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COMMONWEALTH EX REL. KEER v. CRESS. (03/22/61)

March 22, 1961

COMMONWEALTH EX REL. KEER, APPELLANT,
v.
CRESS.



Appeal, No. 365, Oct. T., 1960, from order of Court of Common Pleas of Delaware County, March T., 1959, No. 859, in case of Commonwealth ex rel. Frederick G. Keer, Jr. v. Doris G. Keer Cress. Order affirmed.

COUNSEL

L. Friedman, with him Herman Bloom, for appellant.

Alex J. McCloskey, Jr., with him McCloskey, Desmond & Rockett, for appellee.

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

Author: Woodside

[ 194 Pa. Super. Page 531]

OPINION BY WOODSIDE, J.

The parents of the two children involved in this custody case are divorced. While they were married, but separated, the father brought this habeas corpus action against the mother to obtain custody of their daughters, now 10 and 13 years of age. After several hearings, Delaware County Orphans' Court Judge VAN RODEN, specially presiding in the Court of Common Pleas of that county, awarded each of the parents custody of one child, giving visitation rights to the parent not having custody. The arrangement proved unsatisfactory.

After further hearings, the court entered an order on January 11, 1960, awarding custody of the children to the Methodist Home for Children in Philadelphia. No appeal was taken from that order. When children are neglected or dependent, the juvenile court has authority to place them in an institution. We need not now decide whether the court of common pleas has the same authority in a habeas corpus action brought by one parent against the other parent. The court concluded in the adjudication of January 11, 1960, that the mother was not entitled to custody of the children, and the father did not object to the order placing the children in the Methodist Home.

Subsequent to the order of January 11th, the mother having been divorced from the father, remarried and established a home in Winona, New Jersey. Seeking to regain custody of her children, she filed a petition to amend the January 11th order alleging a change of status. See Commonwealth ex rel. Rogers v. Daven,

[ 194 Pa. Super. Page 532298]

Pa. 416, 422, 148 A. 524 (1930). After a hearing, the court dismissed the petition by order of August 23, 1960. An appeal by the mother from that order is now before us.

It is not necessary to detail the mother's conduct which induced the court to enter its order of January 11th placing the children in the Methodist Home. It is sufficient to note that the mother had a child to her present husband before the final decree divorcing her from the appellee was signed, and that her contempt of the court's orders was an indication of unreasonableness, instability, and disrespect for law. There was sufficient evidence to support the court's conclusion that the mother was not entitled to the custody of her children at that time.

The mother now claims to be happily married, to have satisfactory living conditions near a good school, and to have sufficient income and time to properly care for the children. She argues that her misconduct was a temporary lapse from moral standards which does not forever deny her the right to have custody of her children. See Commonwealth ex rel. Martocello v. Martocello, 148 Pa. Superior Ct. 562, 25 A.2d 855 (1942). She is correct that the issue is her present fitness, and not the nature or extent of her past misconduct. Commonwealth ex rel. Jacobson v. Jacobson, 181 Pa. Superior Ct. 369, 376, 377, 124 A.2d 462 (1956). Although her personal conduct was reprehensible and her attitude to the court exasperating, she is not thereby forever barred from establishing that she has become a proper person to have custody of her children. Commonwealth ex rel. Batch v. Barber, ...


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