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URBANI v. BATES (03/24/59)

March 24, 1959

URBANI
v.
BATES, APPELLANT.



Appeal, No. 233, March T., 1958, from order of Superior Court, April T., 1957, No. 12, affirming order of Court of Common Pleas of Westmoreland County, July T., 1956, No. 157, in case of Arthur J. Urbani v. Mary Lou Bates. Order reversed.

COUNSEL

Henry B. Waltz, Jr., with him James L. McWherter, for appellant.

Richard E. McCormick, for appellee.

Before Jones, C.j., Musmanno, Jones, Cohen and Mcbride, JJ.

Author: Musmanno

[ 395 Pa. Page 188]

OPINION BY MR. JUSTICE MUSMANNO

Arthur J. Urbani and Mary Lou Urbani became man and wife on October 20, 1950. On November 10, 1955, they became implacable foes through the medium of divorce. On April 9, 1956, Mrs. Urbani married Charles J. Bates, so that she is now Mrs. Bates. When Mrs. Bates left her husband, Arthur Urbani, on August 11, 1955, she took with her their two children, Sharon Ann Urbani, born January 20, 1953, and Michael James Urbani, born January 24, 1954. The Court of Common Pleas of Westmoreland County, through appropriate

[ 395 Pa. Page 189]

    proceedings, awarded the custody of these children to Arthur Urbani, the father; and, as a consequence, Mrs. Bates appealed to the Superior Court which affirmed the decision of the Westmoreland County court. We granted allocatur, and the decision as to who shall have the children now rests with this Court. One improvement on the historical Solomonic decision would be to divide the children, one to each parent, but that would be an expediency as unjust as the threatened division by sword.

When children are of a tender age, their place is with the mother, provided she be ready, able, and willing to raise them properly. The Urbani children at this writing are only 5 and 6 years old, respectively, and thus still within that age span when the chicks need the hen, the colt the mare, and the cub its mother bear. In the case of Commonwealth ex rel. Blatt v. Blatt, 168 Pa. Superior Ct. 427, the custody of two children, 6 and 7, were awarded to the mother. The Superior Court, in affirming the award, said: "The rule of law has often been reiterated that, in the absence of compelling reasons, the welfare of children of tender age is best promoted by giving custody to the mother."

In Commonwealth ex rel. Keller v. Keller, 90 Pa. Superior Ct. 357, the Superior Court said: "Ordinarily, the needs of a child of tender years are best served by the mother who, in the common experience of mankind, is better fitted to have the charge of it."

In the case of Commonwealth ex rel. McMenamin v. McMenamin, 171 Pa. Superior Ct. 524, 526, this rule was restated as follows: "No compelling reasons are exhibited by this record why the usual rule should not have been applied; namely, that children of tender years be awarded to the custody of their mother. We are convinced that the best interests and welfare of this child will ...


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