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filed: October 3, 1980.


No. 2195 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Lebanon County which awarded child custody to the Appellee filed to No. 1530, 1977, Civil Action-Law, Habeas Corpus.


Edward P. Zemprelli, Clairton, for appellant.

Bernerd A. Buzgon, Lebanon, for appellee.

Van der Voort, Spaeth and Watkins, JJ. Spaeth, J., files a dissenting opinion.

Author: Watkins

[ 281 Pa. Super. Page 487]

This is an appeal from an order of the Court of Common Pleas of Lebanon County, by the appellant-wife, Carolyn Grimes, appealing an order which granted custody of the parties' two minor children to the appellee-husband, Roger E. Grimes.

The parties were married in 1967. They had two children; Roger, III, born October 2, 1967 and Meredith, born July 24, 1970. The parties were divorced in 1974. Prior to the divorce they had entered into an agreement dated July 26, 1974 which, inter alia, provided that the appellant was to have custody of the aforesaid minor children. On June 6, 1977, the appellee filed an action requesting custody of the children. Testimony was taken thereon on August 24 and 25, 1977 and on August 29, 1977, the court below entered the order awarding custody of the children to their father. The appellant filed exceptions to the order of the court below and on July 25, 1978, the court below rendered its opinion dismissing the appellant's exceptions. This appeal followed.

During the testimony taken during the trial of this case it was established that, although the mother had custody of the children, that they spent much time each week with the father and his parents. It was also established that both the father and the mother had spent considerable time with the children and had demonstrated great concern over their development and welfare. However, it was also shown that the mother had had non-marital affairs with two (2) different men during the same period of time. Neither man abused the children. In fact both appeared to have taken well to children. The affairs with both men were pursued with discretion but both men had, from time to time, slept with the appellant in the home where she resided with the children. On appeal, the appellant argues that custody of the children should not have been taken from her due to her non-marital relationships.

The sole issue to be decided in custody proceedings between contending parents is the best interest of the children.

[ 281 Pa. Super. Page 488]

    decision awarding custody to the father to the mother's non-marital relationship we must continue our inquiry to determine whether the court below was correct in its finding to the effect that the best interests of the children would be served by placing custody of them with their father.

Appellant's second contention is that the weight of the evidence produced at trial demonstrated that the best interest of the children would be served if she were awarded custody. The appellant argues that the appellee had the burden of proving that he should have custody since the parties' original separation agreement, executed in 1974, provided that she was to have custody and because appellee was the one seeking to alter the status quo. The appellant argues that appellee has failed to carry that burden. Based upon the trial testimony the court below found that the children were spending great amounts of time with both parents. They generally slept overnight at the house in which appellant resided. The court found that during the school year the children would go from appellant's home to the home of appellee's parents where they were seen off to school; at the end of the school day they would return to the grandparents' home, spend some time with their father at that home or his; have dinner with him at either home, and then return to appellant's home to sleep and to repeat the pattern the next day. The appellant also points to the fact that during the trial, the trial judge interviewed both children in chambers without permitting either attorney to be present during the interview. The appellant alleges that this was error citing Commonwealth ex rel. Lee v. Lee, 248 Pa. Super. 155, 374 A.2d 1365 (1977). During the interview both children expressed their desire to remain with the appellant. However, a transcript was made of the children's in camera testimony. After asking many questions designed to put the child at ease, Meredith was asked by the trial court the following:

"Q. . . . who would you rather go live with, your Mommy or your Daddy?

[ 281 Pa. Super. Page 490]

"A. My Mom".

The following dialogue then occurred:

"Q. Why?

A. Because I just like it the way it is.

Q. You like it the way it is?

A. Uh-huh.

Q. And how is that?

A. What?

Q. And how is that? You say you like it the way it is? Well, how is it?

A. I don't know what you mean.

Q. Well, you're the one that said you like it the way it is, and I would like you to tell me what you mean by that.

A. I just like going to the shore and I like seeing Spoony and Steve." (Appellant's boyfriends)

The girl then went on to testify that she liked the appellee's present wife, her son, and that she also enjoyed her father's company. Roger Grimes testified as follows:

"Q. Why would you prefer to live with your Mommy?

A. I don't know. I just like it the way it is."

Roger then went on to describe various activities which he enjoyed with his father, his present wife, her son, and with his mother. After their testimony the trial judge summarized what they had said to both attorneys. This summary was made part of the record. Prior to taking the children's testimony the court below had discussed his intention to do so with both attorneys and informed them that afterwards he would summarize what was said by the children and give each attorney an opportunity to suggest any additional questions they would like the judge to ask the children and that he would then recall the children and ask them those additional questions. This procedure was followed by ...

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