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COMMONWEALTH EX REL. LOGUE v. LOGUE (12/15/60)

December 15, 1960

COMMONWEALTH EX REL. LOGUE
v.
LOGUE, APPELLANT.



Appeal, No. 264, April T., 1960, from order of Court of Common Pleas of Erie County, Nov. T., 1956, No. 303, in case of Commonwealth ex rel. Samuel Eugene Logue v. Coral Logue. Order reversed.

COUNSEL

Richard H. Scobell, for appellant.

Barney Bernard, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Montgomery

[ 194 Pa. Super. Page 211]

OPINION BY MONTGOMERY, J.

This appeal concerns the custody of Gerald Eugene Logue, aged nine, and Danny W. Logue, aged seven, the childre of Samuel Eugene Logue and Coral Logue. The Logues were married on May 12, 1950, separated permanently in June, 1956, and Coral Logue received a decree in divorce on April 18, 1959, on the grounds of cruel and barbarous treatment and indignities to the person. During the coverture of their marriage three children were born, the two above named and Michael Lee Logue. The custody of Michal is not involved in this case.

By order dated February 16, 1957, the custody of all three minor children was awarded to Coral Logue, with certain visitation rights being given to Samuel Logue. Between then and now the children have constantly resided with their mother.

On April 13, 1960, Samuel Logue abducted the two children from their school in North Clymer, New York, and at a resulting hearing was adjudged in contempt of court and ordered to return the children. The two children were forthwith returned to their mother and Mr. Logue filed a petition for writ of habeas corpus seeking a permanent transfer of custody. Two hearings on said petition followed and, as a result, the court, being convinced of the superior home life the children would enjoy in their father's household in

[ 194 Pa. Super. Page 212]

Erie, ordered the transfer of custody of the two children to Mr. Logue.

The question in this case is whether the "tender years" doctrine should have been applied by the lower court and the children permitted to remain in the custody of their mother or whether there is a factual basis for the application by the lower court of the "best interest" doctrine and a transfer of custody of the children to their father. The solution of this question requires a detailed study of the facts and testimony presented by the record. A discussion of this evidence is necessary to determine which of the diametrically opposed positions of the parents the law establishes as the most beneficial to the welfare of the children.

The appellee alleges neglect of the children on the part of the mother, in that, (1) a scalp condition was permitted to exist, (2) the children were left in the care of a teen-age baby sitter during the day, (3) in February of 1960 the mother gave birth to an illegitimate child, which child lives in the mother's household, (4) the children were unkempt and ...


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