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PATRICIA FISHER v. ALFRED FISHER (01/15/88)

filed: January 15, 1988.

PATRICIA FISHER, APPELLEE,
v.
ALFRED FISHER, APPELLANT



Appeal from the order entered January 21, 1987 in the Court of Common Pleas of Philadelphia County, Civil, No. 86-07742.

COUNSEL

Mark Momjian, Philadelphia, for appellant.

Wallace Walker, Philadelphia, for appellee.

Cirillo, President Judge, and Brosky and Beck, JJ. Brosky, J., files concurring opinion.

Author: Beck

[ 370 Pa. Super. Page 88]

Appellant father appeals an order of the Court of Common Pleas of Philadelphia County, ordering both parent parties to share equally in the legal and physical custody of

[ 370 Pa. Super. Page 89]

    their son, Justin. He alleges that the hearing judge abused his discretion by (1) reasoning that since neither parent met the burden of proving superiority, case law requires both parents to share equally in the legal and physical custody of their child; (2) failing to consider certain criteria in support of the father's contention that he be granted primary physical custody; and (3) failing to consider the impact that annually alternating school systems and schedules would have on the child. The father specifically alleges abuse of discretion in the award of physical custody and does not contest the award of shared legal custody.

Father and mother were married but separated at the time of Justin's birth in October 1977, and then reconciled and lived together from December 1979 until their final separation in October 1981. The mother had sole custody of Justin in St. Louis from his birth until age two when his parents reconciled. Justin then lived together with his parents in Philadelphia until their separation. From October 1981 until February 1983, he lived in Philadelphia. During this period, he lived with his mother except for one to two months with his father. As of February 1983, he continued to live with his mother in St. Louis, and attended kindergarten there. From June 1983 until July 1987, Justin lived with his father in Philadelphia and attended school in Philadelphia. He spent the summers of 1984 and 1985 with his mother in St. Louis.

In July 1986, after father refused to send Justin to her for the coming school year, mother filed a petition for confirmation of custody. The hearing judge found that both parties are loving, caring parents, interested in self-lessly promoting Justin's best interests; both would provide suitable housing and educational arrangements for Justin, and both offered Justin environments with equal advantages. The judge then ordered that shared legal and physical custody of Justin be alternated on a yearly basis, thus giving custody for the current 1987-1988 year to the mother.

[ 370 Pa. Super. Page 90]

Our scope of review in child custody cases is broad but we may only interfere with the decisions of the hearing judge where there has been a gross abuse of discretion. Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987). We are empowered to determine whether the hearing court's factual findings are supported by competent evidence and whether the court's conclusions are reasonable in light of its factual findings. Id. Moreover, it is axiomatic that in any child custody case, the paramount consideration is the best interest and welfare of the child. All other considerations are deemed subordinate to the child's physical, intellectual, moral and spiritual well-being. Michael T.L. v. Marilyn J.L., 363 Pa. Super. 42, 525 A.2d 414 (1987); Beers v. Beers, 342 Pa. Super. 465, 493 A.2d 116 (1985).

Although the factual findings which the hearing judge did make are supported by competent evidence, we find the hearing judge's conclusion, that physical custody be equally shared by means of annual shifts in physical custody, is unreasonable in light of the factual findings. The hearing judge's conclusion represents a gross abuse of discretion in two respects. It is based on an erroneous conclusion of law, and it is not based on a finding ...


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