Commonwealth Ex Rel. Michael R. v. Robert R. R.

SPAETH, Judge:

This is a child custody case. The lower court awarded custody of two children to the father, and the mother has appealed. For the reasons discussed below, we reverse and remand for further proceedings.

The parties were married on June 28, 1975. During their marriage one child was born, Kristin Leigh, on February 24, 1976. In October 1977 the father adopted the mother’s son by a previous marriage, Michael, born October 11, 1972. In August or September 1978 the parties separated. The father stayed in their house with the two children. In September 1979 the mother filed for divorce, and in February 1980 she instituted this action seeking custody of both children. On October 10, 1980, after a hearing, the lower court issued an order awarding custody of both children to the father. It is from this order that the mother now appeals.

“It is fundamental that in all custody disputes, the best interests of the child must prevail: all other considerations are deemed subordinate to the child’s physical, intellectual, moral and spiritual well being. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Common*20wealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972).” Garrity v. Garrity, 268 Pa.Superior Ct. 217, 221, 407 A.2d 1323, 1325 (1979). “Among the factors to be considered in determining the best interests of the child are the character and fitness of the parties seeking custody, their respective homes, their ability to adequately care for the child, and their ability to financially provide for the child. Shoemaker Appeal, 396 Pa. 378, 381, 152 A.2d 666, 668 (1959).” Kessler v. Gregory, 271 Pa.Superior Ct. 121, 125, 412 A.2d 605, 607 (1979).

The obligations of the courts in a child custody case are clear. In Lewis v. Lewis, 267 Pa.Superior Ct. 235, 406 A.2d 781 (1979), we said:

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 [263 Pa.Superior Ct. 27, 396 A.2d 1359 (1979)]; 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 *21the 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.Super. 397, 392 A.2d 852 (1978); Commonwealth ex rel. Cox v. Cox, supra.
Id., 267 Pa.Super. at 240-241, 406 A.2d at 783-784.

See also Commonwealth ex rel. Berman v. Berman, 289 Pa.Superior Ct. 91, 432 A.2d 1066 (1981).

Application of these principles to the present case discloses several reasons requiring that we reverse and remand.

First, it is apparent from its opinion that the lower court relied to some extent on the fact that the mother has been living with another man, Joseph L., since August 1979. In stating its reasons for awarding custody to the father, the court said:

The record before us portrays a mother who lost interest in life with father; it portrays a mother who evidently obtained a pleasing alternative in the form of cohabitation with Mr. [L.] for a period which has now exceeded fifteen months and which she would like to extend indefinitely. The hearing judge has no doubt that the mother’s action to obtain custody of her two children is in good faith. The resolution of this case has not been easy. However, as the hearing judge stated at the conclusion of the taking of testimony, “on balance these children seem to be well-attended, well cared for, they’re comfortably accommodated, . . . happy in . . . school surroundings . . . and I think that Michael is doing well in school ...” The father, moreover, appears to be the more dependable to provide for the children’s physical, intellectual and moral well-being. As to spiritual well-being, there is no evidence that either the petitioner or the defendant has any concern.
*22Slip op. at 5.1

Yet, although referring twice in its opinion to the fact that the mother has been living with another man, id., at 2, 5, the court does not analyze the effect of this relationship upon the children. Mr. L. testified at the hearing, and both he and the mother stated their intention to marry as soon as her divorce became final. However, the court does not discuss or evaluate the evidence concerning Mr. L.’s care for and influence on the children. Our cases have made clear that a parent should not be denied custody of his or her child because of the parent’s nonmarital relationship:

[I]t is the effect of the nonmarital relationship on the child and not the fact of the relationship itself which is crucial to a custody decision. If the evidence shows that a parent’s conduct has had harmful effects on the child the court may be justified in denying custody to that parent. On the other hand, if the evidence shows that the parent’s conduct has not adversely affected the child and that the parent has taken good care of the child, then the best interests of the child may dictate that the parent retain custody. In each case, all relevant circumstances must be examined to determine what action would be in the best interests of the child.
Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 140, 360 A.2d 587, 590 (1976).

See also Gunter v. Gunter, 240 Pa.Superior Ct. 382, 361 A.2d 307 (1976).

Second, the lower court interviewed both children in chambers out of the presence of counsel and without a stenographer present. In Jones v. Floyd, 276 Pa.Superior Ct. 76, 419 A.2d 102 (1980), we said:

Additionally, the trial court interviewed the child in question in chambers. There is no indication that counsel was present and the interview was not transcribed for our review. Recent cases have held that such failure to transcribe this in camera hearing requires us to reverse *23and remand for a new hearing. See Sipe v. Shaffer, 263 Pa.Super. 27, 36 n.7, 396 A.2d 1359, 1363, n.7 (1979); Commonwealth ex rel. Steiner v. Steiner, 257 Pa.Super. at 461 n.1, 390 A.2d at 1328, n.1 (1978); Commonwealth ex rel. Scott v. Rider, 248 Pa.Super. 383, 375 A.2d 149 (1977); Commonwealth ex rel. Lee v. Lee, supra.
Id., 276 Pa.Super. at 80, 419 A.2d at 104.

See also Commonwealth ex rel. Lee v. Lee, 248 Pa.Superior Ct. 155, 374 A.2d 1365 (1977); Gunter v. Gunter, supra.

On remand the lower court should conduct an additional hearing to examine the current living situations of both parents and their ability to care for the children, since the circumstances of the parents may have changed during the appellate process. See Commonwealth ex rel. Holschuh v. Holland-Moritz 448 Pa. 437, 447, 292 A.2d 380, 385 (1972). In addition, should the court interview the children, their testimony should be transcribed.

Finally, the lower court’s opinion does not fulfill the court’s responsibility to provide a comprehensive analysis of the record and a complete explanation of its decision. Four pages of the five page opinion are devoted to a recitation of the history of the parents’ marriage and a description of the care and home the father has provided for the children. There is virtually no discussion of the care the mother has provided or of the home she offers the children, nor any comparison of the parents’ relative fitness to have custody of the children. The reasoning behind the award of custody to the father is stated in only the most conclusory way, in the statement that “[t]he father . . . appears to be the more dependable.” Id. at 5. We are thus “without the comprehensive opinion necessary for proper appellate review.” Commonwealth ex rel. Leighann A. v. Leon A., 280 Pa.Superior Ct. 249, 254, 421 A.2d 706, 709 (1980).

Since the case must be remanded for further proceedings, we shall comment on an argument the mother makes in her brief, which but for our comment she might renew on remand. Citing In re Custody of Hernandez, 249 Pa. Superior Ct. 274, 376 A.2d 648 (1977), the mother contends that as *24Michael’s natural mother she has a prima facie right to his custody, and that the father is as to Michael merely a third party who has the burden of showing by convincing reasons that Michael’s best interests dictate that custody be given to him. Brief for mother at 18-19. This argument is without merit. As noted above, in October 1977 the father adopted Michael. A decree of adoption directs “that the person proposed to be adopted shall have all the rights of a child and heir of the adopting parent . . . and shall be subject to the duties of a child to him ...” 1 P.S. § 502.2 For the purposes of determining custody, therefore, Michael is as much the father’s son as he is the mother’s. This does not mean that the mother may not—as she claims to have done—present evidence that the father has favored Kristin, his natural daughter, over Michael, his adopted son; that this favoritism has harmed Michael; and that therefore the father is not the better custodial parent. The point is simply that two parents bear an equal burden. Lewis v. Lewis, supra; In re Custody of Hernandez, supra.

The ORDER is REVERSED and the case remanded for further proceedings consistent with this opinion. Any further appeal must be from such new order as the lower court may enter.

CERCONE, President Judge, files a concurring opinion.

. References to the lower court’s opinion are to the opinion prepared January 7, 1981, pursuant to Pa.R.App.P. 1925.

. This act has been repealed and a new Adoption Act enacted effective January 1, 1981. See 23 Pa.C.S.A. § 2902(a) for this provision in the new Act.