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COMMONWEALTH EX REL. HUGHES v. FOSTER (11/16/73)

decided: November 16, 1973.

COMMONWEALTH EX REL. HUGHES, APPELLANT,
v.
FOSTER



Appeal from judgment of Court of Common Pleas of Lebanon County, Sept. T., 1971, No. 71, in case of Commonwealth of Pennsylvania ex rel. Phillip G. Foster, III, Anne Marie Foster and Brenda Lee Foster, by their mother, Betty Lou Hughes v. Phillip G. Foster, Jr.

COUNSEL

Frederick S. Wolfson, and Egli, Walter, Reilly and Wolfson, for appellant.

George E. Christianson and Lewis, Brubaker, Whitman & Christianson, for appellee.

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

Author: Spaulding

[ 225 Pa. Super. Page 437]

Appellant Betty Lou Hughes appeals from the order of President Judge Thomas Gates of the Court of Common Pleas of Lebanon County awarding custody of her three children to their father. She contends that the tender ages of her children compel the presumption that she, the natural mother, should have custody.

The marriage of appellant and appellee produced three children, now eight, five, and four years of age, whose custody is the subject of this litigation. The couple was divorced in 1971, and both parties continued to reside in Lebanon, Pennsylvania, with appellant given custody of the children in October of that year, subject to the father's weekly visitation privileges and temporary summer custody. Appellant, pursuant to that order, resided with the children at the home of her parents. Appellee went to court several times in the ensuing months to enforce his visitation rights which were apparently being interfered with by the maternal grandparents. Early in 1972,*fn1 appellant delivered

[ 225 Pa. Super. Page 438]

    the children over to appellee because, according to appellee's testimony, the children were mistreated by their maternal grandmother, and because appellant could no longer care for them, and wanted her own personal freedom. In June of 1972, appellee married his present wife. The following month, appellant yielded permanent custody of the children, by consenting to an amendment of the original custody order, on the grounds that the appellee had remarried and could "adequately maintain a home for the children."

One month after giving up permanent custody, appellant moved to Colorado Springs, Colorado, and was soon married to Lester Hughes, a member of the armed forces. In March 1973, she returned to Pennsylvania and instituted habeas corpus proceedings to regain custody of the three Foster children.

At the hearing in support of her petition, Mrs. Hughes testified that, in planning for the custody of her children, she and her husband had "arranged" to rent a three-bedroom home in place of their present one-bedroom apartment.*fn2 Her present husband testified that he had gotten along well with the Foster children during their only meeting and that he wanted them to come to Colorado to live with them. At the end of his term in the armed forces, in 1974, the couple would move with the children to Texas, where he had a civilian job waiting.

Testimony adduced in behalf of the children's father indicated that he has been providing a happy and healthy home life, both materially and spiritually, for his children. Mr. and Mrs. Foster, the three Foster children, and Mrs. Foster's two children from a previous marriage*fn3 occupy a ...


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