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JOHN M. SUROVIEC AND GLORIA V. SUROVIEC v. ROBERT MITCHELL (11/22/85)

filed: November 22, 1985.

JOHN M. SUROVIEC AND GLORIA V. SUROVIEC, HIS WIFE
v.
ROBERT MITCHELL, APPELLANT



Appeal from the Judgment entered January 20, 1984, Court of Common Pleas, Erie County, Civil Division at No. 4934-A-1981.

COUNSEL

Michael J. Visnosky, Erie, for appellant.

Cavanaugh, Johnson and Watkins, JJ.

Author: Johnson

[ 347 Pa. Super. Page 400]

This case is an appeal from a judgment entered upon an order granting appellees grandparents' petition for visitation with their grandchildren. Appellant, Robert Mitchell, is the natural father of Robin (born March 3, 1973) and Robert (born May 1, 1975) Mitchell. The children's natural mother, Rebecca Suroviec Mitchell, daughter of appellees, is now deceased. During the three years before Rebecca's death, Rebecca and Robert Mitchell and their children resided with the Suroviecs. The Suroviecs cared for Rebecca, who suffered from multiple sclerosis, and cared for the children. After Rebecca's death, Robert, along with the children, moved out of the Suroviec household. Robert then married Sandra Omniewski, who adopted the children. Robert and Sandra retain custody of the children.

[ 347 Pa. Super. Page 401]

Pursuant to the trial court order the Suroviecs may visit their grandchildren on the third Sunday of each month from 1:00 P.M. to 6:00 P.M.. At the time of the trial court order the children were aged eleven and eight. Robert Mitchell appeals from the order granting this visitation, and seeks to terminate the Suroviecs' visitation. We affirm.

Our supreme court has stated that in custody and visitation cases the scope of appellate review "is of the broadest type, and we are not bound by deductions or inferences made by a trial court . . . . We must exercise an independent judgment based on the evidence and make such an order on the merits of the case as right and justice dictate." Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 262, 455 A.2d 1180, 1183 (1983), quoting Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 296, 426 A.2d 555, 557 (1981).

The Custody and Grandparents' Visitation Act (CGVA) provides that:

If an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more, and is subsequently removed from the home by his parents, the grandparents or great-grandparents may petition the court for an order granting them reasonable visitation rights to the child. The court shall grant the petition if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship.

23 Pa.C.S. ยง 1014.

We have stated that "the hearing judge has the opportunity to observe the demeanor of the witnesses and therefore is in the best position to determine their credibility and sincerity." Commonwealth ex rel. Miller v. Miller, 329 Pa. Super. 248, 255, 478 A.2d 451, 455 (1984). Thus, in exercising our independent judgment we are mindful of the fact that the trial judge had the opportunity to meet with the parties and observe their testimony. He spoke with the ...


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