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COMMONWEALTH EX REL. ASHFIELD v. CORTES (09/15/67)

decided: September 15, 1967.

COMMONWEALTH EX REL. ASHFIELD, APPELLANT,
v.
CORTES



Appeal from order of County Court of Philadelphia, Sept. T., 1966, No. 13,106, in case of Commonwealth ex rel. Olivia Ashfield v. Justine Cortes.

COUNSEL

John G. Veith, of Community Legal Services, Inc., for appellant.

Edward Stone, with him W. Belskin Ginsburg and Martin P. Mullen, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Spaulding, J. Wright, J., concurs in the result.

Author: Spaulding

[ 210 Pa. Super. Page 517]

This appeal is from the dismissal in the Philadelphia County Court of a habeas corpus petition filed by Olivia Ashfield, appellant, for the custody of her five minor grandchildren.

Appellant, a subject of Great Britain residing in London, England, came to Philadelphia in July 1966 to aid her daughter Justine Cortes, respondent and mother of the children. Respondent also is a subject of Great Britain, but her five children, ranging in age from four to thirteen years, are citizens of the United States. They reside with respondent who has been separated from her husband Victor Cortes since 1961. The husband does not claim custody of the children and appeared as a witness on behalf of appellant.

Appellant's petition alleges, inter alia, that respondent resides with another female and is engaged in open, notorious and unconcealed acts of sexual abnormalities with this person in the presence and with the knowledge of the children. Subsequent allegations recite that this conduct will have an adverse effect upon the children's "normality, behavior and upbringing." The petition in this action to obtain custody of the children further relates that appellant resides with her married son, his wife and three children in a home in London, England, consisting of six large rooms described as sufficient to provide adequate and proper living quarters for the children.

Three hearings were held before the court below. Evidence adduced disclosed that respondent met one Patricia Lake in February 1965. From September 1965, Miss Lake has been living with respondent and her five children. Subsequently, with initial funds provided by Miss Lake, she and respondent jointly acquired title to a house in Philadelphia where Miss Lake, Mrs. Cortes and her five children now reside.

[ 210 Pa. Super. Page 518]

For about two years Patricia Lake has shared the same home and bed with respondent and has helped to support her family. The entire record suggests an unhealthy relationship in the household which has not been explained, primarily through failure of the trial court to assume responsibility in determining all of the facts concerning appellant's allegations. During 42 pages of testimony in the direct examination of appellant, an alien in an unknown setting, some 35 objections were made by respondent's counsel to questions submitted to appellant, only two of which were overruled. This regrettable circumstance in the proceedings below can only have caused Mrs. Ashfield understandably to question the efficacy of the pursuit of our American brand of justice. In Commonwealth ex rel. McNamee v. Jackson, 183 Pa. Superior Ct. 522, 529, 132 A.2d 396 (1957), reference is made to an observation by the Honorable Horace Stern, retired Chief Justice of the Supreme Court, who decried the excessive use of objections to testimony during trials in Pennsylvania, and told of sitting for days in England while negligence cases were being tried without hearing a single objection to testimony, even when clearly objectionable questions were asked. In the instant case the trial court excluded testimony and offers of correspondence which may well have answered the questions so vital to the welfare of the children.

In reviewing proceedings of custody of children, this court must "consider the testimony and make such order upon the merits of the case . . . as to right and justice shall belong." Act of July 11, 1917, P. L. 817, § 1, 12 P.S. § 1874. The primary and controlling principle to which every court must adhere is the determination as to what is best for the child. Commonwealth ex rel. Children's Aid Society v. Gard, 162 ...


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