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DONALD C. MCGOWAN v. BARBARA MCGOWAN (06/29/77)

decided: June 29, 1977.

DONALD C. MCGOWAN, APPELLANT,
v.
BARBARA MCGOWAN



Appeal from the Order of the Court of Common Pleas of Allegheny County, Family Division at No. D-3152 of 1975.

COUNSEL

Harry J. Gruener, Pittsburgh, with him Litman, Litman, Harris & Specter, Pittsburgh, for appellant.

Edwin H. Beachler, III, Pittsburgh, with him Stephen C. Forbouck, Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Watkins, President Judge, and Jacobs, J., concur in the result. Van der Voort, J., did not participate in the consideration or decision of this case.

Author: Hoffman

[ 248 Pa. Super. Page 42]

Appellant contends that the lower court erred in granting custody of appellant's minor child to appellee, the natural mother, first, because the mother has a history of mental instability, and, second, because the court impermissibly relied on the "tender years" doctrine in making the award. We agree with appellant's second contention, and therefore, reverse the order of the lower court and remand for further proceedings.

On November 6, 1975, appellant, father of five year old Donald McGowan, Jr., commenced the instant action by filing a complaint in the Family Division of the Court of Common Pleas of Allegheny County. The lower court ordered the parties to appear on November 26, for a preliminary conference to determine whether the parents could resolve the dispute amicably. After the conference, the court scheduled an evidentiary hearing for February 18, 1976. The hearing was not held until July 12, 1976, because the parties continued unsuccessfully at attempt to settle the dispute without resort to trial. On September 8, 1976, the lower court denied appellant's petition for custody and awarded custody to appellee and her parents.

During the hearing, appellant testified as follows; he and appellee, who were divorced in 1974, had one child, Donald, born in 1971, after the birth, the mother became seriously depressed and had to be hospitalized. In 1972, she recovered

[ 248 Pa. Super. Page 43]

    sufficiently to leave the hospital, to return to her husband and child, and to resume her college education. However, in 1974, after the parties separated, she was again hospitalized. During the next two years, her behavior was extremely erratic, requiring recommitment until March, 1976. The child resided with appellee's parents during her commitment to the hospital.

Appellee's medical evidence did not contradict appellant's assertions. However, one of appellee's treating psychiatrists testified in a deposition, which was admitted into evidence, that after appellee began lithium treatment, her behavior stabilized. He believed that appellee was well enough to be released from the hospital. Further, he stated: "Considering the mental condition at this point, I believe that she is totally able to care for her child, totally able, because I think that we have obtained a fair degree of remission from her symptoms and the flatness that she had in the affect was, although it wasn't absent, it was improved." In addition to medical testimony, appellee presented substantial evidence concerning the relationship between the child and appellee's parents, and her parents' ability to assist in caring for him in comfortable surroundings.

In his original brief in our Court, appellant argued that the tender years doctrine, relied upon by the lower court, is violative of equal protection and due process under the Fourteenth Amendment of the United States Constitution, and the Equal Rights Amendment to the Pennsylvania Constitution, Pa.Const., Art. I, ยง 28. In a supplemental brief, appellant contends that the Supreme Court's recent decision in Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977), requires that we reverse the order of the lower court and award custody to appellant.

In a plurality opinion, Justice NIX raised serious questions concerning the continued vitality of ...


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