NO. 941 PITTSBURGH, 1980, Appeal from the Order of the Court of Common Pleas of Beaver County, Pennsylvania, Civil Division, entered September 5, 1980, at No. 594, 1978.
Robert F. Palmquist, Monaca, for appellant.
George E. James, Beaver Falls, for Jordan, appellee.
Wickersham, Wieand and Beck, JJ. Wickersham, J., files a concurring opinion. Wieand, J., files a dissenting statement.
[ 302 Pa. Super. Page 424]
This is a child custody dispute involving Paul who was five years old at the time of the lower court's hearing in August, 1980. He had lived his entire life with his mother until the lower court transferred custody to the father in September, 1980. The father had lived separately from the mother and child for almost four years. He had remarried subsequent to the divorce from Paul's mother. The record suggests that the mother had been the child's primary caretaker since birth. She brings this appeal.
We conclude that the grounds cited by the trial court to justify the transfer of the boy from the mother to the father are not adequately supported by the evidence or the laws of this Commonwealth,*fn1 and we remand this case for a hearing consistent with this opinion.
[ 302 Pa. Super. Page 425]
We hold, for the reasons stated below, that where two natural parents are both fit, and the child is of tender years, the trial court must give positive consideration to the parent who has been the primary caretaker.*fn2 Not to do so ignores the benefits likely to flow to the child from maintaining day to day contact with the parent on whom the child has depended for satisfying his basic physical and psychological needs.*fn3
The removal of a young child from an established home with one parent has long been recognized as a factor which bears upon his emotional well-being. A child "becomes strongly attached to those who stand in parental relationship to it and who have tenderly cared for it." Com. ex rel. Children's Aid Society v. Gard, 362 Pa. 85, 97, 66 A.2d 300, 306 (1949); accord, In Interest of Tremayne Quame Idress R., 286 Pa. Super. 480, 429 A.2d 40 (1981); Jon M. W. v. Brenda K., 279 Pa. Super. 50, 420 A.2d 738 (1980).
It is clear that the continued presence of a fit parent who through daily affection, guidance, companionship, and discipline fulfills the child's psychological and physical needs is crucial to the child's emotional well being. The countless transactions between parent and child on a day to day basis build the foundation for the child's future healthy development. The Pennsylvania courts have recognized this principle and have held that the "continued residence of children with one parent is a factor which may, in certain cases, be controlling." Com. ex rel. Cutler v. Cutler, 246 Pa. Super. 82,
[ 302 Pa. Super. Page 426369]
A.2d 821, 824 (1977). See also Pamela J. K. v. Roger D. J., 277 Pa. Super. 579, 419 A.2d 1301 (1980).
Changes in custody can seriously disrupt a child's life. A child of tender years should not be lightly removed from a parent with whom the child has lived since birth.*fn4
Furthermore, insofar as a parent's past performance is likely to be predictive, judicial inquiry to determine the identity of the primary caretaker will yield evidence concerning the future commitment of a parent. If in the past, the primary caretaker has tended to the child's physical needs and has exhibited love, affection, concern, tolerance, discipline and ...