No. 282 October Term, 1977, Appeal from the Order of the Court of Common Pleas, Civil Action, Law, of Montgomery County, at No. 76-15931.
R. Gerber, Norristown, with him Michael C. Shields, Norristown, for appellant.
Vincent A. Couchara, Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Price, JJ., file opinions in support of per curiam order. Spaeth, J., files opinion in support of per curiam order in which Cercone, J., joins. Jacobs, J., files a dissenting opinion in which Watkins, President Judge, and Van der Voort, J., join.
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Order vacated. The case is remanded to the court below for proceedings in conformity with the opinions in support of remand filed herewith in this case.
HOFFMAN, Judge, in support of per curiam order:
I agree with Judges PRICE and SPAETH that the mother of an illegitimate child does not have a greater right to custody of that child than its natural father. Instead, custody must be awarded solely according to what the preponderance of the evidence shows will be in the child's best interests. In the instant case, I believe that a remand is necessary in order to ascertain the best interests of the child. Because appellant's stability is a serious issue in the case, the lower court, in its discretion, should consider whether psychological and neuropsychiatric examinations of all concerned, including the child, might be of value in determining the best interests of the child. Additionally, there was a final hearing on this case more than one year ago. In a custody case in which multiple factors can intervene to change the relative position of the parties, pragmatics and justice demand a re-evaluation of the situation. I would remand, therefore, to the lower court for the purpose of a reappraisal consistent with this opinion.
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PRICE, Judge, in support of per curiam order:
In my opinion the primary issue is whether a lower court may award custody of an illegitimate child to his natural father on the basis of a finding that the child's best interests would be served by such an award but without a further finding that the mother is unfit to care for the child. See, e. g., Commonwealth ex rel. Gifford v. Miller, 213 Pa. Super. 269, 248 A.2d 63 (1968); Commonwealth ex rel. Logue v. Logue, 194 Pa. Super. 210, 166 A.2d 60 (1960); Commonwealth ex rel. Kevitch v. McCue, 165 Pa. Super. 49, 67 A.2d 582 (1945).
Heretofore, "[t]he general rule . . . has been that the right of a mother to the custody of an illegitimate child is superior to that of all other persons, including [its] father . . . ." Commonwealth ex rel. Kevitch v. McCue, supra 165 Pa. Super. at 51, 67 A.2d at 583; accord Commonwealth ex rel. Gifford v. Miller, supra. This rule is based on the belief that "ordinarily the best interests of the child can be served by maternal care." Commonwealth ex rel. Kevitch v. McCue, supra 165 Pa. Super. at 51, 67 A.2d at 583.*fn1
It is well established that "the sole issue to be decided in a custody proceeding between contending parents is the best interest and welfare of the child." Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 294, 368 A.2d 635, 637 (1977), quoting Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); see also Gwiszcz Appeal, 206 Pa. Super. 397, 213 A.2d 155 (1965). The inquiry should be the same whether or not the father was married to the mother. If we require a natural father, who is better
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able to insure the child's welfare, to prove that the mother is an unfit person to be entrusted with the child before he may be awarded custody, we are, in effect, punishing the child for his illegitimate status. Irrespective of constitutional implications, we would be casting aside what has been termed an indisputable rule of law by awarding custody to the parent less able to care for the child.
In my opinion, the principle involved in this case is based on the same philosophical considerations as the tender years doctrine. As to the latter, our supreme court, in Commonwealth ex rel. Spriggs v. Carson, supra, stated the following:
"We also question the legitimacy of a doctrine that is predicated upon traditional or stereotypic roles of men and women in a marital union. Whether the tender years doctrine is employed to create a presumption which requires the male parent to overcome its effect by presenting compelling contrary evidence of a particular nature; [citations omitted], or merely a makeshift where the scales are relatively balanced; [citations omitted], such a view is offensive to the concept of the equality of the sexes which we have embraced as a constitutional principle within this jurisdiction. [Citations omitted]. Courts should be wary of deciding matters as sensitive as questions of custody by the invocation of 'presumptions.' Instead, we believe that our courts should inquire into the circumstances and relationships of all the parties involved and reach a determination based solely upon the facts of the case then before the Court." 470 Pa. at 299, 368 A.2d at 639-40 (emphasis added).
Commonwealth ex rel. Spriggs v. Carson, supra, involved a dispute between divorced parents. I perceive no reason to distinguish the instant case on this basis. I would, therefore, repudiate any intimation in our prior cases that a natural father must prove the mother unfit in addition to the fact that he is able to provide for the child's best interests.
In the instant case, the lower court found that the child's best interests would be served by placing him in his
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father's custody. This decision was based primarily on a finding (1) that the mother was emotionally unstable and (2) that the child was being raised as much by babysitters as by the mother. I agree that the record supports the lower court's first finding; however, based on Commonwealth ex rel. Logue v. Logue, 194 Pa. Super. 210, 166 A.2d 60 (1960), I believe that the latter finding was improper. Because it is impossible to determine how much weight was accorded, by the lower court, to each finding, I would remand this case for further proceedings.
An appellate court is not bound by deductions or inferences made by a trial court from the facts found. Likewise, an appellate court need not accept a finding which has no competent evidence to support it. Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa. Super. 144, 331 A.2d 665 (1974); Commonwealth ex rel. Bowser v. Bowser, 224 Pa. Super. 1, 302 A.2d 450 (1973). However, our courts have recognized that "the trial judge is in a position to evaluate the attitudes, sincerity, credibility, and demeanor of the witness. . . . [Therefore,] a trial judge's determination of custody should be accorded great weight. Only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decisions of the hearing judge." Commonwealth ex rel. Spriggs v. Carson, supra, 470 Pa. at 295, 368 A.2d at 637, quoting Commonwealth ex rel. Rainford v. Cirillo, 222 Pa. Super. 591, 597-98, 296 A.2d 838, 841 (1972).
As I read the record, the proper disposition of the instant case turned on the question of credibility.*fn2 The lower court found, based on three particular episodes, that appellant was emotionally unstable. The dissent would find, on the basis of appellant's testimony, that (1) appellant acted in the child's best interests when she "temporarily relinquished custody of the child due to acute financial problems and inability to obtain a babysitter" and (2) the lower court
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"overlooked the obvious fact that appellant's financial predicament was due in part to appellee's failure to assume any obligation to support the child." (Dissenting op. at 202).
First, appellee testified that in January and June of 1975, he offered financial assistance but appellant refused to accept it. In February of 1975, appellee enlisted in the armed services. He testified that during most of the one year period that he was in the service, he did not know appellant's address and, therefore, could not mail a support allotment to her. Appellant moved several times, and appellee's assertion that he did not know appellant's address is supported by the record. There certainly is no indication that appellant ever requested financial support or informed appellee of her various addresses.*fn3
Moreover, appellee and his parents testified that on the three occasions in question, appellant telephoned, at odd hours, and demanded that they come immediately and pick up the child. According to appellee's witness, appellant was intoxicated during two of the episodes.*fn4 The first time she called, in January of 1975, appellant exclaimed that because of excessive drinking and depression, she could no longer cope with the child. At no time did appellant inform appellee or his parents that the transfers were temporary or that they were necessitated by financial problems.
It is true that "[a] parent may . . . fulfill parental duties and provide for a child by making suitable arrangements for the child's temporary care, Wolfe Adoption Case, 454 Pa. 550, 557, 312 A.2d 793, 796-97 (1973), or by allowing others to provide essential parental services during a period of crisis. See In re: Involuntary Termination of Parental Rights to S.M.D., 40 Northampton County Rptr. 83, 87 (Pa.C.P. 1971)." Appeal of Dine B., 456 Pa. 429, 434, 321 A.2d 618, 620 (1974). In the instant case, however, the lower
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court was fully justified in finding that appellant suffered from a basic emotional flaw rather than a lack of assistance in providing essential parental services.
Additionally, the dissent would find that "the circumstances underlying these episodes no longer exist and therefore are not relevant to this analysis."*fn5 (Dissenting op. at 202). This assertion again accepts as true the appellant's version of the facts. It is obvious that the lower court did not believe her. Moreover, the lower court found a pattern of behavior which in its opinion demonstrated basic instability. The January, 1975, incident is a relevant part of this pattern of behavior, even though in other circumstances it might be considered somewhat remote in time.
Finally, it should be noted that the lower court also considered the child's social adjustment in his father's home. Appellee lives with his current wife and her seven year old son. When Boyd, Jr., arrived in their home he was somewhat of a behavioral problem. Based on competent evidence, the lower court found that the child has adapted well to his new home. Mrs. Martin testified that she loves the child and supports her husband's desire for custody. There was substantial testimony that Mrs. Martin's son and Boyd, Jr., play together and enjoy each other's company.
Based on the foregoing discussion, I would vacate the order of the lower court and remand this case for further proceedings and evaluation in accordance with this opinion.
SPAETH, Judge, in support of per curiam order:
The division of this court, as manifested by the ensuing opinions, creates a procedural difficulty that requires some comment.
Three judges (JACOBS, J., joined by WATKINS, P. J., and VAN der VOORT, J.), would reverse the order of the hearing judge and award custody of the child to the mother.
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That disposition cannot be adopted because the remaining four judges of the court are agreed that certain of the cases relied upon by counsel for the mother should be overruled, and that custody of the child should not be awarded to the mother, at least not by this court and without any further proceedings. The procedural difficulty arises because of these four judges, two (SPAETH, J., joined by CERCONE, J.) would affirm the order of the hearing judge awarding custody to the father, and two (HOFFMAN, J., and PRICE, J., in separate opinions) would remand for further hearing.
If this division were to remain, a majority of the court would not have agreed upon a result. In these circumstances Judge CERCONE and I agree that the case should be remanded so that the hearing judge may reconsider his decision in two respects: First, for the reasons stated by Judge HOFFMAN, the judge should consider the desirability of ordering psychiatric or psychological examinations of the father, mother, and child; if he decides upon such examinations, he should conduct such further proceedings as appropriate. Second, for the reasons stated by Judge PRICE, and regardless of the decision regarding psychiatric or psychological examinations, the judge should reconsider his decision, bearing in mind that the mother is not to be penalized because of her use of babysitters. Following the judge's decision on these matters, he should file a new order, with an explanatory opinion, after which either party may again appeal.
The dissenting opinion's conclusion that the order of the hearing judge should be reversed depends upon two premises: First, the dissenting opinion says, "we are not bound by a finding which has no competent evidence to support it." Dissenting opinion at 200 (citing cases). Second, the dissenting opinion says:
Here the record fails to bear out the trial judge's conclusion that appellant [the mother] suffers from a basic instability which is harmful to the child's emotional welfare. To the contrary, testimony in the court below clearly indicates that the mother leads a stable life and
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can provide a healthy and normal environment in which to raise her child.
With the first premise, of course, I agree; no one could not. With the second premise, however, I vigorously disagree. The "testimony in the court below clearly indicates that the mother does not lead a stable life and cannot provide a ...