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COMMONWEALTH PENNSYLVANIA EX REL. BRANDON ODEL WITHERSPOON AND BLAKE AUSTIN WITHERSPOON v. JUSTINE WITHERSPOON (04/13/78)

decided: April 13, 1978.

COMMONWEALTH OF PENNSYLVANIA EX REL. BRANDON ODEL WITHERSPOON AND BLAKE AUSTIN WITHERSPOON, BY DANIEL THOMAS, THEIR NATURAL FATHER AND NEXT FRIEND
v.
JUSTINE WITHERSPOON, APPELLANT



COUNSEL

Paul M. Lewis, Philadelphia, with him Leonard Sarner, Philadelphia, for appellant.

John C. Marston, Cornwells Heights, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Jacobs

[ 252 Pa. Super. Page 590]

This appeal arises from the order of the court below granting appellee's habeas corpus petition for permanent custody of his two minor sons, Brandon, age five, and Blake, age four. Appellant, the maternal grandmother of the children, contends that the court erred in its determination that the children's best interests require their placement in the custody of their natural father. Our review of the record compels us to agree with the learned trial judge, and we therefore affirm the order of the lower court.

The rules of law controlling our determination of this controversy are clear. Of paramount concern in child custody cases, regardless of the status of the disputing parties, is the best interest and welfare of the child. Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 444, 292 A.2d 380 (1972); Commonwealth ex rel. Johnson v. Pinder, 217 Pa. Super. 180, 269 A.2d 511 (1970). Also in operation in the present case, however, is the corollary proposition that in custody disputes between a natural parent and a third party, the natural parent has a prima facie right to custody which may be forfeited if convincing reasons appear that the

[ 252 Pa. Super. Page 591]

    child's best interests will be served by awarding custody to someone else. In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977); In re Custody of Myers, 242 Pa. Super. 225, 363 A.2d 1242 (1976).

The court below, after taking extensive testimony from all concerned parties, measured the evidence by these legal principles and concluded that under either standard, the father was entitled to custody of the children. Our scope of review of this determination is of the broadest type, and, while we cannot nullify the fact-finding function of the hearing judge, we are not bound by a finding which has no competent evidence to support it. Commonwealth ex rel. Gifford v. Miller, 213 Pa. Super. 269, 273-74, 248 A.2d 63 (1968). Nevertheless we find from our independent examination of the testimony that the record adequately supports the findings and conclusions of the court below.

Daniel Thomas, the appellee, began dating Barbara Witherspoon in 1963. Two sons were born as the result of this relationship. Although the father and mother never married, and did not live together for any extended period of time, the parents were with the children four or five times a week, until the mother became ill in 1974. Barbara Witherspoon died of cancer in November, 1974, and from that time until the present, the children have been in the custody of Justine Witherspoon, their maternal grandmother.

The father testified that he has been regularly employed since his honorable discharge from the Army in 1962, and is currently part owner in a licensed Volkswagen conversion business in Philadelphia, where he works from 8:00 A.M. until 4:30 P.M. weekdays. His annual income from this employment is approximately $14,000.00 per year. He maintains a two bedroom apartment in Cornwells Heights and pays a housekeeper $85.00 per week to cook and clean for him. Although this housekeeper does not live with appellee, but keeps an apartment for herself and her four-year old son, she testified that she would be available on a full time

[ 252 Pa. Super. Page 592]

    basis to care for the children during the time the father works, if he is awarded custody. Appellee's mother, who lives nearby, is also ...


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