Gradwell v. Strausser

• Decision Date: 03 June 1992
• Citation: 416 Pa.Super. 118,610 A.2d 999
• Parties: Thomas GRADWELL and Emma Gradwell, Luther T. Strausser, Appellants, v. Luther D. STRAUSSER and Emma A. Strausser.
• Court: Pennsylvania Superior Court

Page 999

610 A.2d 999

416 Pa.Super. 118

Thomas GRADWELL and Emma Gradwell, Luther T. Strausser, Appellants, v. Luther D. STRAUSSER and Emma A. Strausser.

Superior Court of Pennsylvania.

Argued April 8, 1992.

Filed June 3, 1992.

Chester C. Corse, Jr., Pottsville, for appellants.

K. Tucker Landon, Pottsville, for appellee.

Before McEWEN, CIRILLO and CERCONE, JJ.

CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Schuylkill County dismissing Appellants' complaint for custody. We affirm.

Appellants, Thomas Gradwell and his wife, Emma Gradwell, the maternal grandparents ("grandparents") of Lynn Anne Strausser, sought legal custody of Lynn Anne, presently age 15. The grandparents instituted this action against Luther D. Strausser and Emma A. Strausser, Lynn Anne's natural parents. The parents filed an answer with new matter, requesting legal and physical custody of Lynn Anne.

At the time this action was commenced, physical custody of the Lynn Anne was with the paternal grandfather, Luther T. Strausser ("Luke"). Legal custody was with the parents. The parents also had the right to partial custody and visitation. This custody arrangement was pursuant to a temporary court order entered on August 2, 1990. ¹

On August 29, 1990, following a hearing, the court entered a second temporary order vacating the prior order and transferring legal and physical custody of Lynn Anne to her parents pending further court action. On February 19, 1991, the grandparents and Luke filed a motion requesting that testimony be taken and that the agency rendering family counseling to the parties report on the parents' status. See 23 Pa.C.S. § 5305. ² A conference was held, and on September 10, 1991 the court entered an order granting the parents' motion to dismiss the proceedings. This appeal followed. Appellants, the maternal grandparents, and Luke, the paternal grandfather, raise the following issues:

1. Do maternal and paternal grandparents have standing to institute a civil action seeking custody, partial custody, or visitation with a minor child?

2. Did the trial court err in denying paternal grandfather partial custody or visitation with the minor child where the grandfather and stood in loco parentis to the minor and they had lived together for over a twelve month period?

3. Assuming but not conceding the trial court's ruling on standing is correct, did the trial court err in not transferring this matter to the juvenile section of the court?

Persons other than natural parents are "third parties" for purposes of custody disputes. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). See also Commonwealth ex rel. Witherspoon v. Witherspoon, 252 Pa.Super. 589, 384 A.2d 936 (1978). "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 tipped hard, to the parents' side[.]" Hernandez, 249 Pa.Super. at 286, 376 A.2d at 654. The courts have noted the distinction between non-related third parties and related third parties, but have declined to draw a distinction in the burden of proof to each. Id. at 287, 376 A.2d at 654. See also Commonwealth ex rel. Patricia L.F. v. Malbert J.F., 278 Pa.Super. 343, 420 A.2d 572 (1980).

Absent a prima facie right to custody, a third party lacks standing to seek custody as against the natural parents. Helsel v. Blair County Children and Youth Services, 359 Pa.Super. 487, 519 A.2d 456 (1986). If we were to grant standing to third parties under these circumstances,

a parent's prima facie right to custody could thus be challenged without a clear and convincing showing that the child is not receiving proper parental care. This is not appropriate when the party seeking custody lacks a legal basis to claim custody equal with that of a parent. It is an unacceptable means of circumventing the procedures established to determine the necessity of forfeiting parental rights.

Id. at 496, 519 A.2d at 460. See also Weber v. Weber, 362 Pa.Super. 262, 524 A.2d 498 (1987); Herron v. Seizak, 321 Pa.Super. 466, 468 A.2d 803 (1983).

The appropriate manner for a third party to challenge child custody is through dependency proceedings, set forth in the Judicial Code. See 42 Pa.C.S. § 6301 et seq.; Helsel, supra. It is only after a child is found dependent that a court will engage in custody proceedings where the standard is the best interests of the child. Helsel, supra; see also Bishop v. Piller, 399 Pa.Super. 52, 581 A.2d 670 (1990). Prior to that, the burden is on the party seeking to take the child from the parents to show by clear and convincing evidence that the child is dependent. 42 Pa.C.S. § 6341(c); Helsel, supra. See also Ellerbe v. Hooks, 490 Pa. 363, 367, 416 A.2d 512, 513 (1980); Commonwealth ex rel. Kraus v. Kraus, 185 Pa.Super. 167, 170, 138 A.2d 225, 226-27 (1958); cf. In re Miller, 380 Pa.Super. 423, 552 A.2d 261 (1988) (under Juvenile Act, child may be adjudicated dependent when it is established by clear and convincing evidence that child is without proper parental care and such care is not immediately available). Unless the parents' prima facie right to custody is successfully overcome, this court cannot confer standing on third parties to interfere with the parent/child relationship. See 42 Pa.C.S. §§ 6301 et seq.

In Palmer v. Tokarek, 279 Pa.Super. 458, 421 A.2d 289 (1980), this court affirmed an award of custody to a father in a contest with the maternal grandparents. The child's parents were divorced. The father was awarded custody despite the fact that his seven-year old son had lived almost his entire life with the maternal grandparents, had been well cared for by them and wished to remain with them. The trial court had stated in its opinion that "if the parties stood in equal position" it would have awarded custody to grandparents. Id. at 465, 421 A.2d at 293.

Palmer graphically illustrates the rationale supporting the exacting standard of proof. The courts, in order to promote and protect the policy of protecting the parent/child relationship, will hesitate to interfere absent clear evidence that the child's welfare so demands. Only then may the courts intrude upon the parents' natural and primary right to rear and care for their child. Cf. Snarski v. Krincek, 372 Pa.Super. 58, 538 A.2d 1348 (1988) (parents divorced; child lived with maternal grandparents and mother for six and one-half of his eight years; after mother died, father sought custody; the court awarded custody to the maternal grandparents, subject to father's right to partial custody).

A third party has been permitted to maintain an action where that party stands in loco parentis, that is, where he or she has "assumed obligations incident to the parental relationship." See, e.g., Commonwealth ex rel. Patricia L.F. v. Malbert J.F., 278 Pa.Super. 343, 420 A.2d 572 (1980); Commonwealth ex rel. Gorto v. Gorto, 298 Pa.Super. 509, 444 A.2d 1299 (1982); Jones v. Stone, 343 Pa.Super. 416, 495 A.2d 205 (1985); Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1987). The rights and obligations arising out of that relationship are exactly the same as between parent and child. Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977).

Luke argues that he should be permitted to maintain this action because he stands in loco parentis with respect to Lynn Anne. Specifically, Luke contends that he has resided with Lynn Anne for a length of time and, therefore, he has overcome the natural parents' prima facie right to custody. We disagree.

The phrase "in loco parentis" refers to a person who puts himself in the situation of assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of "in loco parentis" embodies two ideas: first, the assumption of a parental status, and second, the discharge of parental duties.

Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968). The trial court found that Luke had resided with Lynn Anne and her parents for almost two years. Thereafter, Lynn Anne resided with Luke, without her parents, for a period of three months. Lynn Anne and Luke evidently had a very warm and caring relationship. Lynn Anne stated that she preferred Luke's supervision over that of her parents, and stated that she would rather live with her grandparents than with her parents. Lynn Anne characterized her parents as more rigid in their discipline than Luke or her maternal grandparents.

The level of discipline is doubtless a strong consideration to a child in determining a preference. This is especially true during adolescent years when the child experiments with independence from his or her parents. A child's stated preference to live with a grandparent, however, cannot outweigh the parents' prima facie right to custody. Palmer, supra. Without more, a child's preference and the fact that the child and grandparent resided together for a period of time is insufficient to support a finding that Luke stood in loco parentis and has overcome the parents' prima facie right to custody. A third party cannot place himself in loco parentis status in defiance of the parents' wishes and the parent/child relationship.

Sections 5311, 5312 and 5313 of the Domestic Relations Code ³ provide grandparents or great-grandparents with a right of action for partial custody or visitation under certain circumstances--when a parent is deceased, 23 Pa.C.S. § 5311, when the parents are separated or divorced, 23 Pa.C.S. § 5312, or when a child has resided with his or her grandparents for a period of twelve months or more and is thereafter removed by the parents, 23 Pa.C.S. § 5313. Under these conditions, the grandparents may petition for an order granting reasonable partial...