Commonwealth Ex Rel. Gifford v. Miller

248 A.2d 63, 213 Pa. Super. 269, 1968 Pa. Super. LEXIS 756
CourtSuperior Court of Pennsylvania
DecidedNovember 14, 1968
DocketAppeal, 989
StatusPublished
Cited by58 cases

This text of 248 A.2d 63 (Commonwealth Ex Rel. Gifford v. Miller) is published on Counsel Stack Legal Research, covering Superior 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. Gifford v. Miller, 248 A.2d 63, 213 Pa. Super. 269, 1968 Pa. Super. LEXIS 756 (Pa. Ct. App. 1968).

Opinions

Opinion by

Jacobs, J.,

This child custody case involves a contest between the mother of an illegitimate child and the putative father’s parents for custody of a boy who is two years and four months old. The lower court gave custody to the putative father’s parents. We reverse.

Ronald Gifford, the subject of this controversy, was born March 13, 1966, to Mildred Gifford, an unmarried 21 year, old woman. The child remained with his [271]*271mother until April 1, 1968, when the mother entered a hospital for surgery. The putative father, Ronald Miller, at that time offered to take care of the child until the mother recovered. About two weeks later, when she was out of the hospital, the mother requested the return of her child. The putative father refused and shortly thereafter turned the child over to his parents, William and Irene Miller. The putative father and his parents refused to let the mother see the child, and on June 20, 1968, she petitioned for a writ of habeas corpus. After two hearings the court below, on July 17, 1968, gave custody of Ronald Gifford to William and Irene Miller with visitation privileges to the mother. The mother appeals from that order.

The appellant is also the mother of two other illegitimate children; Rebecca Ann, age six, and David, age four. Rebecca Ann was adopted by strangers to this proceeding. David lives with his mother. Until April 1, 1968, the petitioner and David and Ronny, as Ronald is known, lived with Mr. and Mrs. Boroi at 1203 Parkins Street, Chester, Pa. The Borois have three children of their own, so a total of eight people are living in the house. The house is small and David and Ronny sleep in a room together. The house has a small back yard in which there is a gym set, a rocking horse, a sand box, a picnic table and a small swimming pool. Petitioner stated that she goes out on Saturday night to a local tavern and spends the evening there. On every occasion she leaves her children with either Mr. or Mrs. Boroi. The appellees offered testimony to the effect that appellant also goes out on Friday night. Sometimes she is accompanied by Mrs. Boroi. There was no testimony that the mother ever left the children alone at night. Mrs. Boroi testified that appellant does not drink or have boyfriends at the house and there was no testimony that appellant had done any[272]*272thing of an immoral nature since Ronny’s birth over two years ago. All parties testified that Ronny was well dressed, clean and appeared to be well. He has had no serious illnesses. There was testimony that on one occasion when Mr. Boroi was left with the children he had had too much to drink. Testimony showed that once in the daytime appellant left Ronny in front of the house unattended, that she left him in the sun longer than Mrs. Boroi thought proper and did not keep the boy’s room clean and properly ventilated. About three years before the hearings the appellant was accused of shoplifting but the matter never proceeded to prosecution. More recently she had an altercation with a neighbor’s child that resulted in her going before a magistrate where the matter was settled.

There was no testimony that appellant ever abused Ronny and both children were admittedly well dressed, healthy and well fed. However, there was testimony to the effect that appellant showed no affection toward David and struck him on a number of occasions when he did not obey. In the opinion of one witness who had David for two weeks while the mother was in the hospital, David spoke better and seemed less nervous when she returned him to his mother.

Appellant does not work, but receives public assistance which she turns over to the Borois for keeping her and her children. She should also be receiving the sum of $10.00 per week from the putative father, Ronald Miller, for the support of Ronny. In June, 1966, a support order was entered against him in that amount. Despite the fact that the father was making almost $100 a week and was single he was $200 in arrears on the order in December, 1967, and it was necessary to attach his wages. He admits that his last ar-rearage was $165, but the record does not disclose the presence or absence of arrearages on April 1, 1968.

[273]*273William and Irene Miller live in the country in a four bedroom house. He is fifty-six years old and she is fifty. Ronny has a bedroom to himself. Mrs. Miller has quit her job so that she can take care of Ronny, and their daughter, Carol Ann, age nineteen, lives with them and helps to supervise Ronny. The putative fa: ther, Ronald Miller, who works at Reynolds Metals and does not live with his parents, has an apartment of his own.

In its opinion in support of the order awarding custody to the putative father’s parents, the court below determined that the best interest of the child, present and future, required the order. This determination was based on the following findings and conclusions: (1) that the mother is unable without assistance to properly raise the child or provide a sense of security for him and would neglect him without the Borois; (2). that the mother is irresponsible and without moral character; (3) that her disciplinary and educational methods as applied to David have adversely affected David and such conduct might be applied to Ronny in the future; (4) that William and Irene Miller have great love for the child as well as better physical facilities and surroundings; (5) that Mrs. Miller terminated her employment to take care of the child; and (6) that the natural father is interested in the child’s well-being.

The scope of our review is quite broad under Sec. 1 of the Act of July 11, 1917, P. L. 817, 12 P.S. §1874, which directs us to “consider the testimony and make such order upon the merits of the case ... as to right and justice shall belong.” This review was limited to some extent in Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 97 A. 2d 350 (1953), which holds that we cannot nullify the fact-finding function of the hearing judge but in matters of credibility of witnesses [274]*274and the weight to be given their testimony we must accept his findings. However, “this rule does not apply in favor of deductions or inferences which are made by the trial judge from the facts which he has found. The conclusions of the trial judge, being no more than his reasoning from the facts, are always reviewable, either by the court in banc or by an appellate court.” Commonwealth ex rel. Gregory v. Gregory, 188 Pa. Superior Ct. 350, 356, 146 A. 2d 624, 627 (1958). Furthermore, we are not bound by a finding of fact which has no competent evidence to support it. We are also charged with the responsibility of seeing that the relevant legal principles are correctly applied. Commonwealth ex rel. Kraus v. Kraus, 185 Pa. Superior Ct. 167, 172, 138 A. 2d 225, 227 (1958).

In child custody cases our paramount concern and the concern of the court below is the welfare of the child. Commonwealth ex rel. Shipp v. Shipp, 209 Pa. Superior Ct. 58, 223 A. 2d 906 (1966). However, “[i]t is presumed to be for the best interest of the child to be in the custody of its natural protector, its parents, and particularly the mother in the case of young children. Compelling reasons must appear before a natural parent will be deprived of custody.” Cochran Appeal, 394 Pa. 162, 165, 145 A. 2d 857, 858 (1958). In one of our cases we said that the prima facie right of a mother to her young children is “[o]ne of the strongest presumptions in our law. . . .” Commonwealth ex rel. Logue v. Logue, 194 Pa. Superior Ct.

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Bluebook (online)
248 A.2d 63, 213 Pa. Super. 269, 1968 Pa. Super. LEXIS 756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-gifford-v-miller-pasuperct-1968.