Appeal from order of Court of Common Pleas of Dauphin County, Sept. T., 1973, No. 1538, in case of Joseph Auman v. George A. Eash.
Richard C. Angino, with him Hurwitz, Klein, Benjamin & Angino, for appellant.
Robert B. Lieberman, with him Melman, Gekas and Nicholas, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Hoffman, J., did not participate in the consideration or decision of this case. Dissenting Opinion by Spaeth, J. Cercone, J., joins in this opinion.
[ 228 Pa. Super. Page 243]
This is an appeal from an order granting custody of 6-year-old Timothy Auman to his natural father, Joseph Auman. Appellant, George Eash, is the child's stepfather with whom Timothy resided for nearly 2 years prior to these proceedings. The hearing judge found both fathers were fit parents, but found the
[ 228 Pa. Super. Page 244]
natural father's right to custody of his child superior to that of an unrelated third person. We believe that the order of the lower court should not be disturbed.
Timothy's mother, Deborah, married Joseph Auman in March 1966 when she was only 16. Timothy, her only child, was born in October 1967. After a marriage filled with great unhappiness, the parents separated in April 1971 when Timothy was 3 1/2 years old. A divorce was obtained and in May 1972 Deborah married George Eash. Timothy, who had always been in the custody of his mother, became strongly attached to Mr. Eash and thought of him as his father. In November 1973, when the boy was 6, Deborah was killed in a car accident and Joseph Auman, who had recently married his third wife, began to make efforts to regain custody of Timothy.
The testimony as it unfolded before the hearing judge portrayed George Eash as a loving father and model husband. He provided a good home for his family while they were all together and after his wife's death he made adequate arrangements for Timothy's care which included a large amount of time for the two to spend together. There appeared to be much love between the stepfather and son.
Joseph Auman was also shown as being able and willing to provide a satisfactory home for Timothy. He has a steady job which he has held for a long time and his apartment, though not as spacious as George Eash's mobile home where Timothy has resided, would accommodate another little boy. His new wife, who has two children of her own, expressed eagerness to care for Timothy. The major challenges to the lower court's award of custody to this father center on his suitability as a parent in view of his past conduct. Appellant points out that Joseph Auman has been married three times by the age of 29. His first two marriages ended disastrously and his third is of such recent vintage that
[ 228 Pa. Super. Page 245]
its future is unpredictable. His relationship with Deborah, Timothy's mother, was stormy and he is accused of having at times failed to adequately provide necessities for her and the child. After his divorce, he saw virtually nothing of Timothy, primarily because Deborah was emotionally distraught about their relationship and would not ...