Commonwealth ex rel. Black v. Black , 79 Pa. Super. 409 ( 1922 )

Opinion by

Linn, J.,

In habeas corpus proceedings brought at the relation of Ruth Black to obtain the custody of her two young children, they were brought into court by their parental grandparents, the respondents. After hearing, the court awarded the custody of the children to their mother. The grandparents have appealed and contend, in the words of their counsel’s brief, that “The future welfare of these two small children requires that they be maintained as heretofore” by appellants. The father of the children was not a party to the proceeding below, nor was he called to testify, but on his application to this court to become a party appellant, leave was given.

The only question for our consideration is that already suggested in the quotation from appellants’ brief. On this record what appears best “for the future welfare of these two small children”?

The relator and W. E. Black were married in 1916 and have these two children, one less than two years of age, the other less than four. For some time prior to their separation in July, 1921, they lived on a thirty-five acre farm in Franklin County, Pennsylvania, with W. E. Black’s parents, the appellants, who are engaged in farming. The household also included appellants’ eight children ranging in age from less than one year to sixteen years. The relator did not get on with her husband’s parents, nor they with her, so that in July, 1921, her husband took her to her father’s residence in Hagerstown, Maryland. She testified she did not wish to live apart from her husband but did “want1 to live with him if he goes to a home of his own.” One of appellants, W. C. Black, testified “she can’t make her home with me.” The relator’s father stated what property he had, and that he was able to and wished to assist his daughter and her children. She testified to her earning capacity. She also offered in evidence a letter dated July 27,1921, written to her by her husband, after he had taken her to Hagerstown, Maryland; in the letter he complained that he had little employment and added “......better work if you can, money is getting scarce.”

There is no proof that relator is not a competent person to care for her children. Apparently her husband is unable to establish a home for his family. As he is unable to do that, and as his parents, who had the custody of the children, decline to have their mother live with the children, and as she is a competent person to take care of them, considering their ages, the record is destitute of any basis whatever for depriving her of their custody: Com. v. Addicks, 5 Bin. 520; Com. v. Sage, 160 Pa. 399; Com. v. Strickland, 27 Pa. Superior Ct., 309; Com. v. Myers, 18 Co. Ct., 385. In such circumstances, the fact that she may take the children across the State line from Franklin County, Pennsylvania, into Maryland to care for them is not controlling.

The appeal is dismissed at the costs of appellants.