TB v. LRM

• Decision Date: 28 March 2005
• Citation: 874 A.2d 34,2005 PA Super. 114
• Parties: T.B., Appellant, v. L.R.M., Appellee.
• Court: Pennsylvania Superior Court

874 A.2d 34

2005 PA Super. 114

T.B., Appellant, v. L.R.M., Appellee.

Superior Court of Pennsylvania.

Argued February 8, 2005.

Filed March 28, 2005.

Reargument Denied June 9, 2005.

Alphonso B. David, New York City, for appellant.

Nicholas Banda, Johnstown, for appellee.

BEFORE: DEL SOLE, P.J., JOYCE and TAMILIA, JJ.

OPINION BY JOYCE, J.:

¶ 1 T.B. (Appellant) appeals the order entered June 21, 2004, which denied her visitation with the minor child, A.M. We reverse and remand with instructions. The factual and procedural history have been thoroughly set forth in this Court's previous decision, T.B. v. L.R.M., 753 A.2d 873 (Pa.Super.2000) (en banc) and by the Supreme Court, T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913 (2001). Accordingly, we shall only present a brief recitation of the events precipitating this litigation.

¶ 2 Appellant and L.R.M. (Appellee) were involved in a long term, committed, lesbian relationship. They decided that they wanted a child. Thus, Appellee was artificially inseminated, and A.M. was conceived and born. Both women acted as parents to the child until their relationship ended when A.M. was three years old. Thereafter, Appellee refused to allow Appellant to see A.M., which prompted the filing of a custody complaint. Appellant prevailed in achieving in loco parentis standing to seek custody/visitation, visitation was deemed to be in A.M.'s best interest, and a visitation schedule was implemented. However, Appellee filed an appeal, and a stay of the visitation order was granted by order of this Court.

¶ 3 On appeal, this Court affirmed the trial court's finding that Appellant had standing by virtue of her in loco parentis status. However, we noted that the record was devoid of any evidence, other than the bond between Appellant and A.M., that would factor into the best interest of the child analysis. T.B. v. L.R.M., 753 A.2d at 890. We found that the trial court erred in relying solely on the psychological bond evidence to satisfy Appellant's burden relative to A.M.'s best interest. Accordingly, we remanded the case "for an in-depth inquiry into the best interest of the child...." Id. at 891. The Supreme Court, which only heard the standing issue, affirmed. T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913 (2001). Thus, the case was remanded to the trial court.

¶ 4 Upon remand, an evidentiary hearing was held and the hearing officer concluded that it was in the child's best interest to have visitation with Appellant. In so deciding, a sole conclusion of law was made: "the Hearing Officer concludes following all the testimony, and review of [the] transcripts and briefs that it would be in the best interest of this child to have another loving person in her life." Report of the Hearing Officer, Docket Entry # 85, at 2-3.¹ No other factors were cited as support for the best interest of the child analysis.

¶ 5 Appellee filed exceptions to the hearing officer's recommended order. The trial court heard argument on the exceptions on May 26, 2004. The trial court reviewed the entire record, including the transcripts for the hearings held in front of the hearing officer.² The trial court also reviewed a psychological report created by Dr. Mark King, who was appointed by the hearing officer to conduct psychological evaluations of Appellant, Appellee and A.M. After reviewing the record, the trial court found that "[Appellant] is certainly fit to exercise partial custody of the child for the purpose of visitation." Id. at 6. The trial court also determined that Appellee, through "carefully calculated efforts, successfully alienated the child against [Appellant]." Id. at 3. Nonetheless, the trial court concluded:

[B]ecause of [Appellee's] persistent attitude and conduct, I can envision nothing but emotional and psychological turmoil for the child if visits were to be forced, even in a "therapeutic setting," as recommended by the hearing officer. [Appellee] would, I believe, continue her efforts to thwart visitation if visitation were to be ordered. I am convinced that she would continue her course of degrading [Appellant] to the child and that her anger towards [Appellant] would probably blind her to the psychological damage her conduct might cause to her daughter. My concern for the child's psychological well-being will not permit me to order visits. I believe it would be to the child's benefit to have a relationship with [Appellant], but only if [Appellee] discontinued her efforts to thwart that relationship, which will obviously not happen.

Id. at 6. Accordingly, the visitation order was vacated, and Appellant appealed.

¶ 6 Although she presents her issues in three statements of questions involved, the central issue is whether the trial court erred and abused its discretion in denying Appellant visitation. Our standard of review is as follows:

An appellate court's standard of review of [a] custody order is of the broadest type, and:

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.

Liebner v. Simcox, 834 A.2d 606, 609 (Pa.Super.2003) quoting MacDonald v. Quaglia, 442 Pa.Super. 149, 658 A.2d 1343, 1345-46 (1995). "The standard of review of a visitation order is the same as that for a custody order." Id. (citation omitted).

¶ 7 Appellant's main contention is that the trial court relied on an impermissible factor when granting Appellee's exceptions to the hearing officer's recommendation and in denying Appellant visitation. Specifically, Appellant argues that the trial court abused its discretion when determining that denying visitation was in A.M.'s best interest because of the "emotional and psychological turmoil" Appellee would subject her to due to the animosity that Appellee harbors towards Appellant.³ We agree.

¶ 8 "It is well-established in Pennsylvania that custody and visitation matters are to be decided on the basis of the judicially determined `best interests of the child' standard, on a case-by-case basis, considering all factors which legitimately have an effect upon the child's physical, intellectual, moral, and spiritual well-being." Hicks v. Hicks, 868 A.2d 1245, 1247-48 (Pa.Super.2005) (emphasis added) citing Zummo v. Zummo, 394 Pa.Super. 30, 574 A.2d 1130, 1142 (1990). However,

a custodial parent's suspicion of or animosity towards another parent or a third party seeking visitation should not alone warrant denial of visitation; otherwise the custodial parent could always effectively deny visitation simply by testifying to suspicion or animosity. Instead of deferring to suspicion or animosity, the hearing judge must try to determine whether there is any basis for these feelings. Stated more broadly, the judge must appraise whether the relationship between the disputing parties has an adverse effect on the child.

Commonwealth ex rel. Williams v. Miller, 254 Pa.Super. 227, 385 A.2d 992, 995 (1978) (emphasis added). See also Plowman v. Plowman, 409 Pa.Super. 143, 597 A.2d 701, 708 (1991) (mother's refusal to accommodate relationship between father and child alone cannot serve as a basis for deciding custody); Nancy E.M. v. Kenneth D.M., 316 Pa.Super. 351, 462 A.2d 1386, 1388 (1983) (hostilities between the parents are relevant only insofar as they constitute a threat to the child or affect the child's welfare); Dena Lynn F. v. Harvey H.F., 278 Pa.Super. 95, 419 A.2d 1374, 1377 (1980) ("of particular relevancy in a case which is so steeped in emotion as this, we must inquire only into relevant facts as they affect the relationship between parent and child not parent and parent or parent and stranger to that intimate relationship").⁴

¶ 9 Clearly, despite finding that Appellant "is fit to exercise custody of the child for the purpose of visitation" and that "it would be to the child's benefit to have a relationship with [Appellant]" it was Appellee's anger towards Appellant that controlled the outcome of the trial court's decision. This factor alone is not a basis upon which to deny visitation. Only where there is evidence that the relationship adversely affects the child should this factor be considered. Even then, it is only one of several factors that constitute a full analysis of a child's best interest.

¶ 10 We note that the record is devoid of any evidence of the adverse effect the relationship between Appellant and Appellee is having upon A.M. The court merely speculated that there would be continuing conflict and that A.M. would be "damaged" by the negativity. However, it must be remembered that every custody dispute, by its very definition, is embroiled with strong emotions. Many involve recalcitrant parents who would go to any lengths to prevent the other party from having contact with the child. In some cases, a parent who puts his or her own feelings before that of a child will denigrate or berate the other party to the child and make efforts to sabotage the other party's relationship with the child. In those situations, it is the function of the court to rein in the offending party. This can be accomplished through a court order directing the parties to speak neutrally of each other and to not impede the relationship the child has with the other party. See Fernald v. Fernald, 224 Pa.Super. 93, 302 A.2d 470, 471 (1973) (directing mother to cease efforts to prevent visitation and communication and to require her children to attend visitation with their fath...