No. 1784 Philadelphia 1982, Appeal from the Order dated June 3, 1982, Court of Common Pleas, Montgomery County, Civil at No. 80-2831.
Robert J. Kerns, Lansdale, for appellant.
William R. Cooper, Lansdale, for appellee.
Hester, Johnson and Popovich, JJ. Popovich, J., concurs in the result. Hester, J., files a concurring and dissenting opinion.
[ 314 Pa. Super. Page 337]
The trial court ordered a continuation of the custody of the two children, Michael and Kristin, with their father.*fn1 The mother has appealed.
The mother and father married each other in 1975, both having been married before. Michael was two years old at the time. Kristin was born in 1976. In 1978 the mother left and went to live with a woman friend for a while, and then moved in with the man to whom she is now married and by whom she has a daughter, Gina, born in 1981.
In 1980 the mother filed a petition seeking custody of Michael and Kristin who were still living with their father. After a hearing the court awarded custody to the father. The mother appealed to this court which reversed and remanded*fn2 the case on three grounds: (1) the trial court had relied to some extent on the fact that the mother was living with another man (now stepfather), but did not analyze the effect of this non-marital relationship on the children;
[ 314 Pa. Super. Page 338]
(2) the trial court had interviewed the children in chambers without the presence of counsel or of a stenographer; (3) the trial court's opinion lacked a sufficiently comprehensive analysis of the record and complete explanation for its decision.
After remand the trial court ordered a home investigation by Montgomery County Children and Youth Services, and conducted a second hearing, updating the record to reflect any changes in circumstances. Following this hearing, which was held in May 1982, the trial court again awarded custody to the father. The mother again has appealed. Reluctantly, we again vacate and remand.
The errors asserted in this second appeal are that the trial court's decision to award the children to the father was an abuse of discretion, and that the trial court further abused its discretion in not conducting another, transcribed, interview with the children in order "to determine their preferences and to determine the treatment they have received from both parents."
The trial judge, both at the second hearing and in his second opinion, explained that he chose not to interview the children, rather than to expose them to a risk of possible parental retaliation later on as a result of the mandated transcription of their conversation with him. At this second hearing the trial judge explained that he would neither interview the children again, nor consider what they had said to him at the time of the first hearing. The mother's counsel responded that he was not advocating that the children be interviewed, but that "there could be a problem, because much of the testimony . . . is based on what the parents know from the children as to what happens to them." N.T. May ...