No. 447 April Term, 1977, Appeal from the Order of the Court of Common Pleas of Clearfield County, Civil Division, at No. 76-1073 C.D.
Ira P. Smades, Philipsburg, with him Benjamin E. Vatz, Philipsburg, for appellant.
Timothy E. Durant, Clearfield, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., concurs in the result. Spaeth, J., files a concurring opinion. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 403]
This is an appeal from a dismissal of a habeas corpus petition filed by Meredith Wolfe to obtain custody of her four year old son, Jeffrey, from the child's father, Gerald Phillips. The trial court dismissed the petition and awarded custody to the father. The mother has appealed.
The parties commenced living together at Philipsburg, Pennsylvania, in the summer of 1972 and shortly thereafter moved to the home of Meredith's parents in West Decatur, Pennsylvania. The couple later moved to Gaithersburg,
[ 260 Pa. Super. Page 404]
Maryland, where their son Jeffrey was born July 3, 1974. They continued to live together and care for their child until December, 1975, when they separated and Meredith took the son to Rockville, Maryland, where her mother then lived. The parties have different explanations of why they separated, but they have no bearing upon the qualifications of either parent to care for the child.
By the terms of a stipulation entered into by the parties at the beginning of the hearing and accepted by the trial court, the parties are to be treated as common law husband and wife for the purposes of determining custody of the child. The legality of this stipulation has been challenged by appellant's appellate counsel as embodying a conclusion of law that only a court could determine. This is a misreading of the stipulation. It was made only "for purposes of this hearing"; i. e., the determination of custody and is not a legal adjudication of marriage. The fact that the father and mother lived together and jointly cared for their child for eighteen months after his birth may or may not establish a common law marriage, depending upon other circumstances; but it certainly removes the father from the application of the judicial rule that "the right of a mother to the custody of an illegitimate child is superior to that of all other persons": Commonwealth ex rel. Gifford v. Miller, 213 Pa. Super. 269, 274, 248 A.2d 63 (1968). That conclusion was based upon the usual circumstances of a generation or more ago concerning birth out of wedlock and did not assume the continued cohabitation of the father and mother without benefit of a formal marriage. We accept the conclusion of the stipulation as helpful in determining the issue of custody.
When the parties separated in December, 1975, their then infant son, Jeffrey, was taken by his mother, Meredith, to Rockville, Maryland, where the mother rented an apartment, obtained a job and a daytime baby-sitter for her son. In February, 1976, Gerald, the father, at the conclusion of a visit to his son in Rockville, took the boy over the mother's objections and brought him back to Philipsburg to live with
[ 260 Pa. Super. Page 405]
the father. Two months later, April, 1976, the mother came to Philipsburg and without the father's consent took the son back to her home in Rockville. Three weeks later, May 3, 1976, the father visited his son in the mother's home and again took him from her residence without her consent and ...