DocketNumber: 2423
Judges: Spaeth, Brosky, Hoffman
Filed Date: 2/27/1981
Status: Precedential
Modified Date: 10/19/2024
Appellant-mother contends that the lower court erred in awarding custody of her minor child to appellee-father. We are unable, however, to address the merits of her appeal and, instead, remand for further proceedings consistent with this opinion.
In Commonwealth ex rel. Leighann A. v. Leon A., 280 Pa.Super. 249, 252, 421 A.2d 706, 708 (1980), we stated:
In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976). Thus, while it will defer to the lower court’s findings of fact, the appellate court will not be bound by the deductions or the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of the evidence. Sipe v. Shaffer, [263 Pa.Super. 27, 396 A.2d 1359 (1979)]; Scarlett v. Scarlett, supra. In conducting this review, the appellate court will look to whether all pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa.Super. 508, 388 A.2d 1082 (1978). After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. See Valentino v. Valentino, 259 Pa.Super. 395,*503 393 A.2d 885 (1978); Gunter v. Gunter, supra. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, supra. Where the record is incomplete or the opinion of the lower court is inadequate, the case will be remanded. See Valentino v. Valentino, supra; Commonwealth ex rel. Forrester v. Forrester, 258 Pa.Super. 397, 392 A.2d 852 (1978); Commonwealth ex rel. Cox v. Cox, supra.
Lewis v. Lewis, 267 Pa.Super. 235, 240, 406 A.2d 781, 783-84 (1979).
Our ability to review this case is impaired by a deficient record. Each of the competing parties has testified to his/her fitness and the suitability of his/her home, and the father has made serious allegations of the unsuitability of the mother’s home. Yet there was no disinterested testimony evaluating the relative environments which the parties could provide. Accordingly, a remand for such supplementation of the record is proper. See, e. g., Commonwealth ex rel. Leighann A. v. Leon A., supra, 280 Pa. Super, at 253, 421 A.2d at 708; J. F. G. v. K. A. G., 278 Pa.Super. 25, 28, 419 A.2d 1337, 1339 (1980); Jones v. Floyd, 276 Pa.Super. 76, 80, 419 A.2d 102, 104-05 (1980); Lewis v. Lewis, 267 Pa.Super. 235, 240, 406 A.2d 781, 784-85 (1979); In re Custody of Neal, 260 Pa.Super. 151,153, 393 A.2d 1057, 1058 (1978); Gunter v. Gunter, 240 Pa.Super. 382, 402, 361 A.2d 307, 317 (1976).
“In addition to lacking a complete record, we are without the comprehensive opinion necessary for proper appellate review. Garrity v. Garrity, supra; Lewis v. Lewis, supra.” Commonwealth ex rel. Leighann A. v. Leon A., supra, 280 Pa.Super. at 254, 421 A.2d at 709. While resolving issues of credibility is inherently the province of the lower court, that is not the court’s exclusive function in determining custody matters. By focusing on the parents’ credibility, the lower court failed to consider numerous relevant issues squarely presented by the current record. See
Because of the deficiencies in the record and the il lower court’s opinion, we remand with the following instructions. The lower court shall allow the introduction of any additional evidence pertinent to the issue of custody, including, but not limited to, disinterested testimony regarding the suitability of the respective parties’ homes.
Because our disposition of this case necessitates a remand, we note that when a hearing judge interviews a child in a custody case, certain procedures must generally be met: (1) counsel must be present; (2) counsel must have the opportunity to question the child; and (3) the testimony must be transcribed and made a part of the record. See, e. g., Commonwealth ex rel. Morales v. Morales, 222 Pa.Super. 373, 375-76, 294 A.2d 782, 783 (1972).
[i]n determining the best interests of the [child, her] preference, although not controlling, is a factor to be considered as long as it is based on good reasons.... In assessing the weight to be accorded the child’s preference, [her] maturity and intelligence are to be considered, with increased weight being accorded the preference as the child grows older.
Commonwealth ex rel. Husack v. Husack, 273 Pa.Super. 192, 196, 417 A.2d 233, 235 (1979). See also Gunter v. Gunter, supra 240 Pa.Super. at 389 n. 2, 361 A.2d at 311 n. 2; Commonwealth ex rel. Hickey v. Hickey, 213 Pa.Super. 349, 355, 247 A.2d 806, 809 (1968). Accordingly, the lower court shall determine the appropriate weight to be given to Rebecca’s testimony. See generally, A. Momjian & N. Perlberger, Pennsylvania Family Law, § 5.1.5(b) (1978).
Order vacated and remanded for proceedings in accordance with this opinion. Either party aggrieved by the lower court’s ultimate order may then take a new appeal to this court.
. Having recognized the parties’ failure to present disinterested testimony evaluating the parties’ homes, we direct that the lower court undertake to have an independent examination of both homes made by an appropriate social welfare agency. See Lewis v. Lewis, supra 267 Pa.Super. at 240, 406 A.2d at 784-85.
. See also Bertin & Klein, Pennsylvania’s Developing Child Custody Law, 25 Vill.L.Rev. 752, 771-73 (1979-80) (discussing cases and recommending presence of counsel).