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COMMONWEALTH EX REL. HAUS v. HAUS (12/10/69)

decided: December 10, 1969.

COMMONWEALTH EX REL. HAUS, APPELLANT,
v.
HAUS, APPELLANT



Appeals from order of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1969, No. 583, in case of Commonwealth ex rel. Janice K. Haus v. Francis Haus, Sr. et al.

COUNSEL

Stephen N. Lipton, with him Wallace and Lipton, for defendant.

Victor Dell'Alba, with him Marjorie Hanson Matson, and Dell'Alba, Gailey & Bupp, for relatrix.

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

Author: Per Curiam

[ 217 Pa. Super. Page 127]

Order affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Cercone, J.:

This is a custody dispute between the separated parents of three boys aged 12, 11 and 8. The lower court granted custody of the 8-year old to his mother and granted custody of the two older boys to their father to be raised in the paternal grandparents' household. Upon appeal to this court by both parents, their counsel expressed agreement at the time of the oral argument that it would be best if the court awarded custody of all three children to one of the parents. The majority, however, affirms the lower court's decision, and I respectfully dissent, first, because the wish expressed by the parents' counsel that the boys not be

[ 217 Pa. Super. Page 128]

    separated was a sound one, promotive of the children's general welfare and of the companionship which should be permitted to develop among the three brothers; and second, because not only the record but a reading of the opinion of the hearing judge reveals it was an error of law to deprive the mother of custody of the two older boys. The hearing judge states in his Opinion: "Having seen and heard the parties to this proceeding and the other witnesses, we cannot say that either parent is unfit to have custody of the children . . . While we do not regard the relatrix as unfit to have custody, there was sufficient evidence adduced to warrant the inference that she has had somewhat of a 'drinking' problem which has been the source of at least a substantial part of the difficulties which have arisen in the family." Thus, according to the hearing judge's finding and conclusion, the mother was fit to have custody, despite the "inference" of an undefined and nebulously stated "drinking" problem, which, of course, must not really have been so serious a problem, otherwise the court would not have decreed the mother fit to take care of the youngest boy.

In granting the custody of the two older boys to their father, and not the mother, the court relied on the boys' stated preference, saying: "In this determination we accord considerable weight to the strong and emphatic preference expressed by the two older boys." Yet, the lower court admits that "From our vantage point, we cannot say whether their unfavorable, and even hostile, attitude toward their mother is completely justified or not. And we realize that their preference for their father 'must be based on good reasons': Commonwealth ex rel. Horton v. Burke, 190 Pa. Superior Ct. ...


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