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COMMONWEALTH EX REL. DOGOLE v. CHERRY ET UX. (09/12/61)

September 12, 1961

COMMONWEALTH EX REL. DOGOLE
v.
CHERRY ET UX., APPELLANTS.



Appeal, No. 11, Oct. T., 1961, from decree of Domestic Relations Division of Municipal Court of Philadelphia County, No. 10489, in case of Commonwealth ex rel. Bertha Dogole v. Jacob Cherry et ux. Decree reversed.

COUNSEL

G. Hayward Reid, for appellants.

Nathan L. Posner, with him Fox, Rothschild, O'Brien & Frankel, for appellee.

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

Author: Ervin

[ 196 Pa. Super. Page 47]

OPINION BY ERVIN, J.

The question to be determined in this case is succinctly stated in appellants' brief as follows: "Where a husband and wife adopt a minor child, and the wife dies, and the husband remarries and joins with his second wife in adopting the said child, should visitation rights with said child be granted to the mother of the deceased first wife, over the objection of the adoptive parents?"

By a decree entered in June 1955 Jacob B. Cherry and his former wife, Mindel Cherry, adopted Howard Cherry, who was born on January 27, 1954. Mindel Cherry died December 18, 1957. Jacob B. Cherry and Bernice Cherry, the appellants, were married on July 19, 1959. By a decree entered in January 1960 they adopted Howard Cherry.

During the illness of Mindel Cherry her mother, Bertha Dogole, the appellee, assisted in the care of the child. After the death of Mindel Cherry, the appellee lived with Jacob B. Cherry for a period of two or three months and assumed responsibility for the care of the child.

After the marriage of the appellants they permitted appellee to visit the child every Saturday. Later on appellee requested visitation at times which would be convenient for a member of her family to call for the child. The appellants refused to change the visitation time and dissension developed and in April 1960 the appellants refused further visitation by the appellee.

The court below felt that this case was controlled by the case of Com. ex rel. Goodman v. Dratch, 192 Pa. Superior Ct. 1, 159 A.2d 70, and awarded visitation rights to Bertha Dogole. We cannot agree with this conclusion. In the Goodman case natural grandparents were given the right of visitation to a grandchild, whereas in the present case we are considering the rights of a person who is neither a blood nor an adoptive relative

[ 196 Pa. Super. Page 48]

    of the child. It is true that the law will take a child from its own parents and give the child to a third person if the parents are not fit persons to have custody and the best interests of the child will be furthered by so doing. This is not such a case. There was no evidence to ...


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