Clarification of Answer by
richard-ga
on
15 Jun 2003 16:51 PDT
Hello again.
Fellow Google Answers Researcher Expertlaw-ga was kind enough to refer
me to an alternate free search cite [registration required],
http://www.lexisone.com/
Lexisone requires that you limit your search terms so that no more
than 100 cases are found. Since it is hard to read more than 100
cases at a sitting, this is not a bad idea.
I decided to use the search term
"best interest of the child" and psychologist
which yields 23 cases. These cases arise in various contexts,
including termination of parental rights, adoption, a custodial parent
departing the state, etc.
I have copied below material in those of the cases that seem to me
useful in inferring how the "best interest" standard operates. If I
had to guess how it will apply in your case, I believe it will turn on
whoever comes across as the most credible witness. Certainly the
psychologist's testimony will be very influential, assuming that the
court finds it credible.
Here is the material that I selected for you to review:
In re T.R., No. 89 E.D. Appeal Docket 1996, SUPREME COURT OF
PENNSYLVANIA, April 30, 1997, Argued, June 23, 1999, Decided
"There is no section governing or expressly limiting the investigation
of a parent. Therefore, to achieve the best interests of the child, I
believe that that the General Assembly implicitly provided the trial
court with the authority to order a psychological evaluation of a
dependent child's mother in a dependency proceeding."
B.K. v. J.K., No. 624 MDA 2002 , SUPERIOR COURT OF PENNSYLVANIA ,
January 14, 2003, Argued, May 5, 2003, Filed
"Mother raises intertwined issues for our review. She contends that
the trial court abused its discretion in failing to perform a
comprehensive and searching inquiry into the best interests of the
children in reaching its decision permitting Father to move to
Pittsburgh, and in denying [*6] Mother's request for primary
custody. In this regard, Mother specifically contends that the trial
court abused its discretion in refusing to allow three of her
witnesses to testify, including the parties' sixteen-year-old son,
adult daughter, and a psychologist proffered by Mother."
"the trial court characterized this case as a [*7] relocation case
controlled by the factors set forth in Gruber v. Gruber, 400 Pa.
Super. 174, 583 A.2d 434 (Pa. Super. 1990). There, the Court set forth
the following factors for a trial court to consider when faced with
the decision whether to permit a custodial parent to relocate at a
geographical distance from the non-custodial parent:
1. The potential advantages of the proposed move, economic or
otherwise, and the likelihood the move would improve substantially the
quality of life for the custodial parent and the children and is not
the result of a momentary whim on the part of the custodial parent;
2. The integrity of the motives of both the custodial and
non-custodial parent in either seeking the move or seeking to prevent
it; and
3. The availability of realistic, substitute visitation arrangements
which will foster adequately an ongoing relationship between the child
and the non-custodial parent."
"P12 While the Gruber factors are helpful in resolving relocation
[*10] disputes, this Court has repeatedly noted that they do not
create a new standard and that "the polestar of our analysis in this
case, just as it was in Gruber and a legion of prior custody cases,
remains the best interests of the child." Baldwin v. Baldwin, 710 A.2d
610, 612 (Pa. Super 1998) (citations omitted). The Gruber factors must
be applied "with the backdrop of the .....objective of determining the
best interests of the child." Burkholder v. Burkholder, 2002 PA Super
6, 790 A.2d 1053, 1058 (Pa. Super. 2002) (citation omitted).
P13 On appeal, Mother primarily focuses on the trial court's ultimate
consideration after application of the Gruber factors: a determination
of the best interests of the children. Gancas v. Schultz, 453 Pa.
Super. 324, 683 A.2d 1207 (Pa. Super. 1996). In this regard, Mother
asserts that the trial court erred by refusing to allow testimony from
a psychologist and from the parties' two older children. We note,
however, that implicit in Mother's argument regarding the exclusion of
testimony from the two older children is an argument alleging that the
trial [*11] court failed to adequately consider the second factor
enunciated in Gruber involving an analysis of motives of the parent
either seeking the move or seeking to prevent it. We have considered
Mother's arguments, and we find no merit in them."
In re B.L.L., No. 612 WDA 2001, SUPERIOR COURT OF PENNSYLVANIA,
October 3, 2001, Argued, December 4, 2001, Filed
"In making an Order for partial custody or primary custody, the court
must consider the preference of the child as well as other factors,
which legitimately impact the child's physical, intellectual and
emotional well being. It is important for the court to at least
attempt to determine, as best it can, the child's preference, which
must comport with the child's best interest."
Bovard v. Baker, No. 1771 WDA 2000, SUPERIOR COURT OF PENNSYLVANIA,
March 13, 2001, Argued, April 25, 2001, Filed
"During her testimony Mother demonstrated to this Court an exhaustion
of spirit for continuing with the struggle over the custody of the
girls. It was readily apparent that her recognition of the difficulty
which each girl is experiencing in the present custody arrangement
coupled with her maternal love for them has led her to take the
position that even if it means that she has less physical custody, she
wants the Court to end the nightmare of the present system. The Court
can only offer admiration for such an attitude of selflessness for the
sake of the children.
Father, on the other hand, insists that he and his present wife are
fully capable of assuming primary physical/residential custody of all
four (4) girls. This is so in spite of an on-going antagonism which
exists between him and daughter Rachel as the result of their
disagreement about many things [*11] including but by no means
limited to her use of the telephone and E-mail and the style of
Father's discipline which differs substantially from that of Mother.
His sincerity in this regard is not open to question even though it
appears that he may be overly optimistic.
(Trial Court Opinion, 10/3/00, at 5-7.)
It is clear that the trial court struggled to make a decision in the
face of two capable and loving parents. Under these particular
circumstances, however, and given the ages of these children, we
believe the court should have based its decision on as complete a
record as possible. For that reason, we agree with Mother that it was
an abuse of discretion for the trial court not to interview or take
testimony from the children.
As this Court has stated: "It is important to note that while the
express wishes of a child are not controlling in a custody decision,
those wishes do constitute an important factor that must be carefully
considered in determining the child's best interests." Myers v.
DiDomenico, 441 Pa. Super. 341, 657 A.2d 956, 958 (Pa. Super. 1995)
(citing McMillen v. McMillen, 529 Pa. 198, 203, 602 A.2d 845, 847
(1992)) [*12] (emphasis added); Cardamone v. Elshoff, 442 Pa. Super.
263, 659 A.2d 575, 583 (Pa. Super. 1995) (same). While a child's
preference for one parent must be based on good reasons and the
child's maturity and intelligence must be taken into account, Myers,
657 A.2d at 958, our Supreme Court concluded in McMillen v. McMillen,
supra, that, where the households of both parents were equally
suitable, a child's preference to live with one parent "could not but
tip the evidentiary scale in favor" of that parent. McMillen, 529 Pa.
at 204, 602 A.2d at 848.
In that regard, there are indications that some of the children's
custodial preferences might have been at odds with the court's order.
While Rachel and Father have had a fractured relationship in recent
years, and while Brittany had in the past desired to live with Father,
at oral argument, counsel for the parties conceded that Brittany and
Rachel were refusing to abide by the terms of the trial court's
custody order that requires them to reside with Father."
McDonel v. Sohn, No. 1682 MDA 1999, SUPERIOR COURT OF PENNSYLVANIA,
September 12, 2000, Argued, November 14, 2000, Filed
"We recognize that Dr. Schneider's testimony revealed some
deficiencies -- that his report, among other things, failed to discuss
the value of C.S.' relationship with her half-brothers, that her
teacher reported her to be happy and well-adjusted with the Spanglers,
that the Spanglers are interested in fostering a relationship between
C.S. and her maternal grandmother, and that both parties, not just the
McDonels, are concerned about being kept informed about C.S. by the
other. (N.T. Custody Hearing, 4/22/99, at 39-52.) However, we conclude
that any such deficiencies do not affect Dr. Schneider's overall
conclusion which was accepted by the trial court: that it is in C.S.'s
best interests that the McDonels have primary physical custody."
Watters v. Watters, No. 2004 WDA 1999, SUPERIOR COURT OF PENNSYLVANIA,
June 29, 2000, Argued, August 7, 2000, Filed
"The trial court, relying heavily on the recommendations of the court-
appointed psychologist, determined that Donald III's best interests
lay with awarding his custody to Appellee because otherwise "the
probability of behavioral and emotional problems would increase."
(Trial Ct. [*4] Op. at 6). The court goes on to say that although
Appellant has testified to a noticeable improvement in the boy's
behavior toward her since Appellee has left the marital residence,
Donald III "continues to desire to please his father." (Id.) While the
court correctly notes that weight of evidence and credibility of
witnesses is a matter for its discretion, and that it may consider
uncontradicted expert testimony, Murphey v. Hatala, 350 Pa. Super.
433, 504 A.2d 917 (Pa. Super. 1986), our Supreme Court has observed,
albeit in an entirely different context, the general rule with regard
to expert opinion in the Commonwealth: it is not conclusive and is to
be considered only in conjunction with all the other evidence
presented. Smith v. Shaffer, 511 Pa. 421, 426, 515 A.2d 527, 529
(1986). In this instance, however, we find no abuse of discretion in
the conclusions drawn by the court from the evidence before it,
including that provided by the expert."
Thank you again for giving me the chance to help you with this issue.
I hope you find this information useful.
Sincerely,
Google Answers Researcher
Richard-ga
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