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CUSTODY TARA MARIE PEARCE v. ERNEST H. PEARCE (02/11/83)

filed: February 11, 1983.

IN RE CUSTODY OF TARA MARIE PEARCE, A MINOR. JUDITH PEARCE, APPELLANT,
v.
ERNEST H. PEARCE



No. 1777 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas, Civil Action, of Clinton County, No. 28-81 (Miscellaneous).

COUNSEL

Garry Edward Wamser, Lock Haven, for appellant.

Lewis G. Steinberg, Lock Haven, submitted a brief on behalf of appellee.

Brosky, Rowley and Montgomery, JJ.

Author: Rowley

[ 310 Pa. Super. Page 256]

This is an appeal from an order granting custody of the parties' minor child, Tara Marie, to appellee Ernest Pearce.

The parties were married February 29, 1973 and Tara was born August 6, 1977. Although Tara's parents were divorced on October 25, 1977, they resided together after the divorce until March of 1979. Tara resided with her mother, the appellant, from the date of her birth until January of 1981.

On January 15, 1981, appellant entered a hospital for an operation. She arranged for her three children, Michael Knecht, age 11, Shane Wolford, age 8, and Tara to be cared for by her (appellant's) mother and sister. Complications slowed appellant's recovery following the operation and she was unable to care for her children for approximately four weeks. During this period Tara's father, the appellee, offered to care for Tara until appellant's health was improved. Appellant agreed. However, appellee refused to return Tara to appellant when requested to do so.

On February 23, 1981, appellant filed a Petition for a Writ of Habeas Corpus. That same day, the trial court entered

[ 310 Pa. Super. Page 257]

    an order directing that Tara be returned to appellant. On March 9, 1981, the court entered an order confirming primary custody of Tara in appellant, Judith Pearce, pending a full hearing on her petition for custody. Several hearings were held, the final one on April 29, 1982. A final order, dated June 14, 1982, was entered granting custody of Tara to appellee Ernest Pearce. This appeal followed.*fn1

The primary consideration in a custody dispute is the best interest of the child. See Wenger v. Wenger, 267 Pa. Super. 134, 406 A.2d 555 (1979). Therefore, the issue before us is whether the court erred in concluding that placing Tara in appellee's custody would be in Tara's best interest.

Our scope of review is of the broadest type. Comm. ex rel. Drum v. Drum, 263 Pa. Super. 248, 397 A.2d 1192 (1979). We recognize that the hearing judge is in the best position to evaluate the attitudes, sincerity, credibility and demeanor of the witnesses. Therefore, his determination of custody should be accorded great weight. Com. ex rel. Barbara M. v. Joseph M., 286 Pa. Super. 51, 428 A.2d 567 (1981). However, although the hearing court must determine credibility, its ...


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