Commonwealth Ex Rel. Cutler v. Cutler

369 A.2d 821, 246 Pa. Super. 82, 1977 Pa. Super. LEXIS 1558
CourtSuperior Court of Pennsylvania
DecidedFebruary 18, 1977
Docket148
StatusPublished
Cited by45 cases

This text of 369 A.2d 821 (Commonwealth Ex Rel. Cutler v. Cutler) 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
Commonwealth Ex Rel. Cutler v. Cutler, 369 A.2d 821, 246 Pa. Super. 82, 1977 Pa. Super. LEXIS 1558 (Pa. Ct. App. 1977).

Opinions

PRICE, Judge:

This is an appeal from an order denying custody of two minor children to appellant-mother. We affirm.

Appellant and appellee-father were married on February 3, 1968. In June of 1974, appellant left her husband and two minor children. Appellee was granted a divorce on August 19, 1974. Appellant subsequently sought to gain custody of the children. Upon her petition, a writ of habeas corpus was issued and a hearing was held on September 23, 1975. In its order, filed October 15, 1975, the lower court held that the children’s interests would be best served by awarding custody to the father.

In reaching its decision, the lower court found that both parents were “fit and proper” in the sense that either could provide for the children. As previously noted, however, the court held that the “best interests” of the [85]*85children would be served by retaining custody in the father. Appellant now raises the following issue: “When both parents are determined to be fit, does the ‘tender years’ doctrine require custody be awarded to the mother?” Clearly we must answer this question in the negative.

The primary consideration in any child custody proceeding is to determine the best interest of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Commonwealth ex rel. Davidyan v. Davidyan, 230 Pa.Super. 599, 327 A.2d 145 (1974) citing the Act of June 26, 1895, P.L. 316, § 2 (48 P.S. § 92). “The best interests and welfare of a child which includes its physical, intellectual, moral and spiritual well being, and all other considerations are subordinate.” Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 444, 292 A.2d 380, 383 (1972); See also Commonwealth ex rel. Pruss v. Pruss, 236 Pa.Super. 247, 344 A.2d 509 (1975). Our recent development of the “tender years” doctrine demonstrates the pervasiveness of the above maxims. As Judge Spaeth wrote in Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 312 A.2d 58 (1973),

“[t]he ‘tender years’ presumption does not reflect or derive from the mother’s ‘right’, whether that right be characterized as ‘prima facie’ or otherwise. It is procedural only. One party or the other must have the burden of proof. If the hearing judge finds that the interests of the child would be equally served by granting custody to either litigant, custody should be awarded to the child’s natural mother.” (emphasis added) Id. at 235-36,312 A.2d at 62.

Although the fitness of the parent is an important factor in a determination of the best interest of a child, a finding that both parents are equally fit is not equivalent to a finding that the best interest of the child would be equally served with either parent. This court [86]*86has previously held, in Commonwealth ex rel. Horisk v. Horisk, 90 Pa.Super. 400 (1927), that a father can be awarded custody even though both parents are found to be “fit and proper,” as long as the child’s welfare would be best served by such a disposition. See also, Carlisle Appeal, 225 Pa.Super. 181, 310 A.2d 280 (1973). A father need not prove that the mother is unfit in order to obtain an award of custody. Janflone v. Janflone, 219 Pa.Super. 194, 280 A.2d 423 (1971). In the instant case, the lower court held that the children’s best interests would be served by awarding custody to the appellee.

The primary question in this case is whether the lower court erred in its determination that the children’s welfare will be best served by an award of custody to the father. To analyze this issue, it is necessary to set forth the facts of record.

Appellant is gainfully employed, earning $90 to $100 per week after taxes. The children would live with their mother and grandparents in a new home on the grandparents’ 125 acre farm. Appellant’s mother and father appear eager to have the children join their household. Since appellant and both grandparents work during the day, a babysitter would be employed to care for the younger child, Bryan Sean, who was three years old at the time of the hearing. Testimony demonstrated that the babysitter’s facilities are satisfactory.

A substantial portion of the record deals with appellant’s physical and emotional disorders and sexual adventures, both before and after the breakup of the marriage. Appellant admitted having relations with 2 or 3 men, one of whom paid the rent for her apartment after she left appellee. Appellant, however, testified that she has stopped séeing this man. Reverend Robert Hurley testified that he has been counselling appellant once a week for about a year and that her emotional condition has improved.

[87]*87Appellee introduced the testimony of Mary Little, who was the children’s babysitter, both during and immediately after the marriage broke up. She testified that, prior to the separation, appellant was frequently intoxicated when she delivered the children, and that they were not bathed, nor were their diapers changed from one day to the next. On many occasions, the older child asked her for supper because “[h]e said he won’t get [it] at home.” (NT 60a). Appellant denied ever being intoxicated when she delivered the children, and testified that she took good care of them.

After the separation, the boys lived with appellee and his parents until the completion of the house appellee was building. They then moved into the new house where appellee alone took care of the children for some six to eight months. He has remarried and lives in a farmhouse of more than ample dimensions. At the time of the hearing, his second wife, Velma, aged 20, was pregnant with her first child. The former babysitter, Mrs. Little testified that she has had an opportunity to see how the children have adjusted to appellee’s new wife and that “[t]hey just dearly love her and she is the same way with them.” (NT 58a). Moreover, she stated that the physical condition of the children, after the separation, was completely different. “They had a bath every night and different clothes on every day.” (NT 58a). From her observations, it was Mrs. Little’s opinion that the children’s welfare would be best promoted by living with their father. Even appellant admitted that the children are healthy and have developed satisfactorily. The current Mrs. Cutler does not work so the children will be in her care during the day. She stated that she loves the children as her own and desires to have them in her home.

The court below found that appellant’s emotional disturbances were resolved and, therefore, not a significant factor in its decision. Likewise, as to her past marital [88]*88misconduct, the court correctly stated that such facts are significant only to the degree that the welfare of the children is likely to be affected, see, e. g., Commonwealth ex rel. Spriggs v. Carson, 229 Pa.Super.

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Bluebook (online)
369 A.2d 821, 246 Pa. Super. 82, 1977 Pa. Super. LEXIS 1558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-cutler-v-cutler-pasuperct-1977.