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COMMONWEALTH PENNSYLVANIA v. MICHAEL WEBER (11/16/79)

filed: November 16, 1979.

COMMONWEALTH OF PENNSYLVANIA, EX REL. ELIZABETH WEBER
v.
MICHAEL WEBER, APPELLANT



No. 2270 October Term, 1978, Appeal from the Order of the Court of Common Pleas, Chester County, at No. 78-382, May Term, Habeas Corpus-Custody, Civil Action-Law.

COUNSEL

Dennis Woody, Chester, for appellant.

Thomas L. Kelly, Media, for Commonwealth, appellee.

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

Author: Hoffman

[ 272 Pa. Super. Page 89]

The issues presented in this custody case include, inter alia,*fn1 whether the lower court erred (1) in failing to file an adequate opinion; (2) in deciding the case on the basis of an inadequate record; and (3) in applying the discredited "tender years" presumption in reaching its decision. We conclude that the lower court did err and, accordingly, vacate its order and remand for further proceedings.

On February 20, 1978, the natural mother and the natural father of Jesse, Rian, and Nathan Weber, separated. The father had custody of the children pursuant to a written agreement between the parties from a time shortly after the separation until July of 1978. The mother was permitted to visit the children under the terms of the agreement, but in

[ 272 Pa. Super. Page 90]

May of 1978, she filed a petition for a writ of habeas corpus requesting custody of the children.

The lower court held a hearing on the petition on July 19, 1978. Evidence adduced at the hearing revealed the following: Marital difficulties between the parties had arisen primarily as a result of the father's disapproval of the manner in which his wife kept house and cared for the children. Appellee testified that, as a result of her depression over marital problems, she had spent some time in a mental institution during the year before the parties separated. The father testified that if he were granted custody, he would, as he had in the past, engage a babysitter to care for the children during the time he spent at work each day and when he was required to travel on business. The mother testified that although she had worked part-time during the past year, her mother and father, with whom she lived, would care for the children during her absence. Although the mother stated her belief that her husband had a drinking problem, she did not voice any complaints about his care of the children while he had custody of them.

At the conclusion of the hearing, the lower court, in a ruling from the bench, granted custody to the mother. On November 28, 1978, in response to the father's notice of appeal, the lower court entered a memorandum opinion. The opinion consisted of a citation to the page of the hearing transcript where the judge stated his conclusion that it was in the best interest of the children to be in a home where their mother and grandmother were present to take care of them rather than in the home of their father who worked daily. The father now appeals from the decision of the lower court.

"It is fundamental that in all custody disputes, the best interests of the child must prevail; all other considerations are deemed subordinate to the child's physical, intellectual, moral, and spiritual well-being." Garrity v. Garrity, ...


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