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MATTER CUSTODY ROBERT JAMES LIBERTO AND THOMAS WILLIAM LIBERTO. APPEAL JAMES L. LIBERTO (03/11/81)

submitted: March 11, 1981.

IN THE MATTER OF THE CUSTODY OF ROBERT JAMES LIBERTO AND THOMAS WILLIAM LIBERTO. APPEAL OF JAMES L. LIBERTO


No. 2439 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Civil Action-Law, of Centre County, No. 1979-1839.

COUNSEL

James M. Horne, State College, for appellant.

Robert K. Kistler, State College, for appellees.

Hester, DiSalle and Montgomery, JJ.

Author: Hester

[ 291 Pa. Super. Page 27]

In this child custody proceeding, appellant-father appeals from the order of the lower court dated September 26, 1980, wherein the lower court awarded permanent custody of two minor children*fn1 of the parties to the appellee-mother.

We affirm.

In Lewis v. Lewis, 267 Pa. Super. 235, 239-240, 406 A.2d 781, 783-4 (1979), this court summarized the law, and our scope of review governing child custody proceedings:

"It is settled that the paramount concern in a child custody proceeding is to determine what is in the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Sipe v. Shaffer,

[ 291 Pa. Super. Page 28263]

Pa. Super. 27, 396 A.2d 1359 (1979). In a contest between parents, each party bears the burden of proving that an award to that party would be in the best interests of the child. In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977). The award must be based on the facts of record and not on mere presumptions; in particular, the tender years presumption is no longer recognized, Sipe v. Shaffer, supra; McGowan v. McGowan, 248 Pa. Super. 41, 374 A.2d 1306 (1977).

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, supra; 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 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; Commonwealth ex rel. Forrester v. Forrester, 258 Pa. Super. 397,

[ 291 Pa. Super. Page 29392]

A.2d 852 (1978); Commonwealth ex rel. Cox v. Cox, supra."

We have engaged in a comprehensive review of the record and are convinced that all pertinent facts and circumstances of the contesting parties have been fully explored and developed; further, we are convinced that the lower court made a penetrating and comprehensive inquiry and, in support thereof, filed a comprehensive opinion containing its findings and conclusions as supported by the record. Thus, we agree with the lower court's ultimate conclusion that it is in Robert's and Thomas's best interest to remain in the permanent custody of their mother, the appellee herein. Hence, we affirm.

The relevant facts adduced at hearing include the following:

1. Three children were born of the marriage between appellant and appellee, Ellen Marie age 18 at the time of the hearing; Robert James born February 14, 1963, and Thomas William born November 11, 1964. Because the daughter, Ellen Marie, was a senior in high school and intended to enter Indiana University of Pennsylvania in the fall, she elected to remain in the general custody of her father in Westmoreland County, Pennsylvania. As a result, Ellen Marie is not directly involved in this proceeding.

2. From 1964 until the early part of 1976, all three children lived with both parties at 399 Oakwood Street, New Kensington, Pennsylvania.

3. In February or March, 1976, appellant moved out of the family home (399 Oakwood Street) and shortly thereafter into an apartment approximately three blocks from the marital residence. Appellee and the three children continued to reside at 399 Oakwood Street until November, 1978 when she and the two boys, Robert and Thomas, moved to State College, Centre County, Pennsylvania, where they currently continue to reside.

4. Appellant and appellee were subsequently divorced from each other ...


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