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COMMONWEALTH EX REL. FINE v. FINE (11/28/72)

decided: November 28, 1972.

COMMONWEALTH EX REL. FINE
v.
FINE, APPELLANT



Appeal from order of Court of Common Pleas of Bucks County, Jan. T., 1971, No. 551, in case of Commonwealth ex rel. Michael Randy Fine, by his father and guardian, Harvey J. Fine v. Margaret Lynn Fine.

COUNSEL

David H. Kubert, for appellant.

Stephen I. Weiss, with him Weiss, Nelson & Moskowitz, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Hoffman, J. Spaulding and Packel, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 223 Pa. Super. Page 152]

Order affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Hoffman, J.:

This is an appeal from an order awarding custody of the parties' minor son to the father. Appellant alleges primarily that there did not exist that degree of evidence to justify such an order -- to wit, that appellee had not sufficiently rebutted the "tender years" presumption normally existing in custody cases.

The parties were married on February 12, 1961, and separated from each other on May 9, 1969. Michael Randy Fine, now age 10, is the only child of the marriage. The custody of the boy had been with the mother from the date of separation until the order of the court below. The record disclosed that the father had always exercised liberal visitation rights, and that neither parent had ever attempted to alienate the child from the other. In January of 1971, the father instituted proceedings to obtain custody of his son. The father's request was based upon allegations that the mother had repeatedly shown extreme harshness to and lack of understanding for the emotional needs of the

[ 223 Pa. Super. Page 153]

    child, who admittedly was suffering from an ...


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