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COMMONWEALTH EX REL. PARIKH v. PARIKH (10/04/72)

decided: October 4, 1972.

COMMONWEALTH EX REL. PARIKH
v.
PARIKH, APPELLANT



Appeal from order of Superior Court, April T., 1971, No. 233 reversing order of Court of Common Pleas, Family Division, of Allegheny County, No. 1589 of 1970, in case of Commonwealth ex rel. Nayana Sanat Parikh v. Sanat Kantilal Parikh.

COUNSEL

Ronald J. Bua, with him DeCello, Bua & Manifesto, for appellant.

John P. McComb, Jr., with him Charles R. Taylor, Jr., and Moorhead & Knox, for appellee.

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

Author: Jones

[ 449 Pa. Page 107]

Sanat Kantilal Parikh (father) and Nayana Sanat Parikh (mother) were married on March 13, 1967, in India and immigrated to Pittsburgh, Pennsylvania, three months later. A son, Rejeev, was born in Pittsburgh on February 16, 1969. The father left for a visit to India during August 1969; the mother and son joined him one month later and the three of them resided at the home of the paternal grandparents. While in India, marital difficulties arose and the mother eventually left the home of the paternal grandparents. Due to an illness contracted by the son in India, the father's business in Pittsburgh and marital difficulties, the father and son returned to Pittsburgh on November 29, 1969. The mother arrived in the United States on August 28, 1970.

The mother immediately filed a habeas corpus petition in the Family Division of the Court of Common Pleas of Allegheny County. After a lengthy hearing, that court denied the relief requested by the mother. While recognizing the "tender years" doctrine, e.g., Com. ex rel. Ackerman v. Ackerman, 204 Pa. Superior Ct. 403, 205 A.2d 49 (1964), it was the considered opinion of the hearing judge that "the best interests and welfare of the child dictate that custody remain with the father." On appeal, the Superior Court reversed the hearing judge over the dissents noted by three judges. Com. ex rel. Parikh v. Parikh, 219 Pa. Superior Ct. 240, 280 A.2d 621 (1971). The Superior Court applied the "tender years" doctrine and concluded that the father did not establish the compelling reasons necessary to rebut the "tender years" doctrine. We granted allocatur.

It is well settled that the best interest of the child is paramount in contests between parents for custody

[ 449 Pa. Page 108]

    of minor children. Cochran Appeal, 394 Pa. 162, 145 A.2d 857 (1958); Com. ex rel. Graham v. Graham, 367 Pa. 553, 80 A.2d 829 (1951). "While it is generally held that, other factors being equal, a child of tender years should be with the mother, this rule is by no means absolute. Each case must finally rest upon and be determined by its own facts." Com. ex rel. McLeod v. Seiple, 193 Pa. Superior Ct. 131, 136 (1960). The mother's right to custody is not absolute, but must yield to the welfare of the child. Com. ex rel. Bell v. Bell, 200 Pa. Superior Ct. 646, 189 A.2d 908 (1963).

The record of the Court of Common Pleas is replete with support for the position that the physical and spiritual well-being of the child will best be promoted by awarding custody to the father. The father has a gross monthly income of $1,100.00. The father has demonstrated a deep affection for his son; devotes all available time to the child; and performs the most menial tasks required for the care and maintenance of his child. The mother has displayed some lack of affection for her son. At the time marital problems arose, Mrs. Parikh was not forced, but chose, to leave her husband and son and take up residence with her parents. The child became ill during his stay in India. However, he recovered upon his return to the United States and there are indications that the Indian climate and diet were responsible for the son's illness. Since the child has resided with his father continuously since November 12, 1969, it is reasonable to expect his relocation would disturb the physical and emotional stability he now enjoys.

[ 449 Pa. Page 109]

The paramount interest of this Court is the welfare of the infant Rajeev. All conflicting considerations, including here the "tender years" doctrine, must be subordinated to the child's physical, intellectual, spiritual and emotional well-being. Com. ex rel. Thomas v. Page 109} Gillard, 203 Pa. Superior Ct. 95 198 A.2d 377 (1964). To award custody to the mother on the strength of the "tender years" doctrine, under these circumstances, would be to lose sight of the fact that "tender years" is merely the vehicle through which a decision respecting the infant's custodial well-being may be reached where factual considerations do not ...


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