Appeal from order of Superior Court, Oct. T., 1971, No. 1501, affirming order of Court of Common Pleas of Columbia County, Oct. T., 1970, No. 263, in case of Commonwealth ex rel. Bonita G. Lucas v. Zane B. Kreischer.
Gailey C. Keller, with him Smith, Eves and Keller, for appellant.
Robert E. Bull, for appellee.
Nathaniel R. Jones and James I. Meyerson, attorneys for amicus curiae.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Pomeroy and Mr. Justice Manderino concur in the result.
This action involves the custody of three children, ages nine, eight and six years,*fn1 born of the marriage of Zane B. Kreischer and his then wife, Bonita. The Court of Common Pleas of Columbia County, after an evidentiary hearing, awarded custody to the father with visitation rights to the mother. On appeal the Superior Court affirmed without opinion. Judge Hoffman filed a dissenting opinion in which Judges Spaulding and Cercone joined. See 221 Pa. Superior Ct. 196, 289 A.2d 202 (1972). We granted allocatur and now reverse.
The facts are not in dispute and may be summarized as follows:
The litigants, a Caucasian couple, separated in January 1969, while living in Downingtown, Chester County, Pennsylvania. Immediately following the separation, the three children remained with the mother for about three and one-half weeks, but were then taken to
live temporarily with the maternal grandparents in Columbia County, because the mother experienced difficulty in establishing a suitable residence. In March 1969, following an aborted hearing in an action for custody in Chester County, the parties agreed that the children would be placed in the custody of the paternal grandparents, also residents of Columbia County. In May 1969, the children took up residence with the father in a house trailer in Columbia County.
In September 1969, the father phoned the mother and requested that she take the children to live with her, which she did. At the time, she was sharing an apartment in Willow Grove, Montgomery County, with Leroy S. Lucas, a black man. The parties were divorced in January 1970 and shortly thereafter the father married a Caucasian woman. In June 1970, the mother married Lucas.
From September 1969 until June 1970, the father made only two attempts to see the children. On June 13, 1970, with permission of the mother he took the children to his residence for a week's visit. He then refused ...