Arthur D. Gatz, Jr., Pittsburgh, for appellant.
Edward Goldberg and Emanuel Amdur, Pittsburgh, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther and Wright, JJ.
[ 173 Pa. Super. Page 320]
On the eve of her marriage to her present husband, Paul Bosco, relatrix on November 15, 1951, surrendered the custody of her infant son to the defendants. When about ten months later they on demand refused to return the child to her, she brought this habeas corpus proceeding to regain its custody. The lower court, after full hearing, dismissed relatrix' petition for the writ. Ordinarily a mother is entitled to the custody of a child of tender years. The right however is not absolute but must yield to the best interests and permanent welfare of the child. Oelberman Adoption Case, 167 Pa. Super. 407, 74 A.2d 790; Com. ex
[ 173 Pa. Super. Page 321]
rel. Williams v. Price, 167 Pa. Super. 57, 74 A.2d 668. In our view from an independent examination of all of the evidence, the action of the lower court is supported by substantial reasons affecting the welfare of the child. Cf. Com. ex rel. Keenan v. Thomas, 151 Pa. Super. 131, 30 A.2d 246. The order will be affirmed.
In view of the apparent success of the present marriage it is unfortunate that reference must be made to relatrix' moral lapses in the past. She was pregnant when she married her first husband James V. Marra in July 1947. They were divorced in March 1948. At the hearing in this case she testified that a daughter born to her on September 23, 1948 (now in her custody) was Marra's child. Subsequently, by stipulation filed, it was conceded that relatrix on July 16, 1948, had made a criminal information against one Frank Luvara charging him with fornication and bastardy as father of the same child, and in settlement of the charge she received $500 from Luvara. Notwithstanding the settlement, she subsequently brought a proceeding for the support of the child against Marra, which, after hearing, was dismissed on his denial of paternity and proof of the above facts. Early in 1949 relatrix became interested in one Robert Pengelly and went to Detroit with him and lived with him there for four or five months. She was pregnant when she subsequently married him in October 1949. Shortly after the marriage he was convicted of crime and was sentenced to a Federal penitentiary for a term of 14 years. He had a prior criminal record when he married the relatrix. She divorced him in 1951. He is the father of the child involved in this proceeding, a boy who was 2 1/2 years old at the time of the hearing.
Louis Rosenberg, a number of the Allegheny County Bar, had a casual acquaintance with Paul Bosco from
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using the facilities of a parking lot operated by him. Bosco was unwilling to assume the responsibility of supporting both of relatrix' children and in November, 1951, prior to his marriage, questioned Mr. Rosenberg about placing the child, here involved, for adoption. Judge Samuel A. Weiss had known the defendants as estimable people who wanted to take a child for adoption. And on learning of that fact Mr. Rosenberg in the spirit of helpfulness and not as relatrix' attorney arranged for a meeting on November 15, 1951, in Judge Weiss' chambers between her and the defendants. Relatrix there stated that she wanted to give the child 'to a nice family' and after talking with the defendants indicated a willingness, then and there, to sign papers for the adoption of the child by them. At the judge's suggestion the matter of the adoption proceeding was deferred to an indefinite future time. Relatrix there turned the child over to the defendants. And all of the circumstances support the conclusion of the hearing judge 'that at the time the child was placed with the defendants it was done so for the definite purpose of enabling the mother to embark on her third marriage venture unfettered by a child that had been burdensome through a stubborn skin infection and whose father was such as to be unable to aid in its support'. Relatrix delivered the child to the defendants unconditionally, intending thereby to relinquish all rights to its custody in the ...