Hiller v. Fausey

CourtPennsylvania Supreme Court
Writing for the CourtBaer
Citation904 A.2d 875
PartiesCheryl HILLER, Appellee v. Shane FAUSEY, Appellant.
Decision Date22 August 2006
904 A.2d 875
Cheryl HILLER, Appellee
Shane FAUSEY, Appellant.
Supreme Court of Pennsylvania.
Argued May 16, 2005.
Decided August 22, 2006.

Page 876

Howard Jonathan Bashman, Willow Grove, for Shane Fausey, appellant.

Karen Anne Wyle, Pro Hac Vice, Bloomington, IN, for Coalition for the Restoration of Parental Rights, appellant amicus curiae.

Mark Albert Momjian, Natasha Gonzalez, Philadelphia, for Cheryl Hiller, appellee.

Ellen Ruth Wase, Philadelphia, for AARP, appellee amicus curiae.

Karen Coleen Buck, Kimberly J. Krzyzaniak; Stephen Alan Feldman, Jenkintown, for Senior Law Center, et al., appellee amici curiae.



Justice BAER.

This Court granted allocatur in this matter to determine the constitutionality of a trial court's application of the Pennsylvania's statute governing the provision of partial custody or visitation to grandparents upon the death of their child who is also the grandchild's parent, 23 Pa.C.S. § 5311.1 The Superior Court held that the

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trial court's application was constitutional. We affirm.

Shane Fausey (Father) has challenged the grant of partial custody of his son, Kaelen Fausey (Child), then age eight, to Cheryl Hiller, Child's maternal grandmother (Grandmother). Child lived with his mother (Mother) and Father from his birth in 1994 until his mother died in May 2002 after battling cancer for several years. Prior to Mother's death, Child had frequent contact with Grandmother, especially during the last two years of his mother's illness, when they saw each other on an almost daily basis. Grandmother often transported Child to and from school and cared for him when Mother attended doctors' appointments or was too ill to provide care. Further, Grandmother took on the task of preparing Child for Mother's death. The trial court found credible the testimony that Child and Grandmother enjoyed spending time together, showed a great deal of affection toward one another, and shared a very close relationship.

After Mother's death, however, Father abruptly denied Grandmother contact with Child, despite Grandmother's repeated attempts to call Father and request time with Child. Between Mother's death in May 2002 and April 2003, Grandmother saw Child on only three occasions when Child was visiting other maternal relatives.2

Eventually exasperated with the situation, Grandmother filed for partial custody pursuant to Section 5311. The court granted her temporary partial custody in April 2003 following a non-record custody conference, after which Father filed for modification. After extensive pre-trial activities, the court held a two-day hearing in July 2003. At its conclusion, the trial court granted Grandmother partial custody one weekend per month and one week each summer.3

In its thorough opinion in support of its decision, the trial court explained its application of Section 5311. In compliance with the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), discussed in detail infra, the trial court applied the presumption that a fit parent acts in the child's best interests. Further, the court noted that a grandparent seeking to compel partial custody carries the burden of proof.

With these premises established, the trial court examined the facts of the case. As specifically required by Section 5311, the court first considered the contact between Child and Grandmother prior to Grandmother's petition. First, the court noted that Child's parents had permitted significant contact with Grandmother prior to Mother's death, and that a strong and affectionate relationship had formed between Child and Grandmother.

Next, in accordance with Troxel, the court considered the likelihood and amount of contact that Father would provide to Grandmother absent a court order. As previously discussed, Grandmother had seen Child only three times between May 2002 and April 2003. Moreover, according to the trial court, Father's position on acceptable partial custody or visitation changed dramatically during the course of

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the proceedings.4 After one custody conference, Father agreed to limited periods of partial custody without overnight stays. One month later he changed his mind and asserted that Grandmother should not be provided any court-ordered visitation. Father changed his position yet again at trial, where he stated that he would permit partial custody one day per month without overnight stays. Parenthetically, the court also found Father's various accusations regarding his concern's for Child's safety in Grandmother's care lacking in credibility and devoid of evidentiary support: "Given the fact that none of these concerns have any merit, the court must conclude that either [Father] is grasping at straws and inventing reasons to keep [Child] away from his grandmother, or he actually believes the allegations, which shows he is under serious delusions concerning [Grandmother] and his judgment regarding her is polluted."5 Tr. Ct. Slip Op. at 5. Accordingly, with ample factual support, the trial court concluded that, absent a court order, Father would not provide Grandmother the opportunity to see Child.

The court then turned to the statute's requirement that the court find that visitation or partial custody with Grandmother would be in the child's best interests, even when applying the presumption that a parent's decision limiting contact is in the child's best interests. The court found that Father's proposed arrangement of one day per month "is not enough time to maintain the bond [Child] has established with his grandmother and her side of the family, especially given his extensive contact in the past." Tr. Ct. Slip Op. at 6. Specifically, the court noted that Grandmother is warm and loving and has developed a "longstanding, very close relationship" with Child, and that Child enjoyed spending time with her, engaging in many activities with her, and visiting with his many maternal relatives during the family gatherings that occur during the court-ordered periods of partial custody. Tr. Ct. Slip Op. at 6. Significantly, the court observed that "when [Child] is with [Grandmother], he seeks and receives emotional support regarding the death of his mother." Tr. Ct. Slip Op. at 6. This finding is

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particularly resonant because "[Father] himself expressed concerns regarding [Child's] ability to express his emotions regarding his mother's death." Tr. Ct. Slip Op. at 6. Thus, the court concluded, "contact with his mother's side of the family is highly beneficial emotionally for [Child] in helping him deal with the loss of his mother." Tr. Ct. Slip Op. at 6.

As dictated by the statute, the trial court next considered whether the court-ordered partial custody would interfere with Father's relationship with Child. Father argued that it would interfere because of the animosity between Grandmother and him, which, he noted, had led to the legal proceedings. The trial court, however, aptly commented:

If the mere existence of animosity and dislike between parent and grandparent were enough to prevent grandparent custody, surely there would be very few court ordered periods of grandparent custody. For after all, if the parties were able to get along together, they would not be in court to begin with.

Tr. Ct. Slip Op. at 7. Instead, the court distinguished this case from those where grandparent partial custody would have either distressed the child or adversely impacted the parent's ability to parent him. Moreover, the court found credible Grandmother's assertion that she would not express negative feelings about Father to Child, or create a situation that would negatively impact Child. The court also expressed confidence that Father would not let his animosity toward Grandmother cause harm to Child, as the court found it clear that Father was a capable father who loved his son. Additionally, the court noted that there had been no incidents of problems in the visits thus far.

The court therefore found that Grandmother had met her burden of demonstrating that partial custody would be in Child's best interests and would not interfere with the parent-child relationship, and thereby, had rebutted the presumption that Father's decision limiting or eliminating Grandmother's contact with Child was in Child's best interests. Tr. Ct. Slip. Op. at 8. The court thus granted partial custody to Grandmother one weekend per month and one week per summer.6

Father timely appealed to the Superior Court, asserting that the application of the statute violated his substantive due process rights under the Fourteenth Amendment to the United States Constitution.7 In a published opinion, a panel of the Superior Court8 acknowledged that the United States Supreme Court recently held, "it cannot be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Fausey v. Hiller, 851 A.2d 193, 195 (Pa.Super.2004) (quoting Troxel, 530 U.S. at 67, 120 S.Ct. 2054). Given the fundamental right of parents, the Superior Court utilized a strict scrutiny analysis and considered whether the imposition on a parent's fundamental rights was necessary to promote a compelling state interest and

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was narrowly tailored to effectuate that interest. Id.9

The Superior Court began its analysis by comparing Pennsylvania's statute to the Washington State statute which the United States Supreme Court found unconstitutional as applied in Troxel. Fausey, 851 A.2d at 196. The court found Pennsylvania's statute and its application in this case "readily distinguishable" from the situation in Troxel.10 Moreover, the court held that the trial court complied with Pennsylvania precedent by placing the burden of proof on the petitioning grandparent due to the...

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50 practice notes
  • Weldon v. Ballow, 2140471.
    • United States
    • Alabama Court of Civil Appeals
    • October 30, 2015
    ...; In re S.B., 845 N.W.2d 317 (N.D.2014) ; Harrold v. Collier, 107 Ohio St.3d 44, 836 N.E.2d 1165 (2005) ; Hiller v. Fausey, 588 Pa. 342, 904 A.2d 875 (2006) ; State ex rel. Brandon L. v. Moats, 209 W.Va. 752, 551 S.E.2d 674 (2001) ; and In re Paternity of Roger D.H., 250 Wis.2d 747, 641 N.W......
  • Jones v. Jones, No. 20130815.
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    • Supreme Court of Utah
    • September 16, 2015
    ...v. Johnson, 731 N.W.2d 815, 821 (Minn.2007) ; Moriarty v. Bradt, 177 N.J. 84, 827 A.2d 203, 222 (2003) ; Hiller v. Fausey, 588 Pa. 342, 904 A.2d 875, 885 (2006) ; Smallwood v. Mann, 205 S.W.3d 358, 362 (Tenn.2006) ; Glidden v. Conley, 175 Vt. 111, 820 A.2d 197, 205 (2003) ; In re Parentage ......
  • Fish v. Fish, No. 17500.
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    • Supreme Court of Connecticut
    • January 15, 2008
    ...upon the one in whom it is placed as opposed to the privilege of visiting." (Citations omitted.) Hiller v. Fausey, 588 Pa. 342, 378-79, 904 A.2d 875 (2006) (Newman, J., concurring), cert. denied, ___ U.S. ___, 127 S.Ct. 1876, 167 L.Ed.2d 363 Thus, an award of full custody to a third person ......
  • Jones v. Jones, No. 20110998–CA.
    • United States
    • Court of Appeals of Utah
    • July 11, 2013
    ...731 N.W.2d 815, 821 (Minn.2007); Moriarty, 827 A.2d at 222;In re Herbst, 1998 OK 100, ¶ 14, 971 P.2d 395;Hiller v. Fausey, 588 Pa. 342, 904 A.2d 875, 885–86 (2006); Smallwood v. Mann, 205 S.W.3d 358, 362–63 (Tenn.2006); In re Parentage of C.A.M.A., 154 Wash.2d 52, 109 P.3d 405, 408–09, ¶¶ 9......
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54 cases
  • Ex Parte E.R.G. And D.W.G., 1090883
    • United States
    • Supreme Court of Alabama
    • June 10, 2011
    ...in Troxel suggests that a parent's wishes should be placed before a child's best interest'); and Hiller v. Fausey, 588 Pa. 342, 363-66, 904 A.2d 875, 888-90 (2006). "'26 I would hold that the child's best interests, not the "interests" of the parents, is the determinative standard for decid......
  • E.H.G. v. E.R.G., 2071061.
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    • Alabama Court of Civil Appeals
    • March 12, 2010
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  • In re Interest of Y.W.-B., 1 EAP 2021
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    • United States State Supreme Court of Pennsylvania
    • December 23, 2021
    ...and control of one's children is one of the oldest fundamental liberty interests protected by due process. Hiller v. Fausey , 588 Pa. 342, 904 A.2d 875, 885 (2006) (citing Troxel v. Granville , 530 U.S. 57, 67, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ; see also Lassiter v. Dep't of Soc. Servs......
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    ...custody, and control of one's children is one of the oldest fundamental liberty interests protected by due process. Hiller v. Fausey, 904 A.2d 875, 885 (Pa. 2006) (citing Troxel v. Granville, 530 U.S. 57, 67 (2000); see also Lassiter v. Dep't of Soc. Servs. of Durham Cty, N.C. , 452 U.S. 18......
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