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COMMONWEALTH PENNSYLVANIA EX REL. LEIGHANN A. AND JOHNNY A. v. LEON A. APPEAL BARBARA A. S. (08/29/80)

filed: August 29, 1980.

COMMONWEALTH OF PENNSYLVANIA EX REL. LEIGHANN A. AND JOHNNY A.
v.
LEON A. APPEAL OF BARBARA A. S.



COUNSEL

James Hook, Waynesburg, for appellants.

John A. Stets, Waynesburg, for appellee.

Cavanaugh, Hoffman and Van der Voort, JJ.

Author: Hoffman

[ 280 Pa. Super. Page 250]

Appellant-mother contends that the lower court erred in awarding custody of her two minor children to appellee-father. We are unable, however, to consider the merits of her appeal and instead remand for proceedings in accordance with this opinion.

This case involves a dispute over custody of the parties' two children, Leighann, 5, and Johnny, 4. The mother instituted habeas corpus proceedings in May, 1978, after the father left their marital home, taking the two children with him. The lower court conducted the first of several hearings on the matter in June, 1978, and at that time issued an interim order which, in effect, continued custody in the father subject to supervision by Children and Youth Services of Greene County (Children and Youth Services), provided for investigation of the parties' respective homes,*fn1 and established

[ 280 Pa. Super. Page 251]

    visitation rights for the mother. Approximately one month later the court conducted a second hearing to consider allegations that the mother's brother Dale had sexually abused the children while they were visiting the mother at her family's home in Ohio. The court then issued another interim order which continued the custody and visitation scheme already in effect and provided safeguards to insulate the children from any possible contact with Dale. Between September, 1978, and August, 1979, the lower court conducted four more hearings in the matter, during which it heard evidence of two more possible incidents of sexual abuse of the children by Dale,*fn2 as well as other evidence germane to the question of which parent should be awarded custody.*fn3 At the last of these hearings, in August, 1979, Dr. Edward W. Patterson, a clinical psychologist, testified regarding his psychological examinations of the parties and Dale and his interviews with the children. At the conclusion of this hearing the lower court entered its final order in which it awarded custody of the children to the father and established visitation privileges for the mother. This appeal followed.*fn4

[ 280 Pa. Super. Page 252]

"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. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972)." Garrity v. Garrity, 268 Pa. Super. 217, 221, 407 A.2d 1323, 1325 (1979). "Among the factors to be considered in determining the best interests of the child are the character and fitness of the parties seeking custody, their respective homes, their ability to adequately care for the child, and their ability to financially provide for the child. Shoemaker Appeal, 396 Pa. 378, 381, 152 A.2d 666, 668 (1959)." Kessler v. Gregory, 271 Pa. Super. 121, 124-125, 412 A.2d 605, 607 (1979).

In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. 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). Thus, while it will defer to the lower court's findings of fact, the appellate court will not be bound by the deductions or the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of the evidence. Sipe v. Shaffer, [263 Pa. Super. 27, 396 A.2d 1359 (1979)]; Scarlett v. Scarlett, supra. In conducting this review, the appellate court will look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa. Super. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa. Super. 508, 388 A.2d 1082 (1978). After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and

[ 280 Pa. Super. Page 253]

    conclusions. See Valentino v. Valentino, 259 Pa. Super. 395, 393 A.2d 885 (1978); Gunter v. Gunter, supra. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, supra. Where the record is incomplete or the opinion of the lower court is inadequate, the case will be remanded. See Valentino v. Valentino, supra; ...


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