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V.B. v. M.L.T.B. (11/04/83)

filed: November 4, 1983.


No. 541 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Family Court Division, of Philadelphia County, No. 81-22704.


Robert I. Whitelaw, Philadelphia, for appellant.

Alvin J. Bello, Philadelphia, for appellee.

Spaeth, Wickersham and Lipez, JJ.

Author: Lipez

[ 321 Pa. Super. Page 37]

V.B., the father of four-year-old V.D.B., appeals from the trial court's order awarding primary custody of his son to the child's mother and giving him custody only on alternate weekends and six weeknights per month. We find that the record developed by the lower court was inadequate to have enabled it to determine the best interests of the child in this case and we therefore vacate the order and remand for further proceedings.

Appellant and appellee were married on February 26, 1977 and their one child was born on October 31, 1978. When the parties separated on September 10, 1981, appellee and the child moved into her mother's home while appellant remained in the marital residence. The child has lived with

[ 321 Pa. Super. Page 38]

    his mother and maternal grandmother since that time. Prior to these proceedings, appellant had physical custody of the child, under an agreement between the parties, every Wednesday night and at least part of every weekend, alternating an entire weekend with Saturday night to Sunday night only.

On November 10, 1981, appellant filed a petition for Writ of Habeas Corpus, seeking custody of his son. At the hearing on this petition, appellant testified that he is 27 years old and is employed as a plumber with working hours from 7:00 a.m. to 4:00 or 4:30 p.m. Monday through Friday. He stated that if he had custody of the child, the child would stay with his paternal grandmother during the week at the grandmother's home, where he would have his own bedroom. Appellant would be with him there in the evenings and would be able to stop to see him during the day since the shop where he works is only a few blocks away. On weekends, the child would stay at the marital residence with appellant. Appellant expressed a great deal of love and concern for the child and indicated that he wishes to have a more active role in the child's upbringing. He also stated that appellee has a very good relationship with their son. His only disagreement with her care of the child was in the matter of discipline. He felt that both appellee and her mother are too lax with the child and that they deal with behavior problems by distracting or bribing him. Appellant testified that he would be stricter and would discipline the child when it was called for. Appellant's only objection to the maternal grandmother's home, where the child now lives, was that the child has no bedroom of his own and must sleep with his mother. He said, however, that he believed the child would eventually have his own room when one of the spare bedrooms has been cleaned out. Appellant also testified emphatically that he does not want to take the child away from his mother, that he knows the child loves and needs both parents, and that he would allow liberal visitation if he were awarded custody.

[ 321 Pa. Super. Page 39]

Appellant's evidence also included the testimony of three witnesses: a child psychologist, a neighbor, and appellant's mother. Dr. Merrill David Paletz, a clinical psychologist specializing in children and families, testified that he had observed appellant and the child during a two-hour scheduled visit to the marital residence. He stated that he had observed a very close relationship between appellant and his son and that appellant had participated with the child in play activities as well as getting him his meals and disciplining him when necessary. He also testified that the child appeared to be functioning normally for his age. He stated that, in his opinion, appellant is a "very adequate parent in terms of all aspects of child rearing" and is capable of handling either sole custody of the child or a shared custody arrangement. He also gave his opinion that a shared custody situation in which the child spent a week with each parent in alternation would be a good arrangement for the child while alternate weekends and one night a week with appellant would not provide the child with sufficient contact with his father. The psychologist had not met or observed appellee, however, nor had he met either of the child's grandmothers or visited their homes.

Carmen Carangi, a neighbor of the marital residence, testified that he is a friend of both parties and that both are very good parents. He stated, however, that he felt that the child's mother is ...

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