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COMMONWEALTH EX REL. THOMPSON v. ALTIERI ET UX. (11/12/57)

November 12, 1957

COMMONWEALTH EX REL. THOMPSON
v.
ALTIERI ET UX., APPELLANTS.



Appeal, No. 168, Oct. T., 1957, from order of Municipal Court of Philadelphia County, Domestic Relations Division, No. 9125, in case of Commonwealth ex rel. Thomas Thompson v. Michael Altieri et ux. Order affirmed.

COUNSEL

Vincent C. Veldorale, for appellants.

Anna Frank Dawson, with her Elliot J. Goldman, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Ervin

[ 184 Pa. Super. Page 432]

OPINION BY ERVIN, J.

This is a habeas corpus proceeding in which the father, petitioner, seeks the custody of his eight-year old son, Thomas James Thompson, from Michael Altieri and Teresa Altieri, his wife. Michael Altieri is a cousin of the boy's deceased mother.

The parents of the boy were married on April 9, 1943 and lived together until the mother's death on July 10, 1949. Three children were born of the marriage: Rosemary Grace Thompson, born March 18, 1944; Barbara Ann Thompson, born April 28, 1947; and the boy whose custody is sought in these proceedings, Thomas James Thompson, born November 4, 1948. At the time of the mother's death, Rosemary Grace Thompson was five years old, Barbara Ann Thompson was two years old and Thomas James Thompson was seven months old. Following a family conference at the time

[ 184 Pa. Super. Page 433]

    of the mother's death, the two girls were placed with one of their maternal aunts in upper New York State and the infant son with the Altieris. Petitioner placed his son with them because they had volunteered and the child at that time was being treated at the Skin and Cancer Hospital, which was near the home of the Altieris. All parties agree that the original placement of the child was on a temporary basis until the father could get a housekeeper. Subsequently the arrangement was continued on an informal family basis. Teresa Altieri, one of the respondents, testified that she and her husband agreed to continue to keep the boy under the condition that the lad would remain with the respondents if the father should remarry. The petitioner testified that all custodial arrangements with the respondents were on a temporary basis. The father testified that he visited the child regularly until April 1956, when differences arose between the parties concerning future custody of the child. The respondents admitted some visits by the father during the years but denied the frequency and regularity of the visits.

On May 16, 1956 the petitioner was married to Pearl Helen Ernwood and established a home in Levittown, Pennsylvania. Immediately after his remarriage, petitioner went to New York State to the maternal aunt and returned to his home with his two daughters and they have been living with him since that time and have been legally adopted by petitioner's present wife. His second wife has expressed a willingness and readiness to accept the boy and to raise him with his two sisters. The petitioner requested the respondents to return the boy to him but they have refused to do so. At the time of the hearing before Judge SPAULDING, the child in question was eight years of age, his sisters were 10 and 13 years of age, the petitioner and his wife were each 37 years of age and the respondents were 56 and

[ 184 Pa. Super. Page 43451]

years of age. The children have been raised in the Catholic faith and will continue to be so raised, notwithstanding that the father ...


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