Commonwealth ex rel. Kling v. Hanmer

58 Pa. D. & C.2d 450, 1972 Pa. Dist. & Cnty. Dec. LEXIS 180
CourtPennsylvania Court of Common Pleas, Dauphin County
DecidedAugust 17, 1972
Docketno. 1578
StatusPublished

This text of 58 Pa. D. & C.2d 450 (Commonwealth ex rel. Kling v. Hanmer) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Dauphin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth ex rel. Kling v. Hanmer, 58 Pa. D. & C.2d 450, 1972 Pa. Dist. & Cnty. Dec. LEXIS 180 (Pa. Super. Ct. 1972).

Opinion

WICKERSHAM, J.,

This matter [451]*451is before the court on a petition for change of custody filed by respondent, Glace E. Hanmer, relating to his son, Darrel Lee Hanmer, age 14.

BACKGROUND

Jeanne Sarah Brenize was married to Glace E. Hanmer on June 12, 1954. Two children were born to this marriage: Dale Eugene Hanmer, born June 8, 1955, now 17 years of age, and Darrel Lee Hanmer, bom June 27, 1958, and now 14 years of age. The family resided at R. D. No. 3 (near Piketown), Dauphin County, Pa. On June 6, 1968, a decree in divorce was granted to Jeanne S. Hanmer, plaintiff.1 Two months following the divorce decree, Glace E. Hanmer married Nancy E. Mayberry, age 29, from Winston Salem, N. C. It was her first marriage and no children have been born of that union to date.2

By virtue of an agreement reached between Jeanne S. Hanmer and Glace E. Hanmer under date of March 11, 1968, and several months prior to the decree in divorce, custody of the two minor children was granted to the mother, Jeanne S. Hanmer. Following the divorce, in November of 1968, the two minor children were taken by Glace E. Hanmer without the permission or consent of their mother, as a consequence of which a petition for writ of habeas corpus was filed [452]*452to the above term and number seeking the return of custody to the natural mother.

A hearing was held December 23, 1968, before Judge Carl B. Shelley and by order of court that date, it was concluded that the best interests and welfare of the boys would be best served by permitting them to remain with their mother. In July of 1969, Dale Eugene Hanmer, having reached the age of 14, petitioned the court to change custody as to him setting forth his desire to live with his father, Glace E. Hanmer, and his stepmother, Nancy Hanmer. On July 24, 1969, a stipulation of counsel and order of court by Judge Carl B. Shelley granted custody of Dale Eugene Hanmer to Glace E. Hanmer with visitation rights provided for in the mother.

THE INSTANT PETITION

This matter is presently before the court on a petition for change of custody filed by Glace E. Hanmer alleging that Darrel Lee Hanmer has now attained the age of 14 years and that his son Darrel wishes to leave the custody of his natural mother and return to the custody of his natural father. On July 26, 1972, a full hearing was held on the instant petition.3

The basic statutory provision in matters of this nature is found in the Act of June 26, 1895, P. L. 316, which provides as follows:

“In all cases of dispute between the father and [453]*453mother of such minor child, as to which parent shall be entitled to its custody or services, the judges of the courts shall decide, in their sound discretion, as to which parent, if either, the custody of such minor child shall be committed, and shall remand such child accordingly, regard first being had to the fitness of such parent and the best interest and permanent welfare of said child.”4

As was said in Commonwealth ex rel. Logue v. Logue, 194 Pa. Superior Ct. 210, 215 (1960):

“Unless compelling reasons appear to the contrary, a child of tender years should be committed to the care and custody of its mother, by whom the needs of the child are ordinarily best served. Commonwealth ex rel. Schofield v. Schofield, 173 Pa. Superior Ct. 631, 98 A.2d 437; Commonwealth ex rel. Lamberson v. Batyko, 157 Pa. Superior Ct. 389, 43 A.2d 364.
“One of the strongest presumptions in our law is that a mother has a prima facie right to her children over any other person. Commonwealth ex rel. Harry v. Eastridge, 374 Pa. 172, 97 A.2d 350; Commonwealth ex rel. Minnick v. Wilson, 159 Pa. Superior Ct. 230, 48 A.2d 27; Commonwealth ex rel. Williams v. Price, 167 Pa. Superior Ct. 57, 74 A.2d 668. In the recent case of Commonwealth ex rel. Horan v. Horan, 193 Pa. Superior Ct. 193, 163 A.2d 673, this Court upheld the mother’s custody of two boys aged eleven and eight, even though there was a question of indiscretion on the part of the mother and the boys had requested to remain with their father.”

The difficulty facing the court in a matter of this nature and the true test to be applied was aptly stated in Commonwealth ex rel. Schofield v. Schofield, 173 Pa. Superior Ct. 631, 642 (1953):

[454]*454“It has been wisely said that ‘Such questions are among the most difficult which a judge is called upon to determine. Often no decision is possible without wounding the sensibilities of those who, after they have developed a deep affection for the child over the period of years, are called upon to surrender the child’: Commonwealth ex rel. Children’s Aid Society v. Gard, 162 Pa. Superior Ct. 415, 58 A.2d 73. The governing criterion is the welfare and interest of the children involved. ‘To this the rights of the parents and all other considerations are subordinated, and each case must be reviewed in relation to the happiness, training, development and morals of the infant’: Hixon’s Appeal, 145 Pa. Superior Ct. 33, 20 A.2d 295. See also Commonwealth ex rel. Cooper v. Cooper, 167 Pa. Superior Ct. 492, 75 A.2d 609.”

In the Schofield case, supra, it was also pointed out that in habeas corpus proceedings the relator here, (Glace E. Hanmer, the natural father) has the burden of proving, by the preponderance of credible evidence, that the ultimate welfare and best interests of the children would be best served by awarding the custody to him.

Finally, the rule is well established in custody cases, that the expression by a child of a wish to stay with a particular parent is a factor which should be considered but is not controlling, especially where the child is of tender age. Where the interest of the child will best be served by placing a child with the parent for whom preference has not been expressed, this consideration will prevail: Commonwealth ex rel. Hickey v. Hickey, 213 Pa. Superior Ct. 349, 355 (1968).

In Commonwealth ex rel. Bender v. Bender, 197 Pa. Superior Ct. 397 (1962), Judge Woodside, speaking for the Superior Court, held that the involved chil[455]*455dren, ages 11 and nine, were of tender years. He went on to point out, however:

“. . . However, as children grow older less weight must be given to the tender years doctrine and more weight must be given to the preference of the children. There are some cases when, because of the age of the children involved, only one of these doctrines is applicable.

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

Related

Commonwealth Ex Rel. Williams v. Price
74 A.2d 668 (Superior Court of Pennsylvania, 1950)
Commonwealth Ex Rel. Traeger v. Ritting
213 A.2d 681 (Superior Court of Pennsylvania, 1965)
Commonwealth Ex Rel. Cooper v. Cooper
75 A.2d 609 (Superior Court of Pennsylvania, 1950)
Clair Appeal
281 A.2d 726 (Superior Court of Pennsylvania, 1971)
Commonwealth Ex Rel. Bender v. Bender
178 A.2d 779 (Superior Court of Pennsylvania, 1962)
Commonwealth Ex Rel. Schofield v. Schofield
98 A.2d 437 (Superior Court of Pennsylvania, 1953)
Snellgrose Adoption Case
247 A.2d 596 (Supreme Court of Pennsylvania, 1968)
Commonwealth Ex Rel. Skurat v. Gearhart
115 A.2d 395 (Superior Court of Pennsylvania, 1955)
Commonwealth Ex Rel. Harry v. Eastridge
97 A.2d 350 (Supreme Court of Pennsylvania, 1953)
Commonwealth Ex Rel. Lamberson v. Batyko
43 A.2d 364 (Superior Court of Pennsylvania, 1945)
Commonwealth Ex Rel. Minnick v. Wilson
48 A.2d 27 (Superior Court of Pennsylvania, 1946)
Commonwealth Ex Rel. Children's Aid Society v. Gard
58 A.2d 73 (Superior Court of Pennsylvania, 1947)
Hixon's Appeal
20 A.2d 925 (Superior Court of Pennsylvania, 1941)
Commonwealth ex rel. Marvin v. Horan
163 A.2d 673 (Superior Court of Pennsylvania, 1960)
Commonwealth ex rel. Logue v. Logue
166 A.2d 60 (Superior Court of Pennsylvania, 1960)
Commonwealth ex rel. Shipp v. Shipp
223 A.2d 906 (Superior Court of Pennsylvania, 1966)
Commonwealth ex rel. Hickey v. Hickey
247 A.2d 806 (Superior Court of Pennsylvania, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
58 Pa. D. & C.2d 450, 1972 Pa. Dist. & Cnty. Dec. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-kling-v-hanmer-pactcompldauphi-1972.