Cyran v. Cyran

566 A.2d 878, 389 Pa. Super. 128, 1989 Pa. Super. LEXIS 3498

• Court: Supreme Court of Pennsylvania
• Decided: November 27, 1989
• Docket: 00839
• Status: Published

Opinions

DEL SOLE, Judge:

This is an appeal from an order directing that the child in this custody dispute, Scott Cyran, be in the primary physical custody of his father, Mr. John M. Cyran, that the mother, Mrs. June Ellen Cyran, relinquish primary custody, and that Scott reside with his mother three weekends out of every month. This order further states that after the summer of 1989, Scott will reside with Mrs. Cyran for the months of July and August, and with his father every other weekend during those two months. Holidays will be spent alternatively with Mother or Father. Mrs. Cyran appeals from this order citing hearing court error and abuse of discretion. For the reasons that follow, we reverse.

A child custody litigant has a due process right to in-court examination of the author of reports adverse to the litigant. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984), citing, Wood v. Tucker, 231 Pa.Super. 461, 332 A.2d 191 (1974). When a litigant is unlawfully deprived of the right to cross-examine the author of such reports, and the court relies on them, then reversal of the hearing court’s decision is mandated. Rummel v. Rummel, 263 Pa.Super. 97, 397 A.2d 13 (1979).

In the instant case, the expert report in question was one prepared by Dr. Nicholas Winter of the Court Conciliation and Evaluation Service. The trial court, in its Memorandum Opinion, liberally adopted facts, recommendations, and conelusions of the report. This is underlined by the trial court’s statement that “it was the testimony of his two teachers and the report of Dr. Nicholas Winter which caused this Court to enter the Order directing Scott to live with his father during the school week.” {Memorandum Opinion at 3).

The first reference to the report in the record occurs when The Honorable Michael J. Kane, stated (N.T. at 139, March 20, 1989),

Court is adjourned. We will attach, before we a [sic] adjourn, to the record of today’s proceedings as Court Exhibit One the report of Mr. Nicholas Winter of the Court Conciliation and Evaluation Service.

There had been no reference to this report prior to this statement, and Dr. Winter had not been cross-examined on the contents of the report during the proceedings.

Although Mr. Cyran argues that this issue was not preserved for appeal, and although it is well settled that a party can waive an issue in a child custody case, see, Robinson, supra., 505 Pa. at 233-34, 478 A.2d 800; Schwarcz v. Schwarcz, 378 Pa.Super. 170, 548 A.2d 556 (1988), here there was no waiver because Mrs. Cyran did not have the opportunity to object to the admission of Dr. Winter’s report during the proceedings. The report was merely appended to the court’s oral order following the hearing.

Expert reports may not be used in child custody contests unless the author of the report testifies and is subject to cross-examination by the party adversely affected, or unless the parties consent. Here, there was no opportunity for the parties to consent or object to the use of this report, nor did the author testify. Further, the court materially relied on this report to Appellant’s detriment. We will therefore reverse and remand this case to the trial court. Upon remand, if the trial court chooses to rely on Dr. Winter’s report, then he must be called to testify and be subject to cross-examination.

Further, the court should supplement the record with a transcript of Scott’s in camera testimony. When a hearing judge interviews a child in a custody case, the testimony must be transcribed and made a part of the record. Fisher v. Fisher, 370 Pa.Super. 87, 535 A.2d 1163 (1988). Moreover, apart from the transcription of the interview, counsel must be present and counsel must have the opportunity to question the child. See, Gerald G. Junior v. Theresa G., 284 Pa.Super. 498, 426 A.2d 157 (1981).

We also note that the court in its Memorandum Opinion has failed to consider that its order results in the separation of siblings; Scott’s sister will remain with his mother during the school year. It has always been a a strong policy in our law that in the absence of compelling reasons to the contrary, siblings should be raised together whenever possible. Pilon v. Pilon, 342 Pa.Super. 52, 492 A.2d 59 (1985), citing inter alia, Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980). In defining the phrase “compelling reasons” this court has said that the evidence must indicate that it was “necessary” to separate the children, and the evidence was “forceful” in this regard. Id., 342 Pa.Superior Ct. at 56, 492 A.2d 59.

Therefore, on remand, this doctrine or strong legal policy, variously called the doctrine of “family unity” or “whole family doctrine,” bears serious consideration. The hearing court must explain why there are compelling reasons to separate the siblings and whether the evidence was forceful enough to convince or overcome this doctrine.

We need not address Mrs. Cyran’s claim that the hearing court erred in its application of the burden of proof or that the court abused its discretion by ordering that Mr. Cyran be given primary custody of Scott because we reverse on other grounds.

The hearing court’s order is reversed and remanded for further proceedings in accordance with this opinion. Jurisdiction relinquished.

JOHNSON, J., files a dissenting opinion.