Commonwealth Ex Rel. Jordan v. Jordan

448 A.2d 1113, 302 Pa. Super. 421, 1982 Pa. Super. LEXIS 4787
CourtSupreme Court of Pennsylvania
DecidedJuly 30, 1982
Docket941
StatusPublished
Cited by61 cases

This text of 448 A.2d 1113 (Commonwealth Ex Rel. Jordan v. Jordan) is published on Counsel Stack Legal Research, covering Supreme 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. Jordan v. Jordan, 448 A.2d 1113, 302 Pa. Super. 421, 1982 Pa. Super. LEXIS 4787 (Pa. 1982).

Opinions

BECK, Judge:

This is a child custody dispute involving Paul who was five years old at the time of the lower court’s hearing in August, 1980. He had lived his entire life with his mother until the lower court transferred custody to the father in September, 1980. The father had lived separately from the mother and child for almost four years. He had remarried subsequent to the divorce from Paul’s mother. The record suggests that the mother had been the child’s primary caretaker since birth. She brings this appeal.

We conclude that the grounds cited by the trial court to justify the transfer of the boy from the mother to the father are not adequately supported by the evidence or the laws of this Commonwealth,1 and we remand this case for a hearing consistent with this opinion.

[425]*425We hold, for the reasons stated below, that where two natural parents are both fit, and the child is of tender years, the trial court must give positive consideration to the parent who has been the primary caretaker.2 Not to do so ignores the benefits likely to flow to the child from maintaining day to day contact with the parent on whom the child has depended for satisfying his basic physical and psychological needs.3

The removal of a young child from an established home with one parent has long been recognized as a factor which bears upon his emotional well-being. A child “becomes strongly attached to those who stand in parental relationship to it and who have tenderly cared for it.” Com. ex rel. Children’s Aid Society v. Gard, 362 Pa. 85, 97, 66 A.2d 300, 306 (1949); accord, In Interest of Tremayne Quame Idress R., 286 Pa.Super. 480, 429 A.2d 40 (1981); Jon M. W. v. Brenda K., 279 Pa.Super. 50, 420 A.2d 738 (1980).

It is clear that the continued presence of a fit parent who through daily affection, guidance, companionship, and discipline fulfills the child’s psychological and physical needs is crucial to the child’s emotional well being. The countless transactions between parent and child on a day to day basis build the foundation for the child’s future healthy development. The Pennsylvania courts have recognized this principle and have held that the “continued residence of children with one parent is a factor which may, in certain cases, be controlling.” Com. ex rel. Cutler v. Cutler, 246 Pa.Super. 82, [426]*426369 A.2d 821, 824 (1977). See also Pamela J. K. v. Roger D. J., 277 Pa.Super. 579, 419 A.2d 1301 (1980).

Changes in custody can seriously disrupt a child’s life. A child of tender years should not be lightly removed from a parent with whom the child has lived since birth.4

Furthermore, insofar as a parent’s past performance is likely to be predictive, judicial inquiry to determine the identity of the primary caretaker will yield evidence concerning the future commitment of a parent. If in the past,' the primary caretaker has tended to the child’s physical needs and has exhibited love, affection, concern, tolerance, discipline and a willingness to sacrifice, the trial judge may predict that those qualities will continue.

Therefore, the role of the primary caretaker, without regard to the sex of the parent, is a substantial factor which the trial judge must weigh in adjudicating a custody matter where the child is of tender years.5

The facts of the instant case are not complicated. The child’s parents, residents of New Brighton, Pennsylvania, were separated in October, 1976 and divorced in mid-1977. [427]*427Except for a brief period after the separation, the mother and child have lived in New Brighton. As a matter of fact, for the two years prior to the August, 1980 hearing, they resided in New Brighton in an apartment adjacent to that of the child’s maternal grandmother. The mother has not remarried. The father remarried in June, 1977, a few weeks after the divorce was granted. A child was born to the father and his new wife in December, 1977.

At the time of the divorce, the father and mother entered into an informal agreement whereby the mother retained custody of their son and the father had liberal visitation privileges. This informal agreement eventually broke down. In April, 1978, the father filed a Petition for Writ of Habeas Corpus which commenced the action subject to this appeal.

In deciding this appeal, we review the record comprehensively mindful that we are bound by the finding of facts of the lower court, but not by the inferences drawn therefrom. Trefsgar v. Trefsgar, 261 Pa.Super. 1, 395 A.2d 273 (1978); Com. ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 331 A.2d 665 (1974). The standard in custody adjudications remains the best interests of the child. In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979).

Families with small children are dissolved by divorce with increasing frequency. In each of the years, 1974, 1975, 1976, 1977 and 1978, there were over one million children in the United States whose parents obtained divorces.6 Courts are often called upon to adjudicate custody disputes arising from the dissolution of these family units. In so doing, the trial judges are placed in a position where Solomonic wisdom is required. They must make a determination on the basis of testimony that is often bitter, conflicting and incomplete. They must make educated predictions about the child’s future always keeping in mind the best interests of the child.

The instant case was difficult and the lower court demonstrated care and consideration. However, the court’s conclu[428]*428sion that the father would provide a more “stable” home environment for the child is unsupported by the evidence. The judge’s decision was based in part on the fact that the mother changed residences three times between October, 1976 and August, 1980, the date of the custody hearing. While it is true that the mother moved three times after she and her husband separated, such alleged “instability” was clearly temporary. Mother and child left the state only for a few months, before returning to the New Brighton area. At the time of the hearing, they had been living for two years in an apartment next to that of the child’s maternal grandmother. (N.T. 41, 91.) These facts are clearly distinguishable from those of McCann v. McCann, 270 Pa.Super. 171, 411 A.2d 234 (1979), where this Court held that evidence that the mother had moved the child to six residences in the year prior to the hearing supported a finding of “instability.” Moreover, there was no testimony at trial to support an inference that the changes in residence adversely affected the child.7 Cf. Com. ex rel. Steiner v. Steiner, 257 Pa.Super. 457, 390 A.2d 1326 (1978).

The additional justification for the finding that the father would provide a more stable home environment involved vague and incomplete testimony about a motorcycle gang.

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Bluebook (online)
448 A.2d 1113, 302 Pa. Super. 421, 1982 Pa. Super. LEXIS 4787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-ex-rel-jordan-v-jordan-pa-1982.