Commonwealth ex rel. Schrim v. Smith

Superior Court of Pennsylvania

Commonwealth ex rel. Schrim v. Smith

85 A.2d 617, 170 Pa. Super. 390, 1952 Pa. Super. LEXIS 255

CourtSuperior Court of Pennsylvania

DecidedJanuary 17, 1952

DocketAppeal, No. 152

StatusPublished

Cited by1 cases

This text of 85 A.2d 617 (Commonwealth ex rel. Schrim v. Smith) 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.

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Commonwealth ex rel. Schrim v. Smith, 85 A.2d 617, 170 Pa. Super. 390, 1952 Pa. Super. LEXIS 255 (Pa. Ct. App. 1952).

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Opinion

Opinion bt

Arnold, J.,

On a writ of habeas corpus brought by her parents against appellants, the court awarded custody of Linda Schrim (born in 1949) to the parents, and the respondents appealed.

[391]*391Both Linda Schrim and her. sister, Sherry, were born to the mother while she was unmarried. Subsequently the father of these two children married the mother and thus legitimatized them. Sherry lives with her parents.

The respondents first obtained custody of Linda from the mother when she was quite ill following a Caesarean operation.

It is conceded that no question of abandonment arises in this case.

The only question raised is the fitness of the parents. While the mother had two illegitimate children, yet these were made legitimate by the marriage. It is urged that the father, before he married the children’s mother, had an affair with a married woman. These facts are not determinative of the issue. The condition of the home of the parents is concededly good. There is no question that the parents are exceedingly fond of this child and desire her to live with them. The husband is employed in the city of Pittsburgh and has a take home pay of about $75 a week. The parents are entitled to custody unless they are unfit. Certainly the fact that this child was born out of wedlock, and that thereafter the father and mother married, is no reason to deprive them of custody. The moral lapse of the father, before his marriage, is likewise insufficient to deny the parents custody.¹

Judge Ellenbogen, writing for the court below, went to great pains to determine what was for the welfare of this child, and we agree with him. The welfare of the child will undoubtedly be promoted by being brought up by her own parents and with her sister, however much such order may grieve the respondents.

Order affirmed.

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Opinion bt

Arnold, J.,

On a writ of habeas corpus brought by her parents against appellants, the court awarded custody of Linda Schrim (born in 1949) to the parents, and the respondents appealed.

[391]*391Both Linda Schrim and her. sister, Sherry, were born to the mother while she was unmarried. Subsequently the father of these two children married the mother and thus legitimatized them. Sherry lives with her parents.

The respondents first obtained custody of Linda from the mother when she was quite ill following a Caesarean operation.

It is conceded that no question of abandonment arises in this case.

The only question raised is the fitness of the parents. While the mother had two illegitimate children, yet these were made legitimate by the marriage. It is urged that the father, before he married the children’s mother, had an affair with a married woman. These facts are not determinative of the issue. The condition of the home of the parents is concededly good. There is no question that the parents are exceedingly fond of this child and desire her to live with them. The husband is employed in the city of Pittsburgh and has a take home pay of about $75 a week. The parents are entitled to custody unless they are unfit. Certainly the fact that this child was born out of wedlock, and that thereafter the father and mother married, is no reason to deprive them of custody. The moral lapse of the father, before his marriage, is likewise insufficient to deny the parents custody.¹

Judge Ellenbogen, writing for the court below, went to great pains to determine what was for the welfare of this child, and we agree with him. The welfare of the child will undoubtedly be promoted by being brought up by her own parents and with her sister, however much such order may grieve the respondents.

Order affirmed.

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85 A.2d 617, 170 Pa. Super. 390, 1952 Pa. Super. LEXIS 255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-schrim-v-smith-pasuperct-1952.

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