No. 130 April Term, 1976, Appeal from the Order Dated August 29, 1975, of the Court of Common Pleas of Fayette County at No. 1677 Habeas Corpus. (Civil Division)
Richard P. Gilmore, Washington, for appellant.
William M. Radcliffe, Uniontown, with him Ira B. Coldren, Jr., Uniontown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, and Spaeth, J., concur in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 254 Pa. Super. Page 79]
This is an appeal in a custody case by the appellant-mother, Dolores J. Stoyko, from an order of the Court of Common Pleas of Fayette County granting custody of a ten year old boy to the appellee-father, Michael T. Stoyko.
Michael Stoyko was born June 19, 1965 to Michael Stoyko, Sr. and Dolores Stoyko. The parents were divorced in 1973. The father has remarried and the mother remained unmarried. Following the divorce, Michael spent most of his time
[ 254 Pa. Super. Page 80]
with his father, although there were periods of time when he resided with his mother. In the Summer of 1975, several hearings were held in the petition of the mother seeking custody of Michael. On August 29, 1975, the court below directed that the boy remain with the father. This appeal followed.
The father and his present wife have a satisfactory home and the father is steadily and responsibly employed. The mother resides in the home formerly occupied by the parties together with a six year old son. The court found that: "a gentleman friend of petitioner spends considerable time at her home remaining overnight at least once a week."
The court's decision rests on his opinion that the best interests and welfare of this child under all the circumstances in this case demanded that custody remain with the father. The petitioner relied on the "tender years" doctrine that a young child should be in the custody of the mother.
The court below found that the "tender years" doctrine no longer had its ancient presumptive power and relied on Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973) and quoting from this case, 226 Pa. Super. at page 231, 312 A.2d at page 62, said:
"The '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, after a full development of the record, 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. This is in line with the most recent statement by the Pennsylvania Supreme Court: 'the . . . "tender years" (presumption) is merely the vehicle through which a decision respecting the infant's custodial well-being may be reached where factual considerations do not ...