Commonwealth ex rel. Bendrick v. White

169 A.2d 69, 403 Pa. 55, 1961 Pa. LEXIS 420
CourtSupreme Court of Pennsylvania
DecidedMarch 13, 1961
DocketAppeal, No. 66
StatusPublished
Cited by33 cases

This text of 169 A.2d 69 (Commonwealth ex rel. Bendrick v. White) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth ex rel. Bendrick v. White, 169 A.2d 69, 403 Pa. 55, 1961 Pa. LEXIS 420 (Pa. 1961).

Opinion

Opinion by

Mr. Justice Benjamin B. Jones,

This appeal attacks the propriety and validity of an orphans’ court decree1 which awarded the custody [57]*57of a 16 months old child, over the objections of the natural father but with the acquiescence of the natural mother, to a married couple wholly unrelated to the child.

A marriage, short in duration but long in unhappiness, is the background of this litigation. On September 27, 1956, after a two weeks’ courtship, Charles Bendrick, 38 years old, and Lillian Kish, 21 years old, were married. From that date until they were divorced on March 4, 1960 — three years and six months ■ — the couple lived together only three and one-half months. Of this marriage, two children were born; Evelyn Marie, born May 18, 1957 and Michael Charles (the child whose custody is contested) born January 1, or 4, 1959.

When the child, Michael Charles, was eight months old, Mrs. Bendrick (then separated from her husband), without her husband’s knowledge or consent but motivated by what she believed would be the child’s best interests, gave the child to a Reverend and Mrs. White, a married couple who were at the time personally unknown to Mrs. Bendrick. The Whites live in Dublin Township, Huntingdon County, where the Reverend White is the pastor of an Assembly of God Church. When the child was given to the Whites, the latter were informed that Mrs. Bendrick did not know her husband’s whereabouts. With the aid of counsel, the Whites sought, by mail, to inform the child’s father that the child was in their custody and to request his consent to an adoption of the child. A letter to this effect addressed to Mrs. Bendrick’s paternal home in Hummelstown, Pa. was allegedly remailed by Mrs. Bendrick to Bendrick’s paternal home in Andreas, Pa. Bendrick states that he never received this letter and that it was only after a long and diligent search that he was able to discover the whereabouts of his child.

[58]*58When Bendrick was refused custody of the child by Whites and upon learning Whites had started adoption proceedings in Huntingdon County, he instituted a habeas corpus proceeding in Huntingdon County on March 17, 1960. After certification of that proceeding from the common pleas to the orphans’ court, a hearing was held before President Judge Swirles L. Himes and a decree entered that the child remain in Whites’ custody, subject to a right of reasonable visitation by Bendrick. That decree is now attacked.

Presumptively, a child’s welfare is best served when the child is in the custody of its parent or parents (Cochran Appeal, 394 Pa. 162, 165, 145 A. 2d 857; Com. ex rel. Harry v. Eastridge, 374 Pa. 172, 175, 97 A. 2d 350; Com. ex rel. Galloway v. Galloway, 188 Pa. Superior Ct. 313, 316, 146 A. 2d 383) and, prima facie, a parent is entitled to the custody of his or her child (Com. ex rel. Newel v. Mason, 186 Pa. Superior Ct. 128, 133, 140 A. 2d 365; Com. ex rel. McNamee v. Jackson, 183 Pa. Superior Ct. 522, 525, 132 A. 2d 396). However, the paramount and all important factor in child custody cases is the welfare of the child (Cochran Appeal, supra, 164; Com. ex rel. Graham v. Graham, 367 Pa. 553, 559, 560, 80 A. 2d 829; Com. ex rel. Horton v. Burke, 190 Pa. Superior Ct. 392, 395, 154 A. 2d 255) and, if such welfare will be best served by the award of the child’s custody to one who is not its parent, then the right of the parent may be forfeited: Com. ex rel. Children’s Aid Society, Gdn. v. Gard, 362 Pa. 85, 92, 93, 66 A. 2d 300; Com. ex rel. Lotz v. Lotz, 188 Pa. Superior Ct. 241, 246, 146 A. 2d 362; Com. ex rel. Kraus v. Kraus, 185 Pa. Superior Ct. 167, 170, 138 A. 2d 225. Our present task is to determine whether the welfare of this child will be best served by awarding its custody to the Whites or to Bendrick, the child’s father.

[59]*59In child custody cases, our scope of review is very broad. By virtue of the Orphans’ Court Act of 1951, supra, §773, “in all cases of appeal from a decree of the orphans’ court” it is our duty to determine such appeals “as to right and justice may belong, and decree according to the equity thereof.” By virtue of the legislative mandate which now vests in the orphans’ court exclusive jurisdiction in child custody cases corollary to adoption proceedings and under the statutory provisions providing for appeals from that court, an orphans’ court decree awarding or denying custody of a child, akin to an order in a child custody case in the common pleas court, is subject to the fullest review consistent with equitable principles. It is our duty not simply to determine from the record whether the trial court has abused its discretion but to examine all the evidence and reach an independent determination: Ciammaichella Appeal, 369 Pa. 278, 282, 85 A. 2d 406, and cases therein cited. Adherence to that principle of review, however, does not permit us to ignore the findings of the trial court. In Com. ex rel. Harry v. Eastridge, 374 Pa. 172, 177, 97 A. 2d 350, we said: “The scope of review [under an appeal statute identical to that at bar] is thus considerably broader than in adoption cases, which come before an appellate court as on certiorari: [citing cases]. But this broader power of review was never intended to mean that an appellate court is free to nullify the fact-finding function of the hearing judge. It is a principle which runs through all our cases that the credibility of witnesses and the weight to be given to their testimony by reason of their character, intelligence, and knowledge of the subject can best be determined by the judge before whom they appear: . . .” See also: Com. ex rel. Urbani v. Bates, 186 Pa. Superior Ct. 77, 79, 140 A. 2d 638; Com. ex rel. Knouse v. Knouse, 146 Pa. Superior Ct. 396, 398, 399, 22 A. 2d 618.

[60]*60We have made an independent study and examination of all the evidence upon this record; from such study and examination certain conclusions are inevitable. Bendrick has failed both as a husband and a father. Frequent intoxication, late hours, assaults on his wife, and, on one occasion, his aged mother, threats to shoot both his wife and children, persistent neglect and failure to support both wife and children and to pay necessary medical and hospital expenses, all indicate that Bendrick completely forsook his moral and legal • obligations to his family. His past conduct has been such that reliance on his proposed future good conduct is tenuous; his abominable behavior in the past presages only a continuance thereof in the future. His past neglect of and his lack of interest in the welfare of his children raise grave and serious doubt as to the sincerity of his present belated display of interest in this child. The trial court very properly concluded that Bendrick’s conduct during his marriage was of such nature that this child could not be safely entrusted to his care and custody.

Furthermore, Bendrick’s proposed plan for the care and custody of this child is not impressive. Bendrick, a construction worker who travels about from one job to another and works only seasonally, ordinarily would be at his home only on weekends and the care of this child would fall for the most part on his brother and sister-in-law, aged 52 and 49 years respectively, .who live in Andreas, Pa., with Bendrick’s seventy-one year old mother.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Burke v. Pope
531 A.2d 782 (Supreme Court of Pennsylvania, 1987)
Rinehimer v. Rinehimer
485 A.2d 1166 (Supreme Court of Pennsylvania, 1984)
In the Interest of Patricia S.
474 A.2d 318 (Supreme Court of Pennsylvania, 1984)
In Re Donna W.
472 A.2d 635 (Supreme Court of Pennsylvania, 1984)
Moreno v. Juvenile Officer
647 S.W.2d 852 (Missouri Court of Appeals, 1983)
Boland v. Leska
454 A.2d 75 (Superior Court of Pennsylvania, 1982)
Sandra J. S. v. Alverta S.
444 A.2d 1251 (Superior Court of Pennsylvania, 1982)
In Re Custody of JSS
444 A.2d 1251 (Superior Court of Pennsylvania, 1982)
Commonwealth Ex Rel. Michael R. v. Robert R. R.
437 A.2d 969 (Superior Court of Pennsylvania, 1981)
Commonwealth Ex Rel. Pierce v. Pierce
426 A.2d 555 (Supreme Court of Pennsylvania, 1981)
Albright v. Commonwealth Ex Rel. Fetters
421 A.2d 157 (Supreme Court of Pennsylvania, 1980)
Ellerbe v. Hooks
416 A.2d 512 (Supreme Court of Pennsylvania, 1980)
Morris v. Morris
412 A.2d 139 (Superior Court of Pennsylvania, 1979)
In Re Custody of Hernandez
376 A.2d 648 (Superior Court of Pennsylvania, 1977)
Snellgrose Adoption Case
247 A.2d 596 (Supreme Court of Pennsylvania, 1968)
T. v. H.
245 A.2d 221 (New Jersey Superior Court App Division, 1968)
Commonwealth Ex Rel. Snellgrose v. Harris
228 A.2d 764 (Supreme Court of Pennsylvania, 1967)
Commonwealth ex rel. Manzak v. Manzak
38 Pa. D. & C.2d 327 (Northampton County Court of Common Pleas, 1964)
Commonwealth ex rel. Gall v. Reed
198 A.2d 344 (Superior Court of Pennsylvania, 1964)

Cite This Page — Counsel Stack

Bluebook (online)
169 A.2d 69, 403 Pa. 55, 1961 Pa. LEXIS 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-bendrick-v-white-pa-1961.