M.A.T. v. G.S.T.

M.A.T. v. G.S.T. No. 1517 MDA 2008 2010 PA Super 8 Atlantic: n/a Filed: 1/21/2010
	Appeal from the Order entered August 11, 2008, Court of Common Pleas, Dauphin County, Civil Division at No. 2006 CV 4571 CU
Before: FORD ELLIOTT, P.J., MUSMANNO, ORIE MELVIN, BENDER, BOWES, PANELLA, DONOHUE, SHOGAN and ALLEN, JJ.
Opinion by: DONOHUE, J.
Concurring and Dissenting Opinion by: SHOGAN, J.
Appellant M.A.T. (“Mother”) appeals the trial court’s order dated August 11, 2008 denying her petition for modification of a custody order granting Appellee G.S.T. (“Father”) primary physical custody of their daughter K.J.T. (“Daughter”). The trial court based its decision on (1) its application of an evidentiary presumption against a homosexual parent, see, e.g., Constant A. v. Paul C.A., 496 A.2d 1 (Pa. Super. 1985); and (2) rejection of uncontroverted expert testimony recommending shared custody. For the reasons set forth herein, we reverse the trial court’s order and grant Mother’s petition for modification of the custody order. In doing so, we overrule the holding and reasoning in Constant. We further rule that the trial court in this case abused its discretion in rejecting the recommendations of the jointly retained custody evaluator and basing its decision to award primary physical custody to Father upon the trial court’s personal opinion that shared custody is seldom (if ever) in the best interests of school-age children. Accordingly, we vacate the trial court’s order dated August 11, 2008 and remand for entry of an order consistent with this Opinion.

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