concurring:
Plainly, this is a difficult case. I think, nevertheless, that we should reverse; but as my reasoning is somewhat different than Judge CERCONE’s, I offer this opinion.
I quite agree with Judge PRICE, that the hearing judge has complied with our requirements that the record be complete, and that we be given the benefit of a comprehensive opinion thoroughly analyzing that record. Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976); Augustine v. Augustine, 228 Pa.Super. 312, 324 A.2d 477 (1974); Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 312 A.2d 58 (1973). Also, I recognize that we owe a duty of deference to the hearing judge, who, unlike us, has had the advantage of seeing the child, or children, the contesting parents, and their respective witnesses. Burston v. Dodson, 257 Pa.Super. 1, 390 A.2d 216 (1978); Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977); In Interest of Clouse, 224 Pa.Su*9per. 396, 368 A.2d 780 (1976); Clair Appeal, 219 Pa.Super. 436, 281 A.2d 726 (1971). Accord: Commonwealth ex rel. Doberstein v. Doberstein, 201 Pa.Super. 102, 192 A.2d 154 (1963); Commonwealth ex rel. Dinsmore v. Dinsmore, 198 Pa.Super. 480, 182 A.2d 66 (1962).
Even so, it remains our duty to make a broad review of the record. Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972); Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 331 A.2d 665 (1974); Commonwealth ex rel. Grillo v. Shuster, supra; Commonwealth ex rel. Bowser v. Bowser, 224 Pa.Super. 1, 302 A.2d 450 (1973). After we take full account of the hearing judge’s reasoning, still, we must be easy in our own conscience that the judge’s award will serve the best interest of the child, or children, in question.
What makes this case so difficult is that one could be easy in conscience whether the award were to the mother or father: Both of them love the child, and I suggest that it cannot be argued with any conviction that one will care for the child better than the other.
In this regard, I am not sure from his opinion that the hearing judge meant to suggest that the father would care for the child better than the mother. If the judge is to be so understood, however, I entirely agree with Judge CER-CONE’S appraisal that the suggestion is unacceptable. I cannot imagine what was wrong with the mother taking the child to dinner and out sailing to the contrary, these actions seem natural and proper. Nor does the emotional telephone call reflect upon the mother; the father created the situation that led to the call; in my view, for the mother not to have reacted emotionally would have made me suspect the depth of her concern for the child. As for the mother’s failure to enroll the child in Sunday school: It seems to me we must be very careful in appraising such conduct. Without doubt, an important part of a parent’s duty is to provide the child a sound moral education. That education, however, may take many forms, and what a hearing judge should be concerned with is not form but substance. To *10insist upon a particular form — Sunday school — comes very close to intruding upon the parent’s right to spiritual and intellectual freedom. If we look to substance, we find the mother both concerned with, and capable of, providing the child a sound moral education. In short: I share, and join, Judge CERCONE’S appraisal, that on a proper view of the evidence, “we see the evidence as demonstrating a young mother, trying to make a new life for herself and her daughter, by moving to Maryland and obtaining an order to secure the custody of Lea.” Opinion of CERCONE, J., at 276-277.
In the old days, in such circumstances a decision would have been easy; by application of the tender years doctrine, the award of custody would have been to the mother. Now, the tender years doctrine is gone, Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Lough v. Charney, 250 Pa.Super. 311, 378 A.2d 951 (1977); Commonwealth ex rel. Lee v. Lee, 248 Pa.Super. 155, 374 A.2d 1365 (1977); McGowan v. McGowan, 248 Pa.Super. 41, 374 A.2d 1306 (1977), and I don’t regret its departure. Still, the question remains: When both parents are equally able to serve the child’s best interest, how does one decide which parent should have custody? No doubt in most cases this question need not be answered, for a close examination of the record will show that in fact both parents are not equally able. Here, however, I submit that they are, and that accordingly, we must answer the question I have just posed.
For me, the answer may be found in the father’s conduct, first, in ignoring the Maryland proceeding, and second, in refusing to return the child to the mother, not in the child’s interest but in his, /. e., so that he could invoke the jurisdiction of the Lebanon County court. I have elsewhere written in condemnation of a parent who thus takes the law into his own hands. In re Custody of Myers, 242 Pa.Super. 225, 231, 363 A.2d 1242, 1245 (1976) (SPAETH, J., concurring); Commonwealth ex rel. Blank v. Rutledge, 234 Pa.Super. 339, 347, 339 A.2d 71, 77 (1975) (SPAETH, J., concurring and dissent*11ing). See also Uniform Child Custody Jurisdiction Act, 11 Pa.Stat.Ann. §§ 2301 et seq. (effective date July 1, 1977, which may avoid in the future the problems presented in the case at bar).
I am unable to understand the hearing judge’s equation of the father’s conduct in ignoring the Maryland proceeding and in refusing to return the child with the mother’s conduct in taking the child to Maryland in the first instance, when the parties separated. What else should the mother have done? Her conduct was not in contempt of the law. The father’s was.*
For these reasons I concur in the decision that the order of the lower court should be reversed and custody awarded to the mother.
The record before us includes a Maryland lower court order dated August 7, 1978, dismissing the mother’s petition to have the father adjudged in contempt for failing to comply with that court’s custody award. The court dismissed the petition on the grounds that it was required to give full faith and credit to the action of the Lebanon County Court of Common Pleas. I do not believe this dismissal is relevant to an appraisal of the father’s act.