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COMMONWEALTH EX REL. CANDICE A. CUTLER v. HAROLD K. CUTLER (02/18/77)

decided: February 18, 1977.

COMMONWEALTH EX REL. CANDICE A. CUTLER, APPELLANT,
v.
HAROLD K. CUTLER, JR.



Appeal from the Order of the Court of Common Pleas of York County, Civil Division, at No. 252, August Term, 1975. No. 148 March Term, 1976.

COUNSEL

John C. Herrold, York, with him Lewis Harrison Markowitz, York, for appellant.

Raymond R. Smith, York, submitted a brief for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, J., files a dissenting opinion in which Cercone, J., joins.

Author: Price

[ 246 Pa. Super. Page 84]

This is an appeal from an order denying custody of two minor children to appellant-mother. We affirm.

Appellant and appellee-father were married on February 3, 1968. In June of 1974, appellant left her husband and two minor children. Appellee was granted a divorce on August 19, 1974. Appellant subsequently sought to gain custody of the children. Upon her petition, a writ of habeas corpus was issued and a hearing was held on September 23, 1975. In its order, filed October 15, 1975, the lower court held that the children's interests would be best served by awarding custody to the father.

In reaching its decision, the lower court found that both parents were "fit and proper" in the sense that either could provide for the children. As previously noted, however, the court held that the "best interests" of the

[ 246 Pa. Super. Page 85]

    children would be served by retaining custody in the father. Appellant now raises the following issue: "When both parents are determined to be fit, does the 'tender years' doctrine require custody be awarded to the mother?" Clearly we must answer this question in the negative.

The primary consideration in any child custody proceeding is to determine the best interest of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Commonwealth ex rel. Davidyan v. Davidyan, 230 Pa. Super. 599, 327 A.2d 145 (1974) citing the Act of June 26, 1895, P.L. 316, § 2 (48 P.S. § 92). "The best interests and welfare of a child which includes its physical, intellectual, moral and spiritual well being, and all other considerations are subordinate." Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 444, 292 A.2d 380, 383 (1972); See also Commonwealth ex rel. Pruss v. Pruss, 236 Pa. Super. 247, 344 A.2d 509 (1975). Our recent development of the "tender years" doctrine demonstrates the pervasiveness of the above maxims. As Judge Spaeth wrote in Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973),

"[t]he 'tender years' presumption does not reflect or derive from the mother's 'right', whether that right be characterized as 'prima facie' or otherwise. It is procedural only. One party or the other must have the burden of proof. If . . . the hearing judge finds that the interests of the child would be equally served by granting custody to either litigant, custody should be awarded to the child's natural mother." (emphasis added) Id. at 235-36, 312 A.2d at 62.

Although the fitness of the parent is an important factor in a determination of the best interest of a child, a finding that both parents are equally fit is not equivalent to a finding that the best interest of the ...


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