McCrea & McCrea, John McCrea, III, Newville, for appellant.
Sylvia H. Rambo, Carlisle, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
This is an appeal from an order of the Court of Common Pleas of Cumberland County, entered April 5, 1974, transferring custody of two minor children from their mother to their father.*fn1 The Superior Court, in an opinion by President Judge Watkins, affirmed the order. Judge Hoffman filed a dissenting opinion and Judge Spaeth filed a concurring and dissenting opinion. The mother petitioned this Court for allowance of appeal, which we granted.*fn2 We reverse.
Appellee Fred Myers and appellant Pandora Myers were married on November 9, 1968, and became parents of two girls -- Stacey, born March 8, 1969, and Kelli, born July 20, 1972. Fred is an enlisted man in the United States Air Force and was stationed in Korea from approximately March 1973 to January 1974. Pandora and the two children occupied a mobile home near Shippensburg during her husband's absence. On January 14, 1974, Fred returned home and learned that Pandora had become romantically involved with one Thompson. Fred separated from Pandora shortly after his return and moved in to his parents' home. He has since been transferred to Mississippi, where he now resides. Pandora and the two children left the mobile home on February 11, 1974, and moved into an apartment with Thompson. Thompson moved out of the apartment shortly before the custody hearing on the advice of Pandora's counsel.
At the hearing, Pandora testified that she had filed for a divorce from Fred the morning of the hearing and stated that she and Thompson planned to marry once the divorce became final. She also stated that although she loved Thompson, she would cease all contact with him if that were necessary to retain custody of her children.
The hearing court awarded custody of Kelli and Stacey to Fred despite the fact that its order would result in the two children being moved from Pennsylvania. The court justified its action solely on Pandora's "blatantly immoral past conduct":
"Although mere moral lapses are not sufficient to deprive a mother of her child, where the immoral conduct is flagrant and persistent as here, it may not be disregarded in considering the child's welfare. . . . Our appellate courts recognize that a mother's immoral conduct would have a profound adverse effect on the morals of an impressionable young daughter, and such conduct would thus be pertinent to considerations of the best interests of the child. . . .
". . . Although the issue in child custody cases is the present fitness of the prospective custodian, Judge Woodside astutely noted . . . that '. . . as the present is merely the dividing line between the past and the future, the courts can best determine the appellant's probable future conduct by examining her past conduct.' To ignore the present respondent's blatantly immoral past conduct and award her custody of the children under these circumstances would set a highly undesirable precedent. . . ."
Although the hearing court, as fact-finder, must determine the weight to be given the testimony and the credibility of the witnesses, its findings must be supported by competent evidence. Commonwealth ex rel. Pruss v. Page 138} Pruss, 236 Pa. Super. 247, 344 A.2d 509 (1975); Davidyan v. Davidyan, 230 Pa. Super. 599, 327 A.2d 145 (1974). Moreover, the sole issue to be decided in custody proceedings between contending parents is the best interests and welfare of the child. Act of June 26, 1895, P.L. 316, § 2, 48 P.S. § 92 (1965); Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972) (plurality opinion of Eagen, J., dissenting opinion of Roberts, J.); Gunter v. Gunter, 240 Pa. Super. 382, 361 A.2d 307 (1976); Commonwealth ex rel. Pruss ...