. Shafer, Meadville, for appellee.

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

Author: Dithrich

[ 172 Pa. Super. Page 497]

DITHRICH, Judge.

The contending parties in this child custody case are the father and the stepfather of an eight-year-old boy. The learned president judge of the court below, after two extended hearings and 'considerable reflection over a period of several weeks,' finally concluded that the future interests of the child would be best served by awarding custody to his father. The order will be affirmed.

While in all appeals involving the custody of children we review the testimony, form our independent

[ 172 Pa. Super. Page 498]

    judgment and make such order 'as to right and justice shall belong', Act of July 11, 1917, P.L. 817, 12 P.S. § 1874, we give considerable weight to the fact that where, as here, the parties are known to the court below, it has a better opportunity to pass upon their ability and fitness as parents than we have. Commonwealth ex rel. Knouse v. Knouse, 146 Pa. Super. 396, 22 A.2d 618; Oelberman Adoption Case, 167 Pa. Super. 407, 74 A.2d 790.

Relator and the mother of the child were married in July, 1943, following a whirlwind courtship, while relator was in his senior year at Allegheny College in Meadville, Pa. The mother was then only seventeen years of age. They separated after three months of rather hectic married life. Part of the time they lived with the wife's parents in Meadville and part of the time with the father's parents in New Castle, Pa. They were living apart when the child was born March 13, 1944. The mother of the child divorced the father June 1, 1945, and on September 25, 1946, married respondent. She bore him two children, a girl now about five years of age and a baby girl now nine months of age. She died two weeks following the birth of the second child.

Relator was very neglectful of his child while his former wife was living with respondent, but promptly upon her death he brought this proceeding after consulting with the stepfather of the child and finding that he would not agree to surrender him. After a careful review of the entire record we agree with and adopt the finding of the learned court below 'that he now appears to have a desire to make up for his shortcomings in the past and assume full parental responsibility for his son.' Following his separation from the mother of the child, he attended Harvard Divinity School and does not seem to have found himself until

[ 172 Pa. Super. Page 499]

    he entered upon the study of law following his failure as a divinity student. He has done much better in the law and is presently employed in the legal department of the Erie Railroad in New York City and resides in suburban Glen ...


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