Appeal from order of County Court of Philadelphia, Jan. T., 1965, No. 249, W.D. 41016, in case of Commonwealth ex rel. Edmund R. Ruczynski et ux. v. Carl William Powers et al.
James J. McEldrew, for appellants.
Raymond L. McConemy, Jr., with him Thorn, McConemy & Ohrenstein, for appellees.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Hoffman, J. Dissenting Opinion by Montgomery, J.
[ 206 Pa. Super. Page 417]
Robert Anthony Gunther was born out of wedlock to the wife-appellant, Renee Gunther Ruczynski, on May 20, 1960. He remained in the custody of the natural mother until October 27, 1962, when, at her request, he was placed by an intermediary in the custody of the appellees for adoption. The natural mother consented in writing to the adoption at that time. The child remained in appellees' custody until April 19, 1963 -- a period of less than six months -- at which time, the natural mother requested the return of her son. Four months later, on August 16, 1963, she again surrendered her son to appellees. On December 25, 1963, she requested his return a second time, but this request was refused.
A petition for adoption was filed by appellees and granted by the lower court upon a theory of abandonment by the natural mother. On appeal, the Supreme Court of Pennsylvania vacated the decree of adoption because the evidence failed to establish, as required by statute, (1) any conduct on the part of the natural mother which evidenced a settled purpose to relinquish her claim to the child, and (2) any continuity of such conduct for a period of at least six months. Accordingly, the matter was remanded to the court below with instructions to determine the custody of the child.*fn1
[ 206 Pa. Super. Page 418]
Appellants then filed a petition for writ of habeas corpus to recover custody of the child. Following a hearing, the lower court dismissed appellants' petition and awarded custody to the appellees.
Appellants contend that one of the strongest presumptions of law is that a natural mother has a prima facie right to her children over any other person, and, ordinarily, should not be deprived of the custody of her child of tender years. See Commonwealth ex rel. Lovell v. Shaw, 202 Pa. Superior Ct. 339, 344, 195 A.2d 878, 880 (1963). They further argue that the lower court overemphasized the natural mother's criminal record involving moral turpitude and failed to consider that she is now married and able to properly care for her child.
As our Supreme Court indicated when it remanded this case to the lower court,*fn2 in awarding the custody of a child, the court must be guided in its decision by the child's welfare and best interests. Commonwealth ex rel. Graham v. Graham, 367 Pa. 553, 559, 80 A.2d 829, 832 (1951); Commonwealth ex rel. Shaak v. Shaak, 171 Pa. Superior Ct. 122, 126, 90 A.2d 270, 272 (1952). Even the prima facie right of the mother to the custody of a child of tender years must yield to this consideration. Latney's Appeal, 146 Pa. Superior Ct. 20, 22, 21 A.2d 521, 522 (1941).
[ 206 Pa. Super. Page 419]
This rule of law holds true whether the contest be between parents or between a parent and a third person. Commonwealth ex rel. Shaak v. Shaak, supra; Commonwealth ex rel. Shamenek v. Allen, 179 Pa. Superior Ct. 169, 175, 116 A.2d 336, 339 (1955). In numerous cases, we have awarded custody of a child to someone other than the natural mother. See Commonwealth ex rel. Graham v. Graham, supra; Oelberman Page 419} Adoption Case, 167 Pa. Superior Ct. 407, 74 A.2d 790 (1950); Commonwealth ex rel. Williams v. Price, ...