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EDNA TOBIAS v. CLAIRE TOBIAS (06/29/77)

decided: June 29, 1977.

EDNA TOBIAS, APPELLANT,
v.
CLAIRE TOBIAS, SR., APPELLEE



Appeal from the Order of the Court of Common Pleas of Northumberland County, Pa., No. 635 May Term 1975.

COUNSEL

Joseph A. Campagna, Jr., Sunbury, for appellant.

Charles E. Duncan, Jr., Shamokin, submitted a brief, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.

Author: Spaeth

[ 248 Pa. Super. Page 170]

This is an appeal by a mother from an order awarding custody of a now ten year old boy, Claire, Jr., to his father.

-1-

The mother first contends that the "tender years presumption" should control the disposition of this case. This contention ignores the well-settled principle that the

[ 248 Pa. Super. Page 171]

    paramount concern in a custody dispute between parents is the best interest of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 107-8, 296 A.2d 625, 627 (1972); Cochran Appeal, 394 Pa. 162, 145 A.2d 857 (1958); Commonwealth ex rel. Graham v. Graham, 367 Pa. 553, 80 A.2d 829 (1951); Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973). To determine what is the child's best interest, the hearing judge must concentrate upon the particular facts of the particular case. Decision by presumption can only interfere with that process. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977) (plurality opinion); Commonwealth ex rel. Cutler v. Cutler, 246 Pa. Super. 82, 369 A.2d 821 (1977); Commonwealth ex rel. Lee v. Lee, 248 Pa. Super. 155, 374 A.2d 1365 (1977). See Commonwealth ex rel. Veihdeffer v. Veihdeffer, 235 Pa. Super. 447, 344 A.2d 613 (1975); Commonwealth ex rel. Grillo v. Shuster, supra.*fn1 Accordingly, the "tender years presumption" is at most merely a procedural device for allocating the burden of proof. Only where a hearing judge determines, after a full hearing, that a child's best interest would be equally served by living with either parent, should a child of "tender years" be placed in the mother's custody. Commonwealth ex rel. Veihdeffer v. Veihdeffer, supra; Commonwealth ex rel. Grillo v. Shuster, supra. Here the hearing judge concluded that Claire, Jr.'s, best interest would be served by placing him in his father's custody; the judge therefore properly subordinated the presumption to this finding. See In re Russo, 237 Pa. Super. 80, 346 A.2d 355 (1975); Carlisle Appeal, 225 Pa. Super. 181, 310 A.2d 280 (1973).

[ 248 Pa. Super. Page 172]

-2-

The mother next contends that the hearing judge did not properly ...


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