McCann v. Domian

439 A.2d 1190, 294 Pa. Super. 259, 1982 Pa. Super. LEXIS 3138
CourtSuperior Court of Pennsylvania
DecidedJanuary 8, 1982
DocketNo. 47
StatusPublished

This text of 439 A.2d 1190 (McCann v. Domian) 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
McCann v. Domian, 439 A.2d 1190, 294 Pa. Super. 259, 1982 Pa. Super. LEXIS 3138 (Pa. Ct. App. 1982).

Opinion

HESTER, Judge:

Presently before the court is appellant-father’s appeal from the order of the lower court awarding general custody of the parties’ minor children (Carrie, born 8/2/73 and James, born 3/31/75) to the appellee-mother.1

We affirm.

The relevant facts may be summarized as follows:

The appellant, Scott McCann and the appellee, Nancy Domian were married on January 11, 1973. Two children were born of the marriage: Carrie Lynn, born August 2, 1973 and James Scott, born March 31, 1975. A final separation between the parties occurred in July, 1976 and a decree in divorce issued on July 27, 1977. Pursuant to an agreement between the parties, the appellee/mother retained custody of the children with partial custody in the appellant/father. After the divorce, mother and children lived in [261]*261a two bedroom apartment for approximately 6 months until January 1, 1978 at which time they moved in with the maternal grandparents, for financial reasons.

The appellant, Scott McCann, married his present wife, Kathleen, in August, 1977. One child has been born of this marriage, who was 2 years of age at the time of the hearing. Kathleen’s child of a prior marriage, age 4 at the time of the hearing, was also living with the McCanns.

In April, 1978 the appellee Nancy Domian, went to Florida for a short stay, leaving the children with their maternal grandparents, with whom they had been living. After exercising his normal weekend partial custody rights, the appellant/father failed to return possession of the children. In May, 1978, upon her return from Florida, the appellee and her father removed the children from the appellant’s yard where they had been playing. The extent to which force was used in this instance is a matter in dispute. A short time later, in June, 1978, Scott and Kathleen McCann attempted to forcibly remove the children from the appellee while they were attending a fair with their mother and aunt at a department store parking lot. Assistance was rendered by store personnel and the McCandless Township police. Prior to this incident, a custody hearing had been scheduled for June, 1978. At that time, a consent agreement was reached between the parties, granting custody to the mother with the father to exercise partial custody on alternating weekends and certain holidays. During this period the appellee/mother and the children continued to live with the maternal grandparents.

In October, 1978, the appellant’s parents sold their home in Pittsburgh somewhat unexpectedly with plans to relocate to the State of Florida. A review of the testimony reveals that the appellee suggested to the appellant that the children move to Florida with her parents for a few months, at which time she would join the children and her parents. Upon objection of the appellant and after meeting with Scott and Kathleen McCann, the appellee testified that she agreed to leave the children with their father for a period of [262]*262a few months until she was financially stable or at the latest until June of 1979. The appellant and his wife, on the other hand, testified that the appellee stated she was uncertain as to when she would retrieve the children, that she wanted to pursue a career and might never want the children. The appellee did continue to see the children each weekend throughout this period, from Friday evening or Saturday morning until Sunday evening. Mrs. Domian was married to her present husband, Richard, in October, 1979.

The appellant/father filed the instant complaint for custody of the parties’ children and a brief hearing was held in June, 1979, after which an interim order issued, granting temporary custody to the father pending a final and more complete hearing in November, 1979. Said hearing was held on November 28, 1979 lasting one full day, after which the order granting custody to the mother was issued, said order being the subject of the instant appeal.

As this court in Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 at 783-4 (1979) so aptly stated.

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, 263 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 [263]*263appellate 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.

We have engaged in a comprehensive review of the record of the proceedings below and have made an independent judgment based upon a careful review of the evidence. We are satisfied that the relevant facts and circumstances have been explored.

Ms.

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Related

Valentino v. Valentino
393 A.2d 885 (Superior Court of Pennsylvania, 1978)
In Re Custody of Hernandez
376 A.2d 648 (Superior Court of Pennsylvania, 1977)
Commonwealth Ex Rel. Cox v. Cox
388 A.2d 1082 (Superior Court of Pennsylvania, 1978)
McGowan v. McGowan
374 A.2d 1306 (Superior Court of Pennsylvania, 1977)
Gunter v. Gunter
361 A.2d 307 (Superior Court of Pennsylvania, 1976)
Sipe v. Shaffer
396 A.2d 1359 (Superior Court of Pennsylvania, 1979)
Scarlett v. Scarlett
390 A.2d 1331 (Superior Court of Pennsylvania, 1978)
Commonwealth Ex Rel. Parikh v. Parikh
296 A.2d 625 (Supreme Court of Pennsylvania, 1972)
Lewis v. Lewis
406 A.2d 781 (Superior Court of Pennsylvania, 1979)
In Re Custody of Myers
363 A.2d 1242 (Superior Court of Pennsylvania, 1976)

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Bluebook (online)
439 A.2d 1190, 294 Pa. Super. 259, 1982 Pa. Super. LEXIS 3138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccann-v-domian-pasuperct-1982.