Appeal from the Order entered June 9, 1986, Court of Common Pleas, Beaver County, Civil Division at No. 829 of 1984.
Timothy A. Finn, Beaver, for appellant.
J. Lauson Cashdollar, Beaver, for appellee.
Brosky, Del Sole and Johnson, JJ.
[ 363 Pa. Super. Page 44]
This is an appeal by the mother from the following order of the Court of Common Pleas of Beaver County, dated June 9, 1986 which reads in pertinent part:
1. Custody of minor son, is hereby awarded to natural fater as of noon on June 15, 1986.
A. Upon assuming custody of minor son, [. . .], under the terms of this Order, natural father, [. . .], and the boy shall reside with the paternal grandmother, [. . .], at her residence in Freedom, Pennsylvania, or at such other residence to which she may move throughout the balance of this calendar year and the first seven (7) months of 1987.
This case presents not only the difficult question of which parent should have the primary custody of the parties' minor child, but also the question of whether de facto custody of a child may be awarded to a non-party to the custody action. For the reasons set forth in our opinion, we hold such a determination by the court below to be error.
The parties were married March 23, 1979 and a son was born to them on October 12, 1979. After several temporary periods of living apart, the parties finally separated in November 1983. The father filed an action in divorce against his wife in April 1984; no decree was issued and the parties are still husband and wife. In June 1984, the father filed a petition for custody of the child averring that his son had resided with both parents until November 1983 and with the mother alone since that date. On July 24, 1984 after a conference before the Beaver County Child Custody Officer, a recommendation was issued to award custody to the mother with a partial custody award to the father. A court order to this effect was issued and docketed August 1, 1984 to be effective August 7, 1984. The mother retained custody of the child until, following evidentiary hearings, the court below issued an order granting custody to the father, provided that he reside with his own mother, the child's paternal grandmother, with partial custody to appellant. This appeal followed.
[ 363 Pa. Super. Page 45]
In custody cases the paramount concern of the court is the best interest of the child, including the child's physical, intellectual, emotional and spiritual well-being. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977).
This court's scope of review in custody cases has been stated by the Pennsylvania Supreme Court in Spriggs v. Carson, supra, where Mr. Justice Nix, now Chief Justice, stated for a plurality of the court:
(O)ur law has long recognized that the scope of review of an appellate court reviewing a custody matter is of the broadest type . . . Thus, an appellate court is not bound by deductions or inferences made by a trial court from the facts found; . . . nor must a reviewing court accept a finding which has no competent evidence to support it . . .
470 Pa. at 295, 368 A.2d at 637 (citations omitted).
The Pennsylvania Supreme Court more recently reiterated this standard in Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800, (1984) (plurality opinion):
Thus an appellate court is empowered to determine whether the trial court's incontrovertible factual findings support the trial court's factual 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 . . . (citations and footnote omitted; emphasis in original).
Id., 505 Pa. at 237, 478 A.2d at 806.
We must first ascertain the hearing judge's findings of fact and whether those findings are supported by competent evidence. Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976). We must then determine whether the factual findings that are supported by the evidence in the record support the hearing court's ultimate conclusions. Commonwealth ex rel. Robinson v. Robinson, supra.
In this case, the hearing court based its decision to grant custody to the father on the mother's sexual promiscuity
[ 363 Pa. Super. Page 46]
and immoral conduct. Several years ago the courts in Pennsylvania, in making custody awards, were confronted with the dilemma of whether to permit greater tolerance of parents' non-marital sexual relationships with persons of the opposite sex. The courts concluded that such non-marital sexual relationships were relevant only if they could be shown to have an adverse effect on the child. Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972); Commonwealth ex rel. Myers v. Myers, supra; Brooks v. Brooks, 319 Pa. Super. 268, 466 A.2d 152 (1983). Since no adverse effect was shown in this case, we must reverse.
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.
To this end we will summarize the findings of fact as determined by the hearing court (Opinion 6/9/86, at 2-4).
The child resided continually with the mother from birth. In July 1984, the mother had an abortion. She testified that her pregnancy in July 1984 resulted from sexual relations with her husband which frequently occurred subsequent to the parties' final separation in November 1983. These sexual encounters continued through May 1985. At the time of the final hearing, the mother was pregnant and was intending to carry the child to full term in August 1986. (The appellee herein is not the natural father responsible for the 1986 pregnancy.)
The lower court found that the mother had been sexually active with a number of men since the parties' separation. She maintained a clean house and prepared daily meals for her son. The mother was primarily responsible for the child's discipline and instruction. She spent considerable time with her son and did not leave him with babysitters for unreasonable ...