Appeal from order of County Court of Philadelphia, March T., 1966, No. 12,891, in case of Commonwealth ex rel. Clifford M. Shipp v. Harriet Shipp et al.
James A. Burgess, Jr., with him Nelson Romisher, for appellant.
Roger M. Whiteman, with him John Linwood Owens, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Spaulding, JJ. (Hoffman, J., absent). Opinion by Jacobs, J. Ervin, P. J., and Spaulding, J., would affirm on the able opinion of the court below.
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In this case the father of Elizabeth Jane Shipp seeks custody of her from her mother. The court below
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awarded custody to the father and the mother appeals. We remand with directions.
Harriet McCoy Shipp and Clifford M. Shipp were married on June 17, 1955. Three children were born of this marriage. A son, Laughlin, was born June 17, 1960, a son, Joseph, was born February 12, 1962, and Elizabeth, the subject of this proceeding, was born June 9, 1965. For the four years immediately preceding December 11, 1965 the family lived together in Fulton, Missouri. On December 11, 1965 the mother left home with a married man by the name of Ted Mallinckrodt and went to Philadelphia with him. She took Elizabeth with her. Shortly after the mother left, the father began a divorce action in Fulton, Missouri, and received a final decree of divorce on February 19, 1966. On April 6, 1966 the father filed a petition for a writ of habeas corpus in the County Court of Philadelphia, and on April 28, 1966 a hearing was held in the court below before the Honorable James L. Stern. On June 16, 1966 Judge Stern made an order awarding custody of Elizabeth to her father and giving the mother the right to have the child for one month in the summer and one week at Easter time and one week at either Thanksgiving or Christmas time.
Custody must be determined on the basis of the facts as they exist at the time of the habeas corpus hearing. Commonwealth ex rel. Schofield v. Schofield, 173 Pa. Superior Ct. 631, 98 A.2d 437 (1953); Commonwealth ex rel. Cleary v. Weaver, 188 Pa. Superior Ct. 197, 146 A.2d 374 (1958). At that time and for some time prior thereto the husband, who was 36 years old, was assistant to the president of William Wood College in Fulton, Missouri, and received an annual salary of $12,700 plus certain perquisites including a large, rent free house with all utilities except telephone, free heat and a car allowance. After his wife left he continued to maintain the home in Fulton, Missouri,
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with the two boys and a 67 year old retired practical nurse as housekeeper. From the time they left Fulton until approximately one week prior to the hearing the mother, who is 32 years old, and Mallinckrodt, who is 44 years old, lived together as husband and wife in Philadelphia. Elizabeth lived with them. Some time during the week prior to the hearing Mallinckrodt moved to the Y.M.C.A. The mother is not working, and the rent for the apartment in which she remained is paid by Mallinckrodt. She and Elizabeth are supported entirely by Mallinckrodt except for $20 a week which she receives from her sister. Mallinckrodt is employed by the Veterans' Administration on a temporary appointment and has a take home pay of $80 per week. Elizabeth is a healthy, happy, well cared for child.
In a case involving the custody of a child our paramount concern and the paramount concern of the court below is the welfare of the child. Cochran Appeal, 394 Pa. 162, 145 A.2d 857 (1958). This child is a child of tender years and ordinarily such a child's needs are best served by her mother and she should normally be committed to her mother's custody, particularly where the child is a girl. Commonwealth ex rel. Horton v. Burke, 190 Pa. Superior Ct. 392, 154 A.2d 255 (1959); Commonwealth ex rel. Lovell v. Shaw, 202 Pa. Superior Ct. 339, 195 A.2d 878 (1963). However, compelling reasons may require the mother's rights to give way to the best interests of the child. ...