Commonwealth ex rel. Machain v. Machain

Superior Court of Pennsylvania

Commonwealth ex rel. Machain v. Machain

157 Pa. Super. 113

CourtSuperior Court of Pennsylvania

DecidedApril 12, 1945

DocketAppeal, No. 24

StatusPublished

This text of 157 Pa. Super. 113 (Commonwealth ex rel. Machain v. Machain) 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. Machain v. Machain, 157 Pa. Super. 113 (Pa. Ct. App. 1945).

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Opinion

Pee Curiam,

This habeas corpus proceeding involves the custody of two minor children, one seven years of age and the [114]*114other twelve. The father,of the children is the relator and the mother is the respondent. After hearing, the court awarded the legal custody of the children to the father. Respondent’s petition for an order of support for the children was consequently dismissed. Respondent has appealed from the order of the court below.

The court below in awarding the custody of the children to the father said: “The testimony indicates that the respondent has been guilty of immoral conduct, conducts herself improperly, drinks excessively, neglects her home and children, and does not rear her children in a moral and wholesome atmosphere.

“We are convinced that the permanent welfare of the children will be best subserved by taking them from the respondent and giving them into the custody of the relator.”

The evidence clearly supports the conclusions of the court below; and our review of the proceedings causes us to agree with these conclusions. See Act of July 11, 1917, P. L. 817, §1, 12 PS §1874.

In such cases the governing criterion is the welfare and interest of the child or children. Hixon’s Appeal, 145 Pa. Superior Ct. 33, 35, 20 A. 2d 925. Where the dispute is between the father and mother, the fitness of such parent to have custody of the child or children is to be considered as well as the best interest and permanent welfare of the child or children. Act of June 26, 1895, P. L. 316, §2, 48 PS §92; Com. ex rel. Martocello v. Martocello, 148 Pa. Superior Ct. 562, 564, 25 A. 2d 855. In the present case the children will be in a better atmosphere and in more favorable surroundings in the custody of the father than in the custody of the mother. See Com. ex rel. Kreiling v. Kreiling, 156 Pa. Superior Ct. 526, 40 A. 2d 704.

The order is affirmed.

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Pee Curiam,

This habeas corpus proceeding involves the custody of two minor children, one seven years of age and the [114]*114other twelve. The father,of the children is the relator and the mother is the respondent. After hearing, the court awarded the legal custody of the children to the father. Respondent’s petition for an order of support for the children was consequently dismissed. Respondent has appealed from the order of the court below.

The court below in awarding the custody of the children to the father said: “The testimony indicates that the respondent has been guilty of immoral conduct, conducts herself improperly, drinks excessively, neglects her home and children, and does not rear her children in a moral and wholesome atmosphere.

“We are convinced that the permanent welfare of the children will be best subserved by taking them from the respondent and giving them into the custody of the relator.”

The evidence clearly supports the conclusions of the court below; and our review of the proceedings causes us to agree with these conclusions. See Act of July 11, 1917, P. L. 817, §1, 12 PS §1874.

In such cases the governing criterion is the welfare and interest of the child or children. Hixon’s Appeal, 145 Pa. Superior Ct. 33, 35, 20 A. 2d 925. Where the dispute is between the father and mother, the fitness of such parent to have custody of the child or children is to be considered as well as the best interest and permanent welfare of the child or children. Act of June 26, 1895, P. L. 316, §2, 48 PS §92; Com. ex rel. Martocello v. Martocello, 148 Pa. Superior Ct. 562, 564, 25 A. 2d 855. In the present case the children will be in a better atmosphere and in more favorable surroundings in the custody of the father than in the custody of the mother. See Com. ex rel. Kreiling v. Kreiling, 156 Pa. Superior Ct. 526, 40 A. 2d 704.

The order is affirmed.

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157 Pa. Super. 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-machain-v-machain-pasuperct-1945.

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