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COMMONWEALTH EX REL. GALL v. REED. (03/17/64)

March 17, 1964

COMMONWEALTH EX REL. GALL, APPELLANT,
v.
REED.



Appeal, No. 8, Feb. T., 1964, from order of Court of Common Pleas of Luzerne County, Oct. T., 1962, No. 1449, in case of Commonwealth ex rel. Albert Gall v. Raymond Adam Reed, Jr. Order affirmed.

COUNSEL

Howard A. Berman, for appellant.

Stephen A. Teller, for appellee.

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

Author: Woodside

[ 202 Pa. Super. Page 560]

OPINION BY WOODSIDE, J.

From the days of ancient Israel, judges have looked upon child custody cases as among the most difficult and heart-rendering of all matters brought before them. So is it here.

This appeal was taken by Albert Gall after the Court of Common Pleas of Luzerne County refused his petition to obtain custody of his two sons from their maternal aunt and her husband. The case was ably tried, thoroughly briefed and well argued. The trial judge evidenced careful and conscientious consideration and came to the correct conclusion.

The boys are now 12 and 13 years of age. Their parents were married in February 1949, separated in November 1953, and divorced in 1954. The mother was given custody of the boys and the father visitation rights by an agreed court order in 1955. Thereafter the boys lived with their mother in Allentown until she died on July 19, 1962. Since the divorce, the father has resided with his mother in nearby Fountain Hill. Neither parent remarried.

When the mother died, the maternal aunt and her husband, Mrs. and Reverend Raymond A. Reed, Jr., complying with a request made in the mother's will, took the children to their home in Wilkes-Barre where Reverend Reed is pastor of the Christ Lutheran Church. A few weeks later the father learned of his sons' whereabouts and brought this action to obtain custody.

Presumptively, a child's welfare is best served in the custody of a parent. Prima facie Gall is entitled to custody of his children. Com ex rel. Bendrick v. White, 403 Pa. 55, 58, 169 A.2d 69 (1961). The right of a parent is not absolute, but still is so moving and cogent that it is forfeitable only by misconduct or by other factors which substantially affect the children's welfare. Com. ex rel. Shamenek v. Allen, 179 Pa. Superior Ct. 169, 175, 116 A.2d 336 (1955). Compelling

[ 202 Pa. Super. Page 561]

    reasons must appear before a parent will be denied custody of his children. Com. ex rel. Shroad v. Smith, 180 Pa. Superior Ct. 445, 451, 119 A.2d 620 (1956). See also Com. ex rel. Martino v. ...


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