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decided: January 24, 1979.


No. 872 April Term 1977, Appeal from the Order of the Court of Common Pleas of Somerset County, Pa. No. 314, Civil Div. 1976, dated May 27, 1977.


John M. Cascio, Somerset, for appellant.

H. Edwin Mountford, Somerset, for appellee.

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

Author: Spaeth

[ 263 Pa. Super. Page 28]

This is an appeal from an order granting a mother's petition for custody of her two minor daughters. The father of the children contends that the best interests of the children will be served by granting him custody.

[ 263 Pa. Super. Page 29]

The parties were married on December 29, 1968, and had two daughters, Cheryl Lynn, born on June 24, 1970, and Cindy Lynn, born on October 22, 1971. They experienced marital difficulties, separated in May 1974, and were divorced. At the time of the separation the parties agreed that the mother would have custody of the children and that the father could "pick the children up every other weekend Friday and bring them back Sunday evening." (N.T. 4)

The mother testified that in February, 1975, the father picked up the children on a Friday evening but did not return them on the following Sunday. She called the father's mother, who said her son had taken the children on a vacation. Her attempts to locate the children were of no avail*fn1 until September 30, 1976,*fn2 when the Pennsylvania

[ 263 Pa. Super. Page 30]

State Police informed her that her children had been located in Friendsville, Maryland. She and several members of her family went to the school there and after a confrontation with the father, she was permitted to bring the children back to Pennsylvania with her. (N.T. 5-10) Thereafter she filed the petition that was heard by the lower court. The children were living with her at the time of the hearing.

The mother testified that the children had gotten along very well with her since their return from Maryland, had expressed no desire to return to their father, and were doing well in school, with no scholastic or personal problems. She has remarried, and she stated that the children liked their step-father and had no problems in adjusting to living with him. She and her husband and the children lived in a five room apartment in Central City at the time of the hearing. The mother admitted that since her separation from the father, she had been on welfare, and that her husband was receiving unemployment compensation. She said that during her separation the father had only paid her support for

[ 263 Pa. Super. Page 31]

    the children on those weeks in which he had visitation and that he had refused to pay support since the children's return from Maryland. The mother's husband testified that he got along well with the children. Several witnesses, including the mother's landlady and minister, testified on the mother's behalf concerning her fitness as a mother. (N.T. 33-43)

The father testified that he had started withholding child support payments only because the mother had started withholding visitation.*fn3 He said the children had been unhappy with their mother and admitted that he had taken them away in February 1975, first to Sarasota, Florida, and then to Friendsville, Maryland; he also admitted that he had refused to tell the mother where the children were.*fn4 He

[ 263 Pa. Super. Page 32]

    testified that the children had been happy and well cared for while with him in Florida and Maryland. At the time of the hearing the father was earning $400 a month in take home pay. If given custody he planned to have the children live with him and his mother in her house in Pennsylvania. Since both he and his mother worked, there would be periods when no one would be watching the children but he said that when he and his mother were unavailable the children could

[ 263 Pa. Super. Page 33]

    be watched by his sister, who operated a day care center. (N.T. 44-58) His mother testified in support of his love for the children and her willingness to care for them. (N.T. 69-73) Written testimonials from several persons who had known the father and the children in Maryland were also offered.

At the end of the testimony the father requested that the children be called to express their preference, but the judge, after discussion with both sides, decided that such testimony was not needed since it would be given little weight because of the children's ages. A probation officer's report containing an interview with the children concerning their preference was introduced without objection by either side. This report indicated that the children were happy living with the mother and her husband and preferred living with the mother. (Joint Exhibit 1)

In the opinion in support of the order awarding custody to the mother, the hearing judge says:

The record shows that respondent did provide an adequate home for his daughters for the year-and-a-half he had them in Maryland. If granted custody, respondent would now make a home for the children with his mother in Somerset. There is testimony that this home would be adequate. However, both respondent and his mother are employed and there would be a period each afternoon when the girls would have to be alone at respondent's mother's home. Respondent suggests he would make arrangements with a sister to care for the children during this time.

The record also shows that petitioner and her new husband are currently providing a good home and education for the children. The girls are enrolled in Shade-Central City schools and attend the Central City United Methodist Church and Sunday School regularly. We would hesitate to force the children to change schools again, which would be the third time within a year. We think it important for the welfare of the children that

[ 263 Pa. Super. Page 34]

    their educational and religious training have some stability. Petitioner is also a full-time housewife who would be able to devote her full attention to these children.

We have been presented with no evidence that the mother is unfit. We believe it will be best for these two small girls to be raised in a family circle that includes two parents, as will be the case here with petitioner and her husband. (Lower Court Opinion at 4)*fn5

It is established that the scope of review of this court in a child custody case is of the broadest type. Scarlett v. Scarlett, 257 Pa. Super. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa. Super. 225, 363 A.2d 1242 (1976); In the Interest of Clouse, 244 Pa. Super. 396, 368 A.2d 780 (1976). The hearing judge must make a comprehensive inquiry and his decision must be supported by a full discussion of the evidence. Scarlett v. Scarlett, supra; Gunter v. Gunter, 240 Pa. Super. 382, 361 A.2d 307 (1976). Where the hearing judge has failed to comply with these requirements, we have not hesitated to remand, but if the hearing judge has complied with these requirements, we must defer to his findings. Scarlett v. Scarlett, supra; Commonwealth ex rel. Tobias v. Tobias, 248 Pa. Super. 168, 374 A.2d 1372 (1977). However it is well settled that "[a]lthough we will not nullify the fact finding function of the hearing judge we will not be bound by the deductions or the inferences made by the lower court from these facts," but will make an independent judgment based on the evidence. Scarlett v. Scarlett, supra.

[ 263 Pa. Super. Page 35]

The paramount concern in a child custody proceeding is the best interest of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Commonwealth Page 35} ex rel. Tobias v. Tobias, supra. The contesting parents equally share the burden of proving best interest, In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977); there is no longer a tender years presumption in favor of granting custody to the mother, Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); McGowan v. McGowan, 248 Pa. Super. 41, 374 A.2d 1306 (1977).

Both parents in this case presented evidence demonstrating that they loved the children and that they were able and willing to care for them. It is undisputed that the father would have provided the girls with a good home, but the hearing judge after a thorough review of the facts held that custody should remain with the mother with visitation rights to the father. In so holding the judge specifically eschewed the tender years presumption (Lower court opinion at 5); instead, as indicated in his opinion, he was convinced that the benefit of remaining in the same school, of having two parents in the home -- mother and stepfather -- and of having someone home when they were not in school, made the children's situation in the mother's home better than their situation would be in the father's home. The father produced no evidence, nor does our own review of the record disclose any evidence, that persuades us that the judge's findings were in error.*fn6 Accordingly, we shall affirm the

[ 263 Pa. Super. Page 36]

    judge's decision to grant custody of the children to the mother.

The father argues that the hearing judge erred in not considering the preferences of the children. We have held that a child's preference is a factor to be considered in awarding custody, but the weight to be accorded to this preference will vary according to the age, intelligence, and maturity of the child. Tomlinson v. Tomlinson, 248 Pa. Super. 196, 374 A.2d 1386 (1977); Commonwealth ex rel. Tobias v. Tobias, supra. In this case there was some dispute concerning the preferences of the children. Considering their ages -- five and six years -- we do not think it was an abuse of his discretion for the hearing judge to decide that the children should not be subjected to an in-court interview.*fn7 But see Stoyko v. Stoyko, 254 Pa. Super. 78, 385 A.2d 533 (1978) (preference of mature ten year old).

The father also argues that the hearing judge erred in admitting the probation officer's report. In support of this argument, he cites Wood v. Tucker, 231 Pa. Super. 461, 332 A.2d 191 (1974). In that case the lower court, in awarding custody, relied on ex parte reports and statements outside the record. In reversing, this court held that this represented a violation of due process. In the present case, however, the probation officer's report was introduced at the hearing with both parties and both counsel present; the probation officer was present; and no one objected to the admission of the report,*fn8 which was made part of the record

[ 263 Pa. Super. Page 37]

    as a "Joint Exhibit". The hearing judge therefore did not err in admitting and considering*fn9 the report.


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