Opinion
April 18, 1947.
July 17, 1947.
Parent and child — Custody — Mother — Evidence — Investigation by court of its own motion.
1. In a habeas corpus proceeding to determine the custody of a child, aged three, as between her mother and respondents, with whom the mother had previously placed the child and with whom the father desired that the child remain, it was Held that custody was properly awarded to the mother, even though there was evidence of past dereliction.
2. Where respondent raised no question as to the physical condition of the home of the relatrix, the court will not be reversed because, out of an abundance of caution, the court took its officer's report thereon, which was in order to determine whether respondents were right in not raising the question.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS and ARNOLD, JJ.
Appeal, No. 133, April T., 1947, from order of C.P., Allegheny Co., Oct. T., 1946, No. 1653, in case of Commonwealth ex rel. Mary Batch v. Mary Barber et vir. Order affirmed.
Habeas corpus proceeding for custody of minor child. Before WEISS, J.
Order entered awarding custody of child to its mother. Respondents appealed.
Joseph I. Lewis, with him Cooper, Hunter Lewis, for appellants.
Thomas E. Barton, for appellee.
Argued April 18, 1947.
This is a habeas corpus proceeding brought by a mother for the custody of her daughter, aged three. The husband of the relatrix went into the military service before the birth of this child. Just prior to his return home and in April, 1945, the mother placed the child, then thirteen months old, with the respondents. The older child, a boy aged five, she kept with her. In 1946 the foster parents refused to give the child back to her mother. She then brought this proceeding and the father appeared in opposition, asking that the child remain with the respondents.
The case was heard before Judge WEISS of the court below, and he painstakingly examined the evidence and awarded custody to the mother.
The respondents contended and offered evidence that the mother, prior to placing the child with the respondents, had neglected her, and that she also had been guilty of immoral conduct with men, and had drunk to excess. The hearing judge felt the mother had reformed and that the child was entitled to the benefit of the love and affection, not only of the mother but of the elder brother. In other words, that it was beneficial to this child to keep the mother and two children together. The father had manifested little interest in her.
If the mother is a fit person now, regardless of some past dereliction the child is better off with her. Her affection for the child is manifest, and the children should be brought up together. These custody orders are temporary in character, and as conditions change new orders can be made.
The respondents made no claim as to the physical condition of the relatrix's home to which the child would go. They only claimed that the mother was unfit. But in order to be confident that the physical conditions of the home were good, the court had its officers investigate it, and so stated in his opinion. He cannot be convicted of error because, out of an abundance of caution, he wanted to be sure that the respondents were right in not raising that question.
We think the court correctly and wisely decided the issue.
The order of the court is affirmed at the appellants' cost.