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DAVID A. PORCH v. KIMBERLEY A. PORCH (05/04/84)

filed: May 4, 1984.

DAVID A. PORCH
v.
KIMBERLEY A. PORCH, APPELLANT



No. 1119 Pittsburgh, 1983, Appeal from the Order of the Court of Common Pleas, Indiana County, Civil Division, at No. 582 C.D. 1982.

COUNSEL

Cynthia A. Sheehan, Indiana, for appellant.

Philip N. Shelapinsky, Greensburg, for appellee.

Brosky, Olszewski and Johnson, JJ.

Author: Brosky

[ 327 Pa. Super. Page 347]

Before us is a custody dispute involving the three daughters of the appellant and her husband, the appellee. The lower court granted custody of the girls, Angela, Erica and Nicole, to their father. Mrs. Porch argues that the court erred in that it should have treated the dispute as one

[ 327 Pa. Super. Page 348]

    between the childrens' mother and paternal grandparents, rather than as one between the parents. Her contention is that if the case were viewed in that light she would be entitled to custody since in a contest between a parent and a third party, a parent has a prima facie right to custody which will be forfeited only if convincing reasons appear that the childrens' best interest will be served by an award to the third party. While we would agree with appellant's statement of the burden placed on third parties, see e.g. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980), we conclude that the lower court correctly treated this dispute as being between the parties and properly granted custody to appellee. In a dispute between parents, each parent shares the burden of proving, by a preponderance of the evidence, that an award of custody to him or her would serve the best interests of the child. Witmayer v. Witmayer, 320 Pa. Super. 372, 467 A.2d 371 (1983).

Our court has recently discussed at length the scope of review to be used by us in custody cases. In In Re Donna W., 325 Pa. Super. 39, 472 A.2d 635 (1984), we explained that the Court must use a broad scope of review and exercise an independent judgment based on the evidence and make such an order on the merits of the case as right and justice dictate. Our paramount concern is with the best interests of the children. The In Re Donna W. opinion makes clear that although we are bound by findings of fact made by the trial court, we are not similarly bound by the inferences and deductions drawn from those facts by the trial court.

In Donna W we used a four step review process which involves a determination first that the record indicates that the procedural prerequisites to a custody award have been satisfied.

In the instant case, we find the record to contain sufficient testimony and the trial court opinion adequate.

The next step outlined in Donna W requires that we determine whether the factual findings made by the lower ...


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