Chaklos v. Chaklos

437 A.2d 1265, 293 Pa. Super. 180, 1981 Pa. Super. LEXIS 3826
CourtSuperior Court of Pennsylvania
DecidedDecember 11, 1981
DocketNo. 212
StatusPublished

This text of 437 A.2d 1265 (Chaklos v. Chaklos) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chaklos v. Chaklos, 437 A.2d 1265, 293 Pa. Super. 180, 1981 Pa. Super. LEXIS 3826 (Pa. Ct. App. 1981).

Opinion

PER CURIAM:

Presently before the court is appellant’s appeal from the Order of the lower court dated October 16, 1980, wherein general custody of the two minor children was awarded to appellee-mother, while specific visitation rights were awarded to appellant-father.1 Following the denial of appellant’s petition for reconsideration, this appeal followed.

We affirm.

The instant custody proceeding was initiated by appellant’s filing of a Petition for Writ of Habeas Corpus. The hearing in this matter spanned three full days, July 10, July 17, and July 18, 1980 during which proceeding, 15 witnesses, including an in-camera interview with the two minor children, were heard. In addition thereto, pursuant to court order, a court-appointed psychologist met and interviewed all four persons (appellant-father, appellee-mother, and the two minor children) on June 13, 1980. That psychologist, [182]*182James W. Nutter, Ed.D., filed a report including his recommendations concerning general custody; Dr. Nutter also personally testified.

The parties hereto were married on May 1, 1971 and divorced on December 28, 1979. The two minor children who are the subject of this custody proceeding were born of the marriage: James M. Chaklos, on July 18, 1973; and Debra Lynn Chaklos, on November 4, 1974. Following marriage, the parties initially resided in an apartment in Wilkinsburg, Pennsylvania until June of 1975. At that approximate time, appellant graduated from Dental School and accepted employment with Lehman Associates in Chambers-burg, Pennsylvania. The parties moved to Chambersburg where they bought a townhouse at 743 Cumberland Avenue. Due to the fact that appellant had to retake a portion of his Dental Boards, he did not commence his employment with Lehman Associates with offices in Chambersburg and McConnellsburg, until September of 1975 (between June and September, appellant completed a one-month active tour of duty with the Army Reserves in the State of Texas). Following his one-year employment with Lehman Associates, appellant opened his own dental practice in Adams County, Pennsylvania and commuted thereto from the parties’ home in Chambersburg. It was at this time that the relationship between the parties deteriorated dramatically, culminating in a violent argument in the early morning hours of November 8,1978, which caused appellee to flee the next day to her parents’ home at Ridgeway, Elk County, Pennsylvania, with their two children. After both parties engaged counsel, the parties entered into a Stipulation on December 8, 1978 granting general custody of the children to the appellee and awarding partial custody on alternate weekends to the appellant. In the interim, (January of 1979) appellant moved to the Pittsburgh, Pennsylvania area. Appellee finally moved back to the parties’ marital residence with the children in December of 1979.

During that one year period (December, 1978 through December, 1979) appellant exercised his alternating weekend partial custody rights “8 or 9 times”.

[183]*183During December of 1979, appellant instituted a custody action in Allegheny County during the time the children were visiting with him over the Christmas Holidays. Following a hearing, an Allegheny County Common Pleas Judge directed that the children be returned to the appellee pursuant to the earlier Elk County Custody Order pending a jurisdictional hearing.

On either the second or third weekend of January of 1980, at the end of a weekend visit, appellant refused to return the children to the appellee. Instead, he enrolled James in first grade and Debra in Kindergarten in the South Fayette School District on January 28, 1980. The children were subsequently returned to appellee following a scheduled hearing.

The instant action was instituted by appellant’s filing of a Petition for Writ of Habeas Corpus on June 9, 1980. The court issued the Writ commanding the appellee to bring the parties’ two minor children to the Chambersburg Courthouse on July 10,1980 for a custody hearing. As previously noted, the hearing lasted three full days (July 10, 17 and 18, 1980).

As this court in Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 at 783-4 (1979) so aptly stated:

It is settled that the paramount concern in a child custody proceeding is to determine what is in the best interests of the child. Commonwealth ex rel. Parikh v. Parikh 449 Pa. 105, 296 A.2d 625 (1972); Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1979). In a contest between parents, each party bears the burden of proving that an award to that party would be in the best interests of the child. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). The award must be based on the facts of record and not on mere presumptions; in particular, the tender years presumption is no longer recognized, Sipe v. Shaffer, supra; McGowan v. McGowan, 248 Pa.Super. 41, 374 A.2d 1306 (1977).
In order to ensure that the best interests of the child will be served, the appellate court will engage in a com[184]*184prehensive 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, supra; Scarlett v. Scarlett, supra. In conducting this review, the appellate court will look to whether all the 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, 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.

We have engaged in a comprehensive review of this voluminous record and have made our own independent judgment based upon our careful review of the evidence.

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Related

Valentino v. Valentino
393 A.2d 885 (Superior Court of Pennsylvania, 1978)
In Re Custody of Hernandez
376 A.2d 648 (Superior Court of Pennsylvania, 1977)
Commonwealth Ex Rel. Cox v. Cox
388 A.2d 1082 (Superior Court of Pennsylvania, 1978)
McGowan v. McGowan
374 A.2d 1306 (Superior Court of Pennsylvania, 1977)
Gunter v. Gunter
361 A.2d 307 (Superior Court of Pennsylvania, 1976)
Sipe v. Shaffer
396 A.2d 1359 (Superior Court of Pennsylvania, 1979)
Scarlett v. Scarlett
390 A.2d 1331 (Superior Court of Pennsylvania, 1978)
Commonwealth Ex Rel. Parikh v. Parikh
296 A.2d 625 (Supreme Court of Pennsylvania, 1972)
Lewis v. Lewis
406 A.2d 781 (Superior Court of Pennsylvania, 1979)
In Re Custody of Myers
363 A.2d 1242 (Superior Court of Pennsylvania, 1976)

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Bluebook (online)
437 A.2d 1265, 293 Pa. Super. 180, 1981 Pa. Super. LEXIS 3826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chaklos-v-chaklos-pasuperct-1981.