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G. J. F. v. K. B. F. (02/13/81)

filed: February 13, 1981.

G. J. F., APPELLANT,
v.
K. B. F.



No. 96 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Butler County, Civil Division, A.D. No. 79-371, Book 114 Page 188.

COUNSEL

Norman D. Jaffe, Butler, for appellant.

Harry K. McNamee, Butler, for appellee.

Cavanaugh, Watkins and Hoffman, JJ. Watkins, J., files a concurring statement.

Author: Per Curiam

[ 284 Pa. Super. Page 140]

Appellant-mother contends that the lower court improperly denied her petition for custody of the parties' two minor children. We agree and, accordingly, vacate the order of the lower court and remand for proceedings consistent with this opinion.

The mother brought this action for custody in March, 1979, while divorce proceedings between the parties were pending. The parties were granted a divorce in July, 1979, and subsequently, the lower court conducted a hearing on the mother's petition for custody. On January 8, 1980, the court entered an order awarding custody of the parties' children to the father and granting specific visitation rights to the mother. This appeal followed.

"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, 268 Pa. Super. 217, 221, 407 A.2d 1323, 1325 (1979). Notwithstanding this oft-repeated admonition, it is clear from our review of the record that the lower court based its award of custody on matters not demonstrably related to the best interests of the children.

[ 284 Pa. Super. Page 141]

The principal reason cited by the lower court in support of its decision was the mother's non-marital relationship with another man, which precipitated the breakup of the parties' marriage and resulted in her move to a mobile home with the man and her children. In Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976), our Supreme Court stated unequivocally that "the mere fact of a parent's non-marital relationship is insufficient to deny him or her custody of the children." Id., 468 Pa. at 138, 360 A.2d at 589. Rather,

     it is the effect of the non-marital relationship on the child and not the fact of the relationship itself which is crucial to a custody decision. If the evidence shows that a parent's conduct has had harmful effects on the child the court may be justified in denying custody to that parent. On the other hand, if the evidence shows that the parent's conduct has not adversely affected the child, then the best interests of the child may dictate that the parent retain custody. In each case, all relevant circumstances must be examined to determine what action would be in the best interests of the child.

Id., 468 Pa. at 141, 360 A.2d at 590.

In the present case the court made little apparent effort to analyze the actual effect of the mother's non-marital relationship on the children. Instead the court manifested a desire not to "reward" the mother for what it perceived to be her immorality and culpability for the ...


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