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COMMONWEALTH EX REL. BUCKNER v. BARR ET UX. (03/17/53)

March 17, 1953

COMMONWEALTH EX REL. BUCKNER
v.
BARR ET UX.



COUNSEL

Alvin J. Porsche, Pittsburgh, for appellants.

Regis C. Nairn and Elizabeth Bailey, Pittsburgh, for appellee.

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

Author: Gunther

[ 173 Pa. Super. Page 125]

GUNTHER, Judge.

This is a habeas corpus proceeding involving the custody of a five year old child. The action was instituted by the natural mother against the respondents, who are no blood relation to the child, but who have had actual custody for over four years. The court below awarded custody to the relatrix.

Relatrix was married November 4, 1944 at the age of sixteen and gave birth to two children, one in 1945 and the one in question in June, 1947. In May, 1948 she and her husband separated and the children were placed in the home of a friend of the husband, who happened to be the daughter of respondents. The children remained with respondents' daughter in Philadelphia for two months; then the younger one was given to respondents for a few months. Subsequently the husband took both children to Seattle, Washington, for a while; and finally, in November, 1948 the younger child was returned to respondents in Pittsburgh, where he has remained. During this period relatrix visited her relatives in New York and upon discovering that her two children had been taken to Seattle, Washington, set out for that state, arriving many months later. Once there, she secured, and has maintained, custody of her older child. In October, 1950 she came to Pittsburgh and, since that time, has vigorously sought custody of her younger child. The child's father is, and has been, in the navy, stationed in Tennessee, and cannot possibly take care of his children.

The burden here rests upon respondents to establish that the order of the court below is, under the evidence, erroneous or based on a mistake of law. Commonwealth ex rel. Shaak v. Shaak, 171 Pa. Super. 122,

[ 173 Pa. Super. Page 12690]

A.2d 270. An independent examination of the record reveals no such error of the court below.

Our primary concern is for the best interests and welfare of the child and custody will be awarded accordingly. In deciding that question, we are guided by the rule that prima facie the natural mother is entitled to custody, and departure from this rule will be allowed only by impelling reasons, Com. ex rel. Shelly v. Sipler, 172 Pa. Super. 207, 92 A.2d 898, such as, for example, abandonment by the mother: Com. ex rel. Haller v. Hanna, 168 Pa. Super. 217, 77 A.2d 750; neglect: Com. ex rel. Harry v. Eastridge, 172 Pa. Super. 49, 91 A.2d 910; or moral laxity: Com. ex rel. Shaak v. Shaak, supra. No such compelling reasons of unfitness of the mother appear in this record. No charges of immorality were made against relatrix, nor were there any serious charges of neglect. Respondents rest their case wholly on allegations of abandonment and unfitness of the home relatrix would provide.

Relatrix was uncontradicted in her testimony that her husband threw her bodily from their home in Philadelphia; that, being without money, she then visited her mother in New York; that on her return she discovered her children were in the State of Washington and that she immediately set out for that state. She further testified that she was required to hitchhike across the country and thus it took her many long months to arrive at her destination. When she arrived in Seattle she forthwith took possession of her older child and wrote to respondents in Pittsburgh demanding the return of the other child. Except for one letter sent by ...


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