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MICHAEL R. HARTMAN v. DALENE K. HARTMAN (05/04/84)

filed: May 4, 1984.

MICHAEL R. HARTMAN, APPELLANT,
v.
DALENE K. HARTMAN



No. 01910 Philadelphia 83, Appeal from the Order of the Court of Common Pleas of Berks County, Civil Division, at No. 30 March, 1980.

COUNSEL

Stephen B. Lieberman, Reading, for appellant.

Stephen G. Welz, Reading, for appellee.

Spaeth, President Judge, and Beck and Hoffman, JJ. Beck, J., concurs in the result.

Author: Hoffman

[ 328 Pa. Super. Page 157]

This appeal concerns the lower court's modification of its earlier custody award. Because we determine that there has not been a change in circumstances sufficient to require a custody modification, we reverse the order of the lower court.

Michael, the child in question, was born on September 27, 1976. The parties separated in August or September of 1979.*fn1 Michael has resided with appellant, his father, since the separation, and on June 12, 1980, the lower court formally awarded custody to appellant. Custody was maintained with appellant based on subsequent orders dated May, 1982 and September, 1982. Following disruptions in appellee's right to visitation, appellant petitioned to terminate all visitation. Appellee responded with an answer and petition for rehearing. Appellant later withdrew his petition and the lower court, after granting appellee's request for a rehearing, on June 22, 1983 granted appellee custody of the child. This appeal followed.

It is well-established that the sole criterion in child custody decisions is the best interests and welfare of the child. Commonwealth ex rel. J.J.B. v. R.A.McG., 283 Pa. Superior Ct. 185, 423 A.2d 1050 (1980); Trefsgar v. Trefsgar,

[ 328 Pa. Super. Page 158261]

Pa. Superior Ct. 1, 395 A.2d 273 (1978); Bender v. Bender, 261 Pa. Superior Ct. 12, 395 A.2d 279 (1978); In re Custody of Phillips, 260 Pa. Superior Ct. 402, 394 A.2d 989 (1978); Commonwealth ex rel. Cutler v. Cutler, 246 Pa. Superior Ct. 82, 369 A.2d 821 (1977); Act of June 26, 1895, P.L. 316 § 2, 48 P.S. § 92. Ensuring the child's "physical, intellectual, moral and spiritual well-being" is the focal point of our evaluation of a child's best interests. Commonwealth ex rel. Cutler v. Cutler, supra, 246 Pa. Superior Ct. at 85, 369 A.2d at 822. Our scope of review in child custody cases is broad. Although we must accept the lower court's findings of fact that find support in the record, "on those facts we must make such order as our independent judgment persuades us right and justice dictate." In re Donna W. and Edward W., 325 Pa. Superior Ct. 39, 42, 472 A.2d 635, 636 (1984). See also Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981) (independent judgment to be exercised in custody cases); Commonwealth ex rel. Newcomer v. King, 301 Pa. Superior Ct. 239, 447 A.2d 630 (1982). While we continue to accord weight to the lower court's findings which are premised on a direct assessment of the witnesses' credibility, we are not bound by the lower court's deductions and inferences. See Commonwealth ex rel. Cutler v. Cutler, supra, 246 Pa. Super. at 88, 369 A.2d at 823.

In reviewing a child custody modification proceeding we must consider whether

     there has been a substantial change in circumstances that would justify a court's reconsideration of the custody disposition . . . . However, once a substantial change has been established [(the party seeking modification having the burden of proof)], both natural parents share equally the burden of demonstrating with which parent the child's best interests will be served.

Daniel K.D. v. Jan M.H., 301 Pa. Superior Ct. 36, 40-42, 446 A.2d 1323, 1324-25 (1982). Because of our reluctance "to disturb existing custody arrangements which have satisfactorily ...


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