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filed: April 4, 1988.


Appeal from the Order entered in the Court of Common Pleas of McKean County, Civil Division, No. 259 CD of 1985

Before: Brosky, Tamilia and Kelly, JJ.


This is an appeal by appellant/mother Yavonne Wolfe (formerly Emma M. Pritt) of an October 17, 1986 Order granting her visitation rights with the parties' two minor children, subject to the restriction that at no time while she has the children was her companion, E.J. Williams, allowed to be present. E.J. Williams is a woman living her life as a man and intends to undergo sex-reassignment surgery sometime in the future.

In 1985, appellee/husband Clarence O. Pritt sued appellant for a divorce in the McKean County Court of Common Pleas. Following custody hearings held on June 10 and August 7, 1986, primary custody of Lawrence J. pritt and Tommy W. Pritt was granted to appellee/father Clarence O. Pritt and the parties were ordered to establish a mutually acceptable visitation schedule. Upon the parties' failure to reach a settlement, the court held an in-chambers conference and issued the above-mentioned visitation Order. This Order specifically stated that appellant "shall have visitation . . . at any and all reasonable times for reasonable periods on reasonable advance notice to Clarence O. Pritt, said visitation shall take place at any location acceptable to both the plaintiff and the defendant except that at no time during which Yavonne Wolfe has temporary partial custody shall E.J. Williams be present." Order, Cleland, P.J., 10/17/86.

In reaching its decision, the trial court considered the evidence presented at the hearing, including testimony by the parties involved, various witnesses to both spouses' current circumstances, as well as home studies prepared by the McKean County and Potter County Children and Youth Services. The court then concluded the best interests of the two children would be served by imposing the herein contested restriction on the mother's visitation rights. The trial court believed this restriction to be necessary due to the emotional turmoil present in the relationship between Yavonne and E.J., and the inability at that time on the part of E.J. to resolve her confusion as to her sexual identity. The trial judge was careful not to base his decision solely on the fact of E.J.'s transsexualism, but rather, concluded there was a showing of emotional instability arising from that fact that could have a negative effect on the children. See Constant A. v. Paul C.A., 344 Pa. Super. 49, 496 A.2d 1 (1985). The trial court's Opinion also notes: [T]he children have lived in the present family home essentially all their lives. 'A stable relationship with an established parental figure and a known physical environment is important to the development of the child,' Boland v. Leska, 308 Pa. Super. 169, 454 A.2d 75 (1982), and we see no reason to disturb the situation." Slip Op., Cleland, P.J., 12/8/87 at 4-5.

Appellant/mother now contends in her appeal the restriction imposed is unnecessary, burdensome, limits her access to her children and is not supported by the evidence. We disagree, and after a careful review of the trial court's Opinion, the record and briefs, affirm the Order of the trial court.

Initially, it has previously been recognized in this Commonwealth that a broad or searching appellate review in custody cases is entirely proper. As enunciated by a plurality of our Supreme Court in Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977):

It is now beyond dispute that the sole issue to be decided in a custody proceeding between contending parents is the best interest of the child. . . . In order to insure such a focus, our 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 and 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.

Id. at 299-95, 368 A.2d at 637 (citations omitted).

A broad scope of review, however, does not rest in the reviewing court either the duty or the privilege of making its own independent determination, and "only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decision of the hearing judge." Lombardo v. Lombardo, Pa. , 527 A.2d 525, 529 (1987); Carson, supra at 295-96, 368 A.2d at 637; Commonwealth ex rel. Rainford v. Cirillo, 222 Pa. Super. 591, 597-98, 296 A.2d 838, 841 (1972)

Upon review of the entire record and after implementing the broad scope of review allowed us, we find the trial judge's findings were supported by competent evidence. The trial judge clearly states he analyzed a number of factors in making his decision and took particular notice of the emotional turmoil pervasive throughout the relationships of the parties involved. The court properly did not view this as a question of the mother's morality, but one of the children's best interests in that being with the mother in the presence of an individual who has been unable to resolve her own questions about her sexuality, and who is not seeking counseling, can only have a detrimental impact on them. In addition, the trial judge stated on the record he considered the relationship between E.J. and Yavonne only insofar as it affects the emotional stability in the household and that if a sex change operation was to take place and the emotional problems straightened out in the future, the sexual relationship may become moot as not being an issue at all.

Finally, it has been held by this Court that once a court concludes the imposition of a restriction is necessary, it must phrase the restriction in the least intrusive language necessary to safeguard the child, and that broad or nonspecific restrictions will be invalidated in favor of narrowly focused, precise restrictions that are directed toward the child's welfare. Fatemi v. Fatemi, 339 Pa. Super. 590, 489 A.2d 789 (1985).

The content of the herein contested restriction manifests a reasonable relationship between the restriction and the avoidance of detrimental impact and, furthermore, allows the mother reasonable visitation periods that she may avail herself of at any reasonable time. The well written Opinion of trial judge Honorable John M. Cleland, P.J., fully analyzes and supports the ...

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