holding that this Court erred by sua sponte raising evidentiary concerns in a child custody case where “no litigant has questioned the authenticity and adequacy of the reports or complained of their admission and consideration”
How later courts described this case
- holding that this Court erred by sua sponte raising evidentiary concerns in a child custody case where “no litigant has questioned the authenticity and adequacy of the reports or complained of their admission and consideration”
- explaining that “the burden is on the appellant, and not the appellate court, to demonstrate that the trial court’s decree is, under the evidence, manifestly erroneous or based on an error of law”
- holding mother/ap-pellee precluded from raising issue concerning trial court’s failure to interview children where no cross-appeal taken
- holding: absent certain limited exceptions, the Superior Court may not sua sponte raise issues on appeal
Written by the judges who cited it.
The opinion
ZAPPALA, Justice,
concurring.
While I concur in the result which is reached by the majority opinion, I am compelled to write separately to address the problem which underlies the confusion regarding the appropriate standard of review in child custody matters.
The majority suggests that final disposition of custody cases has been impeded because the Superior Court lacks confidence in our trial bench. This is a superficial analysis of the Superior Court’s approach to handling the difficult and sensitive issues raised in a custody dispute.
The salutary attempts by the Superior Court to exercise a broad power of appellate review of custody decisions have recognized the grave responsibility of determining the best interests and welfare of the child. The problem arises where, as here, the Superior Court has concluded that the record is inadequate.
The conflict arises from the use of the adversarial process to determine what would be in the best interests of the child. Generally, each of the litigants who seeks custody is represented by counsel. The adversarial process naturally results in counsel acting as an advocate for the party whom he represents. The litigants and their counsel do not put forth a concerted effort to aid the trial court in determining what would be in the best interests of the child; rather, the litigants jockey to present evidence which is favorable to their separate positions on the parent who should receive custody. The presentation of testimony which supports each parent’s position is not sufficient to ensure a determination of what actually is in the child’s best interests.
Since the focus is properly on the child’s best interest, the litigation process should reflect this. The process should move away from relying entirely upon the parents’ advocates to develop testimony from which the trial court de *239 cides the custody issue. The conflict will not effectively be resolved without requiring the appointment of an advocate for the child. Only then will it be certain that the child’s interests are adequately presented and protected.
Rule 1915.11 of the Rules of Civil Procedure, provides, “[t]he court may on its own motion or the motion of a party appoint an attorney to represent the child in the action. The court may assess the cost upon the parties or any of them or as otherwise provided by law.”
Although I believe that the current rule is inadequate and should be amended, in the present action the trial court should have appointed counsel when the Superior Court demonstrated its belief that the record was insufficient by repeatedly remanding the matter. Requiring the trial court to appoint an attorney for the child in all cases, rather than leaving it to the court’s discretion, would accomplish with reason what the majority testily demands. Counsel would act as advocates, trial judges would act as judges, and the appellate courts would act within their proper sphere, reviewing decisions based upon a complete record.