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COMMONWEALTH EX REL. JOHNSON v. PINDER (09/18/70)

decided: September 18, 1970.

COMMONWEALTH EX REL. JOHNSON, APPELLANT,
v.
PINDER



Appeal from order of Court of Common Pleas, Family Court Division, of Philadelphia, H.C. No. 14644, D.R. No. 268205, in case of Commonwealth ex rel. Norman Earl Johnson v. Hattie Pinder.

COUNSEL

Benjamin Levin, for appellant.

Hardy Williams, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., would affirm the order below.

Author: Hoffman

[ 217 Pa. Super. Page 181]

This is an appeal by Norman Earl Johnson from the denial of custody of his 19 month old son. The court awarded the child's custody to Mrs. Hattie Pinder, the child's maternal grandmother, on the ground that the child's interests would best be served if he remained with her.

Appellant and his first wife, the child's mother, were married on September 9, 1967. After the honeymoon, appellant returned to Carbondale, Illinois where he had been attending college. He worked there for several months for the funds necessary to resume his studies in March of 1968. Appellant's wife remained in Philadelphia for a short period after their honeymoon and then joined her husband in Illinois. She returned to Philadelphia in the early part of 1968 because she was pregnant and wanted to be near her mother, appellee herein. The child was born in May of 1968.

Mr. Johnson testified that when the child was born, he flew home and remained three or four days with his wife. He then returned to school in Illinois. On September 9, 1968, appellant's wife committed suicide. Appellant flew to Philadelphia as soon as he was advised of his wife's death and again saw his child. The third and last time that he saw his child was in September of 1969 when he stood outside appellee's door and watched her take the baby to a babysitter. Appellant further testified that on other occasions, when he advised appellee of his intention to come home to see his son, he was told that the child was out of town. He also stated that he made some 15 efforts to see his child.

[ 217 Pa. Super. Page 182]

Appellant was remarried on July 5, 1969. He and his wife currently reside in Carbondale, Illinois, in a two bedroom apartment, and both were to have graduated from school in June and August 1970 respectively. They plan to live in a suburban area of Chicago where appellant will become a guidance counselor and his wife a grade school teacher. Appellant's wife stated that she desires to share in the care of the child.

Mrs. Pinder, the child's grandmother, testified that appellant never wrote or called his first wife. She objected to relinquishing the child because, in her opinion, appellant had demonstrated no pride or responsibility towards the child. She testified that appellant's first wife, her daughter, did not leave Philadelphia after the marriage, which statement the court found to be untrue. Appellee further testified that when she resumed her seasonal employment, she sent the child to relatives in North Carolina. Indeed, at the time of the hearing in the lower court, the child was in North Carolina. Appellee also testified that she planned to build a home in North Carolina and would remarry after she obtained a divorce from her present husband.

The paramount consideration in child custody disputes, to which all other factors are subordinate, is the child's welfare. Presumptively, the child's welfare is best served when the child is in the custody of its parent or parents, and prima facie, a parent is entitled to the custody of his or her child. In a contest between a natural father and a non-parent, the father's right to the custody of his child is held to be so moving and urgent that it is forfeitable only by misconduct or other factors which substantially affect the child's welfare. Commonwealth ex rel. Sabath v. Mendelson, 187 Pa. Superior Ct. ...


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