Appeal, No. 227, Oct. T., 1958, from order of Municipal Court of Philadelphia County No. 207350, in case of Commonwealth ex rel. Dan O. Sabath v. Herbert H. Mendelson. Order affirmed.
Nochem S. Winnet, with him Edward L. Frater, and Fox, Rothschild, O'Brien & Frankel, for appellant.
Joseph Sharfsin, with him William A. Goichman, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).
[ 187 Pa. Super. Page 74]
We are here concerned with a controversy involving the custody of Nancy Ellen Sabath, aged ten years. The contesting parties are Dan O. Sabath, the natural father, and Herbert H. Mendelson, a brother of the child's deceased mother. On March 27, 1958, the court below entered an order awarding custody to the father,
[ 187 Pa. Super. Page 75]
and granting liberal visitation rights to the Mendelson family. Included in the order, inter alia, was a requirement that the father file a compliance bond. The maternal uncle immediately appealed. After hearing argument, all of this on the same day, we granted a supersedeas.
Following the marriage of Dan O. Sabath and Lita Mendelson, they lived in Chicago where Nancy Ellen was born on October 14, 1947. At that time the parents were aged, respectively, 24 and 18 years. They were divorced on July 7, 1950. The divorce decree provided that the mother was to have custody of the child and that the father was to pay $15.00 each week for the child's support and also to care for her medical expenses. Early in 1951 the mother moved with the child to California. On June 17, 1951, the father remarried. On December 5, 1957, the mother ended her life, leaving a note directing that the child was "to be with my brother Herbert". Appellant thereupon flew to California and brought Nancy back to his home in Philadelphia. The father promptly demanded custody. After first agreeing that the father should have the child, appellant later refused to release her.
Appellant states the question involved to be as follows: "Where the evidence indicates that a child of divorced parents has for seven of her ten years been identified with the maternal side of the family, and in accordance with the dying wish of her mother, her brother took custody of the child, should the custody be changed and awarded to the father who has seen the child but once in seven years, who lives in a different city and has married out of the faith in which the child was reared". The counter-statement of the question involved as submitted by appellee is as follows: "Did the Court below act within its discretion in awarding custody of a ten-year old daughter to her natural father as
[ 187 Pa. Super. Page 76]
opposed to the maternal uncle, who had not seen the child for four years preceding the instant controversy, who had resided with the child since his marriage for only three months in the child's entire life, who has been divorced once, has two other children, and who himself intends to move to New York City in the near future, in view of the fact that the natural father is ...