Appeal from order of Court of Common Pleas of Beaver County, No. 1411 of 1972, in case of Commonwealth of Pennsylvania ex rel. Jacquelyn L. Grillo v. John F. Shuster, Jr., John F. Shuster, Sr. and Anna Shuster.
Alfred L. Steff, Jr., with him Gretchen Sohn Reed, and Wallover, Reed & Steff, for appellant.
Charles F. Bowers, Jr., for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Spaeth, J. Jacobs, Hoffman, and Cercone, JJ., concur in the result. Wright, P. J., and Watkins, J., would affirm on the opinion of the court below. Spaulding, J., did not participate in the consideration or decision of this case.
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This is an appeal from the denial of a petition for a writ of habeas corpus. Appellant seeks by the petition to gain custody of her three daughters, who are 6, 9,
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and 11 years old. Appellant is the natural mother, appellee John F. Shuster, Jr., the natural father. They were divorced on June 1, 1970; by agreement, custody of the children was granted to appellee, and the children have lived with him for the past three years. On June 28, 1971, appellant remarried; in September, 1971, appellee did. Appellant filed her petition for habeas corpus in October, 1972. It was denied by order of November 30, 1972. In assigning error, appellant contends that the court below did not properly apply two interrelated principles: (1) that the ultimate question in a custody case is what will serve the best interests of the children; and (2) that it should be presumed that the best interests of children of "tender years" will be served by granting custody to their natural mother.
Child custody cases are among the most subtle and complex of all cases, and the attempt to resolve the bitter disputes they engender has been a constant challenge to the courts. In one of the first recorded decisions in western history the judge devised an extreme but effective procedure to determine which of two contending women should have custody of a child.*fn1 If our procedures are to be effective, we must constantly reappraise
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them. It will not do to rely upon unexamined legal presumptions or simple syllogisms.
There is no doubt that as a matter of law, not to mention common sense, the ultimate question in a child custody case is what will serve the best interests of the child: "It is well-settled that the best interest of the child is paramount in contests between parents for custody 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)." Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 107-108, 296 A.2d 625, 627 (1972).*fn2 The difficulty arises when one examines the manner in which the courts have tried to implement this principle.
Rather than struggle with the intricacies of the particular situation confronting a particular child, courts too often speak in terms of the presumption, here urged upon us by appellant, that if the child is of "tender years", the best interests of the child will be served by granting custody to the mother. Indeed so often has this been said that the presumption has by repetition gathered such strength as to put the burden on the father to show "compelling reasons" why the mother should not have custody. Commonwealth ex rel. Logue v. Logue, 194 Pa. Superior Ct. 210, 166 A.2d 60 (1960) (collecting ...