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McMillen v. McMillen

Citation. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845, 1992)
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Brief Fact Summary.

Father gained custody of his son partially based upon the son’s testimony that he preferred to live with his father. The Superior Court reversed the decision and returned custody to mother.

Synopsis of Rule of Law.

When the home of both the mother and the father are equally acceptable, the court should give weight to the custody preference of the child, so long as the preference is based on good reasons and the child is sufficiently mature and intelligent to express an opinion.


The parties married in 1975 and produced a son, Emmett. The parties divorced in 1981, with the Wyoming curt awarding primary custody of Emmett to the mother, subject to the reasonable visitation of father. In 1982, father instituted an action seeking partial custody of Emmett. The court awarded general custody to the mother with the right of visitation in the father, limiting the father’s visitation to alternating weekends and holidays, one day every other week and two weeks during the summer. Father sought modification 4 times over the next 6 years and mother sought modification once. Each time the court significantly expanded father’s visitation rights. From 1986 on Emmett repeatedly and steadfastly expressed his preference to live with his father. In 1988 the court awarded general custody to the father. On appeal, the Superior Court vacated the order and reinstated the previous order, determining that: 1) the record failed to present any circumstances warranting a c
hange in custody; and 2) the child’s best interests would no t be served by changing custody merely because the child wished it.


Did the Superior Court err in overruling the custody order of the trial court?


The Superior Court erred because the trial court correctly found that both households were equally suitable and therefore Emmett’s preference to live with his father tipped the scale in favor of granting the father custody.
The Superior Court usurped the function of the trial court by ignoring its factual findings and also failed to give proper weight to Emmett’s desure to live with his father. The appellate court is empowered to determine if the trial court’s factual findings support its factual conclusions, but may not interfere with those conclusions unless they are an unreasonable abuse of discretion.

The trial court concluded that both the mother and the father were equally acceptable. Looking at other factors, the court found the testimony of 11 year old Emmett that he wished to live with his father. The express wishes of a child are not controlling in custody decisions, but they do constitute an important factor. The preference must be based on good reasons, with the child’s maturity and intelligence being considered.

Emmett’s preference is supported by the facts that his stepfather frightens, upsets and threatens him, his mother does nothing to prevent this, he does not get along with either his mother or his stepfather, and he gets along well with his stepmother. Furthermore, his mother and stepfather leave him alone after school unlike his father and stepmother. Because the record supports that both households were equally suitable, Emmett’s preference tips the evidentiary scale in favor of his father.


The case demonstrates that a child’s preference regarding custody will be considered so long as it is based on good reasons. The child’s maturity and intelligence must be considered in this determination.

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