Appeal, No. 138, Jan. T., 1953, from order of Superior Court, Oct. T., 1952, No. 201, reversing order of Court of Common Pleas of Northampton County, Nov. T., 1951, No. 84, in case of Commonwealth of Pennsylvania ex rel. Marie A. Harry (Brong) v. Spencer D. Eastridge et ux. Order reversed; reargument refused June 29, 1953.
Paul A. McGinley, with him James Hemsteet, for appellant.
Francis H.S. Ede, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
Marie A. Harry, relatrix, appeals from an order of the Superior Court reversing the Court of Common Pleas of Northampton County and awarding custody of her minor children, Kathleen Marie Harry and Patricia
Ann Harry, to the respondents, Mr. and Mrs. Spencer Eastridge.
The history of this litigation begins with the filing of a petition for adoption of these children by Mr. and Mrs. Eastridge in the Orphans' Court of Lackawanna County. The petitioners in that proceeding predicated their right to adopt upon the fact of abandonment by the natural mother for the six-month period required by the Act of April 4, 1925, P.L. 127, as last amended by the Act of June 30, 1947, P.L. 1180, 1 PS 1 et seq. Hence, the maternal interest of relatrix in her children was directly in issue then as it is in the present application. A full hearing was held before Judge BRADY, and he characterized the proceedings before him in these words: "Considerable testimony was taken in these cases and the record contains charges and countercharges, allegations and denials..." After careful reflection on the credibility of the witnesses who made these contradictory statements before him, the learned orphans' court judge denied the petition for lack of proof of abandonment.
Upon the filing of the present petition for habeas corpus, it was agreed by counsel for both sides that the testimony taken in the orphans' court be made part of the record in the court of common pleas. However, the relatrix and both respondents personally appeared before Judge WOODRING to supplement what they had said in the orphans' court. Later, upon petition of respondents, a further hearing was held directed solely to the question of the fitness of the relatrix as a mother. After consideration of the testimony taken at all three hearings, the Northampton County court awarded custody to the relatrix.
There is no dispute over the legal principles involved. The controlling consideration is the welfare of the child: Commonwealth ex rel. ...