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COMMONWEALTH EX REL. FINNEY ET UX. v. MURPHY (04/21/54)

April 21, 1954

COMMONWEALTH EX REL. FINNEY ET UX.
v.
MURPHY



COUNSEL

Henry E. Harner, Harrisburg, for appellant.

H. Joseph Hepford, Harrisburg, for appellees.

Before Rhodes, P. J., and Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Ervin

[ 175 Pa. Super. Page 365]

ERVIN, Judge.

This is a habeas corpus proceeding instituted by the mother, relatrix, joined in by her present husband, to obtain custody from the father, respondent, of Marsha Lee Murphy, their six year old daughter. The Court below, after hearing, awarded custody of the child to the mother, now residing in Cleveland, Ohio, subject to the right of the father to have his daughter live with him at his home in Pennsylvania during the month of July of each year, with the obligation on relatrix to assume the responsibility of delivering the child to respondent's home and to pay the transportation costs thereto and therefrom, and also subject to the right of respondent, at his own expense, to have his daughter

[ 175 Pa. Super. Page 366]

    bimonthly on week-ends during specified hours at such place as may be mutually agreed upon by the parents. The father now appeals from that order. This court granted a supersedeas pending the determination of the appeal.

Respondent and relatrix were married January 24, 1946 and lived together in Harrisburg, Pennsylvania. Their daughter, Marsha Lee Murphy, the child involved in this proceeding, was born August 16, 1946. Shortly thereafter the parents were evicted from the apartment in which they were then living and the custody of Marsha was given to respondent's mother and father in December, 1946. The child lived continuously with her paternal grandparents in Steelton, Pennsylvania, for six years until December 22, 1952. On June 30, 1952, six days after relatrix obtained a divorce from him, respondent married his present wife, June W. Murphy, with whom he is now living in Harrisburg, Pennsylvania. On October 18, 1952, approximately four months after her divorce from respondent, relatrix married her present husband, Lawrence A. Finney, with whom she is now residing in Cleveland, Ohio. On December 22, 1952 relatrix returned to Harrisburg, obtained Marsha from respondent's parents, took her to Cleveland, Ohio, and then advised respondent's parents that she intended to keep Marsha. On January 3, 1953 an unsuccessful attempt was made by respondent and his parents to bring the child back to Harrisburg from Cleveland. On February 26, 1953, the day before a hearing was scheduled on the petition of relatrix' present husband to adopt this child, respondent and his present wife went to Cleveland where respondent met Marsha on her way home from school and took her to the home of friends in Cleveland where he and his wife were staying. Subsequently, on February 28, 1953, respondent and his wife returned to

[ 175 Pa. Super. Page 367]

Harrisburg, with Marsha, where she is now living with them.

The burden is upon appellant to establish that the order of the court below is, under the evidence, erroneous or based on a mistake of law. Com. ex rel. Heller v. Yellin, 174 Pa. Super. 292, 101 A.2d 452; Com. ex rel. Shaak v. Shaak, 171 Pa. Super. 122, 90 A.2d 270. In our view, based on an independent examination of all of the evidence, there was no such error, and the order of the court below will be affirmed.

The paramount consideration in cases of this nature is at all times the welfare and best interests of the child. Com. ex rel. Schofield v. Schofield, 173 Pa. Super. 631, 98 A.2d 437; Com. ex rel. Buckner v. Barr, 173 Pa. Super. 124, 95 A.2d 355, affirmed 376 Pa. 9, 101 A.2d 621. In determining who shall have custody of a child we are guided by the rule that unless compelling reasons appear to the contrary, a child of tender years should be committed to the care and ...


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