Opinion
October 26, 1934.
December 18, 1934.
Infants — Custody — Father — Grandmother — Child nine years of age — Ultimate welfare of child — Evidence.
1. In determining the custody of a child, the ultimate welfare of the child is the paramount consideration.
2. In habeas corpus proceedings, an order is properly made refusing to transfer custody of a motherless child from its paternal grandmother to its father, where from the evidence it appears that the child, nine years of age, strongly desires to remain with her grandmother, that before her death the child's mother had separated from the father because of his ill treatment of her, that during the mother's subsequent illness the father had refused to support her or purchase medical equipment for her until compelled to do so by attachment proceedings, that the father had lived at the home of his parents until he had quarrelled violently with his family and now lives in a boarding house, that he is intensely hostile to his mother and the other members of his family, and that throughout the hearing his manner was obstinate and unreasonable.
Appeal No. 526, October T., 1934, by plaintiff from order of M.C., Philadelphia County, Domestic Relations Division, July T., 1934, No. 4154, in the case of Commonwealth ex rel. Anthony Tyrrell v. Della Tyrrell.
Before TREXLER, P.J., KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Appeal dismissed.
Habeas corpus for custody of child. Before GLASS, J.
The facts are stated in the opinion of the Superior Court.
Petition of relator, father, dismissed. Relator appealed.
Error assigned, was dismissal of petition for writ of habeas corpus.
W. Horace Hepburn, Jr., for appellant.
Oscar Brown, Assistant District Attorney, and with him Charles F. Kelley, District Attorney, for appellee.
Argued October 26, 1934.
Anthony Tyrrell, the relator in these habeas corpus proceedings, has appealed from the refusal of the court below to transfer the custody of his motherless daughter, Mary Irene, nine years of age, from his mother, Della Tyrrell, the respondent, to what, for all practical purposes, would be the care and custody of the mistress of the boarding house at which he has lived since his estrangement from his family more than three years ago.
As we understand the record, appellant was living with his parents and brothers and sisters when he married Mary Irene's mother; he brought his wife to that home; the child was born there and has lived in that house up to the present time.
Some five years past appellant and his wife separated. His sister testified that his wife returned to her mother's home, "through the way he [appellant] treated her." Shortly thereafter appellant's wife was stricken with paralysis and taken to the Philadelphia General Hospital where she remained as a patient until her death on June 3, 1934. Appellant's failure to comply with an order of court for the support of his invalid wife resulted in attachment proceedings to compel him to contribute at least $80 with which to purchase braces for her. Meanwhile, appellant, who had been awarded the custody of the child (apparently by reason of his wife's physical disability) lived with Mary Irene at the family home until, as the result of a violent quarrel with his mother and brothers and sisters, he left the common home and has lived for more than three years at a boarding house conducted by a Mrs. Daly and her daughter.
Mary Irene, when examined by the hearing judge, GLASS, J., in chambers, gave an intelligent description of the school she attends and of the surroundings under which she lives, and expressed a strong desire to remain with her grandmother.
The order appealed from remanded the child to the custody of her grandmother, subject to the right of appellant to visit her every evening between the hours of seven and eight, and directed appellant to pay his mother $4 per week for the support of his daughter.
Here, as in every case of this kind, the interests of the child and of the State are to be considered as well as the rights of the father; the ultimate welfare of the child is the paramount consideration. We, of course, have not had the advantage of seeing and hearing the parties, but our reading of appellant's testimony has not created a favorable impression with respect to his qualifications as a parent. At the conclusion of the hearing he stated he would rather have his daughter placed in an institution than remain with his mother and added: "I will not pay one cent; I'll go to jail." His own statement was that he is earning $25 per week. The appellant's intense, though apparently unwarranted, hostility toward his mother and the other members of his family, and his unreasonable attitude throughout the hearing, seem to us to rebut every presumption in favor of his legal rights as a father.
In the performance of our statutory duty to dispose of this case upon its merits, we have reached the independent conclusion that the order of the court below conserves and promotes the best interests of the child, under the existing circumstances. See Com. v. Mauch, Betz Appeal, 91 Pa. Super. 220; Com. ex rel. Rockey v. Hoffman, ibid. 213; and In re Custody of Minor Children of Dunbar A. Rosenthal, 103 Pa. Super. 27, 157 A. 342.
Appeal dismissed.