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COMMONWEALTH EX REL. LOVELL v. SHAW. (12/12/63)

December 12, 1963

COMMONWEALTH EX REL. LOVELL, APPELLANT,
v.
SHAW.



Appeal, No. 292, April T., 1962, from order of Court of Common Pleas of Allegheny County, Oct. T., 1962, No. 2932, in case of Commonwealth ex rel. Rose J. Lovell v. George Shaw et ux. Order reversed.

COUNSEL

Samuel Goldstock, with him M. David Turets, for appellant.

Lois J. McKee, for appellee.

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

Author: Montgomery

[ 202 Pa. Super. Page 340]

OPINION BY MONTGOMERY, J.

This appeal by the mother of a five year old girl, Carolyn Sue Lovell, is from an order dismissing her petition for a writ of habeas corpus and awarding custody of the child to its paternal grandfather George Shaw, and his wife (not the natural grandmother). It raises the frequent issue of whether the welfare of a child of tender years is better served by awarding custody to its natural mother or to someone else.

The paramount consideration is the child's welfare; and all other considerations, including parents' rights, are subordinate to a child's physical, intellectual, moral, spiritual and emotional well-being. Commonwealth ex rel. Wagner v. Wagner, 193 Pa. Superior Ct. 40, 163 A.2d 708. Appellant does not question that the Shaws are fine people and are able to provide an excellent home for the child, which they have been doing from the time the child was ten months old, when

[ 202 Pa. Super. Page 341]

    they received custody from her father. However, the appellant contends that she, also, can provide the child with a suitable home and, therefore, her right as the mother should prevail.

Appellant was married at Beaumont, Texas, on August 24, 1957, at the age of seventeen, to Arthur D. Lovell (son of George Shaw and Clara V. Shaw) then aged eighteen, while he was in the United States Navy. Arthur had adopted the name of Lovell after his mother had married Robert D. Lovell following her divorce from George Shaw. The child, Carolyn Sue, was born April 2, 1958.

Judge MCKENNA of the court below stated in his opinion, inter alia, the following findings of fact relating to the history of Carolyn and her parents: "Shortly after the birth of the child, Arthur was court-martialed ... and sentenced to six months in a Government prison. ... Rose then joined her parents in Melbourne, Florida, taking Carolyn Sue with her. Arthur served his term and on his release wrote to his wife asking her to join him in California. Complying with his request, Rose, with Carolyn Sue, travelled to Escondido, California, arriving there on February 15, 1959.

"Escondido is the home of Robert D. and Clara V. Lovell. ... Rose and Carolyn Sue stayed for a short period at the home of Mr. and Mrs. ...


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