decided: October 20, 1978.
COMMONWEALTH OF PENNSYLVANIA EX REL. OLGA I. FORRESTER
C. WAYNE FORRESTER. APPEAL OF OLGA I. FORRESTER
No. 228 October Term, 1977, Appeal from the Order of September 16, 1976, of the Court of Common Pleas of Lancaster County, Civil Action - Law, at Habeas Corpus No. 8. Page 303.
Lawrence J. Keating, Lancaster, with him James F. Heinly, Lancaster, for appellant.
John A. O'Brien, Lancaster, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., dissents and would affirm. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 398]
This appeal is from an order of the lower court awarding custody of two children to their father and according specified rights of visitation to their mother. The parties, Olga I. Forrester and C. Wayne Forrester, were married October 7, 1961. Two children were born of their union, Christopher, now nine, and Michael, now eight. The parties separated June 25, 1974, and were divorced on February 7, 1975. On October 29, 1974, appellant filed a petition for a writ of habeas corpus seeking custody of the children. On the date specified for the hearing, however, the parties entered into a property settlement agreement wherein it was specified,
[ 258 Pa. Super. Page 399]
appears that appellant, possibly expecting interference, tried to hurry the children into the van in which she had come. The grandmother did not maintain, however, that the boys complained or resisted going with their mother. According to the grandmother's own testimony, she and her husband were the ones who resorted to force.
The lower court states: "The mother's prior employment at a massage parlor and the employment of a babysitter from whom the boys got their ideas of oral sex . . . shows a lack of judgment in the mother to say the least. The mother has since discharged the babysitter and is self-employed in her own home. Under these circumstances we believe that visitation rights in the mother at her home will be appropriate." Thus, according to its opinion, the court's disposition was based on two considerations, one which was introduced only by hearsay and which appellant denied without contradiction, and another which, at least from the record before us, could not support a finding that appellant suffered from a "lack of judgment".
"The paramount consideration in custody cases is the best interest and welfare of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Commonwealth ex rel. Pruss v. Pruss, 236 Pa. Super. 247, 344 A.2d 509 (1975); Davidyan v. Davidyan, 230 Pa. Super. 599, 327 A.2d 145 (1974)." Commonwealth ex rel. Steuer v. Steuer, 244 Pa. Super. 302, 306, 368 A.2d 732, 734 (1976). Having reviewed the record, we cannot state that the lower court's disposition in this case was incorrect. On the other hand, neither can we say that it was based on the evidence evaluated by the proper standards. We are not in a position to make a determination as to the children's best interests because the court below, which heard the testimony and observed the witnesses, has not treated many of the relevant factors in its opinion. The court's opinion does not discuss, inter alia, the comparative fitness of the parties as parents, the ability of the parties to provide for the children's material needs or the homes in which the parties are residing. The mere mention of the three above-described incidents does not constitute a sufficient basis for the court's bare conclusion
[ 258 Pa. Super. Page 401]
that "the boys best interest requires that the father have custody."
"In a child custody case the hearing judge's inquiry should be comprehensive and searching, and his decision supported by a full discussion of the evidence. Gunter v. Gunter, 240 Pa. Super. 382, 361 A.2d 307 (1976); Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973). Where the hearing judge has failed to comply with these requirements, we have not hesitated to remand. Id." Commonwealth ex rel. Schall v. Schall, 251 Pa. Super. 262, 380 A.2d 478, 479 (1977).
The case is remanded to the court below for further review and a determination and discussion of the best interests and welfare of these children. See Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa. Super. 144, 331 A.2d 665 (1974); Augustine v. Augustine, 228 Pa. Super. 312, 324 A.2d 477 (1974). While the present record may provide a sufficient basis for a full opinion, we do not limit the court's discretion to require a further hearing if it is desirable.