Appeal from the Order entered docketed March 20, 1989 in the Court of Common Pleas of Bucks County, Civil No. A06-84-61676-C-15.
I. Leonard Hoffman, Bensalem, for appellant.
Kevin T. Keane, Newton, for appellee.
Olszewski, Del Sole and Johnson, JJ. Johnson, J., files a dissenting opinion.
[ 389 Pa. Super. Page 130]
This is an appeal from an order directing that the child in this custody dispute, Scott Cyran, be in the primary physical custody of his father, Mr. John M. Cyran, that the mother, Mrs. June Ellen Cyran, relinquish primary custody, and that Scott reside with his mother three weekends out of every month. This order further states that after the summer of 1989, Scott will reside with Mrs. Cyran for the months of July and August, and with his father every other weekend during those two months. Holidays will be spent alternatively with Mother or Father. Mrs. Cyran appeals from this order citing hearing court error and abuse of discretion. For the reasons that follow, we reverse.
A child custody litigant has a due process right to in-court examination of the author of reports adverse to the litigant. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984), citing, Wood v. Tucker, 231 Pa. Super. 461, 332 A.2d 191 (1974). When a litigant is unlawfully deprived of the right to cross-examine the author of such reports, and the court relies on them, then reversal of the hearing court's decision is mandated. Rummel v. Rummel, 263 Pa. Super. 97, 397 A.2d 13 (1979).
In the instant case, the expert report in question was one prepared by Dr. Nicholas Winter of the Court Conciliation and Evaluation Service. The trial court, in its Memorandum Opinion, liberally adopted facts, recommendations, and conclusions
[ 389 Pa. Super. Page 131]
of the report. This is underlined by the trial court's statement that "it was the testimony of his two teachers and the report of Dr. Nicholas Winter which caused this Court to enter the Order directing Scott to live with his father during the school week." (Memorandum Opinion at 3).
The first reference to the report in the record occurs when The Honorable Michael J. Kane, stated (N.T. at 139, March 20, 1989),
Court is adjourned. We will attach, before we a [sic] adjourn, to the record of today's proceedings as Court Exhibit One the report of Mr. Nicholas Winter of the Court Conciliation and Evaluation Service.
There had been no reference to this report prior to this statement, and Dr. Winter had not been cross-examined on the contents of ...