Appeal from order of Court of Common Pleas of Chester County, Dec. T., 1971, No. 192, in case of Jean C. Williams v. Harold T. Williams.
John Markle, Jr., with him Drinker, Biddle & Reath, for appellant.
Francis X. Hope, Jr., with him Hope and Portnoff, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J.
[ 223 Pa. Super. Page 30]
This appeal involves the custody of two minor children, one a girl now 13 years of age and the other a boy now 8 years of age. The court below awarded the children to their father and their mother appeals. After careful consideration we reverse and remand.
The parties were married December 31, 1955. Their daughter Gwen was born February 5, 1959, and their adopted son Grant was born March 29, 1964. Mr. and Mrs. Williams lived together as husband and wife from the time of their marriage until September 29, 1971. During the 9 years immediately prior to September 29, 1971, they lived with their children at 528 Tory Hill Road, Devon, in Chester County. On September 29,
[ 223 Pa. Super. Page 311971]
, the parties separated, the mother and children moving to an apartment in Devon. On October 22, 1971, the parties entered into a separation agreement providing, inter alia, that the mother should have general custody of the two children during their minorities*fn1 and that the parties could live separate and apart from each other at such place as each might choose.
On November 24, 1971, the mother took the children to Chicago to visit her mother over Thanksgiving Holiday. Instead of returning to Pennsylvania the mother decided to move to California. Leaving the children with her brother in Indiana, the mother returned to Pennsylvania and closed the apartment. She then picked up the children and went to California where she stayed with a cousin in Laguna Hills. The father flew to California, searched for and found the place where his wife and children were staying, waited until the children left for school in the morning, picked them up, and brought them back to 528 Tory Hill Road, Devon, on December 7, 1971. The mother promptly filed a petition for a writ of habeas corpus.
After a hearing, at which the mother, father, a physician, and several neighbors testified, it became apparent that both parents were fit parents and able to take care of the children. While recognizing the tender years doctrine, under which custody of young children is granted to the mother if she is a fit person, the court below felt that the best interest of the children would be served by awarding them to the father. Among the factors cited by the lower court, which apparently brought about its decision, were
[ 223 Pa. Super. Page 32]
the following: (1) The mother's residence in California would prevent frequent visits by their father, (2) the uncertainty of the mother's plans, (3) the removal of Grant from a special school, (4) the mother's problems in disciplining Gwen, and (5) the preference of the children to remain with their father. The most important of these factors ...