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COMMONWEALTH EX REL. MYERS v. MYERS (12/01/75)

decided: December 1, 1975.

COMMONWEALTH EX REL. MYERS
v.
MYERS, APPELLANT



Appeal from decree of Court of Common Pleas of Cumberland County, May T., 1974, No. 319, in case of Commonwealth ex rel. Fred H. Myers v. Pandora L. Myers.

COUNSEL

John McCrea, III, W. H. McCrea, Jr., and McCrea & McCrea, for appellant.

Sylvia H. Rambo, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Concurring and Dissenting Opinion by Spaeth, J. Dissenting Opinion by Hoffman, J.

Author: Watkins

[ 237 Pa. Super. Page 193]

This is an appeal from the decision of the Court of Common Pleas of Cumberland County awarding custody of two minor children to the father-appellee, Fred H. Myers. The children in question are Kelli, aged two; and Stacey, aged five.

The husband, a member of the United States Air Force, for ten months prior to January 14, 1974, had been stationed in Korea. His wife occupied a mobile home outside Shippensburg to which he returned on January 14, 1974. He then learned that, during his absence, the appellant had been romantically involved with one Thompson. This caused a separation; his wife remained in their mobile home until February 11, 1974, when she and the children left and moved into an apartment with Thompson, where she resided until the time of the hearing. She stated that Thompson moved out of the apartment a few days before the hearing, admittedly on advice of her counsel. At the hearing, the wife stated she would terminate her relationship with Thompson, with whom she admitted being in love, until she obtained a divorce from the appellee, and that she had filed for divorce the morning of the custody hearing. Additionally, it appeared that the appellant and Thompson had both signed the lease for the apartment they occupied after February 11, 1974.

On these facts the hearing court awarded custody to the natural father, even though it would involve

[ 237 Pa. Super. Page 194]

    removal from Pennsylvania to the father's station in Mississippi. Actual custody pending appeal, was given to the paternal grandparents in Shippensburg.

The controlling principle here is the best interests of the children. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 107, 296 A.2d 625, 627 (1972). The "tender years" doctrine will not control where the mother is guilty of unchaste or improper conduct, detrimental to the welfare of the child. Commonwealth ex rel. Likovich v. Likovich, 220 Pa. Superior Ct. 202, 205, 287 A.2d 156, 158 (1971).

The court below pointed out that the husband-appellee's displeasure ". . . had been heightened by the fact that the wife's paramour is a member of the Negro race", adding that its decision "is in no way related to that circumstance."

Appellate courts have become very reluctant to substitute themselves as "super Solomons" in custody matters when they have not had the opportunity to see and hear the witnesses and so properly determine credibility. It is difficult to find that the court below clearly abused its discretion under the circumstances of this case. If the mother-appellant does legalize her relationship with her paramour and establishes an acceptable home for the children as she testified she intended to do, she may then seek to have custody restored to her.

The order of the court below is affirmed.

Disposition

Order affirmed.

[EDIT ]

Concurring and Dissenting Opinion by Spaeth, J.:

As Judge Hoffman notes in his dissent, a court may not deny a parent custody of a child for reason of racial prejudice. Commonwealth ex rel. Lucas v. Kreischer, 450 Pa. 352, 299 A.2d 243 (1973). I am sure that the President Judge's opinion for the court accepts this principle. The issue, therefore, is whether, putting aside the ...


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