In re the Custody of Liberto

435 A.2d 201, 291 Pa. Super. 26, 1981 Pa. Super. LEXIS 3466
CourtSuperior Court of Pennsylvania
DecidedSeptember 25, 1981
DocketNo. 2439
StatusPublished
Cited by2 cases

This text of 435 A.2d 201 (In re the Custody of Liberto) 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
In re the Custody of Liberto, 435 A.2d 201, 291 Pa. Super. 26, 1981 Pa. Super. LEXIS 3466 (Pa. Ct. App. 1981).

Opinion

HESTER, Judge:

In this child custody proceeding, appellant-father appeals from the order of the lower court dated September 26, 1980, wherein the lower court awarded permanent custody of two minor children1 of the parties to the appellee-mother.

We affirm.

In Lewis v. Lewis, 267 Pa.Super. 235, 239-240, 406 A.2d 781, 783-4 (1979), this court summarized the law, and our scope of review governing child custody proceedings:

“It is settled that the paramount concern in a child custody proceeding is to determine what is in the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Sipe v. Shaffer, [28]*28263 Pa.Super. 27, 396 A.2d 1359 (1979). In a contest between parents, each party bears the burden of proving that an award to that party would be in the best interests of the child. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). The award must be based on the facts of record and not on mere presumptions; in particular, the tender years presumption is no longer recognized, Sipe v. Shaffer, supra; McGowan v. McGowan, 248 Pa.Super. 41, 374 A.2d 1306 (1977).
In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976). Thus, while it will defer to the lower court’s findings of fact, the appellate court will not be bound by the deductions or the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of the evidence. Sipe v. Shaffer, supra; Scarlett v. Scarlett, supra. In conducting this review, the appellate court will look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa.Super. 508, 388 A.2d 1082 (1978). After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. See Valentino v. Valentino, 259 Pa.Super. 395, 393 A.2d 885 (1978); Gunter v. Gunter, supra. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, supra. Where the record is incomplete or the opinion of the lower court is inadequate, the case will be remanded. See Valentino v. Valentino, supra; Commonwealth ex rel. Forrester v. Forrester, 258 Pa.Su [29]*29per. 397, 392 A.2d 852 (1978); Commonwealth ex rel. Cox v. Cox, supra.”

We have engaged in a comprehensive review of the record and are convinced that all pertinent facts and circumstances of the contesting parties have been fully explored and developed; further, we are convinced that the lower court made a penetrating and comprehensive inquiry and, in support thereof, filed a comprehensive opinion containing its findings and conclusions as supported by the record. Thus, we agree with the lower court’s ultimate conclusion that it is in Robert’s and Thomas’s best interest to remain in the permanent custody of their mother, the appellee herein. Hence, we affirm.

The relevant facts adduced at hearing include the following:

1. Three children were born of the marriage between appellant and appellee, Ellen Marie age 18 at the time of the hearing; Robert James born February 14, 1963, and Thomas William born November 11, 1964. Because the daughter, Ellen Marie, was a senior in high school and intended to enter Indiana University of Pennsylvania in the fall, she elected to remain in the general custody of her father in Westmoreland County, Pennsylvania. As a result, Ellen Marie is not directly involved in this proceeding.
2. From 1964 until the early part of 1976, all three children lived with both parties at 399 Oakwood Street, New Kensington, Pennsylvania.
3. In February or March, 1976, appellant moved out of the family home (399 Oakwood Street) and shortly thereafter into an apartment approximately three blocks from the marital residence. Appellee and the three children continued to reside at 399 Oakwood Street until November, 1978 when she and the two boys, Robert and Thomas, moved to State College, Centre County, Pennsylvania, where they currently continue to reside.
4. Appellant and appellee were subsequently divorced from each other in October of 1976.
[30]*305. On December 12, 1976, appellant remarried. Appellant, his new wife, Sharon, and Ellen Marie (when not attending college) reside together in New Kensington, Westmoreland County, Pennsylvania.
6. From the time of the parties’ separation in early 1976, the two sons, Robert and Thomas, have resided continuously with their mother, first in Westmoreland County, and subsequently in Centre County.
7. Appellee was born in the State College area in Centre County, Pennsylvania, graduated from Penn State University with a Bachelor’s Degree, and is gainfully employed in Milesburg, fifteen miles from State College.
8. The appellant also received his Bachelor’s Degree from Penn State University, his Master’s Degree at the University of Pittsburgh, School of Business, and a Law Degree at Duquesne University Law School. Appellant is currently employed by Westmoreland County as a County Solicitor. In addition, appellant maintains a small private law practice from his home in New Kensington, Pennsylvania.

We have carefully reviewed the record in the instant case and have concluded that the children’s best interest would be served in the general custody of their mother.

Both boys appeared in chambers with the Court, the court reporter and counsel present.

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435 A.2d 201, 291 Pa. Super. 26, 1981 Pa. Super. LEXIS 3466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-custody-of-liberto-pasuperct-1981.