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filed: March 14, 1980.


No. 3002 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division (Custody) at No. WD 75586-A.


Elisabeth Pietry, Philadelphia, for appellant.

Thomas F. Guernsey, Philadelphia, for appellee.

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

Author: Cercone

[ 276 Pa. Super. Page 78]

This is an appeal from the order of the Court of Common Pleas of Philadelphia County awarding custody of Darryl Bernard Jones, now 6 years old, to his maternal aunt, Denise Jones. This order also granted custody of Darryl's two half-brothers, Darron and Darnell Jones, to their paternal grandmother, Doris Floyd. Appellant, Doris Floyd, appeals only from that part of the order which granted custody of Darryl to Denise Jones. We reverse the order of the lower court and remand for a new hearing.

Darryl Bernard Jones was born in 1973 to Maida Jones and an unknown father. Maida then lived with Frank Floyd, appellant's son, and two children were born to them, Darnell and Darron Jones. After Frank Floyd was incarcerated in 1976, Maida was forced to move in with her sister, Denise Jones, due to the lack of heat in her own home. Maida took her two sons, Darnell and Darron, to live with her, while Mrs. Floyd took care of Darryl. Maida died on March 3, 1978, and some time that day or the next, Mrs. Floyd sent for the other two children, Darnell and Darron, so that she could care for them while Denise made Maida's funeral arrangements. The three children then continued to live with Mrs. Floyd.

In April, 1978, Mrs. Floyd sought to formalize her custody of the children, and petitioned for legal custody of all three. Denise Jones then filed a writ of habeas corpus seeking the return of Darryl Jones, which was later amended to include a petition for all three of her nephews. The matters were consolidated for trial in August, 1978, and the court's order separating the children was entered in November, 1978.

Appellant raises four issues for our review on appeal: first, whether the best interests of Darryl are served by ordering his custody to be transferred to his maternal aunt and away from his two half-brothers; second, whether the lower court committed reversible error by considering evidence outside the record; third, whether the lower court erred in not having the testimony of the children he interviewed

[ 276 Pa. Super. Page 79]

    in chambers on record; and fourth, whether the lower court gave improper consideration to an alleged statement of the children's deceased mother that she wanted her sister to care for her children.

Initially, we note that the primary concern in any custody dispute is the best interest of the child. Haraschak v. Haraschak, 268 Pa. Super. 173, 407 A.2d 886 (1979); Commonwealth ex rel. Steiner v. Steiner, 257 Pa. Super. 457, 459, 390 A.2d 1326, 1327 (1978). If the hearing judge fully bases his decision of competent evidence concerning the capabilities of the disputing parties to raise the child, his decision will not be reversed on appeal absent an abuse of discretion. In re Custody of Neal, 260 Pa. Super. 151, 393 A.2d 1057 (1978). Our review of the lower court's order is the broadest type, but we cannot nullify the fact finding of the hearing judge, who is the best judge of the parties' credibility. Commonwealth ex rel. Lee v. Lee, 248 Pa. Super. 155, 161, 374 A.2d 1365, 1369 (1977). From our independent review of the record, we conclude the trial judge did not have sufficient evidence on the record to make a custody award, and we therefore must reverse the order of the lower court.

The evidence adduced at the hearing revealed the following: Appellant, Doris Floyd, holds no blood relationship with the child in question, Darryl Jones. Appellant lives in an eight room home and has other children to care for. Her sources of income include public assistance and a job with a doctor, the specifics of which were not examined at the trial level. Mrs. Floyd's daughter, Diana Wallace, testified that she went to pick-up Darron and Darnell when Maida Jones died, only to find the house of Denise Jones in a state of disarray and the children undressed and caring for themselves. Mary Ruffin, an aunt of Ms. Wallace, accompanied her and corroborated her testimony. Furthermore, ...

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