Figgins v. Caldwell
| Decision Date | 05 April 1984 |
| Docket Number | 74-02857 |
| Parties | Eleanor Figgins v. Lee Caldwell |
| Court | Pennsylvania Commonwealth Court |
(1) It is axiomatic that in all child custody disputes, the paramount consideration is always the best interests and permanent welfare of the children
(2) In a dispute between parents and a third party, the parents have a prima facie right to custody which will be forfeited only if convincing reasons appear that the child's best interest will be served by an award to the third party
(3) In a dispute between a natural parent and a grandparent, before an inquiry is made as to the best interests of the children there must be evidence adduced from which an inference can be drawn that the natural parent cannot provide adequate and appropriate care for the children's needs
(4) A parent's right to custody is forfeitable only by misconduct or other factors which substantially affect the child's welfare
(5) Although the children here resided with their mother and grandmother for several years and remained with the grandmother when their mother died, the maintenance of a continued residence in the instant case does not rise to the level of convincing reasons so as to deprive the father of his prima facie right to custody
(6) The preference of the children is a factor to be considered in determining which party should be awarded custody. In assessing the weight to be accorded the children's preference, their intelligence and maturity are to be considered with increased weight being accorded their preference as they grow older
(7) The mere fact that a parent has had or is having a nonmarital relationship is insufficient to deny him custody of his children. Rather, the crucial determination is the effect of the nonmarital relationship upon the children
(8) In a custody proceeding, the sole permissible inquiry into the relative wealth of the parties is whether each is able to provide adequately for the child; unless the income of one party is so inadequate as to preclude raising the children in a decent manner, the matter of relative income is irrelevant
(9) The determination of custody and the disposition of support matters are distinct concerns. In the instant case, failure of the natural father to pay support does not militate against awarding him custody since the Court believes that he will adequately support his children if they are in his custody
(10) In contested custody cases, reports may not be admitted into evidence or considered by the Court unless the authors of the reports are produced, sworn and examined as witnesses, and available for and subject to cross-examination
(11) In this case, the maternal grandmother has not met her burden of producing convincing reasons to deprive the natural father of his prima facie right to custody.
Leonidas A. Allen, Esquire, for Petitioner
David S. Winston, Esquire, for Respondent
This case comes before the Court on cross-petitions seeking custody that were filed by the natural father and maternal grandmother of John and Karen Caldwell. On May 2, 1983, after a hearing on the matter, the Court entered an order awarding custody of the children to their father, Lee Caldwell, Jr. A petition for reconsideration was filed by the maternal grandmother, Eleanor Figgins, on August 30, 1983; this petition was subsequently denied by the Honorable EDWARD B. ROSENBERG. This appeal followed.
Appellant, through her attorney, submitted the following as her concise statement of matters complained of upon appeal:
Appellant is maternal grandmother. Appellee is natural father. Cross petitions were filed and resolved in favor of father. Children were originally with maternal grandmother.
No testimony was taken as to the benefit of the children in giving custody to father who had not had custody during lifetime of natural mother. Appellant requested reconsideration so as to present testimony of neighbors, Probation Officers, school teachers (nuns), Parish Priest. Trial Judge refused stating he had sufficient evidence. Present welfare of children not considered. Further children must cross city to go to school and their Church.
A request for up to date Neuro-Psychiatic was also refused. It was important, considering one was ordered by Judge Stern and probably was the basis for award of custody to mother in 1978.
The relevant facts may be summarized as follows. In 1974, by order of the Court, Patricia Caldwell, natural mother of said children, and estranged wife of Lee Caldwell, was awarded custody and Lee Caldwell was granted visitation rights. Mrs. Caldwell has been deceased since September 20, 1982. The children had resided with their maternal grandmother, Eleanor Figgins, since that time and also at times prior to that. [1] On September 29, 1982, appellant filed a petition for confirmation of custody; a petition for custody was subsequently filed by appellee on October 18, 1982.
It is axiomatic that in all child custody disputes, the paramount consideration is always the best interests and permanent welfare of the children. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972); K.L.H. v. G.D.H., 318 Pa.Super 330, 464 A.2d 1368 (1983); In re Custody of J.S.S., 298 Pa.Super 428, 444 A.2d 1251 (1982); Robert H. H. v. May L. H., 293 Pa.Super 431, 439 A.2d 187 (1982); In the Interest of Tremayne Quame Idress R., 286 Pa.Super 479, 412 A.2d 605 (1981); Kessler v. Gregory, 271 Pa.Super 121, 412 A.2d 605 (1979); Garrity v. Garrity, 268 Pa.Super 217, 407 A.2d 1323 (1979). All other considerations are deemed subordinate to the child's physical, intellectual, moral and spiritual well being. Parikh, supra; Holschuh, supra; Tremayne, supra; Kessler, supra; Garrity, supra; Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super 82, 369 A.2d 821 (1977). Among the factors to be considered in determining the best interests of the child are the character and fitness of the parties seeking custody, their respective homes, their ability to adequately care for the child, and their ability to financially provide for the child. Shoemaker Appeal, 396 Pa. 378, 152 A.2d 666 (1959); Tremayne, supra; Commonwealth ex rel. Leigham A. v. Leon A., 280 Pa.Super 249, 421 A.2d 706 (1980); Kessler, supra.
The issue of the proper scope of review to be applied in custody cases was recently before an en banc panel of the Pennsylvania Superior Court in the case of In re Donna W. (Slip op. 2/10/84). The Superior Court rejected the argument that an abuse of discretion standard should be applied; rather, the Court In re Donna W. reaffirmed the broad scope of review that has been applied in custody cases. The Court quoted and approved the following passage from Commonwealth ex rel. Newcomer v. King, 301 Pa.Super 239, 447 A.2d 630 (1981):
It is clear that our scope of review in custody cases is of the broadest type. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super 63, 434 A.2d 130 (1981); Commonwealth ex rel. Berman v. Berman, 289 Pa.Super 91, 432 A.2d 1066 (1981). We are required to exercise independent judgment based on the evidence and make such an order on the merits of the case as to do right and justice. Commonwealth ex rel. Pierce v. Pierce, supra; Commonwealth ex rel. Oxenreider v. Oxenreider, supra; Commonwealth ex rel. Berman v. Berman, supra. While we cannot nullify or usurp the factfinding function of the trial court, we are not bound by the deductions or inferences made by them. Robert H. H. v. May L. H., 293 Pa.Super 431, 439 A.2d 187 (1981); In re Davis, 288 Pa.Super 548, 432 A.2d 600 (1981); Garrity v. Garrity, 268 Pa.Super 217, 407 A.2d 1323 (1979). Therefore, if the issue is whether we should reverse the lower court's findings of fact, we must defer to the lower court and reverse only where, in making the findings, the lower court has abused its discretion. Commonwealth ex rel. Berman v. Berman, supra; In re Custody of Hernandez, 249 Pa.Super 274, 376 A.2d 648 (1977). However, because of our requirement to exercise independent judgment, we will not adhere to an abuse of discretion standard in reviewing the determination of the lower court. See Robert H. H. v. May L. H., supra; Commonwealth ex rel. Berman v. Berman, supra; In re Arnold, id., 286 Pa.Super at 176, 428 A.2d at 629 (HOFFMAN, J., concurring); Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa.Super 444, 457, 427 A.2d 1370, 1376 (1981) (HOFFMAN, J., concurring). Commonwealth ex rel. Newcomer v. King, 301 Pa.Super 244-45, 447 A.2d 630 (1981). It was noted in In re Donna W., supra, that a broad scope of review is essential if the appellate court is to fulfill its responsibility to children. The Court stated, " To state the point conversely: an appellate court deciding that it will reverse a custody award only for abuse of discretion abdicates its responsibility" . [2]
In a custody contest between parents, each party bears the burden of proving that an award to that party would be in the best interests of the child. In re Custody of Hernandez, 249 Pa.Super 274, 376 A.2d 648 (1977). See, also, Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Patricia L. F. v. Malbert J. F., 278 Pa.Super 343, 420 A.2d 572 (1980); McCann v. McCann, 270 Pa.Super 171, 411 A.2d 234 (1979); Lewis v. Lewis, 267 Pa.Super 235, 406 A.2d 781 (1979); Sipe v. Shaffer, 396 Pa.Super 1359, 396 A.2d 1359 (1979) However, as this dispute is between a father and grandmother, the manner of inquiry is more complex. See, Hernandez, supra.
In Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980) the ...
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