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COMMONWEALTH EX REL. BENDER v. BENDER (03/21/62)

March 21, 1962

COMMONWEALTH EX REL. BENDER
v.
BENDER, APPELLANT.



Appeal, No 391, Oct. T., 1961, from order of Court of Common Pleas of Delaware County, June T., 1956, No. 1340, in case of Commonwealth ex rel. Harriet J. McGugan Bender v. John A. Bender. Decision affirmed.

COUNSEL

Melvin G. Levy, with him McClenachan, Blumberg & Levy, for appellant.

Paul R. Sand, with him Philip J. O'Malley, for appellee.

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

Author: Woodside

[ 197 Pa. Super. Page 399]

OPINION BY WOODSIDE, J.

This appeal involves the custody of Denise Maureen Bender now age 11, and Hohn Albert Bender, Jr., now age 9. The father of these children is appealing from an order of the Court of Common Pleas of Delaware County (VAN RODEN, P.J., Orphans' Court specially presiding) which transferred their general custody from him to their mother, Harriet Bender.

The evidence elicited at the hearing immediately prior to this order presents very little factual dispute. The mother who is now 34 years of age, lives in Medford Lakes, New Jersey, and has been residing there with her sister since May 1956. She is presently employed as a nurse at the West Jersey Hospital in Camden, New Jersey. Her parents live within a short distance of her home, and the children, when in the mother's care, frequently visit them. She is a devout Catholic and expressed an intention to send the children to a parochial school located a short distance from her home. There is every reason to believe that the environment which she has to offer these children will be beneficial to their happiness and well being. Both children have voiced a preference to be with their mother, although they say that they love their father very much and would prefer to live with both parents.

The father is a medical doctor who has been engaged in the general practice of medicine since 1943. His office is in his home. A housekeeper takes care of the

[ 197 Pa. Super. Page 400]

    children while he is engaged in his practice. He lives in Havertown, Delaware County in a good neighborhood, and the children attend a parochial school which is within walking distance of their home. Both children do extremely well in school. During the 1960-61 school year, John was first in his class, and Denise was vying for top honors. The court below found the children to be happy and well adjusted. The father has had the children since 1956, and there can be no question that he has done well in rearing them.

The parents in this case were divorced in May 1956; neither has remarried. On August 1, 1956, the mother instituted proceedings to obtain general custody of the children. The court, with President Judge VAN RODEN presiding, after a hearing, granted general custody of the children to the father because of the mother's illness. There was considerable evidence at this hearing relative to her health. Her husband testified that she used narcotics and was an excessive drinker. The wife denied these accusations, and offered the testimony of Dr. George Rodgers who made a neuropsychiatric examination of Mrs. Bender at her request. It was his opinion that the mother was neither a user of drugs nor an alcoholic, but that she suffered from psycho-motor seizure. He also believed that she was of an emotionally unstable temperament. The mother now appears to be completely cured and to be emotionally stable.

At the hearing prior to the order of September 15, 1961, two expert witnesses, qualified in the field of psychiatry and neurology, testified that she was cured of the psycho-motor seizures and that she had a well adjusted personality. Their unequivocal opinion was that she was competent to take care of her children. The mother testified that her last seizure occurred in December of 1956. The only evidence to dispute this ...


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