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CARLISLE APPEAL (09/19/73)

decided: September 19, 1973.

CARLISLE APPEAL


Appeal from order of Court of Common Pleas of Cumberland County, Dec. T., 1972, No. 227, in case of custody of Michael A. Carlisle and James A. Carlisle, minors.

COUNSEL

Edgar B. Bayley, with him Arnold, Slike & Bayley, for appellant.

Wayne F. Shade, with him Martson and Snelbaker, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Cercone, J.

Author: Cercone

[ 225 Pa. Super. Page 182]

This is an appeal from a child custody order of the Court of Common Pleas of Cumberland County. The parents involved in this custody action were separated in June of 1971 and were divorced on August 8, 1972. Five children were born of this union: Carshall, age 20, a third year student at Dickinson College, Gregory 17, Michael 13, James 12 and Michele 10. The lower court action, however, only involved Michael and James. The two oldest boys live with their father, Mr. Carlisle who has remarried and lives in the family home along with his new wife and her two daughters, age 12 and 9. Mr. Carlisle, age 50, is a retired military officer currently employed as a civil servant at the New Cumberland Army Depot. The three younger children live with their mother, Mrs. Carlisle in an apartment facility also in Cumberland County. Mrs. Carlisle, age 53, is a registered nurse, presently employed in a local dress shop. She has not remarried.

This proceeding was initiated by Mr. Carlisle seeking custody of Michael and James. The lower court ordered a transfer of permanent custody of said minor children to their father. Compliance with this order has been suspended pending the decision of this appeal. Various factors bearing on the question of custody, were raised by both parties and entertained by the court below. The central and controlling question, however, is whether the court below abused its discretion in subordinating

[ 225 Pa. Super. Page 183]

    the tender years doctrine in favor of the stated preference of the children to be placed with their natural father.

It is true that a mother has a prima facie right to the care, custody and companionship of a child of tender years where no compelling reason appears to the contrary. This has been the general practice in Pennsylvania ever since the case of Com. v. Addicks, 5 Binney 520, 1813. But merely finding the mother fit,*fn1 where the children of tender years are concerned, does not per se require a determination in the mother's favor. The paramount concern must be for a result that is in the best interest of the children involved. Cochran Appeal, 394 Pa. 162, 145 A.2d 857 (1958). Thus, although the presumption in favor of a mother's custody of children of tender years is well established, it must give way in certain circumstances. Clair Appeal, 219 Pa. Superior Ct. 436 (1971). As our court stated in Com. ex rel. Bender v. Bender, 197 Pa. Superior Ct. 397, 401, 178 A.2d 779 (1962) (a case involving two children aged 9 and 11): "[A]s children grow older, less weight must be given to the tender years doctrine and more weight must be given to the preference of the children."

At the time of the custody hearing in the instant case, the two boys involved, Michael and James, were 13 and 12 years old respectively.*fn2 While they might still be classified as of tender years, they have reached the upper limits of that classification.*fn3 The trial judge below found both boys capable of making an intelligent choice by their testimony expressing preference to live

[ 225 Pa. Super. Page 184]

    with their father. Com. ex rel. Morales v. Morales, 222 Pa. Superior Ct. 373, 294 A.2d 782 (1972). Without more being said, the lower court's decision could be sustained on the basis that the boys stated a preference to live with their father which, standing alone, outweighed the tender years doctrine.* ...


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