No. 1253 Pittsburgh, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Clarion County at No. 776 of 1980.
Joseph T. Strong, Clarion, for appellant.
Ralph L. S. Montana, Clarion, for appellee.
Cavanaugh, Montemuro and Van der Voort, JJ.
[ 294 Pa. Super. Page 37]
This is an appeal from the grant of demurrer to the evidence in a Habeas Corpus proceeding maintaining custody of a minor child with the appellee mother.
On September 8, 1980, a summary hearing was held by the Court of Common Pleas of Clarion County on appellee's petition to confirm custody. On September 9, 1980, the court entered an order confirming custody of the child in the appellee. On September 11, 1980, appellant filed a Petition for Writ of Habeas Corpus. On November 4, 1980, a full hearing was to have been held by the court on the Habeas Corpus Petition for custody of the parties' minor son, Keith James Beichner, Jr. Upon completion of appellant's case, appellee's counsel demurred to the evidence and requested that the petition be dismissed. Appellant objected to the demurrer but the court deferred its ruling. On November 13, 1980, the court below dismissed appellant's Habeas Corpus Petition, sustaining appellee's demurrer to the evidence. This appeal followed.*fn1
The standard on appellate review of child custody cases was set forth in Lewis v. Lewis, 267 Pa. Super.Ct. 235, 406 A.2d 781 (1979), as follows:
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. Sipe v. Shaffer, 263 Pa. Super.Ct. 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
[ 294 Pa. Super. Page 38]
interests of the child. In Re Custody of Hernandez, 249 Pa. Super.Ct. 274, 376 A.2d 648 (1977). The award must be based on the facts of the record and not on mere presumption: 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.Ct. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa. Super.Ct. 225, 363 A.2d 1242 (1976) . . . . In conducting this review, the appellate court will (should) 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.Ct. 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.Ct. 508, 388 A.2d 1082 (1978) . . . . 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, 259 Pa. Super.Ct. 395, 393 A.2d 885 (1978). Where the record is ...