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filed: April 26, 1985.


No. 02951 Philadelphia, 1983, Appeal from the Order entered October 4, 1983 in the Court of Common Pleas of Luzerne County, Civil Division, No. 665-C of 1981


Charles P. Gelso, Wilkes-Barre, for appellants.

Brian C. Corcoran, Richard M. Goldberg, Wilkes-Barre, for appellee.

Cavanaugh, Beck and Tamilia, JJ. Beck, J., files a concurring opinion.

Author: Tamilia

[ 342 Pa. Super. Page 134]

The appeal in this case follows denial by the trial court of the father's request for an Order awarding him shared physical custody of his son.

Anthony Agati, the only child of the parties, was born in 1979 and was four years old at the time of the hearing. The parties are divorced, having married in 1978. In August, 1981, Judge Patrick Toole entered a custody and partial custody Order from which no appeal was taken. Subsequently, the parties, by agreement, modified and extended that Order to accommodate their work schedules and to increase the father's weekend partial custody to include

[ 342 Pa. Super. Page 135]

Friday nights on alternate weekends and for alternating holidays (T.T. 34a). The father filed a Petition for Visitation*fn1 which requested an extensive increase in partial custody, in effect, to obtain shared custody as permitted under the Custody and Grandparents Visitation Act, 23 P.S. § 1001 et seq.

Following a hearing before a master to mediate the dispute on April 28, 1983, the case was appealed to the Common Pleas Court and the matter came to hearing before Judge Chester B. Muroski on October 3, 1983. By consent of the parties, the hearing incorporated without petition, consideration of the request of the paternal grandparents for separate partial custody. Following the hearing, during which an adequate record was made, an Order was expeditiously filed on October 4, 1983, from which this appeal was taken. An Opinion was filed by the trial judge, which in a comprehensive and careful manner, considered all issues raised. Lewis v. Lewis, 267 Pa. Super. 235, 406 A.2d 781 (1979).

Our scope of review in custody modification matters is governed by the law as it relates to initial custody hearings. The scope of appellate review in a custody matter is of the broadest type. An appellate court is empowered to determine whether the trial court's incontrovertible factual findings support the trial court's conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court's factual findings, and thus represent a gross abuse of discretion. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800, 806 (1984); Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977).

The major issue in this case, as presented by the appellant, is whether a substantial change of circumstance is the legal standard to apply when a petition is heard for modification of a partial custody Order. Appellant argues it is

[ 342 Pa. Super. Page 136]

    not and would apply the best interest standard negating the need by the petitioner to prove a change of circumstance before reaching the merits of the case. We disagree.

At the outset, prior to the existence of a custody Order, the parties who are parents stand on an equal footing and the only burden carried by either of them is to establish what is in the best interest of the child. In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977); Spriggs v. Carson, supra.

It is tempting to modify a partial custody Order on the best interest of the child without first establishing a substantial change in circumstance. This would, however, be extremely destabilizing and could result in spurious petitions based on temporary or vacillating circumstances or a frequent relitigation of issues once resolved. One of the attributes of custody Orders is their temporariness and lack of finality, but change without careful discretion turn the courts into instruments of destruction. Virtually every custody Order also becomes a partial custody Order and while a modification of a custody Order (to bring about an absolute change in custody) requires a change in circumstance which imports some finality, the appellant would subject partial custody to constant tribulation when someone's perceived best interest test would be suggested, without first being required to show a change of circumstance. The question presents itself as to how one can, at the same time, maintain a change of circumstance standard for a total change of custody while permitting a review of partial custody on a best interest standard. Immediately presented is the additional problem of burden of proof. See In re Custody of Hernandez, supra. In Spriggs v. Carson, supra, the burden of proof as to best interest is equally apportioned between parents; would we now require that this concept be confused by requiring the party alleging best interest for modification of partial custody, carry the burden of proof as he would be required to carry the burden of establishing a change of circumstance? If the petitioners carried no burden in moving directly to consideration

[ 342 Pa. Super. Page 137]

    of best interest without proof of change of circumstance, would it not be possible to change the custodial parent when it seemed in the best interest of the child to do so? In doing so, the requirement to establish change of circumstance for a total change of custody could be circumvented by petitioning for modification of partial custody. In various contexts, with the exception of the initial custody proceeding between parents, preliminary burdens of proof must be met before best interest can be considered. See In the Interest of LaRue, 244 Pa. Super. 218, 366 A.2d 1271 (1976); Matter of DeSavage, 241 Pa. Super. 174, 360 A.2d 237 (1976); In re Rose, 161 Pa. Super. 204, 54 A.2d 297 (1947).*fn2 It would appear that we would be moving to a doctrine wherein best interest would control, regardless of whether the contest was between parents, as it would be difficult not to justify the same standard as it applied to parents and third parties. See Spriggs v. Carson, supra (Dissent by Justice Flaherty). It is probably illusory that a best interest test will produce any fairer result than the change of circumstances standard. Any change of circumstance which would result in a modification of the Order must also be in the best interest of the child and the court must so find. Once a full and comprehensive review of the case was had, and decision rendered awarding custody and partial custody, it must be assumed that to the degree possible, the best interest of the child was served. In practice, while the best interest standard purportedly governs the decisions in custody cases, as between co-equals, the line is so thin as to be virtually nonexistent thus subject to endless reinterpretation and reargument. Witness the result condemned by the Supreme Court in Robinson, supra, when this Court adopted an independent scope of review. If a request was made for a change in partial custody because of the best interest of the child, this could not be accomplished without doing harm to the doctrine of res judicata, permanency of decisions, and stability of the child, unless a sufficient change of circumstance was established

[ 342 Pa. Super. Page 138]

    to warrant a modification, as the then best interest no longer applies. Change of circumstance is still the standard, which necessarily encompasses a consideration of the child's best interest. If it is truly in the best interest of the child to modify a partial custody order, it would be unlikely that there would be a lack of proof of change of circumstance.

An additional complicating factor which moves us to a more rigid compliance to the change of circumstance standard is the advent of the Uniform Child Custody Jurisdiction Act, 42 Pa.C.S. § 5341 et seq. See Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa. Super. 294, 418 A.2d 729 (1980). The perplexing problem of child snatching and forum shopping required national cooperation to give some finality to custody Orders and a determined application of the change of circumstance requirement to avoid defeating the intent of the U.C.C.J.A.

Except in an initial custody action, best interest is generally the second consideration, there being an evidentiary gate which must be passed before it can be considered. Making best interest the gate instead of the support for custody decisions predisposes to irrational and/or untenable decisions. See LaRue, DeSavage, Rose, supra.

Some states have relied on section 407(b) [Visitation] of the Uniform Marriage and Divorce Act (UMDA) (1973) for introducing a new relaxed standard of best interest when modification of a partial custody Order is required.*fn3 This may well be a misinterpretation of that section as it relates to the act as a whole.

The UMDA section 407(b) on Visitation simply articulated the traditional rule that visitation was presumed to be in the best interest of the child, and that standard would apply in granting visitation, although an extraordinary standard of "'seriously (endangering) the child's physical, mental, and moral, or emotional health would apply in denying

[ 342 Pa. Super. Page 139]

    visitation'" (Commissioner's notes). It does not appear that it was meant to be a different standard than applied in section 409 (Modification) which contains a change of circumstance and a best interest standard for modification. All sections of the UMDA must be read together and where possible consistent with each other. It would be untenable to find that a visitation or partial custody Order could be modified without also modifying the underlying custody Order. To the degree one adds or subtracts from the time and circumstances of a custody degree to enhance or restrict visitation or partial custody, it is a modification of the custody Order. The salient point is made by section 409(a), Modification, "No motion to modify a custody decree may be made earlier than 2 years after its ...

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