Appeal from the Order dated April 2, 1975 of the Court of Common Pleas of Phila., Family Div., D.R.No. 263667, H.C. No. 1408342.
Michael J. Pepe, Jr., Philadelphia, for appellant.
George M. Bobrin, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result.
[ 248 Pa. Super. Page 156]
This is an appeal by a father from an order awarding permanent custody of a now nine year old girl, Kelly Ann, to her mother. The order must be set aside and the record remanded for a new hearing. The hearing judge incorrectly applied the "tender years presumption," and he interviewed Kelly Ann in chambers, without counsel, and without having
[ 248 Pa. Super. Page 157]
the interview transcribed. Because of these errors it is not possible to determine whether Kelly Ann's best interest has been served.
It is well-settled that the paramount concern in a custody dispute between parents is the best interest of the minor child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 107-08, 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).
The "tender years presumption" was developed to ease the burden of resolving these emotionally and factually complex disputes. Sometimes the presumption was used to find that a child's best interest would necessarily be served by giving the mother custody, the burden being placed on the father to demonstrate "compelling reasons" why the mother should not have custody. Commonwealth ex rel. Logue v. Logue, 194 Pa. Super. 210, 166 A.2d 60 (1960) (collecting cases).
Eventually it was realized that this approach precluded an impartial examination of all of the relevant factors, and subordinated that which should be the sole purpose of the hearing: to determine what is in the best interest of the child. It was therefore held that the "tender years presumption" must be regarded as not a "right" of the mother but merely a procedural device for allocating the burden of proof. Only if the judge determined after a full hearing that the child's best interest would be equally served by living with either parent, could a child of "tender years" be placed in the mother's custody. Commonwealth ex rel. ...