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REGINA CURCIO v. DENNIS CURCIO (10/24/88)

filed: October 24, 1988.

REGINA CURCIO
v.
DENNIS CURCIO, APPELLANT



Appeal No. 2651 Philadelphia 1987 from the order of the Court of Common Pleas of Philadelphia County, Civil Division, No. 79-03767; Jackson, Judge.

COUNSEL

Nicholas J. Lisi, Philadelphia, for appellee.

Montemuro, Tamilia and Johnson, JJ. Tamilia, J., filed a dissenting opinion to be published.

Author: Per Curiam

[ 379 Pa. Super. Page 257]

Order Affirmed.

TAMILIA, Judge, dissenting:

I respectfully dissent to the holding of the majority as I believe the trial court has not adequately considered the

[ 379 Pa. Super. Page 258]

    salient issue of what is the best interest of the child in awarding shared custody to the parents. As quoted by the majority from the excerpt of the trial court Opinion:

Regina spends a considerable amount of time with her paternal grandparents, as she resides in their home. Defendant testified that his night-shift work prompted him to place his daughter at his parents' home over the course of the past three years . . . . It is this court's opinion that the true "custodians" of Regina have been neither of the parties, but the paternal grandparents. It has been the paternal grandparents who have fed Regina and seen to her daily care. Testimony from the defendant indicated that Regina even took her vacation with her grandparents.

(Slip Op., Jackson, J., 12/4/87, p. 2.)

The trial court went on to find that since the paternal grandparents were the de facto custodians, the amount of time spent with each parent was equal. From this latter determination, the trial court went on to conclude that the parents were, therefore, entitled to share equally in the custody as there previously had been an equal amount of time spent with the child by both of them. This reasoning ignores a number of other important considerations that are essential to a determination of the child's best interest. Pursuant to our scope of review in custody matters, as detailed in Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984), I would find that the factual conclusions of the trial court are not supported by incontrovertible factual findings required for a modification of the de facto partial custody arrangements in this case and, in fact, the trial court's conclusions in awarding shared custody are unreasonable in light of inadequate evidence to support them.

While the father's contention there has been no showing of a substantial change of circumstances justifying a change in the status quo cannot be ignored, this consideration has been considerably reduced by the recent ruling in Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 ...


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