Gonzalez v. Gonzalez

486 A.2d 449, 337 Pa. Super. 1, 1984 Pa. Super. LEXIS 7194
CourtSupreme Court of Pennsylvania
DecidedDecember 28, 1984
Docket01755 and 01756
StatusPublished
Cited by18 cases

This text of 486 A.2d 449 (Gonzalez v. Gonzalez) 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
Gonzalez v. Gonzalez, 486 A.2d 449, 337 Pa. Super. 1, 1984 Pa. Super. LEXIS 7194 (Pa. 1984).

Opinion

HESTER, Judge:

In this appeal, we are asked to review an Order of Court awarding custody of the parties’ minor daughter, Katherine, to her mother, appellee herein. Appellant, Katherine’s father, received liberal visitation rights. However, appellant seeks to be the primary custodian and thus pursues this appeal. Having closely scrutinized the record, we hereby reverse the order of the court below.

The parties were married on June 18,1977, and Katherine was born on May 17,1978. On August 15,1981, the parties separated, with the mother leaving the marital abode. Katherine remained behind with her father. The mother initially moved in with her current husband’s parents, and then into an apartment where her present husband joined her a short time later.

Approximately three weeks after his wife’s departure in 1981, appellant filed a petition for custody. Appellee signed a stipulation dated September 21, 1981, granting custody of Katherine to her father, and requesting visitation of one weekend a month. In 1983, appellee requested and received an increase of visitation to two weekends per month.

Appellee was married in September, 1983, and immediately thereafter, filed a petition seeking custody of Katherine. Two evidentiary hearings were held on May 18, 1984, and June 19, 1984. An Order was entered on June 21, 1984, awarding custody of Katherine to appellee during the school year and for approximately one-half of certain enumerated holidays. This appeal ensued.

The guiding principle in a child custody matter is to reach a decision which serves the “best interests” of the child. Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d 152 *5 (1983). This interest encompasses the child’s physical, intellectual, emotional, and spiritual well-being. Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 447 A.2d 630 (1982). In order to achieve this goal, an appellate court must closely scrutinize the factual findings of the lower court. If we ascertain, on review, that those factual findings are not supported by competent evidence, said findings are not binding upon us. Commonwealth ex rel. Springs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977) (Plurality opinion by (now Chief) Justice Nix). Of course, an appellate court has never been bound by deductions or inferences made by a trial court from the facts found. Id. However, where we perceive a gross abuse of discretion by the trial judge, we are duty-bound to interfere with that decision. Id.

Herein, appellant alleges that the lower court abused its discretion in transferring primary care of Katherine to appellee. 1 For the following reasons, we agree with appellant that the lower court abused its discretion by awarding custody to appellee.

The lower court based its decision to award custody to appellee on its finding that appellee never intended to relinquish custody of the child when she departed from the marital domicile. She permitted the child to remain with appellant because she was uncertain as to her immediate plans, and she was unable to afford proper care, insurance, and a home for Katherine. The court concluded that appel-lee had finally established a stable and strong home environment which best served the interest of the child.

We hold that the evidence fails to support the lower court’s conclusion. Our review of the record convinces us that appellee fully intended to relinquish custody of her child to appellant when she departed in August, 1981. At that time, she was employed fulltime, earning $15,000.00 *6 and owned an automobile. Her husband was earning $14,-400.00. She immediately entered into an agreement awarding custody of Katherine to appellant, and adhered to that agreement for two years. Appellee’s sister testified that appellee stated the reason she left her husband was to “have some fun” and that appellee thought the child would be better off with appellant. These facts evince a settled intent on the part of appellee to relinquish her custodial control over Katherine.

In cases of existing custody agreements, the party seeking to modify that agreement must meet the burden of proving a substantial change of circumstances which would warrant such a change. English v. English, 322 Pa.Super. 234, 469 A.2d 270 (1983); Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982). Once that substantial change is proven, however, both parents share equally the burden of establishing with which parent the child’s interests would be best served. Id.

Herein, appellee has remarried and currently resides in a single residence dwelling situated on a one and one-half acre tract in Schwenksville, Pennsylvania. Appellee submits that her present lifestyle and environment reflect a substantial change of circumstances which justifies an award of custody to her.

However, as stated above, the scope of inquiry remains a determination of which placement would best serve the child. One vitally important factor to be considered is the effect upon the child of her removal from a known physical environment with an established parental figure.

This Court has repeatedly recognized that a child “becomes strongly attached to those who stand in parental relationship to it and who have tenderly cared for it.” Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 425, 448 A.2d 1113, 1115 (1982), quoting Commonwealth ex rel. Children’s Aid Society v. Gard, 362 Pa. 85, 97, 66 A.2d 300, 306 (1949). When a child receives love, guidance, companionship, and direction from a parent on a *7 consistent basis, a firm foundation is being laid for the child’s future healthy development. Id. The need for a sense of continuity can, in certain cases, be controlling in the custodial decision. English v. English, supra 322 Pa. Super, at 240, 469 A.2d at 273; Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981).

The lower court, in awarding custody to appellee, failed to consider the impact of such a move upon the child. The father’s ability to provide loving care for the child, as proven by his successful record of parenting Katherine for the last three years, was unquestioned. Although there was some discussion about an incident where Katherine contracted lice, we cannot conclude that this isolated incident adversely reflected upon appellant’s ability to care for the child, especially in view of his immediate treatment of this condition.

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486 A.2d 449, 337 Pa. Super. 1, 1984 Pa. Super. LEXIS 7194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-v-gonzalez-pa-1984.