Opinion
March 30. 1955.
July 21, 1955.
Parent and child — Custody — Mother or father — Divorced parents — Best interests of children — Personal attention — Desires of children.
In a habeas corpus proceeding involving, as between divorced parents, the custody of their two children, aged seven and four, in which it appeared that both parents were devoted to and morally, physically, and financially able to care for the children; and that the trial judge found that the respondent father was required to leave his children in the care of a housekeeper and the informal ministrations of a neighbor during the time he was engaged in the practice of his profession, whereas the mother was not employed and could personally devote all of her attention to the care of the children, that the children both expressed a desire to be left with their mother, and that the best interests of the children required that custody be awarded to the mother; it was Held that the order of the court below should be affirmed.
Before RHODES, P.J., HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.
Appeal, No. 79, Oct. T., 1955, from order of Municipal Court of Philadelphia County, No. 179,937, in case of Commonwealth of Pennsylvania ex rel. Elaine Sablosky v. Morton J. Sablosky. Order affirmed; reargument refused August 15, 1955.
Habeas corpus.
The facts are stated in the opinion, by MILLEN, J., of the court below as follows:
This is a petition for habeas corpus, for custody of two children, Ronald Sablosky, now seven years of age, and Perry Sablosky, now four years of age. The petitioner is the mother of the children, and the respondent is the father. The parties separated in March, 1952, and were subsequently divorced.
Upon separation, the parties entered into an informal agreement whereby custody of the children was given to the mother, with right of visitation in the father. In October, 1952, the father took the children and failed to return them to the mother, whereupon the latter filed a petition for habeas corpus. On October 24, 1952, an Order was entered by agreement, whereby the children were to remain with their mother, except from Saturday morning, until Sunday night, each week, during which period, the children were to stay with the father.
The extreme hostility existing between the parties has made it necessary to hold a number of hearings, subsequent to October 24, 1952. The respondent has been unable to reconcile himself to the loss of his wife, and has permitted his bitterness and disappointment to mar the parental relations of the parties with the children. We have made repeated and determined efforts to remedy this situation, with a view to restoring the parental relationship to as normal a relationship as possible, in view of the broken marriage, and the establishment of separate homes. Both parties and the children submitted to psychiatric examinations. The respondent was under treatment for six months, by two prominent physicians, Dr. Watson and Dr. English, for emotional instability.
During the times that he had custody of the children, the respondent attempted to instill in the older child, a feeling that the mother was responsible for the separation. He also instructed the children to watch their mother and to report to him, when she went out and with whom. This led to an attitude of disrespect to the mother on the part of the children, and made it very difficult for her to manage them and to enforce ordinary discipline.
On December 14, 1953, the parties appeared in Court and the mother asked that the children be placed with the father for a limited period, in the hope that the change would cause the children to appreciate her devotion to them, and would make them more manageable when they were returned to her. This arrangement was made without prejudice of the mother's rights as to custody and was to be for a limited period, not to exceed the end of the school term in June, 1954.
On February 17, 1954, the mother filed a petition, asking that the children be returned to her and several hearings were held, but we made no change in the Order, being reluctant to change the Order for temporary custody during the pendency of the school term, which was to end in June, 1954.
After the term ended in June, 1954, the respondent still refused to return the children to the mother. There was continued friction between the parties which turned into violence on several occasions, when the mother sought to visit the children. The respondent attempted to use them as a pawn, after the divorce, to prevent the marriage of the petitioner to William Goldstein. One of the quarrels was precipitated when the respondent's next door neighbor, Mrs. Joan Evans, who had the run of the house, berated the petitioner, On another occasion, the respondent struck the petitioner, and she caused his arrest.
The petitioner was married to William Goldstein, on the 25th day of June, 1954. They have purchased a home in Wynnewood, Pennsylvania, which is large and has considerable ground around it. Mr. Goldstein is an attorney and business man. He is successful in both fields, and is a man of character and intelligence. Although he is attached to the children, he is aware of the rights of the father and has agreed to do nothing which would in any way prejudice the father's rights.
The father has a nice home in a good neighborhood. Our decision, in this case is not based on the preference of one house over the other, as they are both more than adequate in a material sense. However, the respondent must leave his home every day, from Monday to Friday, in order to pursue his profession, as an attorney. He leaves his children in the care of a housekeeper and the informal ministrations of his neighbor, Mrs. Evans.
On the other hand, the petitioner is not employed and can personally devote all of her attention to the care and supervision of the children. They are at an age when, under normal circumstances, the care and attention of the mother would promote their welfare — Com. ex rel. Firestone v. Firestone, 158 Pa. Super. 579; Com. ex rel. Gates v. Gates, 161 Pa. Super. 423; Com. ex rel. Levinson v. Levinson, 162 Pa. Super. 563.
The respondent attempted to prove that the petitioner was indifferent to the welfare of the children and that she neglected them in a manner that affected them adversely. Dr. Harris Levin, testified on behalf of the respondent, that the older boy suffered from an allergy, that might have been caused by, "maternal rejection". We cannot accept this explanation for the allergy, since Dr. Levin admitted that the child suffered from eczema, when he was only eight months old, and that there were also organic causes for the allergy condition. Dr. Merle Miller, a specialist, who was also called as a witness by the respondent, testified that in his opinion, emotional disturbance was not a factor in this case.
We have carefully considered all the evidence and the circumstances in this case and believe, that the best interests and welfare of the children require that custody be awarded to the mother. We believe that she is sincerely devoted to the welfare of the children, and is able and willing to attend to their needs.
In determining custody, the court must decide what is best for the children, including their physical, intellectual, moral and spiritual well-being. Com. ex rel. Jones v. Jones, 170 Pa. Super. 617. In the instant case, it cannot be doubted that the love and devotion of the mother is to be preferred to the care of a housekeeper, and the sporadic attention of a neighbor.
In determining the question of custody, in this case, we can only consider the welfare of the minor children, and not the question as to which of the parties is responsible for the failure of the marriage, Com. ex rel. Conrad v. Conrad, 165 Pa. Super. 628.
We interviewed the children privately, and they both expressed a desire to live with their mother. Where a child is of sufficient intelligence, its preference is a factor to be considered in determining custody, Com. ex rel. Schofield v. Schofield, 173 Pa. Super. 631. Ronald, the older boy, is clearly of sufficient intelligence, so that his personal choice and preference should not be lightly disregarded. As to the younger child, Perry, he is only four years old, and it is well recognized that the needs of a child of tender years, are best served by the mother, Com. ex rel. Levinson v. Levinson, supra.
The arrangement entered into on December 14, 1953, was a temporary one. The respondent had no right to retain custody, after June, 1954. There is no evidence in the prolonged hearings, that the Order entered October 24, 1952, should be modified in any way. On the contrary, a careful examination of the entire record, and consideration of all the circumstances, convinces us that the Order giving the mother custody should be re-affirmed.
We accordingly, re-affirm said Order and direct that the mother-petitioner, Mrs. Elaine Goldstein should have custody of Ronald Sablosky and Perry Sablosky.
Respondent appealed.
Walter Stein, with him David Berger, for appellant.
Samuel Kagle, for appellee.
Argued March 30, 1955.
This is a heartbreaking contest between two divorced, devoted parents both morally, physically and financially able to care for two small children whose custody each seeks.
We heard the case first on a supersedeas which we granted because we thought the children's place of residence should not be changed during the school term.
On the merits we listened to two long arguments, ably presented, read the briefs, and carefully examined the entire record.
A majority of us have not been convinced that we should disturb the decision of the lower court. Judge MILLEN is thoroughly familiar with the parties and their situation. In his opinion he reviewed the evidence, applied the law, and set forth the reasons for the order which he made.
We affirm on the opinion of the court below.