75 A.2d 614 (Pa.Super. 1950), Commonwealth ex rel. Graham v. Graham

• Judge: Rhodes, P. J., Reno, Dithrich and Ross, JJ. (Hirt and Arnold, JJ., absent). Rhodes, P. J., dissents. Arnold, J., took no part in the hearing, consideration or decision of this case.
• Parties: COMMONWEALTH ex rel. GRAHAM v. GRAHAM et al.
• Docket Number: .
• Date: 27 September 1950
• Court: Pennsylvania Superior Court
• Citation: 75 A.2d 614,167 Pa.Super. 470

Page 614

75 A.2d 614 (Pa.Super. 1950)

167 Pa.Super. 470

COMMONWEALTH ex rel. GRAHAM

v.

GRAHAM et al.

Superior Court of Pennsylvania

September 27, 1950

Argued March 21, 1950.

Appeal, No. 46, Oct. T., 1950, from order of Court of Common Pleas of Clearfield County, Nov. T., 1949, No. 351, in case of Commonwealth of Pennsylvania ex rel. Anna May Graham v. David B. Graham et al.

Habeas corpus proceeding for custody of child. Before Bell, P. J.

Order entered awarding custody of child to paternal great-grandfather. Mother of child appealed.

Dan P. Arnold, with him D. Edward Chaplin and Chaplin & Arnold, for appellant.

W. Albert Ramey, for appellees.

Rhodes, P. J., Reno, Dithrich and Ross, JJ. (Hirt and Arnold, JJ., absent). Rhodes, P. J., dissents. Arnold, J., took no part in the hearing, consideration or decision of this case.

OPINION

DITHRICH, J.

[167 Pa.Super. 471] Anna May Graham, the relatrix, having been awarded the exclusive custody of Andrew Roger Graham, the five-year-old son of relatrix and David B. Graham, by the Court of Common Pleas of Cuyahoga County, Ohio, instituted this habeas corpus proceeding in Clearfield County, Pennsylvania, seeking enforcement of the Ohio decree.

The Ohio court, having "jurisdiction of both said parties," on April 8, 1949, having found that David B. Graham had "been guilty of gross neglect of duty towards the Plaintiff [relatrix herein]," entered a decree divorcing the parties, and at the same time ordered "that the Plaintiff be . . . awarded the temporary custody of the said minor child," but that the child should continue to be domiciled with the paternal "grandfather." The use of the word "grandfather" was, no doubt, an inadvertence on the part of the court, for the child was at the time domiciled not with his paternal grandfather, but with his paternal great-grandfather, a man 78 years of age; and the present proceeding is not a proceeding between the mother and father of the child, nor between the mother and the paternal grandfather, but between the mother and the paternal great-grandfather.

Page 615

Following the entry of the aforesaid decree, the great-grandfather returned from the domicile of his grandson in Cleveland, Ohio, to his own domicile in Shawville, Clearfield County, Pennsylvania, taking the child with him. On June 11 they were joined by the father of the [167 Pa.Super. 472] child and since then the three have resided together in a three-room frame house, without any modern facilities, not even a bathroom. However, the learned president judge of the court below felt that the child "would be kept physically clean by either his mother or great-grandfather." There is no woman living in the house and the child shares a bedroom with his great-grandfather. The paternal grandmother lives within calling distance and the child spends considerable time with his grandmother, but she does not have supervision of him; that falls to the lot of the great-grandfather.

Although the original order awarding temporary custody to the mother provided that she should have reasonable and liberal rights of visitation "including the right to have said child with her in her own home for reasonable periods of time," it became necessary for her to secure a writ of habeas corpus to enforce such right when she went to visit the child in July of 1949. After that experience, upon her return to Cleveland she petitioned the court for a modification of the original order. The petition was granted and on October 26, 1949, the "Court being fully advised in the premises, . . . [found] that the defendant [David B. Graham] . . . [had] been duly and legally served with notice herein according to law," and entered an order enjoining him "from interfering in any manner with either said child or with said plaintiff in the custody thereof." The court further found that "the best interests and welfare of said child will be served by said change of custody" and "therefore, ordered, adjudged and decreed that the custody . . . of said child . . . be . . . awarded exclusively to the plaintiff," and that "the said child is to be domiciled in the home of Dan Gorby of Tucson [Ariz.], until further order" of the court. The order for change of domicile from Pennsylvania to Arizona was not made until the court "after careful investigation" found "said home to be fit and proper."

[167 Pa.Super. 473] On November 2, 1949, the mother filed a petition for a writ of habeas corpus in the Court of Common Pleas of Clearfield County seeking to enforce the final order and decree of the Ohio...