Appeal from Order dated December 19, 1975 of the Court of Common Pleas, Civil Action, Law, County of Northampton, Pennsylvania at No. 182 October Term, 1975. No. 842 October Term, 1976.
Thomas L. Walters, Easton, for appellant.
Gary Neil Asteak, Easton, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result.
[ 244 Pa. Super. Page 303]
In this habeas corpus action, the court below awarded custody of a five-year-old boy, Robert, to his father. The mother appealed the custody award to the father.
Appellant, Susan Steuer, contends the court below disregarded the tender years doctrine and the law's preference for unity of siblings in awarding custody to the father. Appellant claims that proper application of the tender years doctrine and the policy favoring unity of
[ 244 Pa. Super. Page 304]
siblings, under the facts of this case, should have resulted in the custody of Robert being granted to her, not to the father. With this we agree.
Under our laws the court must decide custody on the basis of the fitness of the parents and the best and permanent welfare of the child. Act of June 26, 1895, P.L. 316, Sec. 2, 48 P.S. § 92. At the heart of the decision are the facts and circumstances of the child's environment.
Susan and Robert A. Steuer were married on October 12, 1968. A son, Robert, was born March 10, 1970. The parties separated in 1973 with Susan Steuer retaining custody of Robert and a younger child, Brian. Several months later, the family resumed living together. In November, 1974, however, the husband left again and the parties have remained separated. Appellant retained custody of both children after this final separation until March, 1975.
Appellant's testimony explained the basic cause for the separation between her and her husband. She testified that her husband argued and fought a lot, and that he would beat her and abuse her so frequently that she could no longer tolerate it. On one occasion she called the police and the police removed the husband from the house. As a result of her husband's abusive treatment, appellant needed hospital care in April and May of 1975 for a nervous breakdown. This illness was one of the reasons she gave custody of Robert to her husband in March of 1975. Due to her illness she was unable to care for both children at one time. Since March, 1975, Robert has been staying with his father and Brian with his mother; that is to say, Robert stayed with his paternal grandmother during the week days and with his father, appellee, during the weekends. When appellant left the ...