Superior Court of Pennsylvania, 1969

Schwab Appeal

Superior Court of Pennsylvania · Decided June 12, 1969 · Cercone, Hoffman, Jacobs, Montgomery, Spaulding, Watkins, Weight

214 Pa. Super. 531; 257 A.2d 322; 1969 Pa. Super. LEXIS 1451

Opinion of the Court

Opinion

Per Curiam,

Order affirmed.

Dissenting Opinion

Dissenting Opinion by

Hoffman, J.:

In the instant case, the lower court awarded the custody of two children, Angela, age seven, and Charles, age four, to the father, a Pennsylvania resident. The testimony reflects that the mother was devoted, of good moral character and had provided a fine home for the children. The prima facie right of a mother to her young children is one of the strongest pre*532sumptions in our law. For the reasons stated in my dissenting opinion in Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa. Superior Ct. 114, 245 A. 2d 663 (1968), I would reverse the order of the court and award custody of the young children to their mother.1

Jacobs, J., joins in this dissenting opinion.

It would also appear that the lower court based its decision in great part on the fact that the mother lived outside of the Commonwealth, in New York City. There are cases which have indicated that our courts should favor granting custody to a parent who resides within this Commonwealth. To the extent that such doctrine ever truly represented the law in this Commonwealth, I would reject it. Moreover, in the circumstances of this case, there would appear to be no reason for this factor to have been considered or given the great weight accorded it by the lower court. Cf. Proctor v. Proctor, 213 Pa. Superior Ct. 171, 245 A. 2d 684 (1968).

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