*1 was built as an alternate route roadway merely through land. we affirm the final decree of the court
Accordingly, below. George JORDAN, Appellee,
COMMONWEALTHex rel. R. Cindy JORDAN, Appellant.
Superior Pennsylvania. Court of Sept. 1981.
Submitted Filed 1982. July *3 Monaca, for Palmquist, appellant. Robert F. Jordan, Falls, for James, appellee. Beaver E.
George BECK, JJ. WICKERSHAM, WIEAND and Before BECK, Judge: Paul who was five involving custody dispute
This is a child hearing August, time of the lower court’s old years at life with his mother until lived his entire 1980. He had in September, to the father lower court transferred the mother and had lived from separately 1980. The father remarried subsequent four He had years. child for almost mother. The record suggests from Paul’s to the divorce caretaker since the child’s primary the mother had been *4 this brings appeal. birth. She the trial cited grounds by We conclude that to from the mother the transfer of boy court to justify or the evidence supported by not adequately the father are Commonwealth,1 we remand this case and the laws of this with this opinion. for a consistent hearing fit,” court, finding parents “equally both to be trial after 1. The (1) grounds provide: could justified that the father its decision on the environment; family (2) two-parent deemed a more home “stable” 425 hold, below, We for the reasons stated that where two fit, natural are both and the child is of parents tender years, the trial must give court consideration to the positive parent who has been the caretaker.2 Not to do so primary ignores flow the benefits to to the from likely maintaining day to contact with the on whom day parent the child has his basic and depended satisfying physical psychological needs.3
The removal of a child from an established young home with one has been parent long recognized as a factor which bears his upon emotional A well-being. child “be comes attached to those who strongly stand parental to who relationship it and have tenderly cared for it.” Com. ex rel. Gard, Children’s Aid 85, 97, 362 Pa. 66 A.2d Society accord, 306 In (1949); Interest of Quame Tremayne R., 286 429 A.2d Pa.Super. (1981); Idress 40 Jon M. W. K., Brenda 279 420 Pa.Super. (1980). A.2d 738
It is clear that the continued presence of a fit parent
who through
affection,
daily
guidance,
and
companionship,
fulfills the child’s
discipline
and
psychological
needs
physical
is crucial to the child’s emotional well
The
being.
countless
transactions
parent
between
and child on a
basis
day
day
build the foundation for the child’s future healthy develop
ment. The
courts have
Pennsylvania
recognized this princi
ple
have held that
the “continued residence of children
with one
is a factor
parent
cases,
which
inmay,
certain
Cutler,
ex rel. Cutler v.
controlling.”
Com.
246 Pa.Super.
law;
by
(3)
superior physical
“favored”
environment. As
show, infra,
(1)
unsupported by
evidence,
we
(2)
factor
is
factor
law,
insufficient,
alone,
(3)
standing
reflects an error of
to
and factor
is
justify
custody.
an award of
recognize
custody,
2. We
that where the lower court awards shared
primary
opinion
the considerations of the
caretaker outlined in this
applicable.
Wesley K.,
Pa.Super.
are not
See
re
J.
In
A.2d 1243
Gunter,
382, 398,
3. See Gunter v.
R.,
Tremayne Quame
supra,
Pa.
Cf.
Interest of
Idress
Superior
n.6,
Changes
removed from a
not be lightly
A child of tender
should
years
has lived
birth.4
whom the child
since
parent
Furthermore,
insofar as a parent’s past performance
to determine the
judicial
predictive,
inquiry
is
to be
likely
caretaker will
evidence con
primary
yield
of the
identity
commitment of a
If in the
parent.
past,'
the future
cerning
to the child’s physical
caretaker has tended
the primary
tolerance,
love, affection, concern,
needs
has exhibited
and
sacrifice,
to
the trial
willingness
judge may
and
discipline
will
those
continue.
qualities
predict
caretaker,
role of the
without
Therefore,
primary
the
which
is a substantial
factor
parent,
to the sex of
regard
matter
in
weigh
adjudicating
the trial
must
judge
years.5
where the child is of tender
The
of the instant case are not complicated.
The facts
of New Brighton, Pennsylvania,
child’s
residents
parents,
October,
in mid-1977.
1976 and divorced
were separated
apparently
the trial court
case involves a child whom
4. The instant
age
young
the child is of an
too
to interview. Where
considered
given
preference
maturity
such that his or her
should
and/or
importance
weight,
might justifiably
to who had
attach less
a court
primary caretaker.
been the
W.Va.,
(1981)
McCoy,
the court
Families 1975, 1976, In each of years, increasing frequency. in the one million children were over 1977 and there are divorces.6 Courts whose obtained parents United States from disputes arising adjudicate custody often called upon In so the trial doing, these units. family the dissolution of wisdom is in a where position are Solomonic judges placed of on the basis must make a determination required. They bitter, conflicting incomplete. is often testimony fu about the child’s predictions make educated must They best interests of the child. in mind the ture always keeping lower court demon- was difficult and the The instant case However, the court’s conclu- consideration. strated care and Census, Commerce, Department of the Statistical Bureau 6. U. S. Statistics, States, 1980, No. Mar- United Vital Abstract of the riages 1950-1979. and Divorces: sion that the father would a more home provide “stable” environment for the child is the evidence. unsupported by The decision was based in that the judge’s part on fact October, residences three changed mother times between 1976 and the date of the August, custody hearing. it that the mother moved While is true three times after she such separated, and her husband was alleged “instability” Mother and child left the state clearly temporary. only months, a few before to the New returning Brighton area. At time of had been for two hearing, they living in an next to that of the child’s maternal years apartment These grandmother. (N.T. 91.) facts are distin clearly McCann, from those of guishable McCann 270 Pa. Super. (1979), where this Court held that evidence *7 that the mother had moved the child to six residences in the to the a of “instabili year prior hearing supported finding Moreover, there was no at trial to ty.” testimony support an that the in changes inference residence affect adversely Steiner, ed the child.7 Com. ex rel. Cf. Steiner Pa.Super.
The additional for the that justification finding father a provide would more stable home environment in volved about a vague incomplete testimony motorcycle this the court stated: “The testi gang. Citing testimony, is but of a mony conflicting, apparently members motorcycle threatened to shoot the of . . the gang brother . mother’s Paul overheard the threats and boyfriend. thought they (N.T. 52, 53, 153, 154.) were to shoot his mother.” going The record reveals no evidence to linking boy’s fears or behavior the mother or her negligent irresponsible by This alone or boyfriend. testimony, standing combined with residence, of testimony changes does not an provide basis for that the father adequate inferring provide would more stable home environment. rejected appellee’s
7. The trial court contention that the mother’s personal relationships subsequent separation with men to had shown any instability. explicitly rejected emotional The trial court also suggestion appellee’s relationship the mother’s with the man Brighton apartment who lived with her her at had the New eight adversely boy. months had affected the the lower court for The next reason advanced by to the father is that the law traditionally awarding custody families over ones in custo single parent favors two parent lower court misperceives The law. There dy disputes. is in our child law two custody favoring no presumption The sole criterion in families. parent determining custody is “the best interest and disputes parents perma between the child. re of Custody Phillips, nent welfare” of A.2d 990 (1978). Pa.Super. not be may presumed,
Two families as a matter of parent law, to one families. The existence of parent to be superior be a positive at times and at other times a may step parent behooves the factor. It court to into the negative inquire of natural homes. To two parents’ prefer both quality force single parents families into parent may multiple—and in order to their unfortunate—marriages protect perhaps to right custody.
Moreover, the clear trend has been to abolish pre we in In disputes.8 As stressed re sumptions Hernandez, Custody the court should avoid mechanical determinations and
(1977),
focus its
on a close
of all
facts
scrutiny
particular
analysis
the child’s best interests.
determining
relevant
case, the
In this
record revealed no basis for the
lower court’s inference that the child’s home environment
the mother
a single parent,
was unstable because
was
or
*8
that his home environment would be more stable in the
future if the child lived with his father and the second wife.9
cases,
custody
“continually
pole
8.
the court must
hew to the
child
interests, eschewing presumption
star of a child’s best
and surmise.”
Morris,
19,
139,
See,
Pa.Super.
(1979).
Morris v.
271
412 A.2d
141
Carson,
290,
e.g.
Spriggs
(1977);
ex rel.
470 Pa.
The sole remaining proposed justification for the lower court’s decision focused on the physical characteristics of the two home environments. The court conceded that both are well kept homes have adequate for the space in an boy. The mother lives on a apartment main street in of New borough Brighton while the father lives in a acres, trailer rural on two next to substantial farm owned in-laws. In that by setting, his the boy would have access to a pond, patch woods, as well blackberry as to a variety of wild and domesticated animals. assume, We arguendo, that the the lower testimony supports court’s finding the child would have a superior area if play was awarded to the father. This however, advantage, is for the most and not part physical determinative. Com. ex rel. 209 Shipp Shipp, Pa.Super. 906 (1966); A.2d Com. Levinson, ex rel. Levinson v. Pa.Super. A.2d 625 We vacate the lower court’s accordingly order and remand to the lower court for reconsideration in accordance this Because one and opinion. over one half have years since the initial elapsed and because hearing, this opinion raises issues not treated in adequately record, we direct the lower court to take additional to testimony necessary the record.10 complete The Superior Court relinquishes jur isdiction over this matter.
WICKERSHAM, J., files a concurring opinion. WIEAND, J., files a dissenting statement. WICKERSHAM, Judge, concurring: I with the agree well-considered opinion my colleague W. Beck. I Phyllis hesitate to reverse trial in custo- judges dy cases when the trial particularly judge, Honorable every day, caring and is able assist the mother in for him.
(N.T. seq.) 146 et Holand-Moritz, 10. Com. ex. rel. Holschuh v. 448 Pa. Grimes, Com. ex rel. Grimes v. J., (1980) (Spaeth, dissenting). A.2d 572
431 Walko, has Joseph S. written such a and com- thoughtful plete believe, however, as he did. I opinion that the lower court has two flaws that warrant opinion reconsideration.
First, Judge Walko based his decision in part on his belief that will Paul be better off with his father’s new family than with his mother alone. The lower court observes: “This unit has been type family traditionally favored over the of type comprised Cindy and Paul.” I [Paul’s mother] cannot how imagine labeling family arrangement “tradi- favored” assists of what will tionally analysis further the best interests of the child. The trial judge is virtually raising here and presumption presumptions are now disfa- vored in cases. In the fairness to trial he judge, does add that the traditional unit will serve Paul’s family interests, best this does not yet correct the basic error of a formula for substituting analysis.
Second, Walko did Judge not consider the adequately mother, effect of Paul from his taking away who has been his caretaker most of his life. The primary trial judge decided that both are fit parties parents; because both parents are fit the used other judge criteria—most notably the environment of the physical father’s home—to make his award of In such a close case I custody. believe more consideration be must of given continuity care child’s life than access to a woods fishing pond, and a lower blackberry patch. See ct. at 12. op.
I agree Beck that where both Judge natural parents are fit to care for a of child tender years, trial court give must consideration to positive who has parent been caretaker. That primary of care can continuity decisive is made plain Hugo 1, 288 Pa. Hugo, Super. A.2d court has long the removal recognized of a
[T]his his young from environment is a factor whieh bears on its emotional well being. re Custody Phillips, 394 A.2d Common wealth ex rel. Gard, Children’s Aid Society Pa. Therefore, 306 (1949). continued resi- *10 be may controlling. children with one parent
dence of
Gard,
v.
Aid Society
ex rel. Children’s
Commonwealth
Cutler,
ex rel. Cutler v.
246 Pa.Su
Commonwealth
supra;
821,
ex
88,
(1977).
A.2d
824
Commonwealth
82,
369
per.
167, 138
(1958).
225
Kraus,
Pa.Super.
185
A.2d
rel. Kraus v.
6-7,
(footnote R., Idress Quame In Interest of also, Tremayne See 480, 493-94, 47 (1981). Pa. Super. reconsideration. Therefore, I the case warrants agree WIEAND, dissenting: Judge affirm of custo- I would the award
I dissent. respectfully the excellent persuasive set forth in for the reasons dy He had the to hear judge. opportunity of the trial opinion and has a careful and exten- prepared and see the witnesses evidence He concluded from presented. sive of the analysis best interests of Paul Jordan the facts proved him in the of his father. placing would be served by *11 review of the record discloses no good My independent with that determination. I would not interfering reason court’s order and reconsideration require reverse trial because its did not contain an refer- opinion express merely discussion of the fact that the mother ence to and detailed of the to the boy prior hearing. had had custody LAYMAN, Robert Administrator of the Estate of Alexander S. Deceased,
Layman, Appellant, WESTERN SAVINGS BANK. Pennsylvania. Court of
Superior Argued Feb. 1982. July
Filed 1982.