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COMMONWEALTH EX REL. GALLOWAY v. GALLOWAY. (12/09/58)

December 9, 1958

COMMONWEALTH EX REL. GALLOWAY, APPELLANT,
v.
GALLOWAY.



Appeal, No. 199, Oct. T., 1958, from order of Court of Common Pleas of Elk County, Oct. T., 1955, No. 78, in case of Mildred M. Galloway v. Harold Galloway et ux. Order affirmed.

COUNSEL

Zeno Fritz, with him Edward J. Blatt, for appellant.

Paul B. Greiner, for appellees.

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

Author: Watkins

[ 188 Pa. Super. Page 315]

OPINION BY WATKINS, J.

This is an appeal by Mildred M. Insogna, the appellant, mother of the minors, from the order of the Court of Common Pleas of Elk County, awarding custody of the minor children, Regina Galloway, age 7, and James Galloway, age 5, to the appellees, Harold Galloway, the paternal uncle, and Jeanne P. Galloway, his wife.

Charles Galloway and Mildred Galloway, now Insogna, were married December 10, 1939. Regina was born December 6, 1950 and James, April 4, 1952. Two older children, Robert was born on May 19, 1941 and Dolores on August 20, 1942. It was a stormy marriage and they separated in 1944. The two youngest children were left with the appellees and have been with them ever since. The older children were left with another paternal uncle and presently Dolores is living with her mother and Robert with his father.

In July, 1955 the parents were divorced and the same month, July 21, 1955, the appellant married Domenic Insogna. A child, Patricia Ann, was born of this marriage and at the time of the hearing was fifteen months old. Charles Galloway has not remarried.

The appellant had lived at 6707 Hamilton Avenue, Pittsburgh, Pennsylvania. Shortly before the hearing the Insognas rented and moved into a house having six rooms, three of which are bedrooms and a bath, located at 1108 South Braddock Avenue, Swissdale, Pennsylvania. Appellant, her husband, their infant daughter and her daughter occupy the premises. The appellees own their own home on South Street, a residential area in Ridgway, Pennsylvania. The house has eight rooms, four of which are bedrooms and a bath. This is occupied by the appellees, the minors and two

[ 188 Pa. Super. Page 316]

    children of the appellees, age 16 and 12. Domenic Insogna is employed by the Firestone Tire and Rubber Company and his average weekly earnings are $95 per week. Harold Galloway is a safety inspector for the Pennsylvania Mfgr's Association.

The record discloses that the Galloway family have an excellent reputation in the community; and the court below found that the children were well and lovingly cared for and are well adjusted in the existing family situation. "It is basic and fundamental that the paramount consideration is the welfare of the children and that all other considerations, including the rights of parents, are subordinate to the children's physical, intellectual, moral, spiritual and emotional well being." Com. ex rel. McNamee v. Jackson, 183 Pa. Superior Ct. 522, 525, 132 A.2d 396 (1957). "While natural parents have the primary right to a child's custody, there is no fixed or invariable rule that a natural parent, even though of good moral character, is entitled to custody under all circumstances. Each case must finally rest and ...


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