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COMMONWEALTH EX REL. MATHIS v. COOPER ET UX. (11/14/58)

November 14, 1958

COMMONWEALTH EX REL. MATHIS
v.
COOPER ET UX., APPELLANTS.



Appeal, No. 269, Oct. T., 1958, from order of Municipal Court of Philadelphia County, Women's Criminal Division, in case of Commonwealth ex rel. Anna Mathis v. Albert and Amy Cooper. Order reversed.

COUNSEL

Harry R. Back, for appellants.

No argument was made nor brief submitted for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, and Watkins, JJ. (ervin, J., absent).

Author: Watkins

[ 188 Pa. Super. Page 114]

OPINION BY WATKINS, J.

This is a habeas corpus action brought in the Municipal Court of Philadelphia by Anna Mathis, sister of the minor, the relator appellee, against Amy Cooper, maternal aunt of the minor, and Albert Cooper, her husband, the respondent appellants, for custody of Albert Millhouse. This appeal is from the order of the Municipal Court granting the writ and directing the return of the child to South Carolina.

The child is an illegitimate son of Florence Millhouse, deceased, and E.V. Mobly. He was born in Johnston, South Carolina, on August 31, 1954. His mother died January 6, 1956, leaving twelve surviving children. After the mother's death he lived with another sister, Nadine Harris, who presently maintains an eight room house on the grounds of her employer in South Carolina, where two adults and ten minors now live.

Albert was brought to Philadelphia to the home of Anna Mathis and by her placed in the custody of the Coopers. There is a conflict of testimony as to the length of time the child has lived with the appellants. They claim one year, the appellee, several months less than that.

As this is a custody matter, the governing criterion is the welfare of the child: Com. ex rel. Schofield v. Schofield, 173 Pa. Superior Ct. 631, 98 A.2d 437 (1953). Here, the fitness of the appellants for custody was not discussed by the court below but the record indicates that the child was well cared for during the time the Coopers had him.

Probation officers indicated that the appellants were not cooperative when they wanted to investigate their home but the record also indicates that the appellants were under the impression that the officers were at their home to take the child away. The record

[ 188 Pa. Super. Page 115]

    discloses that the home of the appellants is a three room apartment where they and the child ...


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