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VALERIE HALL v. CLIFFORD N. LUICK (01/11/83)

submitted: January 11, 1983.

VALERIE HALL, APPELLANT
v.
CLIFFORD N. LUICK



No. 249 Pittsburgh 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Fayette County at No. 1404 of 1981 G.D.

COUNSEL

Donald Gary Keyser, Uniontown, for appellant.

Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.

Cercone, P.j., and Popovich and Van der Voort, JJ.

Author: Popovich

[ 314 Pa. Super. Page 461]

This is a child custody case. The trial court granted custody of the parties' son, now twelve years old, to the father. The mother has appealed. We reverse and remand for the reasons herein stated.

The standard of review which we must apply has been set forth in the following manner:

"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. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Sipe v. Shaffer, 263 Pa. Super. 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 interests of the child. In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977). The award must be based on the facts of record and not on mere presumptions; 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,

[ 314 Pa. Super. Page 462257]

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; 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 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."

Parks v. Parks, 284 Pa. Super. 400, 406-407, 426 A.2d 108, 111 (1981).

With this framework in mind, we must examine the procedural history of the case.*fn1

At the outset, appellant filed a "COMPLAINT FOR CONFIRMATION OF CUSTODY" which ...


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