Fisher v. Fisher

535 A.2d 1163, 370 Pa. Super. 87, 1988 Pa. Super. LEXIS 11
CourtSupreme Court of Pennsylvania
DecidedJanuary 15, 1988
Docket00434
StatusPublished
Cited by26 cases

This text of 535 A.2d 1163 (Fisher v. Fisher) 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
Fisher v. Fisher, 535 A.2d 1163, 370 Pa. Super. 87, 1988 Pa. Super. LEXIS 11 (Pa. 1988).

Opinions

BECK, Judge:

Appellant father appeals an order of the Court of Common Pleas of Philadelphia County, ordering both parent parties to share equally in the legal and physical custody of [89]*89their son, Justin. He alleges that the hearing judge abused his discretion by (1) reasoning that since neither parent met the burden of proving superiority, case law requires both parents to share equally in the legal and physical custody of their child; (2) failing to consider certain criteria in support of the father’s contention that he be granted primary physical custody; and (3) failing to consider the impact that annually alternating school systems and schedules would have on the child. The father specifically alleges abuse of discretion in the award of physical custody and does not contest the award of shared legal custody.

Father and mother were married but separated at the time of Justin’s birth in October 1977, and then reconciled and lived together from December 1979 until their final separation in October 1981. The mother had sole custody of Justin in St. Louis from his birth until age two when his parents reconciled. Justin then lived together with his parents in Philadelphia until their separation. From October 1981 until February 1983, he lived in Philadelphia. During this period, he lived with his mother except for one to two months with his father. As of February 1983, he continued to live with his mother in St. Louis, and attended kindergarten there. From June 1983 until July 1987, Justin lived with his father in Philadelphia and attended school in Philadelphia. He spent the summers of 1984 and 1985 with his mother in St. Louis.

In July 1986, after father refused to send Justin to her for the coming school year, mother filed a petition for confirmation of custody. The hearing judge found that both parties are loving, caring parents, interested in selflessly promoting Justin’s best interests; both would provide suitable housing and educational arrangements for Justin, and both offered Justin environments with equal advantages. The judge then ordered that shared legal and physical custody of Justin be alternated on a yearly basis, thus giving custody for the current 1987-1988 year to the mother.

[90]*90Our scope of review in child custody cases is broad but we may only interfere with the decisions of the hearing judge where there has been a gross abuse of discretion. Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987). We are empowered to determine whether the hearing court’s factual findings are supported by competent evidence and whether the court’s conclusions are reasonable in light of its factual findings. Id. Moreover, it is axiomatic that in any child custody case, the paramount consideration is the best interest and welfare of the child. All other considerations are deemed subordinate to the child’s physical, intellectual, moral and spiritual well-being. Michael T.L. v. Marilyn J.L., 363 Pa.Super. 42, 525 A.2d 414 (1987); Beers v. Beers, 342 Pa.Super. 465, 493 A.2d 116 (1985).

Although the factual findings which the hearing judge did make are supported by competent evidence, we find the hearing judge’s conclusion, that physical custody be equally shared by means of annual shifts in physical custody, is unreasonable in light of the factual findings. The hearing judge’s conclusion represents a gross abuse of discretion in two respects. It is based on an erroneous conclusion of law, and it is not based on a finding of Justin’s best interests. Accordingly, we vacate the portion of the custody order concerning physical custody.

At the outset, we note that there is no previous custody order. Prior to the existence of a custody order, the parent parties stand on an equal footing and the only burden carried by either of them is to establish what is in the best interest of the child. Michael T.L. v. Marilyn J.L.1

Appellant first argues that the hearing judge abused his discretion by reaching an erroneous conclusion of law. We agree. In the instant case, the hearing judge reasoned [91]*91that because he found the relative merits of the parents to be equal, he was mandated by Murphey v. Hatala, 350 Pa.Super. 433, 504 A.2d 917 (1986) to order equally shared legal and physical custody. Murphey articulates the proposition that the hearing judge must award custody to the party who has proven his superiority by a preponderance of the evidence. Also, Murphey holds that shared physical and legal custody is appropriate in that case because it was in the child’s best interests, where, among many factors, both parents lived in geographical proximity to each other so that despite bi-weekly shifts of physical custody, the child would go to the same school. Although Murphey favors shared custody where the relative merits of both parents are equal, “[sjhared custody need not encompass shared ‘physical’ custody; it need constitute merely shared ‘legal’ custody.” In re Wesley, J.K., 299 Pa.Super. 504, 512 n. 8, 445 A.2d 1243, 1247 n. 8 (1982). Moreover, the factors in Murphey are not present in the instant case. Therefore the hearing judge erred in basing his conclusion on Murphey.

We also hold that the hearing judge abused his discretion by making no finding as to Justin’s best interests. An award of shared physical custody is only proper when it is in the best interests of the child. 23 Pa.Cons.Stat.Ann. § 5304 (Purdon supp. 1987).

Appellant then asserts two contentions which both affect the determination of Justin’s best interests. The father first argues that the hearing judge abused his discretion by failing to consider criteria in support of the father’s contention that he be granted primary physical custody of Justin. The court disregarded the father’s status as primary caretaker and nurturing parent since June 1983. Where natural parents are both fit, the hearing judge must give positive consideration to the parent who has been the primary caretaker. Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 448 A.2d 1113 (1983). The court also failed to take into account the effect of a change in status quo and evidence that Justin has been thriving in a stable environ[92]*92ment while in Philadelphia with his father since June 1983. Courts have long recognized the importance of a continuing and stable custodial relationship with a parent which satisfactorily serves the child’s needs. Harner v. Harner, 330 Pa.Super. 343, 479 A.2d 583 (1984), see Gerber v. Gerber, 337 Pa.Super. 580, 487 A.2d 413 (1985). These criteria favor a finding that it is in Justin’s best interest that the father in Philadelphia should have physical custody during the school terms.

One of the criteria which the father argues that the judge failed to consider is Justin’s preference.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Durning v. Balent/Kurdilla
19 A.3d 1125 (Superior Court of Pennsylvania, 2011)
Gotshall v. Stoudt
83 Pa. D. & C.4th 187 (Berks County Court of Common Pleas, 2006)
Johnson v. Lewis
870 A.2d 368 (Superior Court of Pennsylvania, 2005)
Jackson v. Beck
858 A.2d 1250 (Superior Court of Pennsylvania, 2004)
Hurley v. Hurley
754 A.2d 1283 (Superior Court of Pennsylvania, 2000)
Berger v. Berger
48 Pa. D. & C.4th 507 (Monroe County Court of Common Pleas, 2000)
Wiseman v. Wall
718 A.2d 844 (Superior Court of Pennsylvania, 1998)
West v. Lawson
951 P.2d 1200 (Alaska Supreme Court, 1998)
West v. West
27 Pa. D. & C.4th 9 (Berks County Court of Common Pleas, 1995)
Eal v. Ljw
662 A.2d 1109 (Superior Court of Pennsylvania, 1995)
Blankley v. Blankley
28 Pa. D. & C.4th 561 (Fulton County Court of Common Pleas, 1993)
Johnson v. Diesinger
589 A.2d 1160 (Superior Court of Pennsylvania, 1991)
Boylan v. Boylan
577 A.2d 218 (Supreme Court of Pennsylvania, 1990)
Clapper v. Clapper
578 A.2d 17 (Supreme Court of Pennsylvania, 1990)
Zummo v. Zummo
574 A.2d 1130 (Supreme Court of Pennsylvania, 1990)
Bernard v. Green
602 A.2d 1380 (Superior Court of Pennsylvania, 1990)
Lozinak v. Lozinak
569 A.2d 353 (Supreme Court of Pennsylvania, 1990)
Cyran v. Cyran
566 A.2d 878 (Supreme Court of Pennsylvania, 1989)
Artzt v. Artzt
556 A.2d 409 (Supreme Court of Pennsylvania, 1989)
Fisher v. Fisher
535 A.2d 1163 (Supreme Court of Pennsylvania, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
535 A.2d 1163, 370 Pa. Super. 87, 1988 Pa. Super. LEXIS 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-fisher-pa-1988.