No. 266 October Term, 1979, Appeal from Order of the Court of Common Pleas, Civil Division, of Berks County at No. 41 November Term, 1976.
Paul R. Ober, Reading, for appellant.
Eugene C. LaManna, Reading, for appellee.
Hester, Cavanaugh and Van der Voort, JJ.
[ 290 Pa. Super. Page 65]
The dispute in this case involves the custody of the parties' two daughters. The oldest daughter was born in December, 1969 and the youngest in March, 1972. In July of 1976 Victoria Oxenreider left the marital domicile. The girls remained with their father. The parents were divorced in January, 1977 and both have remarried. Victoria Oxenreider, now Victoria Gift, lives with her husband in an apartment. Leslie Oxenreider lives in the marital home with his daughters, his wife Sharon and her child from a previous marriage. Sharon and Leslie Oxenreider also have a child of their own. The lower court awarded custody to the mother, but this order has been stayed pending this appeal.*fn1 We reverse.
The lower court acknowledged that there are qualitative and quantitative differences in the parties' residences, but concluded that both facilities are suitable for the children. The father's home consists of a living room, dining room, kitchen, bath and three bedrooms, one of which is shared by
[ 290 Pa. Super. Page 66]
the two girls. There is a substantial yard where the children have a sliding board and other play things. Also a playground is located one-half block from the home.
At the time of her testimony Mrs. Gift and her husband lived in a one-bedroom apartment. During cross-examination Mrs. Gift described the apartment and the play area for children in the apartment complex. The apartment was comprised of a living room, dining room, bath, and small kitchen. The rooms were described as a "nice size". There is no playground in the complex, but children played on grassy areas between buildings. On weekends when Mrs. Gift had visitation with her daughters five people occupied the apartment, including her husband's daughter. Following the mother's testimony, however, a stipulation was placed in the record to the fact that Mrs. Gift had moved into a two-bedroom apartment in the same complex.
There will be no change in schooling arrangements whether custody is awarded to the mother or father. Although employed at the time of the hearing, Mrs. Gift stated that she would quit her job if awarded custody. Mr. Oxenreider works full-time. He is home by three-thirty-five every afternoon. Mrs. Oxenreider is not employed.
In awarding custody to the mother the lower court relied, in part, on the presumption that "a mother may be better able to arrange for the vicissitudes of any female child growing through puberty to womanhood." The court cited Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa. Super. 114, 118-119, 245 A.2d 663, 665 (1978) (dissenting opinion by Hoffman, J.) and Scheeler v. Rudy, 2 D&C 3rd 772, 776 (1977) in support of this presumption. In Scheeler it was stated that despite the demise of the tender years presumption, another guideline remains for determining custody:
This guideline is well described by Judge Hoffman in his dissenting opinion in Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa. Super. 114, 118-119, 245 A.2d 663, 665 (1968): "The age and sex of the child is a keystone factor ...