Pettigrew Adoption

63 Pa. D. & C. 444, 1947 Pa. Dist. & Cnty. Dec. LEXIS 329

• Court: Pennsylvania Orphans' Court, Erie County
• Decided: November 18, 1947
• Docket: no. 16
• Status: Published

Opinion

Waite, P. J.,

This matter is before the court on petition for the adoption of Jerry Carlson Pettigrew by Truby P. Porker and Diana Sweet Porker, natural mother of the child, now residing in Erie County, Pa. William J. Pettigrew, the natural father of the child and former husband of Diana Sweet Forker, opposes the adoption.

The child was born in Daytona Beach, Fla., on June 20, 1944, and now resides with petitioners in Erie, Pa. William J. Pettigrew is a veteran of World War II and is now attending the University of North Carolina under the GI Bill of Rights.

On December 4, 1945, Diana Sweet Pettigrew, now Forker, secured a decree of divorce from William J. Pettigrew in the Seventh Judicial Circuit Court of Florida. Paragraph 4 of said decree provides as follows:

“That the Plaintiff shall have the care, custody and control of said minor child, Jerry Carlson Pettigrew, subject to the right of the Defendant to see and be with said child at any and all reasonable times, and upon the child reaching the age of three years said Defendant shall have the right to have said child for a period of one month each year, it being understood that said child will have the personal care and attention of said Defendant during that period of time; that upon said child reaching the age of six years, said Defendant shall have the right to have said child with him for a period of two months each year, provided, however, that said Defendant shall give said child his personal supervision during said period of time and that such arrangements will not interfere with the schooling of said child, or until further order of this Court.”

Since the decree of divorce was granted the natural mother has remarried to Truby P. Forker, who has joined in the petition for adoption.

When a petition for the adoption of a child is opposed by a natural parent it is encumbent upon petitioner to show abandonment by such natural parent, which means in general to desert, forsake and give up all claims to said child. No such abandonment was shown in the testimony produced at the hearing in this case and for that reason the decree must be refused. This is without prejudice to the rights of the parties to file another petition should subsequent events warrant it.

On November 4,1947, at the time of the argument in this matter, petitioners presented a petition asking leave to withdraw the said adoption proceedings. Since the natural father, William Jerry Pettigrew, and his mother, both living in North Carolina, were impelled at considerable inconvenience and expense to come to Erie on May 5,1947, at the time of the hearing to give their testimony, appearing in the record, showing that there was no abandonment, it manifestly would be unfair to said natural father to permit such withdrawal and thus leave the question of abandonment undetermined and in abeyance. Such withdrawal of a proceeding after a hearing on the facts is not a matter of right but rests in the sound discretion of the court hearing the case. See Lamb v. Greenhouse, 59 Pa. Superior Ct. 329, and Cross’ Estate, 309 Pa. 418.

For the reasons herein stated both the decree of adoption and the petition to withdraw the petition are refused.