Correale F. Stevens, Hazleton, for appellant.
Thomas J. Carlyon, Hazleton, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., concurs in the result. Jacobs, President Judge, notes his dissent. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 254 Pa. Super. Page 517]
This appeal arises from an order of the Common Pleas Court of Luzerne County granting custody of appellant's minor child to appellee, the natural mother. We find the lower court impermissibly relied on the "tender years" doctrine in making the award and therefore reverse and remand for further proceedings.
Robert and Lorraine Gulas were married in April, 1975, and one child, Heather Lee, was born of the marriage later that year. While the recollection of the parties differs concerning the circumstances of their separation, they agree Lorraine left their apartment on May 1, 1976. Soon after the separation, appellant moved in with his parents and shared with them the responsibility of caring for Heather. The mother made no attempt to regain custody of the child until two weeks after the separation when she visited the
[ 254 Pa. Super. Page 518]
Gulas home for that purpose. The father and paternal grandparents refused to relinquish Heather, and the mother then instituted a civil habeas corpus action. In its opinion the lower court found that both parents were equally suitable for the custody award and therefore referred to the "tender years" doctrine in granting custody to the natural mother.
Appellant contends the reliance on the "tender years" doctrine violated his rights under the Equal Rights Amendment to the Pennsylvania Constitution, Pa.Const. Art. 1, § 28. He further contends the lower court abused its discretion in granting custody to the mother based on the testimony presented.
In custody proceedings, the scope of our review is quite broad. While we are not bound by the trial court's determination, we must defer to it if the judge has made a comprehensive inquiry supported by the evidence. Com. ex rel. Schall v. Schall, 251 Pa. Super. 262, 264, 380 A.2d 478, 479 (1977).
In our review of the instant case, the parties testified to virtually equal circumstances and living conditions at the time of the hearing. The hearing judge explicitly relied on the "tender years" doctrine, i. e., the presumption that the child's needs are best served while in the custody of its mother, to tip the scales in favor of the mother. This reliance precludes us from deciding which parent would serve the best interests of the child because, after he wrote his opinion, the Supreme Court of Pennsylvania, in a plurality opinion, greatly criticized the use of the tender years presumption. Mr. Justice Nix said:
"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; Commonwealth ex rel. ...