Appeal from order of Court of Common Pleas of Elk County, April T., 1968, No. 156, in case of Commonwealth ex rel. Gabrielle A. Fox and James Arlynn Fox, a minor, by his guardian Gabrielle A. Fox, v. Joseph A. Fox.
G. Christianson, with him Alvin B. Lewis, Jr., James R. Whitman, Norbert J. Powell, and Lewis, Brubaker, Whitman and Christianson, for appellant.
James T. Reilly, with him Egli, Walter and Reilly, for amicus curiae.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., Watkins and Montgomery, JJ., would affirm on the opinion of Greiner, P. J.
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Gabrielle Fox filed a petition for writ of habeas corpus seeking the return of her five-year old son
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James Fox from his father. After various hearings, the Court filed a memorandum opinion awarding the custody of the child neither to the mother nor the father, but to the boy's paternal aunt who was not a party to the proceeding.
The only justification given by the Court in its one-page opinion is "that the natural parents of the minor child, James Arlynn Fox, have suffered and continue to suffer, through a prolonged period of domestic and emotional instability. The victim of these parental differences and legal entanglements is their five-year old son, the legal subject of these proceedings but also so obviously the pawn in collateral litigation and/or negotiations between the parties."
In awarding custody, the end sought is always the best interest of the child. In recognition of this aim we have on rare occasions placed custody in a third party rather than in the natural parents. This, however, has been done only where it has been conclusively established that both parents were unsatisfactory guardians. Commonwealth ex rel. Basco v. Olson, 173 Pa. Superior Ct. 319, 98 A.2d 213 (1953); Commonwealth ex rel. Shaak v. Shaak, 171 Pa. Superior Ct. 122, 90 A.2d 270 (1952); Commonwealth ex rel. Sabath v. Mendelson, 187 Pa. Superior Ct. 73, 143 A.2d 665 (1958).
In an overwhelming majority of cases, however, we have been guided by our general presumption that: "Unless compelling reasons appear to the contrary, a child of tender years should be committed to the care and custody of its mother, by whom the needs of the child are ordinarily best served. . . . One of the strongest presumptions in our law is that a mother has a prima facie right to her children over any other person. . . ." Commonwealth ex rel. Logue v. Logue, 194 Pa. Superior Ct. 210, 215, 166 A.2d 60 (1960).
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After carefully reviewing the record, however, we can find nothing in this case which justifies our deviation from the above presumption. Indeed, the facts in this case require that custody ...