*3 SPAETH, HOFFMAN, Before BROSKY and JJ. HOFFMAN, Judge: contends that the
Appellant-mother lower court erred in awarding custody of her minor child to We appellee-father. unable, however, and, appeal are to address the merits of her instead, proceedings remand for further consistent with this opinion. is dispute custody parties’ daughter,
This a over the Rebecca, age October, The parties separated were 1976, and divorced in 1977. Both have since May, agreement, remarried. Pursuant to an oral the mother maintained of the child and the father regularly 5, 1979, visited with the child on weekends. On March after visitation, one such the father told the mother that he keep intended to the child. the mother April On removed Rebecca from the day care center where she had been enrolled her father. The mother then filed a petition for confirmation of custody and a re- temporary straining May order on 1979. The lower court granted an order restraining the father from taking the child from the mother’s during home the pendency proceedings. of these On June the father filed a petition for habeas corpus. The lower court conducted a on hearing August 1979, at which the father attempted prove that mother was unfit. He testified that the child usually was unkempt, and in dirty, relatively poor health on his weekly visits. Additionally, he alleged living the mother’s arrangements were unsuitable and that she drugs. used The mother denied each of allegations these and contended that the child had negative reaction to her father’s brief period of actual custody. parent Each cumula- presented tive, corroborative from friends and relatives. court, counsel, lower in the presence of conducted an examination of the Although child the record. much of the child’s testimony was not to the responsive ques- court’s tions, expressed Rebecca a preference for her father and corroborated the father’s testimony regarding the mother’s *4 drug use. The lower court “did not find that [appellant] was an unfit mother” and parents that both were “believ[ed] ” capable However, of loving care for Rebecca . . . . lower court resolved the issue of credibility in favor of the and, father accordingly, awarded to him. This appeal followed. A., Commonwealth ex rel. Leighann A. v. Leon 280
Pa.Super. 249, 252, 421 706, (1980), A.2d 708 we stated:
502
“It is
in all
the best
custody disputes,
fundamental
child must
all
prevail;
interests of the
other considera
physical,
tions are deemed subordinate to the child’s
intel
Commonwealth ex
lectual,
spiritual
being.
moral and
well
Parikh,
105,
rel. Parikh v.
(1972);
449
296
625
Pa.
A.2d
Holland-Moritz,
Commonwealth ex rel. Holschuh v.
448
(1972).” Garrity
v.
437,
Garrity,
Pa.
508 (1978); Gunter, Gunter v. supra. Only with the benefit of a full record and full opinion can the appellate hope court to fulfill its of con- responsibility ducting its Valentino, own careful review. Valentino v. supra. Where the record is incomplete or the lower court is inadequate, the case will be remand- Valentino, ed. See Valentino v. supra; Commonwealth ex rel. Forrester, 397, Forrester 258 392 A.2d 852 (1978); Cox, Commonwealth ex rel. Cox v. supra. Lewis, 235,
Lewis v. 240, 781, 267 406 A.2d 783-84
Our ability to review impaired this case is by a deficient record. Each of the competing parties has testified to his/her fitness home, and the suitability his/her the father has made serious allegations of the unsuitability of the mother’s home. Yet there was no disinterested testimony evaluating the relative environments which the provide. could Accordingly, a remand for sup such plementation See, of the record is proper. g., e. Common wealth ex rel. Leighann A., A. v. Leon supra, 280 Pa. Super, 253, 708; at 421 A.2d at J. F. G., G. v. K. A. 278 Pa.Super. 25, 28, 1337, (1980); A.2d Jones v. Floyd, 276 76, 80, 102, 419 A.2d (1980); 104-05 Lewis v. Lewis, 235, 267 Pa.Super. 240, 781, (1979); A.2d 784-85 Custody Neal, re 151,153, 260 Pa.Super. (1978); Gunter, Gunter v. A.2d 317 (1976).
“In addition
lacking
record,
a complete
we are
without
comprehensive
opinion necessary
proper
for
appellate review.
Garrity
Garrity, supra;
Lewis,
Lewis v.
supra.” Commonwealth ex
Leighann
A.,
rel.
A. v. Leon
supra, 280 Pa.Super.
allowed the mother
sought custody
he
separation
their
before
three
after
years
Foster,
Hughes
ex rel.
of the child. See Commonwealth
The lower
436, 441,
663,
665
Pa.Super.
225
effect
its award
to consider the
court also failed
relationship between
existing
have
the
would
custody
440-41, 311 A.2d
id.,
Pa.Super.
225
at
and child. See
mother
not address the
the lower court did
Similarly,
at 664.
over
supervision
to exercise full time
availability
mother’s
place
would
the fact that the father
compared
child
to
the
Neal,
260
supra,
In re
Custody
Rebecca in child care. See
Moreover,
lower
1059.
the
at
393 A.2d at
Pa.Super.
con-
drug use without
alleged
the mother’s
court discussed
the child. Cf.
effects of such use on
sidering
present
the
A.,
A. v. Leon
Leighann
supra,
ex rel.
Commonwealth
(only present
lower court’s
any
allow the introduction of
The lower court shall
tions.
custody,
to the issue of
includ
pertinent
evidence
additional
to,
testimony regarding the
not limited
disinterested
ing, but
Moreover,
homes.1
respective parties’
of the
suitability
the record
supplement
to
lower court shall allow
inter
relating to Rebecca’s best
reflect
circumstances
any
to
28, 1979
August
have
since the
may
changed
ests which
comprehensive
the lower court shall file a
hearing. Finally,
parties’
present
Having recognized
failure to
disinterested testi-
homes,
mony evaluating
parties’
we direct that
the lower court
independent
homes made
an
examination of both
undertake to have
Lewis,
agency.
supra
appropriate
welfare
See Lewis v.
an
social
Because necessitates remand, hearing judge note that when a interviews we case, must procedures generally in a certain child (2) counsel must have the (1) present; met: counsel must be child; (3) question opportunity See, record. e. part must be transcribed and made a Morales, ex rel. Morales v. g., Commonwealth 375-76, (1972).2 A.2d Those are procedures designed provide necessary this Court with all the infor discharge responsibility mation to our to exercise the broad Lee, review. ex rel. Lee v. type est Additionally, [child, interests of the determining best her] [i]n is a factor to be preference, although controlling, *7 is reasons.... long good considered as as it based the child’s assessing weight preference, to be accorded considered, maturity intelligence are to be with [her] weight being preference increased accorded the as the grows child older. Husack, 192, ex rel. Husack v. 233,
196,
(1979).
Gunter,
417 A.2d
235
also
See
Gunter
2;
2,
240
at 389 n.
BROSKY, J., files
concurring opinion.
a
Klein, Pennsylvania’s Developing
Custody
2. See also Bertin &
Child
Law,
(1979-80) (discussing
25 Vill.L.Rev.
771-73
cases and
recommending presence
counsel).
of
BROSKY,
concurring:
Judge,
However,
by
majority.
result reached
I concur in the
additional comment.
require
there are matters which
with,
asserts that
the record is
begin
majority
To
testimony
because there was no “disinterested
deficient
parties
environments which the
could
evaluating the relative
is
completely
it is not
clear what meant
provide.” Although
assumed,
it
testimony,”
may
“disinterested
be
by
phrase
cases,
of testimo-
type
it refers to the
upon prior
based
workers,
doctors, psycholo-
ny
psychiatrists,
offered
social
J. F. G. v.
personnel.
trained
gists
similarly
and other
See
G.,
K., K. A.
K. A.
n/b/m
A.2d 1337
Neal,
Custody
In re
of
(1980);
Cox, (1978); Commonwealth ex rel. Cox v.
Pa.Su-
Gunter,
Gunter v.
(1978);
The however, costly is that it is not tivity. disadvantage, in terms of and time. Hav- only financially manpower but make an evaluation and a ing professional prepare report months of Because may many study. for the court involve case, it is precious my opinion time is so in a child type testimony sought this should be on remand instance, in may entirely as it sufficient some every provide have the themselves witnesses who cases to home each testify type party will to the environments neighbor family such as a close or provide, physician. could I, therefore, where a social worker’s propose determination, sought the court in its it should be would aid *8 remand; that where the themselves can but testimony,” they such “disinterested should be en- provide to do so. couraged opinion asserts that the trial court’s was majority also sufficiently comprehensive purposes appellate for of As we have in the is past, appropri-
review.
stated
remand
comprehensive
ate where the trial court has not made a
where it does not
the reasons
its
inquiry;
specify
underlying
decision;
opinion
supported by
or where the
is not
a full
Leighann
discussion of the evidence. Commonwealth ex rel.
A.,
Pa.Super.
(1980);
v. Leon
While I am in that the trial court here should in every attempt opinion thoroughly have made its ana- lyze presented, and discuss the evidence I feel that the time to give guidance has come for our court some to the trial regard. courts of our state in this
I, therefore, cases, in child strongly suggest custody fact, court prepare specific findings trial should of from which its conclusions shall be deduced. As we stated Garrity Garrity, (1979): “Absent . . . the reasoning process employed to conclusion,
reach the ultimate this pass court cannot on the fate of a child.” case,
In
a child
trial court should record in its
of
opinion
findings
regard
following:
its
fact with
to the
parties;
surroundings
fitness of the
the home
parties;
child;
the care
of the
and condition
of the
credibility
and the
of the
parties;
probability
incidents testified to at
Veihdeffer,
Veihdeffer
hearing.
(1975);
White,
ings with to the respect probability alleged of the mother’s drug presented use. The court here was not with any methadrine, concerning medical the effects of one testimony drugs used Theresa G. I would direct allegedly expert sought regard with to the known effects, methadrine, effects of as well if any, as to the usage drug her of such a would have Rebecca. *9 that the trial court
Finally, majority
states
on remand
determine
appropriate weight
given
to be
to the
should
it
testimony.
agree
necessary,
child’s
I
that
this is
since
weight
that
was ac-
appears from
considerable
her moth-
testimony, especially
regard
corded to her
with
to
use,
drug
despite
er’s
the fact that she was found to
alleged
to ask
Whether
child is
young
questions.”
be “too
a minor
testify depends
intelligence
to
his or her
competent
obligation
of the
to tell the truth. Common-
comprehension
Allabaugh,
A.2d 782 where a is taken the trial present testimony by judge child’s Morales, contending presence parties. out of with a factual situation in which the we were confronted allow judge trial had refused to one of the children in a witness when called counsel for question testify to as that the appellee ground already on the children had No record was made of the chil- been heard in chambers. We found that the trial court’s decision testimony. dren’s since the supported by was not the record children’s testimo- situation, held that in such a ny was not transcribed and and have present opportunity should be an “[c]ounsel . . . and their should examine them [the children] 375-376, Id., 222 294 A.2d at be on the record.” 782, 783. Shuster, supra,
In Commonwealth ex rel. Grillo v. our Morales, stating court discussed Commonwealth ex rel. Morales Morales . . . two [I]n requirements specified: were permitted counsel be present when the questioned, children were so that *10 children; could examine the they and that the children’s should be on “testimony the record.” Id. 226 312 A.2d at [Emphasis 63. added.] Grillo, noted, In the court counsel had been offered the opportunity present to be when the children were questioned judge the trial in chambers but had declined.
In Cheppa Cheppa, v. 246 Pa.Super.
(1977), we stated that
[N]otwithstanding
language
the
of both Morales and Gril-
lo, these two cases actually turned on the absence of a
record of the children’s
rather
testimony,
than on the
absence of counsel while the children testified. A record
was kept
Id.,
in the instant
case.
In Lee, Commonwealth ex rel. Lee (1977), A.2d 1365 again we were confronted with a situation in which the child’s interview with judge the was stating transcribed. hearing judge’s fail- “[t]he ure to with comply requisite procedure the denied counsel .,” reasoning Ann . . Kelly question opportunity case, is overlooked. supra, Cheppa
of the Rider, ex rel. Scott In Commonwealth case decided a child (1977), 383, 375 A.2d would not be counsel Lee, stipulated as it was day same the children interviewed hearing judge when the present where a child’s generally we stated Although question. of the contend- presence taken out of is to be focused be present, counsel should parties, ing the interview: to transcribe the failure that counsel stipulated instant case it was in the Although interview of at the in camera present would not be precludes this interview children, failure to transcribe It is evident order entered below. adequate review with the the interview opinion that the lower court’s from influencing its decision. factor significant children was *11 added). (emphasis Id., Pa.Super. at was Rider, therefore, the focus In both Lee and transcribed, result- the interview to have trial court’s failure review the order adequately being unable ing in our trial court. entered of the Morales and therefore, analysis that the
I,
submit
proper
is the
one.
supra,
in Cheppa,
contained
Grillo cases
out,
the real issue
points
opinion correctly
Cheppa
As the
Rider, whether there can
Lee and
is
cases, including
all these
interviews
judge
the trial
review where
proper appellate
be
and
the interview transcribed
not have
a child but does
record,
court
depriving
appellate
thus
part
made a
re-
discharge our
necessary to
all of the information
“[o]f
[citing,
of review”
type’
exercise the ‘broadest
sponsibility
case,
Id. 248
alia,
supra.]
inter
the Grillo
may not if the child cannot negated child is interviewing the behind reveal his true judge with the forthright be honest and feelings. reason, For this I submit it is not proper to assert in all situations counsel must present since to have such a requirement do more may good. harm than However, cases, in such it is essential absolutely interview be transcribed for the record. BRUGNOLI, Lounge
Gloria t/a Gloria’s COMPANY, UNITED NATIONAL INSURANCE corporation, Appellant.
Superior Court of Pennsylvania.
Argued April 1980.
Filed Feb.