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COMMONWEALTH EX REL. GIFFORD v. MILLER (11/14/68)

decided: November 14, 1968.

COMMONWEALTH EX REL. GIFFORD, APPELLANT,
v.
MILLER



Appeal from order of Court of Common Pleas of Delaware County, No. 7870 of 1968, in case of Commonwealth ex rel. Ronald Gifford, by his mother, Mildred Gifford, v. Ronald Miller et al.

COUNSEL

Anna I. Vadino, with her Vadino, Auerbach & Vadino, for appellant.

Arthur Levy, with him McClenachan, Blumberg & Levy, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Jacobs, J. Dissenting Opinion by Wright, P. J. Watkins and Montgomery, JJ., join in this dissenting opinion.

Author: Jacobs

[ 213 Pa. Super. Page 270]

This child custody case involves a contest between the mother of an illegitimate child and the putative father's parents for custody of a boy who is two years and four months old. The lower court gave custody to the putative father's parents. We reverse.

Ronald Gifford, the subject of this controversy, was born March 13, 1966, to Mildred Gifford, an unmarried 21 year old woman. The child remained with his

[ 213 Pa. Super. Page 271]

    mother until April 1, 1968, when the mother entered a hospital for surgery. The putative father, Ronald Miller, at that time offered to take care of the child until the mother recovered. About two weeks later, when she was out of the hospital, the mother requested the return of her child. The putative father refused and shortly thereafter turned the child over to his parents, William and Irene Miller. The putative father and his parents refused to let the mother see the child, and on June 20, 1968, she petitioned for a writ of habeas corpus. After two hearings the court below, on July 17, 1968, gave custody of Ronald Gifford to William and Irene Miller with visitation privileges to the mother. The mother appeals from that order.

The appellant is also the mother of two other illegitimate children; Rebecca Ann, age six, and David, age four. Rebecca Ann was adopted by strangers to this proceeding. David lives with his mother. Until April 1, 1968, the petitioner and David and Ronny, as Ronald is known, lived with Mr. and Mrs. Boroi at 1203 Parkins Street, Chester, Pa. The Borois have three children of their own, so a total of eight people are living in the house. The house is small and David and Ronny sleep in a room together. The house has a small back yard in which there is a gym set, a rocking horse, a sand box, a picnic table and a small swimming pool. Petitioner stated that she goes out on Saturday night to a local tavern and spends the evening there. On every occasion she leaves her children with either Mr. or Mrs. Boroi. The appellees offered testimony to the effect that appellant also goes out on Friday night. Sometimes she is accompanied by Mrs. Boroi. There was no testimony that the mother ever left the children alone at night. Mrs. Boroi testified that appellant does not drink or have boyfriends at the house and there was no testimony that appellant had done anything

[ 213 Pa. Super. Page 272]

    of an immoral nature since Ronny's birth over two years ago. All parties testified that Ronny was well dressed, clean and appeared to be well. He has had no serious illnesses. There was testimony that on one occasion when Mr. Boroi was left with the children he had had too much to drink. Testimony showed that once in the daytime appellant left Ronny in front of the house unattended, that she left him in the sun longer than Mrs. Boroi thought proper and did not keep the boy's room clean and properly ventilated. About three years before the hearings the appellant was accused of shoplifting but the matter never proceeded to prosecution. More recently she had an altercation with a neighbor's child that resulted in her going before a magistrate where the matter was settled.

There was no testimony that appellant ever abused Ronny and both children were admittedly well dressed, healthy and well fed. However, there was testimony to the effect that appellant showed no affection toward David and struck him on a number of occasions when he did not obey. In the opinion of one witness who had David for two weeks while the mother was in ...


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