Depp v. Holland ( 1994 )

TAMILIA, Judge,

concurring:

I join my colleagues but write separately to clarify my position on the issue of the “nurturing parent doctrine.” In this case, the mother of the child for whom support was ordered alleges trial court error in assessing her an earnings potential of $600, thus diminishing the amount that the father was required to contribute for the child’s support. I believe Judge Baldwin was correct in making such an assessment and reducing the earning capacity/potential of the mother from $1,200 per month, as recommended by the hearing officer, to $600 per month because such a decision was fact specific.

With the advent of the Equal Rights Amendment in Pennsylvania in 1972, and the recent application of equal protection concepts of the Federal and State Constitutions, custody and support matters have undergone a fundamental revision from the past. Before the changes occurred, the father was held to be primarily liable for the support of children, the mother, secondarily liable. The mother’s duty became operative only if and when the father was unable to maintain the child. The tender years doctrine established a prima facie right to custody in a mother, which the father could overcome only by establishing her unfitness as a parent. Today, support obligations are the equal and joint responsibility of both parents, based upon their ability to pay, which includes earning capacity, and custody is determined on the standard of the best interest of the child with both parents having equal right to custody unfettered by gender based biases.

To assist trial courts in reaching the very difficult decision on support, federal and state legislation has provided for support guidelines, factoring in the joint parental obligation, which are promulgated under rule by the Pennsylvania Supreme Court. As to the even more difficult decisions to be made by trial judges as to custody, legislation has been promulgated providing for shared custody. Even more significant is the judicially approved doctrine of the primary caretaker which provides an alternative to any presumptions based on the standard of the best interest of the child and filling the void created by Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977), which abrogated the tender years doctrine. Once the award of custody has been made, the court may consider whether a parent having custody is entitled to elect child care responsibility as opposed to employment under the nurturing parent doctrine.

Focusing these concepts to bear on this case, the proper result was achieved by giving proper weight to the various concepts. At the outset, I believe as a matter of public policy, as this writer stated in Atkinson v. Atkinson, 420 Pa.Super. 146, 616 A.2d 22 (1992) (Tamilia, J.), a mother who is in custody of a child, particularly an infant, may elect to remain at home caring for that child and no earning capacity or potential may be assessed to the mother without actual earnings because of that decision. It is likely that under the same circumstances, a father would receive the same treatment. However, where as here there is an agreement and consent Order of shared custody, and where the mother had significant earning capacity prior to the birth of the child, but chooses to pursue her education rather than be employed, her part-time parenting does not qualify for a full exemption from child support by claiming the nurturing parent benefit. The law has never permitted a parent to withdraw from support or maintaining children to pursue private education goals. The needs of the children have always been paramount. The able trial judge made this abundantly clear by exempting one-half the caring capacity of $1,200 per month because the mother is nurturing the child approximately 50 per cent of the time. If she had been employed instead of seeking an educational goal for the remaining 50 per cent, assuming her income was at the rate of $1,200 per month, reduced by 50 percent, the share attributed to her would have been the same. It also is worthy of comment that the mother in this case is entitled to the benefits of the nurturing parent doctrine despite the fact this child was bom out of wedlock. It has been the law since Levy v. Louisiana, 391 U.S. 68, 88 S.Ct., 1509, 20 L.Ed.2d 436 (1968), that children born out of wedlock may not be treated differently than children born during marriage. In computing support for such children, the nurturing parent doctrine must be applied as with children bom within marriage. Also see Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

Finding no error in the trial court’s analysis and finding, I join in affirmance.