In Re Custody of Frank

PRICE, Judge,

dissenting:

This appeal is before us from an order of the court below awarding custody of Shari L. Frank and Kathy A. Frank to their natural mother, appellant Wanda Lee Frank, on the condition that temporary supervision of the children be exercised by the Cumberland County Children’s Services (C.C.C.S.). For the following reasons, I would affirm.

Appellant and Robert Frank were married on February 17, 1962. Shari and Kathy, the subjects of this appeal, were born on August 15, 1966, and April 19, 1968, respectively.1 Three other children were born during the marriage which terminated in divorce in November of 1976. Subsequent to the divorce, Shari and Kathy resided with their paternal grandparents in Phoenix, Arizona, with Robert Frank retaining custody of these children from May of 1977 to January of 1978, initially at his home in Carlisle, then in Richmond, Virginia. In January, appellant gained custody of the children pursuant to an understanding with her former husband. (N.T. 6).

On February 24, 1978, appellant filed a petition for a court order confirming custody upon which a hearing was held on April 5, 1978, before the Honorable Dale F. Shughart. Rob*250ert Frank did not contest the award of custody to appellant, and the court fashioned the aforementioned order.

Because appellant was ultimately awarded custody of the children, she does not question that portion of the order, but contests instead the validity of the proviso requiring temporary supervision by C.C.C.S. As a consequence of the children’s physical custody not being in dispute, our review need not be subject to the entire gamut of considerations applicable in a typical contest between opposing parties wishing custody of the child. In the latter case, even granting that there is always the opportunity to correct a mis judgment, the psychological consequences of - an error in the child’s placement are enormous. Therefore, we insist that the hearing judge adhere strictly to all evidentiary rules during the presentation of testimony, and supply this court with a complete and comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court’s decision. Appeal of White, 270 Pa.Super. 165, 411 A.2d 231 (1979); Martincheck v. Martincheck, 262 Pa.Super. 346, 396 A.2d 788 (1979); Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977). In a case such as that sub judice, however, in which merely temporary supervision, and not permanent custody, is to be determined, we are more disposed to allow the hearing court greater latitude in accepting testimony and in composing an opinion with a less rigorous analysis than would be acceptable in a normal custody proceeding. Nevertheless, we hasten to add that because our paramount concern remains the best interest and welfare of the child, In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978); Shoup v. Shoup, 257 Pa.Super. 263, 390 A.2d 814 (1978); Tomlinson v. Tomlinson, 248 Pa.Super. 196, 374 A.2d 1386 (1977), we are not bound by deductions or inferences made by the hearing judge which have no competent evidence to support them and which do not appear to affect the child’s best interest. Tomlinson v. Tomlinson, supra; Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 312 A.2d 58 (1973).

Instantly, the hearing judge noted: “It is because of the stormy relationship that has existed between the two par*251ents and the allegation of improper care given the children that the court directed Cumberland County Children’s Services to keep in touch with the situation.” At the hearing, appellant herself admitted that Kathy was mentally retarded and special provisions had to be made for her education. Specifically, she testified that Kathy was attending the Capital Area Intermediate Unit School and arrangements had been made to cover the extraordinary expenses involved. (N.T. 6). Appellant conceded that C.C.C.S. was previously involved in the familial situation in relation to the custody of two boys not involved in this appeal. Ms. Gillingham of C.C.C.S. stated that Kathy was in the service’s care and custody from May 9, 1970, to December 20, 1971, on the basis of neglect and dependency.2

Confronted with these facts, it was not erroneous for the court to require temporary supervision. The Commonwealth is vitally concerned with infants, and it has a duty to protect and supervise the interests of minor children in custody disputes. Davidyan v. Davidyan, 229 Pa.Super. 495, 327 A.2d 139 (1974); Friedman v. Friedman, 224 Pa.Super. 530, 307 A.2d 292 (1973); Commonwealth ex rel. Thomas v. Gillard, 203 Pa.Super. 95, 198 A.2d 377 (1964). Its concern is no less in cases of this type. It would be unconscionable to casually cast two growing children into a potentially volatile situation absent some supervision. Although appellant argues that the court does not possess the power to mold such *252a condition absent specific statutory authority, this contention is ill-founded. The power to provide for the parents’ visitation privileges is similarly not conferred by explicit statutory mandate,3 yet this is, of course, an ordinary function of the court in custody disputes. The license to regulate such visitation is implicit in the precept requiring the court to provide for the child’s best interest. While visitation is indeed the sole condition normally imposed, it is hardly unique for the hearing court to shape more extensive provisions to ensure the child’s welfare.

In Commonwealth ex rel. Martocello v. Martocello, 148 Pa.Super. 562, 25 A.2d 855 (1942), for example, an eleven year old boy resided with his mother following the parents’ separation. In a hearing precipitated by the mother’s filing of a petition for custody, the child was awarded to the father on condition that the boy be placed in the Waldron Academy for the ensuing school year; .both parents “ ‘to see the child at the Academy . . . under the proper regulations of the Master of the Waldron Academy, until further order of the court.’ ” Id., 148 Pa.Super. at 568, 25 A.2d at 856.

It would be illogical to invest our courts with the weighty responsibility of ensuring a minor’s welfare, while simultaneously demanding that they be emasculated of the power to fully effect their best judgment. Notwithstanding appellant’s belief that she could adequately care for the children (N.T. 8), in view of the circumstances prevailing at the time of the hearing, particularly the educational difficulties with Kathy, the condition imposed was not improper.

In any event, the order specifically noted that the supervision was temporary. As has long been noted, custody orders are unique and delicate matters subject to constant review and modification. Friedman v. Friedman, supra; Common*253wealth ex rel. Hickey v. Hickey, 216 Pa. Super. 332, 264 A.2d 420 (1970); Commonwealth ex rel. Thomas v. Gillard, supra. If supervision of the children by C.C.C.S. becomes unnecessary, appellant could then petition the court to have it removed.

I would affirm the order of the Court of Common Pleas of Cumberland County.

WICKERSHAM, J., joins in this dissenting opinion.

. At the time of the hearing, Shari was twelve years of age and Kathy ten.

. At the hearing, Ms. Gillingham was not sworn prior to responding to questions propounded by the court. Counsel for appellant made a timely objection to the introduction of such unsworn statements, and was in effect overruled when the court instructed her not to object. It is true that the Act of March 21, 1772, 1 Sm.L. 387, § 1, as amended, 28 P.S. § 251, provides in pertinent part:

“All and all manner of crimes, offenses, matters, causes and things whatsoever to be inquired of, heard, tried and determined or done or performed by virtue of any law of this commonwealth, or otherwise, shall and may be inquired of, heard, tried and determined by . . . witnesses . . . either by taking the solemn affirmation or any oath in the usual or common form. ...”

Nevertheless, because of the nature of the hearing, the temporary nature of the order, and the totality of other circumstances, I believe the introduction of the unsworn statements does not necessitate a re-hearing.

. The Act of June 26, 1895, P.L. 316, § 2, 48 P.S. § 92 provides: “In all cases of dispute between the father and mother of such minor child, as to which parent shall be entitled to its custody or services, the judges of the courts shall decide, in their sound discretion, as to which parent, if either, the custody of such minor child shall be committed, and shall remand such child accordingly, regard first being had to the fitness of such parent and the best interest and permanent welfare of said child.”