Cardamone v. Elshoff

• Decision Date: 24 May 1995
• Citation: 659 A.2d 575,442 Pa.Super. 263
• Parties: Margaret CARDAMONE v. Bernadette ELSHOFF, Appellant.
• Court: Pennsylvania Superior Court

Page 575

659 A.2d 575

442 Pa.Super. 263

Margaret CARDAMONE v.Bernadette ELSHOFF, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 9, 1995.

Filed May 24, 1995.

Petra F. Hoeschele, Philadelphia, for appellant.

Robert Katzenstein, Philadelphia, for appellee.

Before CIRILLO, OLSZEWSKI and HESTER, JJ.

CIRILLO, Judge:

Bernadette Elshoff(Mother) appeals from an order entered in the Court of Common Pleas of Philadelphia County, awarding primary physical custody of Jennifer Elshoff(Daughter) to Margaret Cardamone(Maternal Aunt), and awarding partial physical custody of Daughter to Mother.We affirm.

Daughter was born on March 27, 1980.¹In 1985, Mother married Theodore Rafalko(Stepfather).As a result of that marriage, Mother gave birth to her second child, Gregory (Brother).Mother and Stepfather separated numerous times due to marital problems and substance abuse problems.Because of these separations, Mother and the children were forced to periodically move in with various family members.

Some time in March of 1992, Daughter contacted Maternal Aunt and asked if she could reside with Maternal Aunt, Maternal Aunt's husband (Uncle), and Theresa Elshoff(Maternal Grandmother), all of whom reside in the same household in Philadelphia.The following month, in April of 1992, Daughter moved into Maternal Aunt and Uncle's home.Presently, Daughter is fifteen years old and has been residing in Maternal Aunt's residence for approximately three years.Mother Stepfather, and Brother currently reside in Scranton, Pennsylvania.

In June of 1992, while Daughter was in the care of Maternal Aunt, Maternal Aunt filed a petition to confirm custody of Daughter.In August of 1992, Mother filed an emergency petition, seeking to regain physical custody of Daughter from Maternal Aunt.Shortly thereafter, the Honorable Nicholas Kozay, Jr., consolidated the petitions and entered a temporary order, pending a full custody hearing, granting physical custody of Daughter to Maternal Grandmother.

The matter was continued on several occasions.On September 17, 1993, a full hearing was held before the Honorable Frank M. Jackson on the cross-petitions for custody.The trial court was presented with the testimony of Mother, Maternal Aunt, Uncle, Maternal Grandmother, and Stepfather.In addition, in the presence of only the attorneys, the trial court examined Daughter in camera.At the conclusion of the testimony, Judge Jackson entered a temporary order, maintaining the status quo and giving Mother partial custody on alternating weekends.Pursuant to the order, Mother was required to make Daughter's travel arrangements to and from Scranton.

On October 14, 1993, Judge Jackson entered an order, holding the cross-petitions for custody in abeyance until Daughter completed her last year in grammar school.As such, a hearing was scheduled for June 17, 1994.In the interim, temporary physical custody of Daughter remained with Maternal Aunt.Mother filed a notice of appeal from Judge Jackson's temporary order.This court dismissed Mother's appeal via a per curiam order because Mother failed to file her brief in a timely fashion.Pa.R.A.P. 2188.

On August 1, 1994, the trial court again heard extensive testimony from all of the participants and again interviewed Daughter in camera, then fourteen years old.On August 31, 1994, the Honorable Frank M. Jackson entered an order, awarding primary physical custody to Maternal Aunt, and granting partial physical custody to Mother.Specifically, Mother was awarded partial physical custody of Daughter for one-half of the winter and spring vacations, as well as six weeks during the summer school vacation.This timely appeal followed.On appeal, Mother presents the following questions for this court's consideration:

(1) Whether the trial court erred in its failure to dismiss a third party petition for custody where the third party did not have in loco parentis status to maintain a custody action?

(2) Whether the trial court erred in ruling that the record supports a finding by convincing evidence that Mother's prima facie right to custody should be forfeited in the child's best interests?

(a) Whether the trial court erred in basing its decision on mother's past history rather than on her present capabilities to care for the child?

(b) Whether the trial court committed error in according the child's preference sufficient weight to overcome Mother's prima facie right to custody when the record as a whole does not support such a finding?

(c) Whether the trial court erred in its failure to consider the well established policy within the law to keep siblings living together whenever possible?

Before we address the merits of Mother's contentions, we must first note this court's standard of review of child custody orders:

The scope of review of an appellate court reviewing a child custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it....However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination....Thus, an appellate court is empowered to determine whether the trial court's incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court's factual findings; and thus, represent a gross abuse of discretion.

Kaneski v. Kaneski, 413 Pa.Super. 173, 604 A.2d 1075(1992)(citingMcMillen v. McMillen, 529 Pa. 198, 602 A.2d 845(1992)).

The Fourteenth Amendment to the United States Constitution provides that "[n]o state shall ... deprive any person of life, liberty, or property, without due process of law."U.S. Const. amend XIV, § 1.While there is no mention of family, a parent's right to child custody, or the protection of a child's welfare in this amendment or elsewhere in the Constitution, the United States Supreme Court has constitutionally protected each of these interests as a fundamental liberty under the Fourteenth Amendment.²

Pennsylvania courts have similarly recognized that the law protects the natural parent's relationship with his or her child and will not interfere unnecessarily with that relationship, even at the expense of estrangement to the extended family.SeeJackson v. Garland, 424 Pa.Super. 378, 622 A.2d 969, 971(1993)(citingSantosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982)andWeber v. Weber, 362 Pa.Super. 262, 524 A.2d 498(1987)).In fact, our General Assembly has specifically declared that:

[I]t is the public policy of this Commonwealth, when in the best interest of the child, to assure reasonable and continuing contact of the child with both parents after separation or dissolution of the marriage and the sharing of the rights and responsibilities of child rearing by both parents....

23 Pa.C.S.A. § 5301.

In furtherance of this public policy, the legislature has specified limited circumstances in which governmental intrusion into the family is warranted.See42 Pa.C.S.A. § 6351-52(outlining procedures for initiating dependency proceedings);23 Pa.C.S.A. § 2511(involving the involuntary termination of parental rights);23 Pa.C.S.A. § 6301 et seq.(taking an abused child into protective custody);23 Pa.C.S.A. § 5311-13(concerning grandparents' rights to visitation);23 Pa.C.S.A. § 5301 et seq.(concerning custody and visitation rights between parents in a divorce action);see alsoJackson, supra, 424 Pa.Super. 378, 622 A.2d 969.

Protecting family unity and the parent/child relationship, however, is becoming increasingly difficult.The traditional American family is facing problems that were virtually non-existent one hundred years ago.Divorces are on the rise, and expecting parents increasingly choose not to get married.Unfortunately, children are frequently caught in the middle of their parents' difficulties--e.g., alcoholism, drug addiction, domestic violence, homelessness, separation, divorce, etc.As a result of these difficulties, many children reside with, and form strong emotional attachments and relationships with, persons other than their natural or biological parents.An obvious problem arises when one or both of the natural parents later seek to regain custody of the child from the parental surrogate.In many cases, however, the third party or non-parent has assumed the role of "psychological parent" to the child and, hence, is unwilling to transfer custody to the biological parent.In these situations, the judicial system inherits the confounding task of deciding which "parent" will receive custody.

In Pennsylvania, there are three types of custody disputes: parent versus parent; parent(s) versus state; and parent(s) versus third party.In re Hernandez, 249 Pa.Super. 274, 376 A.2d 648(1977).Persons other than natural or biological parents are deemed to be "third parties" for purposes of custody disputes.Gradwell v. Strausser, 416 Pa.Super. 118, 121-23, 610 A.2d 999, 1001(1992)(citingHernandez, supra, 249 Pa.Super. 274, 376 A.2d 648andCommonwealth ex rel. Witherspoon v. Witherspoon, 252 Pa.Super. 589, 384 A.2d 936(1978)).

In determining the appropriate standard for adjudication of custody disputes between a parent or parents and a third party, the Pennsylvania Supreme Court, in Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512(1980), adopted the carefully fashioned principles set forth by this court in Hernandez, supra, 249 Pa.Super. 274, 376 A.2d 648.

Although the best interest of the child remains of paramount concern, the parent has 'a prima facie right to custody,' which will be forfeited only if 'convincing reasons' appear that the child's best interest will be served by an award to the third party ... the evidentiary scale is tipped, and...