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GERALD G. v. THERESA G. (02/27/81)

filed: February 27, 1981.


No. 2423 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Family Division, at No. 77-02570.


Peter C. Bowers, Philadelphia, for appellant.

Melvin B. Goldstein, Philadelphia, for appellee.

Spaeth, Brosky and Hoffman, JJ. Brosky, J., files a concurring opinion.

Author: Hoffman

[ 284 Pa. Super. Page 500]

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

[ 284 Pa. Super. Page 501]

This is a dispute over the custody of the parties' daughter, Rebecca, age 6. The parties were separated in October, 1976, and divorced in May, 1977. Both parties have since remarried. Pursuant to an oral agreement, the mother maintained custody of the child and the father regularly visited with the child on weekends. On March 5, 1979, after one such visitation, the father told the mother that he intended to keep the child. On April 2, 1979, the mother removed Rebecca from the day care center where she had been enrolled by her father. The mother then filed a petition for confirmation of custody and a temporary restraining order on May 4, 1979. The lower court granted an order restraining the father from taking the child from the mother's home during the pendency of these proceedings. On June 11, 1979, the father filed a petition for habeas corpus. The lower court conducted a hearing on August 28, 1979, at which the father attempted to prove that the mother was unfit. He testified that the child was usually unkempt, dirty, and in relatively poor health on his weekly visits. Additionally, he alleged that the mother's living arrangements were unsuitable and that she used drugs. The mother denied each of these allegations and contended that the child had a negative reaction to her father's brief period of actual custody. Each parent presented cumulative, corroborative testimony from friends and relatives. The lower court, in the presence of counsel, conducted an examination of the child on the record. Although much of the child's testimony was not responsive to the court's questions, Rebecca expressed a preference for her father and corroborated the father's testimony regarding the mother's drug use. The lower court "did not find that [appellant] was an unfit mother" and "believ[ed] that both parents were capable of loving care for Rebecca . . . ." However, the lower court resolved the issue of credibility in favor of the father and, accordingly, awarded custody to him. This appeal followed.

In Commonwealth ex rel. Leighann A. v. Leon A., 280 Pa. Super. 249, 252, 421 A.2d 706, 708 (1980), we stated:

[ 284 Pa. Super. Page 502]

"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, 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 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 conclusions. See Valentino v. Valentino, 259 Pa. Super. 395,

[ 284 Pa. Super. Page 503393]

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; Commonwealth ex rel. Forrester v. Forrester, 258 Pa. Super. 397, 392 A.2d 852 (1978); Commonwealth ex rel. Cox v. Cox, supra.

Lewis v. Lewis, 267 Pa. Super. 235, 240, 406 A.2d 781, 783-84 (1979).

Our ability to review this case is impaired by a deficient record. Each of the competing parties has testified to his/her fitness and the suitability of his/her home, and the father has made serious allegations of the unsuitability of the mother's home. Yet there was no disinterested testimony evaluating the relative environments which the parties could provide. Accordingly, a remand for such supplementation of the record is proper. See, e. g., Commonwealth ex rel. Leighann A. v. Leon A., supra, 280 Pa. Super. at 253, 421 A.2d at 708; J. F. G. v. K. A. G., 278 Pa. Super. 25, 28, 419 A.2d 1337, 1339 (1980); Jones v. Floyd, 276 Pa. Super. 76, 80, 419 A.2d 102, 104-05 (1980); Lewis v. Lewis, 267 Pa. Super. ...

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