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LEVONIA HARASCHAK v. MICHAEL JOHN HARASCHAK (07/20/79)

decided: July 20, 1979.

LEVONIA HARASCHAK
v.
MICHAEL JOHN HARASCHAK, APPELLANT



No. 2574 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Luzerne County, No. 2663 of 1978.

COUNSEL

Eric D. Turner, Philadelphia, for appellant.

Lawrence M. Klemow, Hazleton, for appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ.

Author: Hoffman

[ 268 Pa. Super. Page 176]

This is an appeal from an order transferring custody of two small children from their father to their mother. The reasons for granting the transfer stated by the lower court contain several errors of analysis and a crucial finding of fact based upon the presumed occurrence of an uncertain future event. Because the record does not indicate that a transfer of custody would be in the best interests of the children, we reverse the order of the court below and remand for the entry of an order maintaining custody with the father and establishing visitation rights with the mother.

The children in this case were aged 4 1/2 and 6 1/2 years at time of the hearing below. While they have lived most of their lives with their parents in various apartments,*fn1 prior to trial they had lived for one year continuously with their father, uncle, and paternal grandparents in the grandparents' home in Drums, Luzerne County.*fn2 The father works at the White Haven Center for retarded individuals, earning $130 per week net, while he completes his studies for a Master's Degree in Education. He pays his parents $75 per week for his and his children's room and board. During his working hours, the grandmother cares for the children. They live in a three-bedroom house on a half-acre lot. The father has converted the attic into his bedroom so the children have a bedroom for themselves.

The mother works as a tester at an RCA plant. Her gross weekly salary is $220. She works the second shift, leaving

[ 268 Pa. Super. Page 177]

    her apartment at 3:00 p. m. and returning about 1:00 a. m. the next day. Her apartment has two bedrooms and is located near a playground. At trial, she testified that her union told her that she would be laid off from her job, but that the layoffs were not official yet and she had not received any notice from RCA.

When the parties last separated in November of 1977, the mother agreed that the father should have custody of the children and she would pay him $35 each month in child support. At that time, she was unable to provide housing for the children. Because of intense mutual hostility between the mother and the paternal grandparents, she has been unable to visit her children at Drums. She initiated the instant action for custody after obtaining her present apartment.

"[A]ppellate review of child custody cases is of the broadest type." In re Neal, 260 Pa. Super. 151, 152, 393 A.2d 1057, 1058 (1978). "[W]e are not bound by deductions or inferences made by the lower court from the facts as found. . . . We need not accept a finding which has no competent evidence to support it, but are instead to make an independent judgment based on the evidence and testimony, and make such order on the merits of the case as to do right and justice." Tomlinson v. Tomlinson, 248 Pa. Super. 196, 201-02, 374 A.2d 1386, 1389 (1977).

The main reason stated by the court below for transferring custody was its finding that the mother, unlike the father, would be able to devote ...


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