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SHOEMAKER APPEAL. (07/02/59)

July 2, 1959

SHOEMAKER APPEAL.


Appeal, No. 15, Jan. T., 1960, from order of Orphans' Court of Northampton County, No. 3-59, in re appointment of guardian of the person of Erica Lewis, a minor. Order vacated. Proceedings on application for appointment of a guardian of the person of a minor. Order entered granting petition, opinion by WOODRING, J. Exceptants appealed.

COUNSEL

James F. Pritchard, with him Davis & Pritchard, for appellants.

Edward J. Fox, Jr., with him Fox and Oldt, for appellee.

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

Author: Bell

[ 396 Pa. Page 380]

OPINION BY MR. JUSTICE BELL

Erica Lewis, a minor, now seven years of age, was born on March 31, 1952, in Bryn Mawr, Pennsylvania, the child of Helen Lewis. Helen Lewis had never been married, and the identity of the child's father is unknown. On August 7, 1953, Helen Lewis purchased a home in Upper Mount Bethel Township in Northampton County. On December 8, 1958, Helen Lewis was hospitalized, and Erica was placed with Helen's consent in the custody of Mr. and Mrs. James Shoemaker, who lived on the neighboring farm. Helen Lewis died on December 21, 1958. On January 19, 1959, Mrs. Vivian Elizabeth Weaver, an aunt of Erica by marriage, who lives in Garden City, Long Island, New York, petitioned the Orphans' Court for appointment of herself as guardian of the person of Erica Lewis. At the same time Mr. and Mrs. Shoemaker filed a Notice of Intention to Adopt Erica, in accordance with the Act of June 5, 1941, P.L. 93, § 1 as amended.

When the matter came on for hearing, the parties agreed and stipulated that the case be considered in the nature of a habeas corpus proceeding for the custody of Erica. After a full hearing, the Court entered an Order appointing Mrs. Weaver as guardian of the person of Erica and granting her custody of Erica. From this Order the Shoemakers have appealed.

The Act of August 10, 1951, P.L. 1163, Article VII, § 703, provides: "In any proceeding for the adoption of a minor or for the appointment of a guardian of his person, the court may award a writ of habeas corpus."

[ 396 Pa. Page 381]

The limited jurisdiction of the Superior Court in Orphans' Court matters was repealed by the Act of May 8, 1956, P.L. 1540. This appeal, like every other appeal from a matter arising in the Orphans' Court, is properly taken to this Court.

This appeal, being in the nature of a habeas corpus proceeding, will be considered by this Court upon the merits: Commonwealth ex rel. Graham v. Graham, 367 Pa. 553, 562, 80 A.2d 829.

It is well settled that the paramount and controlling concern - the polestar - in every child custody case is the best interests and welfare of the child: Cochran Appeal, 394 Pa. 162, 145 A.2d 857; Commonwealth ex rel. Graham v. Graham, 367 Pa., supra. In determining what are the best interests and welfare of the child, all the circumstances which may affect that determination are admissible, including, inter alia, the character and fitness of the petitioners, their respective homes, their ability to take adequate care of as well as to financially provide for the child, their church affiliations, and every factor which ...


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