Commonwealth ex rel. Holschuh v. Holland-Moritz

Concurring Opinion by

Mr. Chief Justice Jones:

I find myself in the unenviable position of disagreeing with the basic conclusions reached by the majority and the dissenting opinions.

In my view, the order of the Superior Court, reversing the order of the Court of Common Pleas of Berks County, should be affirmed without qualification. *448With, the greatest of reluctance, however, I will agree with the detemiination of three of my colleagues to remand this matter to the Court of Common Pleas of Berks County for an additional hearing.

The conduct of the appellant—the mother of these two children—has been of such nature as to justify a denial to her of the custody of the children. Mindful that a mother ordinarily does have a prima facie right to her children over any other person, the evidence on this record convinces me that this presumption in favor of maternal custody has been overcome and rebutted. This record demonstrates to my satisfaction that the appellant-mother has “little or no regard for conventional standards, whether moral or social.”1 To uproot these children from the home of appellant’s parents (where they have lived and been cared for over a period of seven years), a home well disciplined wherein the standards of behavior are “strikingly different from those espoused by appellant.”2 places these children in a situation where adjustment will be highly improbable, if not impossible. Both the majority and minority opinions favor a mother whose past behavior, in my opinion based on the evidence of record, has forfeited her rights as a mother. The best interests of these children, who are at a highly impressionable stage of life, have been subordinated to a misplaced adherence to the rights ordinarily granted a mother.

It is, therefore, with reluctance that I join with three of my colleagues in ordering a remand of this matter to the court below for an additional hearing, trusting that the Court of Common Pleas of Berks County will then consider the best interests of the chil*449dren rather than any presumptive or ephemeral right of the appellant.3

See report of Family Relations Division of the Superior Court of New Haven, Connecticut..

See report of Family Relations Division of the Superior Court of New Haven, Connecticut.

Strikingly illustrative of the appellant’s attitude are the post-hearing facts: appellant, having been granted limited visitation rights with the children, continued such visitation without limitation, retained custody of the children beyond the visitation period and, by the placement of the children in school in Connecticut under fictitious names, has sought to conceal their whereabouts from the appellees, the children’s natural grandparents, who over the past seven years have demonstrated their ability to take care of these children and whose love and affection of them have been so well evidenced. Such behavior on the part of the appellant would he rewarded if the conclusions reached in both the majority and minority opinions are to stand.