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JUDITH LYNN KRISS v. JOSEPH KRISS (12/07/79)

filed: December 7, 1979.

JUDITH LYNN KRISS, APPELLANT,
v.
JOSEPH KRISS, II, JOSEPH KRISS AND LILLIE KRISS, HUSBAND AND WIFE, AND JACQUELINE SOBLESKI



No. 2087 October Term, 1978, Appeal from Order of the Court of Common Pleas, Carbon County, entered July 11, 1978 at No. 110, October Term, 1977.

COUNSEL

Roger N. Nanovic, Jim Thorpe, for appellant.

Neil Hurowitz, King of Prussia, for appellee.

Hester, Hoffman and Catania,*fn* JJ.

Author: Hoffman

[ 272 Pa. Super. Page 384]

Appellant-mother contends that the lower court did not sufficiently consider important factors bearing on appellee-father's fitness to be awarded custody of the couple's minor child. We disagree and, accordingly, affirm the order of the lower court awarding custody of the child to the father.

This case involves a dispute over custody of the parties' only child, Joseph Henry Kriss, III, who was born on October 5, 1973. From the time of the child's birth until September 11, 1976, he resided with his parents at the home of his paternal grandparents at the Kriss Pines Fish Hatchery in Carbon County, Pennsylvania. On that date, after a domestic argument, appellant left the marital home with the child and, without notice to appellee, her husband, moved to Florida, where she has since resided. After arriving in Florida, appellant did not inform her husband of her whereabouts.

In late July, 1977, appellee located his wife and child in Tampa, Florida, through the assistance of a private detective.

[ 272 Pa. Super. Page 385]

On August 2, 1977, appellee took the child from his day care center in Tampa without his wife's consent or knowledge. Appellee returned to Pennsylvania with the child and embarked on travels with the child and a female companion through various parts of Pennsylvania, New York and Canada. It appears that appellee's purpose in these travels, at least in part, was to evade service of process in this case. Appellee and his son returned to Carbon County sometime in March of 1978.

On August 8, 1977, appellant instituted these proceedings to obtain custody of her son. Service could not be effected upon appellee until June 19, 1978. The lower court heard testimony in the matter for three days, commencing on June 29, 1978. On July 11, 1978, the court issued its order awarding custody to appellee. This appeal followed.

"It is now beyond dispute that the sole issue to be decided in a custody proceeding between contending parents is the best interests and welfare of the child." Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295, 368 A.2d 635, 637 (1977). See also Kessler v. Gregory, 271 Pa. Super. 121, 412 A.2d 605 (1979). In Garrity v. Garrity, 268 Pa. Super. 217, 407 A.2d 1323 (1979), we summarized the nature of our review in such matters as follows:

The scope of review by this court in a child custody case is of the broadest type. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); In re Custody of Neal, [260] Pa. Super. [151], 393 A.2d 1057 (1978). While we will not usurp the fact-finding function of the trial court, we are not bound by deductions or inferences made by the hearing judge from the facts as found. Trefsgar v. Trefsgar, [261] Pa. Super. [1], 395 A.2d 273 (1978); Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa. Super. 144, 331 A.2d 665 (1974); Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973). We need not accept a finding which has no ...


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