Appeal from the Order of the Superior Court, entered June 9, 1986, at No. 1538 Philadelphia 1985, reversing the Order of the Court of Common Pleas of Philadelphia County entered May 10, 1985 at No. D.R. 82-04930,
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Nix, C.j., files a concurring opinion.
This an appeal from an order of the Superior Court which reversed an order of the Court of Common Pleas of Philadelphia County. The latter order had awarded shared custody of Christopher Karis to his father, the appellant.
The parties to this action were married on June 22, 1973. Their son Christopher was born on December 15, 1977. They separated in February, 1982, when appellant left to live with his parents in their home. A temporary custody/visitation agreement was entered into by the parties and ordered by the Family Court Division of Common Pleas Court on September 16, 1982. Appellee filed a complaint in divorce on May 3, 1983, requesting dissolution of the marriage, child support, custody and equitable distribution. Pursuant to a later agreement of the parties, the court modified the custody agreement on October 3, 1983. The modified agreement provided that custody of Christopher was to be held jointly in both parties. During the school year Christopher was to reside with his mother, with appellant having custody on alternating weekends, and 5:30 P.M. Wednesdays until 7:30 A.M. Thursday each week. From June 15 until August 31, Christopher was to live with appellant and appellee was to have custody on alternating weekends and Wednesdays overnight. The custody arrangement continued until appellant entered a pro se petition to modify the order on October 16, 1984. Appellant averred in his petition that since the time of the order of October 3, 1983, there had been a significant change in circumstances in that both he and Christopher wanted to spend more time together, and that a change in custody would be in Christopher's best interest.
The trial court convened a hearing on the petition, at the outset of which appellee's counsel moved for the dismissal of the petition because it presented no changed circumstances such as would allow an inquiry into the fitness of the parties and the best interest of the child. The court denied the motion and went on to take the testimony of the parties, appellee's "boyfriend," William McCrane, members of both parties' families, a family therapist, two neighbors who were baby sitters, and Christopher (in camera). The hearing lasted two days. The court determined that the circumstances extant at the time of the hearing, and the best interest of the child, justified a modification of the custody order whereby Christopher and his father would spend
more time together without jeopardizing the child's relationship with his mother.
Among the circumstances disclosed by the testimony were the following facts, as noted by the hearing judge: that appellee was then pregnant with Mr. McCrane's child, and that they planned to marry when they had obtained divorces from their respective spouses. The court went on to note that these circumstances were not alone dispositive, but factors incident to them affected the best interest of the child. Among those factors were that Mr. McCrane had four sons, aged 7 to 13 from his then extant marriage, and that he spent the night at appellee's home most of the time. Mr. McCrane testified that he expected that after he and appellee married he would still exercise his visitation privileges with his four sons, and care for the new baby, as well as care for Christopher. Appellee's residence contained two bedrooms and there was no substantive testimony as to any provisions for accommodating this large family. The court also found that the demands upon appellee's time incident to the arrival of the new baby would reduce the time and energy she would have available for Christopher. In addition, the court found that Christopher wanted to spend more time with his father.
The trial court concluded that the cumulative effect of these factors indicated that some modification of the custody arrangement would be in Christopher's best interest. Such modification was necessary to accommodate the changing circumstances in appellee's life and allow Christopher to adapt to them. The court noted that Christopher's age and changing activities incident to being somewhat older indicated more time with his father would be in his best interest, and therefore modified the custody order to provide generally that the parties would have alternating four-month periods of custody during which the non-custodial parent would have custody on alternating weekends. Appellee then appealed to the Superior Court.
On appeal a panel of the Superior Court held that as a matter of law the party contesting the existing partial
custody order must establish substantial change of circumstances before the trial court may consider the petition. The court then went on to hold that in this case neither the passage of one and one-half years from the time of the last custody order, nor appellee's pregnancy by her boyfriend, nor the expressed desire to spend more time with his father constituted such a substantial change in circumstances. It concluded therefore that the trial court abused its discretion in going forward with an inquiry into the child's best interest. Karis v. Karis, 353 Pa. Super. 561, 510 A.2d 804 (1986).
Appellant petitioned this court and we granted him leave to argue two issues on appeal: whether a petitioner must establish substantial change of circumstances before the court may entertain his petition to modify a partial custody order; and whether the trial court ...