Appeal, No. 387, Jan. T., 1958, from order of Superior Court, Oct. T., 1958, No. 59, affirming order of Court of Quarter Sessions of the Peace of Cumberland County, May T., 1946, No. 7, in re Barbara Ellen Neff. Order reversed.
Hermas L. Weary, with him Hyman Goldstein, for appellant.
Charles H. Stone, Special Assistant District Attorney, with him Clinton R. Weidner, District Attorney, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.
OPINION BY MR. JUSTICE BELL.
Kenneth Neff and his wife Barbara had four children: Barbara born in 1938, Augusta born in 1939, Beatrice in 1941, and Kenneth, Jr., in 1942. In 1946 these four children were adjudged "neglected" by the Juvenile Court of Cumberland County, and the Court, sitting as a quarter sessions court, placed them in a foster home. In 1948 the same Court committed the four children to the Methodist Home for Children,*fn1 where they have received excellent care.
This is an appeal from a closely divided Superior Court (4-3), which denied the petition of the mother, Barbara Cochran, to revoke or modify the above mentioned order and to award to her the custody of her three children.
The facts may be thus summarized.
Kenneth and Barbara Neff were divorced in 1946 and both have since remarried. Barbara is now the wife of William McCarty Cochran of Fair Lawn, New Jersey.
On February 11, 1957, Barbara Cochran filed the above mentioned petition seeking custody of her four children.*fn2 At the hearing on the custody petition the following facts were established: Mr. and Mrs. Cochran reside in a six room, two bathroom house in a residential section of Fair Lawn, New Jersey, convenient to church and schools. Their house is valued at between $20,000 and $21,000, with a mortgage encumbrance of $12,500. Mr. Cochran has an annual salary of approximately $5,000 and an Army retirement pension of $3,200. Mrs. Cochran earns $4,500 a year. They have $2,800 worth of Government savings bonds.*fn3 Mr. Cochran is ready and willing to assume responsibility for the children. The Cochrans were found to be regular church members and of temperate habits. The children, who range in age from 15 to 18 (now 16 to 19) are very anxious to live with their mother and stepfather. The father, who lives near the Methodist Home, opposes the mother's petition. However, he is in arrears in payment of the support order, and has visited his children much less frequently than their mother, who lives in New Jersey, approximately 200 miles away.
The law is well settled that "The controlling consideration is the welfare of the child: Commonwealth ex rel. Graham v. Graham, 367 Pa. 553, 560, 80 A.2d 829; Commonwealth ex rel. ...