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ROBERT J. FERENCAK AND PATRICIA L. FERENCAK v. CHARLES R. MOORE AND ELIZABETH A. MOORE. APPEAL ELIZABETH A. MOORE (01/11/82)

submitted: January 11, 1982.

ROBERT J. FERENCAK AND PATRICIA L. FERENCAK, HIS WIFE
v.
CHARLES R. MOORE AND ELIZABETH A. MOORE. APPEAL OF ELIZABETH A. MOORE



NO. 80 PITTSBURGH, 1981, Appeal from the Order of the Court of Common Pleas, Family Division, of Westmoreland County, at No. 4236 of 1980.

COUNSEL

Bonnie P. Schlueter, New Kensington, for appellant.

Timothy J. Geary, Vandergrift, for appellees.

Hester, Beck and Van der Voort, JJ. Beck, J., concurs in the result. Hester, J., files a concurring and dissenting opinion.

Author: Van Der Voort

[ 300 Pa. Super. Page 29]

This is an appeal from a custody order involving two minor children: Charles R. Moore, Jr., now five (5) years old and Jerrah Moore, now seven (7) years old. The parties involved are: Robert J. and Patricia L. Ferencak, paternal grandparents of the children, appellees herein; Elizabeth A. Moore, natural mother of the children, appellant herein; Charles R. Moore, Senior, natural father of the children; and Dolores Burkett, maternal grandmother and Leland Burkett, maternal step-grandfather (hereafter referred to as maternal grandparents of the children).

Charles Jr. has been living with his paternal grandparents since June 4, 1979, prior to this time he lived with his

[ 300 Pa. Super. Page 30]

    parents or his mother. The natural mother and father were divorced on March 17, 1980. On May 14, 1980, the paternal grandparents filed a petition seeking custody of the two children. On June 30, 1980, the matter was continued to allow for the preparation of home studies. On July 14, 1980, the case was continued to August 28, 1980. On August 28, 1980, all of the above parties appeared, except for the natural mother; she had moved to California taking her daughter Jerrah with her. The natural father did not contest his parents' petition. The court heard testimony from the paternal grandmother and continued the case to December 10, 1980. On December 10, 1980, the natural mother appeared and the hearing was resumed. The case was continued until December 30, 1980 when the court finished hearing testimony. The lower court entered an order on January 13, 1981 awarding custody in the following manner:

1) Custody of Charles, Jr. was awarded to the paternal grandparents;

2) Custody of Jerrah was awarded to the natural mother, conditioned on

     a. her residing with the maternal grandparents; and

     b. Jerrah's non removal from Westmoreland County without permission of the court; and

3) that visitation between the parties be arranged.

Appellant raises three issues on appeal.

I. Whether the findings of facts of the trial court are supported by the record?

If the issue is whether we should reverse the lower court's findings of fact, then indeed we must defer to the lower court, and reverse only where in making the findings the lower court has abused its discretion. This is so because the lower court saw the witnesses and is therefore much more able to appraise their credibility than we. In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977). However, "we are not bound by [the lower court's] inferences or deductions . . . from the facts

[ 300 Pa. Super. Page 31]

    found." In re Custody of Hernandez, supra, 249 Pa. Superior Ct. ...


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