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COMMONWEALTH EX REL. KRAUS v. KRAUS ET AL. (01/21/58)

January 21, 1958

COMMONWEALTH EX REL. KRAUS
v.
KRAUS ET AL., APPELLANTS.



Appeals, Nos. 171 and 172, April T., 1957, from order of County Court of Allegheny County, No. 2249 of 1955 and No. 2295 of 1952, in cases of Commonwealth of Pennsylvania ex rel. Audrey E. Kraus v. James R. Kraus and Commonwealth ex rel. Susan Kraus Brooks v. James R. Kraus. Order reversed.

COUNSEL

Frank C. Rayburn, for father, appellant.

J. Milton Klein, with him Morris B. Greenberg, for second wife, appellant.

Gustav W. Wilde, with him J. Milton Klein, for mother, appellee.

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

Author: Wright

[ 185 Pa. Super. Page 169]

OPINION BY WRIGHT, J.

We are here concerned with a three-way contest involving the custody of James Leroy Kraus, referred to hereinafter as Leroy, born February 18, 1952. The County Court of Allegheny County acquired jurisdiction because of a prior support order including Leroy's maintenance. Act of March 19, 1915, P.L. 5, 17 P.S. 653. And see Commonwealth ex rel. Mann v. Mann, 181 Pa. Superior Ct. 438, 124 A.2d 432. The parties to the proceeding are (1) Susan Kraus Brooks, referred to hereinafter as Susan, the first wife of James R. Kraus, and Leroy's natural mother; (2) James R. Kraus, referred to hereinafter as James, the natural father of Leroy, and presently married to a third wife; (3) Audrey E. Kraus, referred to hereinafter as Audrey, the second wife of James R. Kraus, and the mother of his other two children, who has cared for Leroy for almost five years. After a six-day hearing an order was entered awarding custody of Leroy to Susan. We granted supersedeas pending the instant appeals of James and Audrey.

James and Susan were married on April 21, 1951, and separated in the summer of 1952. At No. C-2295 of 1952, Susan instituted a proceeding for support, which was thereafter continued indefinitely. Leroy was temporarily cared for by the mother of James. Susan and James were divorced on May 7, 1953. James married Audrey on May 9, 1953, and Leroy thereafter

[ 185 Pa. Super. Page 170]

    lived with them. James and Audrey subsequently had two children, Kristine, born February 17, 1954, and Kim born May 30, 1955. A separation agreement was executed by James and Audrey on August 1, 1956, which agreement provided, inter alia, that Audrey should have "full and complete legal custody" of Leroy, Kristine, and Kim. On December 28, 1956, Audrey and James were divorced. On February 2, 1957, James married his third and present wife. On March 25, 1957, at No. C-2249 of 1955, the County Court of Allegheny County ordered James to pay Audrey support for the three children in the amount of $20.00 per week, whereupon James petitioned for Leroy's custody. Susan thereupon petitioned for custody in No. C-2295 of 1952. The two proceedings were consolidated for hearing and determination.

While natural parents have the primary right to a child's custody, there is no fixed and invariable rule that a natural parent, even though of good moral character, is entitled to custody under all circumstances. Each case must finally rest on and be determined by its own facts: Commonwealth ex rel. Shroad v. Smith, 180 Pa. Superior Ct. 445, 119 A.2d 620. The right of natural parents is not absolute and must yield to the best interests and welfare of the child: Commonwealth ex rel. Logsdon v. Logsdon, 156 Pa. Superior Ct. 85, 39 A.2d 461. A parent's prima facie right to custody may be forfeited if convincing reasons appear that the best interests of the child will be served by awarding custody to someone else: Commonwealth ex rel. Burke v. Birch, 169 Pa. Superior Ct. 537, 83 A.2d 426. The custody of a child is not a property right, ...


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