Opinion

Brooks v. Brooks

  • 319 Pa. Super. 268
  • 466 A.2d 152
  • 1983 Pa. Super. LEXIS 3920
Court
Supreme Court of Pennsylvania
Filed
Sep 16, 1983
Status
Published
Author
Rowley
On the bench
Rowley, Wieand, Cirillo
Cited by
29 cases
Authority
More cited than 8.9%

the mere fact that a parent has a nonmarital (heterosexual) relationship is insufficient to deny him or her custody of the children

How later courts described this case

  • the mere fact that a parent has a nonmarital (heterosexual) relationship is insufficient to deny him or her custody of the children
  • weighing 13-month period after parties’ separation during which father had custody more heavily than 11-year period during which mother was the primary caretaker
  • parent's past emotional problems do not preclude afinding that the child's best interests require that custody be awarded to that parent
  • the mere fact that a parent *61 has a nonmarital (heterosexual) relationship is insufficient to deny him or her custody of the children

Written by the judges who cited it.

The opinion

ROWLEY, Judge,

concurring:

I join in the order of the court and almost all of the opinion filed with the order.

I do not join, however, in that portion of the opinion on pages 274 and 275 dealing with this Court’s scope of review *282 in child custody cases. That precise issue is presently pending before an en banc panel of this Court. Moreover, the Supreme Court of Pennsylvania in Commonwealth ex rel. Davenport v. Montgomery County Children and Youth Services, 501 Pa. 472 , 462 A.2d 221 (1983), stated that while our review is to be of the broadest type we are bound by the trial court’s findings of fact concerning “the parties emotional feelings and attitudes towards one another.” Given this most recent pronouncement of the Supreme Court, it is my understanding that we are not to substitute our “independent judgment” for that of the trial court in such matters. To do so would render the trial courts little more than masters in custody cases. Since I am of the opinion that appellate judges are no better equipped to decide such delicate issues than are the trial judges of the Commonwealth, I do not agree that appellate review should be replaced by a re-trial of the case.

Since the record in this case contains evidence supporting the trial court’s findings concerning the emotional well-being of the children, I agree that the order should be affirmed.

WIEAND, J., joins in this concurring statement.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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