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COMMONWEALTH EX REL. MICHAEL R. v. ROBERT R. R. APPEAL SHARON L. H. R. (05/04/81)

argued: May 4, 1981.

COMMONWEALTH EX REL. MICHAEL R., A MINOR AND KRISTIN L. R., A MINOR BY THEIR NATURAL MOTHER SHARON L. H. R.
v.
ROBERT R. R. APPEAL OF SHARON L. H. R.



COUNSEL

Robert J. Kerns, Lansdale, for appellant.

William R. Cooper, Lansdale, for appellee.

Cercone, President Judge, and Spaeth and Cavanaugh, JJ. Cercone, President Judge, files a concurring opinion.

Author: Spaeth

[ 293 Pa. Super. Page 19]

This is a child custody case. The lower court awarded custody of two children to the father, and the mother has appealed. For the reasons discussed below, we reverse and remand for further proceedings.

The parties were married on June 28, 1975. During their marriage one child was born, Kristin Leigh, on February 24, 1976. In October 1977 the father adopted the mother's son by a previous marriage, Michael, born October 11, 1972. In August or September 1978 the parties separated. The father stayed in their house with the two children. In September 1979 the mother filed for divorce, and in February 1980 she instituted this action seeking custody of both children. On October 10, 1980, after a hearing, the lower court issued an order awarding custody of both children to the father. It is from this order that the mother now appeals.

[ 293 Pa. Super. Page 20]

"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 Page 20} ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972)." Garrity v. Garrity, 268 Pa. Superior Ct. 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. Superior Ct. 121, 125, 412 A.2d 605, 607 (1979).

The obligations of the courts in a child custody case are clear. In Lewis v. Lewis, 267 Pa. Superior Ct. 235, 406 A.2d 781 (1979), we said:

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 [263 Pa. Superior Ct. 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 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

[ 293 Pa. Super. Page 21]

    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.

Id., 267 Pa. Super. at 240-241, 406 A.2d at 783-784.

See also Commonwealth ex rel. Berman v. Berman, 289 Pa. Super. 91, 432 A.2d 1066 (1981).

Application of these principles to the present case discloses several reasons requiring ...


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