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COMMONWEALTH EX REL. WAGNER v. WAGNER. (09/16/60)

September 16, 1960

COMMONWEALTH EX REL. WAGNER, APPELLANT,
v.
WAGNER.



Appeal, No. 29, Oct. T., 1960, from order of Municipal Court of Philadelphia County, Domestic Relations Division, No. 215491, in case of Commonwealth ex rel. Jennie May Wagner v. Albert Fred Wagner, Jr. Order affirmed.

COUNSEL

Joseph J. Duffy, for appellant.

Joseph D. Shein, for appellee.

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

Author: Woodside

[ 193 Pa. Super. Page 41]

OPINION BY WOODSIDE, J.

This is an appeal by the mother of a three year old boy from an order of the Municipal Court of Philadelphia granting custody of the child to its father.

The parents of the child are separated, each living with their respective parents. There is evidence that the living quarters of the mother are more satisfactory for the rearing of the child than those of the father. However, the trial judge seemed to entertain no doubts that the welfare of the child would be best served by permitting him to remain with the father. The mother was given visitation rights.

The burden is upon the appellant to establish that the order of the lower court is erroneous or that it is based upon error of law. Commonwealth ex rel. Butler v. Ervine, 182 Pa. Superior Ct. 179, 182, 126 A.2d 512 (1956).

[ 193 Pa. Super. Page 42]

Judge GILBERT, who tried this case, had the advantage of seeing and hearing the parties. Any experienced trial judge, while conducting a hearing which involves the custody of a child, is observing the parties in the courtroom, not only to appraise the truth of their testimony, but also to evaluate their fitness to have custody of the child. An appellate court has no such opportunity to pass upon the ability and character of the parties. Commonwealth ex rel. Shroad v. Smith, 180 Pa. Superior Ct. 445, 450, 119 A.2d 620 (1956); Commonwealth ex rel. Hubbell v. Hubbell, 176 Pa. Superior Ct. 186, 193, 107 A.2d 388 (1954).

In custody cases, the paramount consideration is the welfare of the child, and all other considerations, including the rights of parents, are subordinate to the child's physical, intellectual, moral, spiritual and emotional well being. Commonwealth ex rel. McNamee v. Jackson, 183 Pa. Superior Ct. 522, 525, 526, 132 A.2d 396 (1957).

The trial judge wrote an exhaustive opinion in which he reviewed the evidence in detail and set forth at length why he believed the welfare of the child would best be ...


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