E.A.L. v. L.J.W.

• Decision Date: 25 July 1995
• Parties: E.A.L., Sr., and J.L.L., Appellants, v. L.J.W.
• Court: Pennsylvania Superior Court

Page 1109

662 A.2d 1109

443 Pa.Super. 573

E.A.L., Sr., and J.L.L., Appellants, v. L.J.W.

Superior Court of Pennsylvania.

Submitted March 28, 1995.

Filed July 25, 1995.

Michael R. Lynn, Bloomsburg, for appellants.

George O. Wagner, Danville, for appellee.

Before BECK, TAMILIA and CERCONE, JJ.

CERCONE, Judge.

This is an appeal from an order of the lower court awarding primary custody of two minor children to appellee. We vacate the trial court's order and remand for further proceedings.

J.L., one of the two subjects of this custody action, was born on April 22, 1981. At the time of J.L.'s birth, her mother (appellee) was sixteen years old. Appellee gave birth to a second child, J.R.L., the other subject of this action, on March 3, 1983. From the time of their births until August 7, 1992, J.L. and J.R.L. resided at the home of their grandparents (appellants). Appellee did not marry the fathers of either of the two children. Subsequently, however, appellee married and had three more children. J.L. and J.R.L. continued to live with appellants until August 7, 1992. On that date, appellee picked up the children from their grandparents on the pretense of going on a weekend camping trip. Appellee never returned the children to appellants' home. At the time of this occurrence, J.L. was eleven and J.R.L. was nine. Since August 7, 1992, appellee has retained primary physical custody of the children.

Appellants filed a habeas corpus petition for return of the children on September 23, 1992, in which they alleged that they had been "in loco parentis" to the children since April 9, 1984. ¹ The trial court dismissed appellants' petition on the basis that it failed to conform to Pa.R.C.P., Rule 1915.15(a), which sets forth the form of a complaint for custody. On October 6, 1992, appellants filed a complaint for custody. The lower court referred the matter to Michael Dennehy, Esquire, Special Master, for further proceedings "upon receipt by the Court Administrator of Proof of Service."

Mr. Dennehy filed a report to the court on October 30, 1992, in which he recommended that primary physical and legal custody of the children be granted to appellants, with partial physical custody to appellee on alternating weekends, holidays, and in the summer. The master found that the sudden removal of the children from their grandparents' home was not in their best interests. (Master's Report, October 30, 1992). The lower court issued an order making the recommendations of the master an interim order for ten days or until exceptions were filed.

On November 12, 1992, appellee, by counsel, filed "Preliminary Objections Motion for Special Relief," asserting that the court and master lacked jurisdiction over appellee because she had not received personal service of the October 6, 1992 complaint in custody. The lower court granted appellee's motion to dismiss, vacated the interim order based on the master's recommendations, and declared them a nullity.

On December 1, 1992, the lower court reinstated the complaint for custody upon appellants' request. The sheriff personally served the complaint on appellee. Again, the lower court referred the case to special master Dennehy who filed a report on December 31, 1992. In this report, the master found that appellants did not have standing to maintain the action for custody. However, because of the "long residency" of the children with appellants, the master recommended that appellants have liberal visitation. Appellants filed exceptions to the master's report on January 6, 1993. On January 12, 1993, the lower court made the master's report an interim order.

The lower court ordered home studies of both parties, and conducted a hearing in the matter on October 6, 1992. The lower court issued its opinion and order, per Naus, J., on December 13, 1993. The trial court found that appellants did have standing to seek custody of the children under the doctrine of in loco parentis, and granted primary custody to appellee with partial custody in appellants. The stamp date on the lower court's opinion indicates that it was not filed until January 11, 1994. ² From that order, appellants file this timely appeal, ³ in which they raise the following issue: "Given the totality of evidence adduced at the custody hearing did the lower court err as a matter of law in not awarding primary custody of the two minor children to their grandparents?" ⁴

Our scope of review of a trial court's order of child custody is of the broadest type. McMillen v. McMillen, 529 Pa. 198, 202, 602 A.2d 845, 847 (1992).

In reviewing a custody order, an appellate court is not bound by findings of fact made by the trial court which are unsupported in the record, nor is it bound by the court's inferences drawn from the facts. However, on issues of credibility and weight of the evidence, an appellate court defers to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Only where it finds that the custody order is "manifestly unreasonable as shown by the evidence of record ..." will an appellate court interfere with the trial court's determination. Therefore, unless the trial court's ruling represents a gross abuse of discretion, an appellate court will not interfere with its order awarding custody.

Robinson v. Robinson, 538 Pa. 52, 55-56, 645 A.2d 836, 837-38 (1994). The paramount concern in a child custody case is the best interests of the child. McMillen v. McMillen, supra, 529 Pa. at 202, 602 A.2d at 847. A determination of the best interests of the child is based on consideration of all factors which legitimately have effect upon the child's physical, intellectual, moral and spiritual well-being. Wiskoski v. Wiskoski, 427 Pa.Super. 531, 629 A.2d 996 (1993), appeal denied, 536 Pa. 646, 639 A.2d 33 (1993). The court in a custody action has the obligation to consider all relevant factors that could affect the child's well-being. Clapper v. Clapper, 396 Pa.Super. 49, 578 A.2d 17 (1990); DeNillo v. DeNillo, 369 Pa.Super. 363, 535 A.2d 200 (1987).

In a custody dispute between a parent and a non-parent, the natural parent has a prima facie right to custody of the child. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). The natural parent's right may be forfeited if convincing reasons appear that the child's best interests will be served by awarding custody to someone else. Id. at 285, 376 A.2d at 654. However, this standard

is not to be construed as precluding a custody award to a non-parent, absent a demonstration of the parent's dereliction ... [T]he standard seeks only to stress the importance of parenthood as a factor in determining the best interests of the child. However, other factors which have significant impact on the well being of the child can justify a finding in favor of the non-parent, even though the parent has not been shown to have been unfit.

Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 328, 421 A.2d 157, 161 (1980) (emphasis added). In a dispute between a parent and a non-parent, the burden of proof and of persuasion is on the non-parent, and that burden is heavy. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980). However, the hearing court may award custody to a third party "where the best interests of the child will be clearly served by such a decision." Albright, supra, 491 Pa. at 326, 421 A.2d at 160.

The lower court heard the following testimony, inter alia, at the hearing. Appellant J.L.L. (grandmother) testified that after the births of J.L. and J.R.L., appellee would leave home for months at a time. N.T., October 6, 1993, at 7. When she was away, appellee did not communicate with appellants. Id. at 8. The children's grandmother testified that when appellee did return home to Bloomsburg, she would stay a couple of days at appellants' home and then would go away. Id. at 8. Appellants themselves took the children to church, Sunday school, bible school, and "five-day club." Id. at 16. They also went to skating parties and school activities. Id. During the time the children lived with appellants, appellee would take them for weekends at the most. Id. at 25.

Appellant E.L. (grandfather) testified that he brought both J.L. and J.R.L. home from the hospital. His daughter, appellee, left almost immediately after the children were born. Id. at 54. The grandfather indicated that he and his wife took the children to church and Sunday school, and gave them clothing, shoes, socks, medical care, and food. He stated that both children indicate that they do not want to return to their mother's home when their visitation with their grandparents ends. Id. at 65.

Sabrina Williams, Children and Youth Administrator for Columbia County indicated that appellee's family had been referred to her agency. Id. at 67-68. She stated that a number of case workers had been involved with the family during a short period of time due to transitions in the agency. Id. at 69. Ms. Williams testified that there was a notation in the file indicating that the parents and grandparents disagreed as to where the children should be and the parenting techniques used by the respective family members. Id. at 70. She indicated that based on her reading of the file, that the disagreement between the families was a stress on the children. Id. At the time of Ms. Williams' testimony, the file on appellee's family remained open due to the number of transitions that had taken place within the Children and Youth agency and the ongoing custody dispute between the parties. Id. at 69.

Mary Mordan, a former caseworker with Montour County Children and Youth Services, indicated that she had been involved with appellee's household. Ms. Mordan talked to appellee and her husband about discipline and housing conditions. Id. at 77. She indicated that the agency offered a parenting course which appellee and her husband attended sporadically. Id. Ms. Mordan found...