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COMMONWEALTH EX REL. MAZZA v. SARVICE (04/03/74)

decided: April 3, 1974.

COMMONWEALTH EX REL. MAZZA
v.
SARVICE, APPELLANT



Appeal from order of Court of Common Pleas of Beaver County, No. 1146 of 1970, in case of Commonwealth of Pennsylvania ex rel. Kathleen Mazza v. Mary Sarvice a/k/a Mary Parrish.

COUNSEL

James B. Ceris, for appellant.

Albert J. Dudash, Jr., for appellee.

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

Author: Hoffman

[ 227 Pa. Super. Page 39]

This is an appeal from an order granting custody of a five year old child to her maternal aunt, Mrs. Patricia Cantolina. The appellant and present custodian of the child, Mrs. Mary Parrish, contends that the court below erred in removing the child from her custody.

Joyce Ann Mazza, the child in question, was born in 1968. At that time, the mother, Kathleen Mazza, was estranged from her husband and unable to care for the child. Mrs. Parrish, aware of the problem, urged Mrs. Mazza to place the child in her custody. At that time, it was understood that the arrangement was temporary, and that Joyce would be returned to the mother as soon as she could provide for her. For a considerable time the mother and her two other children visited Joyce daily. The frequency of the visits decreased somewhat due to an illness of the mother's oldest son.

In April of 1970, Mrs. Mazza demanded that the child be returned to her. Mrs. Parrish refused, demanding $5,000.00 in return for a surrender of custody. After a second attempt to gain custody failed, Mrs. Mazza filed a petition for a writ of habeas corpus in 1970. A hearing was held in October of 1971, and the case was taken under advisement by the trial judge. Another hearing was in February of 1973, after which the trial judge ordered that the child be placed in the care and custody of Mrs. Patricia Cantolina, the child's aunt, until such time as the mother could properly care for her. From this order the present appeal was taken.

Mrs. Parrish presently lives with Dale Sarvey, but has not been divorced from her husband. She has nine children of her own, seven of whom were fathered by her husband, and two by her paramour. Financial support for the entire household is provided by Mr. Sarvey

[ 227 Pa. Super. Page 40]

    who earns between eight and nine thousand dollars per year.

The Cantolina family lives in a large home in a rural area. The household income of the family is over $12,000.00 per year. They have three children of their own, and provide a home for Mrs. Mazza's two other children. Child Welfare Services reported that the physical conditions of the home and the personal attributes of the Cantolinas as parents were excellent. The trial judge was favorably impressed with Mrs. Cantolina's sincerity and the devotion shown by her to Mrs. Mazza's other children. Mrs. Mazza lives nearby and will be able to spend considerable time with the children until she can establish a home of her own.

Although the trial judge found that Mrs. Parrish had a "motherly disposition" and had adequately cared for the child, he was justifiably concerned with the low income in the Parrish home relative to the number of children to be supported, the absolute lack of financial security, and the meritricious relationship between Mrs. Parrish and Mr. Sarvey. He also believed that the child's welfare would be best promoted if she ...


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