Appeal, No. 66, Jan. T., 1961, from decree of Orphans' Court of Huntingdon County, No. 7816, in case of Commonwealth ex rel. Charles Bendrick v. Belvy C. White et al. Decree affirmed; reargument refused April 17, 1961.
Richard W. Linton, for appellant.
I. Newton Taylor, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES.
This appeal attacks the propriety and validity of an orphans' court decree*fn1 which awarded the custody
of a 16 months old child, over the objections of the natural father but with the acquiescence of the natural mother, to a married couple wholly unrelated to the child.
A marriage, short in duration but long in unhappiness, is the background of this litigation. On September 27, 1956, after a two weeks' courtship, Charles Bendrick, 38 years old, and Lillian Kish, 21 years old, were married. From that date until they were divorced on March 4, 1960 - three years and six months - the couple lived together only three and one-half months. Of this marriage, two children were born; Evelyn Marie, born May 18, 1957 and Michael Charles (the child whose custody is contested) born January 1, or 4, 1959.
When the child, Michael Charles, was eight months old, Mrs. Bendrick (then separated from her husband), without her husband's knowledge or consent but motivated by what she believed would be the child's best interests, gave the child to a Reverend and Mrs. White, a married couple who were at the time personally unknown to Mrs. Bendrick. The Whites live in Dublin Township, Huntingdon County, where the Reverend White is the pastor of an Assembly of God Church. When the child was given to the Whites, the latter were informed that Mrs. Bendrick did not know her husband's whereabouts. With the aid of counsel, the Whites sought, by mail, to inform the child's father that the child was in their custody and to request his consent to an adoption of the child. A letter to this effect addressed to Mrs. Bendrick's paternal home in Hummelstown, Pa. was allegedly remailed by Mrs. Bendrick to Bendrick's paternal home in Andreas, Pa. Bendrick states that he never received this letter and that it was only after a long and diligent search that he was able to discover the whereabouts of his child.
When Bendrick was refused custody of the child by Whites and upon learning Whites had started adoption proceedings in Huntingdon County, he instituted a habeas corpus proceeding in Huntingdon County on March 17, 1960. After certification of that proceeding from the common pleas to the orphans' court, a hearing was held before President Judge Swirles L. Himes and a decree entered that the child remain in ...