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RUSSO APPEAL (10/28/75)

decided: October 28, 1975.

RUSSO APPEAL


Appeal from order of Court of Common Pleas of Delaware County, No. 6311 of 1974, in case of In Re: Todd T. Russo, a minor.

COUNSEL

Stewart C. Crawford, with him Butler, Beatty, Greer & Johnson, for appellant.

Nicholas J. Lisi, with him Baratta, Lisi & Takiff, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Dissenting Opinion by Price, J.

Author: Cercone

[ 237 Pa. Super. Page 82]

This is an appeal from an order denying a petition for a writ of habeas corpus. According to the petition, Dorothy L. Russo, appellant herein, seeks to obtain custody of her nine-year-old son Todd.

The parties, now divorced, were married in 1960. Three children were born of the marriage: Kimberly, age 11; Danielle, age 5; and Todd. In February of 1974, the mother left her husband and took the two girls with her. They are presently residing with the mother's parents. Todd, however, has continued to live with his father since the date of his parents' separation. In March of 1974, the father brought a petition for custody of his two daughters, and the wife petitioned for custody of her son.*fn1 Following a hearing on the father's petition, custody of the two girls was awarded to the mother with partial week-end custody in the father. In June of 1974, the mother again petitioned for custody of Todd. The father responded with a petition for contempt against the mother for failure to comply with the week-end custody provision of the order regarding the two girls. Both petitions were consolidated for hearing in August of 1974. At this hearing, which lasted two days, both parties were afforded the opportunity to testify, to offer other witnesses, and present any relevant evidence. Typically, each party sought to establish instances of impropriety on the part of the other in an effort to demonstrate the offending party's unfitness to care for Todd. In addition, Todd was

[ 237 Pa. Super. Page 83]

    questioned in chambers by the trial judge. At the conclusion of all the evidence the lower court found that the stability and security of Todd was better served by his remaining in the custody of his father.*fn2 This appeal followed.

"On appeal, our court is not bound by deductions or inferences made by the lower court (Commonwealth ex rel. Gifford v. Miller, 213 Pa. Superior Ct. 269, 248 A.2d 63 (1968)), but must exercise an independent judgment based on the evidence presented. Commonwealth ex rel. Johnson v. Pinder, 217 Pa. Superior Ct. 180, 269 A.2d 511 (1970). Of course, an appellate court must always give great weight to the opinion of the trial judge who has the opportunity to see and hear the witnesses and judge their credibility and to talk to the children involved. Commonwealth ex rel. Doberstein v. Doberstein, 201 Pa. Superior Ct. 102, 192 A.2d 154 (1963)." Clair Appeal, 219 Pa. Superior Ct. 436, 438 (1971). Our review of the record leads us to conclude that the court below did not abuse its discretion in awarding custody of Todd to his father.

Appellant-mother's main contention is that the lower court erred in subordinating the "tender years" doctrine in favor of Todd's stated desire to remain with his father. The mother also contends that the court did not give sufficient weight to the policy that in the absence of compelling reasons to the contrary, siblings should be raised together. We agree with appellant that these factors must be given substantial weight in determining which parent should be awarded custody. However, it is also clear that the existence of these two factors does not per se mandate a determination in the appellant's favor. Indeed, it is hornbook law that the paramount consideration in

[ 237 Pa. Super. Page 84]

    child custody proceedings is the welfare of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105 (1972); Clair Appeal, supra. "All conflicting considerations, including here the 'tender years' doctrine, must be subordinated to the child's physical, ...


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