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COMMONWEALTH EX REL. LEES v. LEES. (09/12/61)

September 12, 1961

COMMONWEALTH EX REL. LEES, APPELLANT,
v.
LEES.



Appeal, No. 37, Oct. T., 1961, from order of Municipal Court of Philadelphia County, Jan. T., 1960, No. 03433, in case of Commonwealth ex rel. Joseph J. Lees, a minor, by his maternal uncle, Lawrence J. Kieffer, v. James J. Lees. Order affirmed.

COUNSEL

John R. Sutton, for appellant.

David E. Thomas, with him John Stewart, Jr., and Raspin, Espenshade, Heins, Erskine & Stewart, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Wright

[ 196 Pa. Super. Page 33]

OPINION BY WRIGHT, J.

We are here concerned with a controversy involving the custody of Joseph J. Lees, presently aged eleven years, the son of James J. and Marie K. Lees. The child's mother is dead and the contesting parties are the child's father and a maternal uncle, Lawrence J. Kieffer. There were two petitions filed in the court below, one by the father for habeas corpus, and one by the uncle for custody. These actions were consolidated, and the hearing judge took testimony of both petitions at the same time. On September 26, 1960, an order was entered awarding custody of the child to the father. The uncle has appealed. There was no supersedeas, and we were informed at oral argument that the child has been in the father's custody since the date of the order below.

James J. Lees and Marie E. Kieffer were married on September 21, 1940. They had three children as follows: James, born March 14, 1943; John, born March 4, 1945; and Joseph, born June 15, 1950. The parents separated shortly after Joseph's birth. A property settlement agreement was executed by virtue of which the mother was given title to the home and took custody of the three children, for whom the father was to pay support in the amount of $50.00 per week. The father obtained a divorce and remarried. Marie K. Lees died

[ 196 Pa. Super. Page 34]

    on July 28, 1959. James J. Lees promptly sought custody of the three children, who were then staying temporarily at the home of their maternal uncle, Lawrence J. Kieffer. John Lees went to live with his father, but James and Joseph Remained with the uncle. The dispute over Joseph's custody culminated in the appeal presently under consideration.

It should be noted that, following the separation, the father visited his three children from time to time, brought them gifts, and took them on vacations in the summer. He also kept up the support payments to a substantial extent. While appellant states that Joseph "was practically a stranger to his father", there is nothing in the record to support a finding of abandonment. In the words of the hearing judge: "The facts in this case certainly do not warrant a finding of abandonment and we find no abandonment to exist here".

It should also be noted that there is no contention that James J. Lees is not a fit father. He is regularly employed at a substantial salary. At the time of hearing he resided in Riverside, New Jersey, but anticipated a transfer to Downingtown, Pennsylvania. Similarly, there is no issue raised as to appellant's fitness to have the child. As stated by the hearing judge: "There is homes. The fine home environment and conditions, the no question or controversy as to the suitability of both love of this child and solicitude for his welfare are also conceded by both parties. The good care the child would be given is assured in both homes, for the wives of both the petitioner and respondent are capable, devoted and full-time housewives ... There is, therefore, no question as ...


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