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decided: June 30, 1972.


Appeal from the order of Superior Court, Oct. T., 1971, No. 504, reversing order of Court of Common Pleas of Berks County, Nov. T., 1969, No. 38, in case of Commonwealth of Pennsylvania ex rel. Anita Holland-Moritz Holschuh v. August W. Holland-Moritz and Anna L. Holland-Moritz.


Stanley P. Stern, for appellant.

Leon Ehrlich, for appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Concurring Opinion by Mr. Chief Justice Jones. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Nix and Mr. Justice Manderino join in this dissent. Dissenting Opinion by Mr. Justice Manderino.

Author: Eagen

[ 448 Pa. Page 440]

Anita Holland-Moritz Holschuh, relatrix, appeals from an order of the Superior Court reversing the Court of Common Pleas of Berks County and awarding the custody of her minor children, Peter and Kai, to the respondents, Mr. and Mrs. August Holland-Moritz.

Mrs. Holschuh is a thirty-four-year-old architect and resident of the State of Connecticut. In these proceedings which were begun in 1969, she seeks by writ of habeas corpus to obtain the custody of her two sons, ages twelve and eleven respectively, from her parents, August and Anna Holland-Moritz.*fn1

Appellant was separated from her husband in August 1965 and a divorce decree was entered in October 1966. After the dissolution of the marriage the children were brought to Berks County in June 1965 to live with their maternal grandparents and aunt. Appellant worked briefly in New York City but in April 1966 she returned home to her parents and children. Anxious to complete her college education, she enrolled at the University of Pennsylvania in September 1966 and was subsequently graduated in 1968. Under an arrangement reached with her parents, the latter were to have custody of the two boys until appellant had completed her

[ 448 Pa. Page 441]

    education and was financially able to support them. During this two-year period Mrs. Holschuh worked week nights as a waitress in order to defray her expenses. Hence, her visits with her children were limited to non-school times such as weekends. In the fall of 1968 appellant enrolled in the graduate school of architecture at Yale University. Because of the increased distance and expense of traveling, Mrs. Holschuh testified that she was able to visit her children only once each month.

At the hearing before Judge Edenharter in the trial court, appellant admitted having affairs with other men since the time of her divorce. She also disclosed that she was presently sharing her living quarters with a male graduate student, a Douglass Southworth, who was her "best friend". It was further testified, however, that with the expected departure of Mr. Southworth for California, this living arrangement would be permanently altered. Mrs. Holschuh professed a great desire to be reunited with her children, saying, "it will change my life" and that "the presence of them would evoke my position of mother which I have not been able to exercise over the past five years."

As an aid to reaching his decision, Judge Edenharter had the benefit of reports from both the Family Relations Division of the Superior Court of New Haven. Connecticut and the Berks County Children's Services.*fn2

[ 448 Pa. Page 442]

Upon consideration of this wealth of evidence, the hearing judge awarded appellant the custody of her two sons, finding Mrs. Holschuh to be an individual with "a spirit of independence and a determination to succeed." The judge said her decision initially to place the children with her parents while she completed her education "was a wise one and demonstrated her concern for their welfare." The court said it did not condone or seek to justify her past conduct but that it was able "to comprehend that for her it was a time for misguided exploration", adding, "We find that she is ready and able to resume her responsibilities as a mother." The contention that appellant was an unfit mother was rejected out of hand. The court concluded by observing that "to leave these children with their elderly grandparents, or with their aunt, would deprive them of their last real chance to grow with a mother's love and care which should continue for the lifetime of the mother."

On appeal, the Superior Court in a unanimous opinion (219 Pa. Superior Ct. 402, 281 A.2d 729 (1971)) took exception with the lower court's disposition of the matter, saying at p. 403: ". . . her way of life is described by the lower court as 'a misguided exploration' which, as we read this record, has not ended. All we can see is a promise by her that, if awarded her children, she will change her manner of living and that the presence of her sons will enable her to do so. This promise should not have been given the weight the lower court apparently gave it, since on occasions in the past during visitations of the children with petitioner

[ 448 Pa. Page 443]

    in her home, her male companion continued to stay there." The Superior Court did not, however, find appellant to be an unfit mother. As Judge Montgomery, speaking for the court, wrote: "We hesitate to characterize the petitioner as an unfit mother and to conclude that she should not have her children for that reason. On the contrary, we will deny her custody because she has not established an environment where their welfare will be promoted. Until she does so to the ...

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