Colbert C. McClain, Philadelphia, for appellant.
David H. Kubert and Vito N. Pisciotta, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ.
[ 173 Pa. Super. Page 425]
After a habeas corpus action, Joseph H. Leonard was granted the right to visit his twin daughters in the custody of their mother, Margaret Leonard. The mother has appealed from the subsequent refusal of the lower court to rescind the order of visitation. Our conclusion is that the matter was properly determined by the court below.
Since this proceeding continues to be habeas corpus in substance, we must 'consider the testimony and make such order upon the merits of the case * * * as to right and justice shall belong'. Act of 1917, P.L. 817, 12 P.S. § 1874. See Com. ex rel. McMenamin v. McMenamin, 171 Pa. Super. 524, 90 A.2d 398. However, as was stated by Judge (now President Judge) RHODES in Com. ex rel. Knouse v. Knouse, 146 Pa. Super. 396, 22 A.2d 618, 619, 'In this type of case we have recognized that weight is to be given to the fact that the parties are likely to be known to the lower court, and that
[ 173 Pa. Super. Page 426]
it has had a better opportunity to pass upon their ability and character than we have.'
The little girls were born March 7, 1950. The parents separated in December 1950, the mother retaining custody of the children. On November 26, 1951, the father was granted a divorce, which the mother did not contest. On January 16, 1952, when the petition for habeas corpus came on for hearing, the parties agreed that the father should be permitted to visit the children at the Municipal Court Nursery between the hours of 3:00 and 4:00 o'clock each Sunday afternoon.
In her petition asking that the visitation order be rescinded, the mother alleged that the visits 'resulted in disturbances and trouble, due to the conduct of the Respondent, and the children became hysterical, ill and disturbed', and that 'as a consequence thereof they have become hysterical, suffered convulsions, and been made sick and ill, and Petitioner fears they may incur serious permanent injury, both mental and physical if said visitations continue'. The mother also alleged that, during their married life, the father exhibited homosexual tendencies and committed unnatural sexual acts. These several allegations are in large part unsupported by the testimony.
No evidence was introduced as to any homosexual tendency. The testimony as to perversion was not so conclusive as to persuade the court below, or this court, that the father is unfit to associate with his children. The incidents about which complaint is made occurred prior to the separation and were known to appellant when she agreed to the order of visitation. It is not intimated that the father has a paranoiac personality. While the children were emotionally upset after some of the visits at the court nursery, ...