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LINDA HALL v. CURTIS MASON. COMMONWEALTH PENNSYLVANIA EX REL. CURTIS MASON (07/08/83)

filed: July 8, 1983.

LINDA HALL, APPELLANT,
v.
CURTIS MASON. COMMONWEALTH OF PENNSYLVANIA EX REL. CURTIS MASON, JR., A MINOR CHILD, BY AND THROUGH HIS NATURAL FATHER, CURTIS MASON, V. LINDA HALL, APPELLANT



No. 2715 Philadelphia 1980, No. 2716 Philadelphia 1980, Appeals from the Order of November 3, 1980, Court of Common Pleas, Chester County, Civil Division, at Nos. 100 September Term 1979, 120 November Term 1979.

COUNSEL

George A. Brutscher, Kennett Square, for appellant.

William J. Litvin, West Chester, for appellee.

Spaeth, Beck and Johnson, JJ. Spaeth, J., concurs in the result.

Author: Johnson

[ 316 Pa. Super. Page 162]

The instant consolidated appeals arise from the trial court's order awarding custody of Curtis Mason, Jr. to his father, Curtis Mason.

The child's parents were married in 1973 and the child was born February 22, 1975. Following an extended period of marital difficulties, Curtis Mason left the marital household in August of 1978 and shortly thereafter took up residence with Paula Gessner and one of her children. Linda Hall took up residence with Harvey Hall, whom she married in February of 1979, following her divorce from Curtis Mason in October of 1978. On September 11, 1979, Linda Hall filed a petition seeking confirmation of custody of Curtis, Jr., who had been residing with her throughout this period along with Harvey Hall and a child of their marriage. Curtis Mason filed his petition to obtain custody on November 8, 1979.

Following five days of hearings, the trial court awarded custody of the child to Curtis Mason with visitation rights to Linda Hall. After denial of Linda Hall's exceptions, this appeal followed.

The primary concern in child custody cases is the best interests of the child, including the child's physical, intellectual, emotional, moral and spiritual well-being. Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437,

[ 316 Pa. Super. Page 163292]

A.2d 380 (1972); In re Custody of J.S.S., 298 Pa. Super. 428, 444 A.2d 1251 (1982). In a contest between parents, each party has the burden of proving that the best interests of the child will be served by awarding custody to him or her. In re Custody of J.S.S., supra; Beichner v. Beichner, 294 Pa. Super. 36, 439 A.2d 737 (1982).

It is clear that the scope of our review in custody cases is of the broadest type. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Commonwealth ex rel. Newcomer v. King, 301 Pa. Super. 239, 447 A.2d 630 (1982). However, we cannot nullify or usurp the fact-finding function of the trial court, as the trial court is in a superior position to appraise the attitudes, sincerity, credibility and demeanor of the witnesses. Commonwealth ex rel. Montgomery v. Montgomery, 296 Pa. Super. 325, 442 A.2d 791 (1982), citing Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa. Super. 444, 427 A.2d 1370 (1981). Although we must defer to the trial court's findings of fact, we are not bound by the trial court's deductions and inferences. Commonwealth ex rel. Newcomer v. King, supra. Instead, we must exercise independent judgment based on the evidence and make such an order on the merits of the case as to do right and justice. Id. In exercising our independent judgment, we are not limited to determining whether the ...


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