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COMMONWEALTH EX REL. CARPENTER v. CARPENTER ET AL. (04/16/59)

April 16, 1959

COMMONWEALTH EX REL. CARPENTER
v.
CARPENTER ET AL., APPELLANTS.



Appeal, No. 43, March T., 1959, from order of Court of Common Pleas of Dauphin County, June T., 1958, No. 256, in case of Commonwealth of Pennsylvania ex rel. Jean S. Carpenter v. Robert B. Carpenter et al. Order affirmed.

COUNSEL

Bruce E. Cooper, for appellants.

Francis B. Haas, Jr., with him McNees, Wallace & Nurick, for appellee.

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

Author: Watkins

[ 189 Pa. Super. Page 298]

OPINION BY WATKINS, J.

This is a habeas corpus action in the Court of Common Pleas of Dauphin County, brought by Jean S. Carpenter, relator appellee, against her husband, Robert B. Carpenter, and his father and mother, Ray Luther Carpenter and Hilda Mae Carpenter, respondent appellants, to determine the custody of her minor children, Debra Louise Carpenter, and Harold Allen Carpenter. The court below awarded custody to the mother, and the father and paternal grandparents instituted this appeal.

Jean S. Carpenter and Robert B. Carpenter, each, at the time of the hearing, 24 years of age, were married June 28, 1953. Debra Louise was born in February, 1954; Harold Allen in the last week of July, 1956.

After their marriage the parties went to live with his parents on a farm near Hummelstown, Pennsylvania. In October, 1954, they moved to Lawn, Lebanon County, Pennsylvania where they stayed until March, 1955. At that time they moved to Hershey, Pennsylvania to live with the maternal grandmother, Mrs. Marion Springer. It was while living here that Harold Allen was born. The husband left his wife and children and returned to his parents before his new son was a week old. They never resumed marital relations. The mother and children lived together at Union Deposit, Pennsylvania and Hershey, Pennsylvania until January, 1958 when she went to a hospital for an operation. Her mother-in-law offered to keep the children. In May of 1958 she took the children from the Carpenter farm and placed them in the home of an

[ 189 Pa. Super. Page 299]

    aunt in Philadelphia. She was then planning to secure employment in Philadelphia. Robert B. Carpenter and his parents went to the Philadelphia home and forcibly returned the children to the farm. This habeas corpus action followed.

We believe that the principles of law, in this type of case, are well settled and those principles are well stated by Judge HERMAN of the court below: "Ordinarily, the needs of a child of tender years are best served by the mother, who is better able to care for them, Hixon's Appeal, supra; and as said in Commonwealth ex rel. George v. George, 167 Pa. Superior Ct. 563 (1950), at page 566: 'Unless compelling reasons appear to the contrary, a child of tender years should be committed to the care and custody of its mother. Com ex rel. Keller v. Keller, 90 Pa. Superior Ct. 357; Com. ex rel. Gates v. Gates, supra, 161 Pa. Superior Ct. 423, 55 A.2d 562; Com. ex rel. Graham v. Graham, 167 Pa. Superior Ct. 470, 75 A.2d 614. This is true although others who have been suitable custodians of the child have become attached to it. Com. ex rel. Miller v. Barclay, 96 Pa. Superior Ct. 315; Com. ex rel. Lamberson v. Batyko, 157 Pa. Superior Ct. 389, 43 A.2d 364.' Nor, as was said in Commonwealth ex rel. Chumard v. Chumard, 168 Pa. Superior Ct. 188 (1951), should a mother be deprived of the custody of her child of tender years merely because she is compelled to work for a living." See also: Com ex rel. Haller v. Hanna, 168 Pa. Superior Ct. 217, 77 A.2d 750 (1951).

However, we recognize that "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. ...


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