Gerald G. v. Theresa G.
| Decision Date | 27 February 1981 |
| Citation | 426 A.2d 157,284 Pa.Super. 498 |
| Parties | GERALD G., Jr. v. THERESA G., Appellant. |
| Court | Pennsylvania Superior Court |
Argued Dec. 1, 1980.
Peter C. Bowers, Philadelphia, for appellant.
Melvin B. Goldstein, Philadelphia, for appellee.
Before SPAETH, BROSKY and HOFFMAN, JJ.
Appellant-mother contends that the lower court erred in awarding custody of her minor child to appellee-father. We are unable, however to address the merits of her appeal and, instead, remand for further proceedings consistent with this opinion.
This is a dispute over the custody of the parties' daughter, Rebecca, age 6. The parties were separated in October, 1976, and divorced in May, 1977. Both parties have since remarried. Pursuant to an oral agreement the mother maintained custody of the child and the father regularly visited with the child on weekends. On March 5 1979, after one such visitation, the father told the mother that he intended to keep the child. On April 2, 1979, the mother removed Rebecca from the day care center where she had been enrolled by her father. The mother then filed a petition for confirmation of custody and a temporary restraining order on May 4, 1979. The lower court granted an order restraining the father from taking the child from the mother's home during the pendency of these proceedings. On June 11, 1979, the father filed a petition for habeas corpus. The lower court conducted a hearing on August 28, 1979, at which the father attempted to prove that the mother was unfit. He testified that the child was usually unkempt, dirty, and in relatively poor health on his weekly visits. Additionally, he alleged that the mother's living arrangements were unsuitable and that she used drugs. The mother denied each of these allegations and contended that the child had a negative reaction to her father's brief period of actual custody. Each parent presented cumulative, corroborative testimony from friends and relatives. The lower court, in the presence of counsel, conducted an examination of the child on the record. Although much of the child's testimony was not responsive to the court's questions, Rebecca expressed a preference for her father and corroborated the father's testimony regarding the mother's drug use. The lower court "did not find that (appellant) was an unfit mother" and "believ(ed) that both parents were capable of loving care for Rebecca ...." However, the lower court resolved the issue of credibility in favor of the father and, accordingly, awarded custody to him. This appeal followed.
In Commonwealth ex rel. Leighann A. v. Leon A., 280 Pa.Super. 249, ---, 421 A.2d 706, 708 (1980), we stated:
Garrity v. Garrity, 268 Pa.Super. 217, ---, 407 A.2d 1323, 1325 (1979). Kessler v. Gregory, --- Pa.Super. ---, ---, 412 A.2d 605, 607 (1979).
In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976). Thus, while it will defer to the lower court's findings of fact, the appellate court will not be bound by the deductions or the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of the evidence. Sipe v. Shaffer, (263 Pa.Super. 27, 396 A.2d 1359 (1979)); Scarlett v. Scarlett, supra. In conducting this review, the appellate court will look to whether all pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa.Super. 508, 388 A.2d 1082 (1978). After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. See Valentino v. Valentino, 259 Pa.Super. 395, 393 A.2d 885 (1978); Gunter v. Gunter, supra. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, supra. Where the record is incomplete or the opinion of the lower court is inadequate, the case will be remanded. See Valentino v. Valentino, supra; Commonwealth ex rel. Forrester v. Forrester, 258 Pa.Super. 397, 392 A.2d 852 (1978); Commonwealth ex rel. Cox v. Cox, supra.
Lewis v. Lewis, 267 Pa.Super. 235, 240, 406 A.2d 781, 783-84 (1979).
Our ability to review this case is impaired by a deficient record. Each of the competing parties has testified to his/her fitness and the suitability of his/her home, and 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 parties could provide. Accordingly, a remand for such supplementation of the record is proper. See, e. g., Commonwealth ex rel. Leighann A. v. Leon A., supra --- Pa.Super. at ---, 421 A.2d at 708; J. F. G. v. K. A. G., 278 Pa.Super. 25, ---, 419 A.2d 1337, 1339 (1980); Jones v. Floyd, 276 Pa.Super. 76, ---, 419 A.2d 102, 104-05 (1980); Lewis v. Lewis, 267 Pa.Super. 235, 240, 406 A.2d 781, 784-85 (1979); In re Custody of Neal, 260 Pa.Super. 151, 153, 393 A.2d 1057, 1058 (1978); Gunter v. Gunter, 240 Pa.Super. 382, 402, 361 A.2d 307, 317 (1976).
Commonwealth ex rel. Leighann A. v. Leon A., supra --- Pa.Super. at ---, 421 A.2d at 709. While resolving issues of credibility is inherently the province of the lower court, that is not the court's exclusive function in determining custody matters. By focusing on the parents' credibility, the lower court failed to consider numerous relevant issues squarely presented by the current record. See Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 237, 312 A.2d 58, 63 (1973) (plurality opinion). For example, the lower court failed to consider the fact that the father allowed the mother uncontested custody of Rebecca for three years after their separation before he sought custody of the child. See Commonwealth ex rel. Hughes v. Foster, 225 Pa.Super. 436, 441, 311 A.2d 663, 665 (1973). The lower court also failed to consider the effect that its award of custody would have upon the existing relationship between mother and child. See id. at 440-41, 311 A.2d at 664. Similarly, the lower court did not address the mother's availability to exercise full time supervision over the child compared to the fact that the father would place Rebecca in child care. See In re Custody of Neal, supra 260 Pa.Super. at 156, 393 A.2d at 1059. Moreover, the lower court discussed the mother's alleged drug use without considering the present effects of such use on the child. Cf. Commonwealth ex rel. Leighann A. v. Leon A., supra --- Pa.Super. at ---, 421 A.2d at 709 (). Accordingly, the lower court shall, on remand, address itself to all relevant facts as they appear at the time of the supplemental proceedings.
Because of the deficiencies in the record and the lower court's opinion, we remand with the following instructions. The lower court shall allow the introduction of any additional evidence pertinent to the issue of custody, including, but not limited to, disinterested testimony regarding the suitability of the respective parties' homes. [1] Moreover, the lower court shall allow the parties to supplement the record to reflect any circumstances relating to Rebecca's best interests which may have changed since the August 28, 1979 hearing. Finally, the lower court shall file a comprehensive opinion which thoroughly analyzes the evidence and states the reasons for its ultimate decision.
Because our disposition of this case necessitates a remand, we note that when a hearing judge interviews a child in a custody case, certain procedures must generally be met: (1) counsel must be present; (2) counsel must have the opportunity to question the child; and (3) the testimony must be transcribed and made a part of the record. See, e. g., Commonwealth ex rel. Morales v. Morales, 222 Pa.Super. 373, 375-76, 294 A.2d 782, 783 (1972). [2] Those procedures are designed to provide this Court with all the necessary information to discharge our responsibility to exercise the broadest type of review. Commonwealth ex rel. Lee v. Lee, 248 Pa.Super. 155, 162, 374 A.2d 1365, 1369 (1977). Additionally,
(i)n determining the best interests of the (child, her) preference, although not controlling, is a factor to be considered as long as it is based on good reasons.... In assessing the weight to be accorded the child's preference, (her) maturity and intelligence are to be...
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