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CUSTODY MICKEY FRANCES HERNANDEZ. APPEAL MIGUEL GARCIA AND FRANCES GARCIA (06/29/77)

decided: June 29, 1977.

IN RE CUSTODY OF MICKEY FRANCES HERNANDEZ. APPEAL OF MIGUEL GARCIA AND FRANCES GARCIA, HIS WIFE


Appeal from Order of the Court of Common Pleas of Clearfield County, Civil Action, No. 74-1535-CD dated July 21, 1976.

COUNSEL

Michael J. Bresnahan, State College, for appellant.

Thomas F. Morgan, Clearfield, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Van der Voort, J., did not participate in the consideration or decision of this case. Watkins, President Judge, concurs in the result. Price, J., dissents.

Author: Spaeth

[ 249 Pa. Super. Page 278]

This is a child custody case. The question is whether Mickey Frances Hernandez, now 4 1/2 years old, should be awarded to her mother, Frances Hernandez (Garcia) and her husband, Miguel Garcia, or to Robert and Twila Peterson, with whom Mickey has been living since March 1973. The case arises on the Garcias' petition for habeas corpus, filed in September 1974. The lower court denied the petition, and awarded custody of Mickey to the Petersons. This appeal followed.

I

Before examining the facts of any case, one should be clear in one's mind about the legal principle that will guide the examination, and thus control the decision. Here, in defining that principle the pertinent cases have used various expressions, which may not always seem consistent. Some preliminary review is therefore required.

Generally speaking, child custody cases may be divided into three classes. The first class comprises those cases in

[ 249 Pa. Super. Page 279]

    which the dispute is between the parents of the child; the second class, those in which the dispute is between the parents, or a parent, of the child and a third party; and the third, those in which the dispute is between the parents, or a parent, of the child and the state. Each class of cases must be decided by a different legal principle.

The present case, it will be observed, is within the second class. In order to determine the legal principle that controls the decision of such a case, it will be convenient to examine first the class of cases in which the dispute is between the parents, or a parent, and the state, and then the class of cases in which the dispute is between the parents themselves.

A

When the dispute is between the parents, or a parent, and the state, the Juvenile Act*fn1 controls. Typically, the proceedings will be initiated by a social welfare agency filing a petition under the Act, asking the court to declare the child "deprived", and to order the child separated from its parents. In its opening provisions, the Juvenile Act provides that its fundamental purpose is "[t]o preserve the unity of the family whenever possible . . ." 11 Pa.C.S. § 50-101(b)(1), and a child who has been adjudicated "deprived" may be separated from its parents only upon a showing of "clear necessity." In re: Clouse, 244 Pa. Super. 404, 368 A.2d 780 (1976) (discussing proceedings under Juvenile Act and meaning of "clear necessity"); In re: LaRue, 244 Pa. Super. 218, 366 A.2d 1271 (1976); Stapleton v. Dauphin County Child Care Service, 228 Pa. Super. 371, 324 A.2d 562 (1974); Rinker Appeal, 180 Pa. Super. 143, 117 A.2d 780 (1955). And see In re: Adoption of R. I., 468 Pa. 287, 361 A.2d 294 (1976). Thus the situations in which the state may intervene are limited, and its burden is very heavy. These restrictions derive from the convictions that the family is one of our most important institutions, that a child's best

[ 249 Pa. Super. Page 280]

    interest is served by being raised within the family, and that the state should not unnecessarily intrude upon, and thereby weaken, the family.

At the opposite extreme, as regards rigor of proof, is that class of cases in which the dispute is between the parents of the child. Here, too, a controlling statute provides the standard to be applied: the court is to "remand such child [either to the father or to the mother] . . ., regard first being had to the fitness of such parent and the best interest and permanent welfare of said child." Act of June 26, 1895, P.L. 316, § 2, 48 P.S. § 92. See Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Augustine v. Augustine, 228 Pa. Super. 312, 324 A.2d 477 (1974); Williams v. Williams, 223 Pa. Super. 29, 296 A.2d 870 (1972); Commonwealth ex rel. Gifford v. Miller, 213 Pa. Super. 269, 248 A.2d 63 (1968). The concern in such cases is entirely with the child's physical, intellectual, moral, and spiritual well-being. Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972). The burden of proof is shared equally by the contesting parents; thus, the hearing judge awards custody according to what the preponderance of the evidence shows.*fn2 By virtue of

[ 249 Pa. Super. Page 281]

    each having joined in creating the child, each parent is regarded as having an equal interest in the child's welfare. The state functions as arbiter, in the person of the hearing judge, rather than as interested participant.

It is now in order to consider the third class of cases, within which the present case falls. Typically, such a case will arise where a parent has given his or her child to a third party, who later, for one reason or another, refuses the parent's request to return the child. Unlike the other cases that have been discussed, the resolution of such a dispute is not controlled by statute. It is therefore necessary to reason from precedent and by analogy. When this is done, it will be observed that the case lies between those described above. It is not a situation where the state has felt compelled to intrude to protect the child. Nor is it a situation where because of their inherent characteristics both parties (the parents) have an equal interest in the child's welfare. It rather is a case that involves one party (the parent) who because of inherent characteristics has a special interest in the child's welfare, and another party, not like the state, a total stranger to the child, nor like the parent, inherently related to the child, but, nevertheless, one who has by reason

[ 249 Pa. Super. Page 282]

    of having cared for the child developed a special relationship with the child.

Although, as mentioned, there is no statute that controls how a custody dispute between a parent and such a third party is to be resolved, there is a statute that controls how another sort of dispute between a parent and a third party is to be resolved. It is the Adoption Act.*fn3 This Act provides for the involuntary termination of parental rights, but only where:

(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child, or has refused or failed to perform parental duties; or

(2) The repeated and continued incapacity, abuse, neglect, or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect, or refusal cannot or will not be remedied by the parent; or

(3) The parent is the presumptive but not the natural father of the child.

1 P.S. § 311.

These provisions, it will be observed, impose on the third party a burden comparable in weight with the burden imposed on the state by the Juvenile Act, supra. Thus, for example, under § 311(1), supra, there must be a showing that the parent intended to give up the child absolutely and has not in at least six months acted in a manner inconsistent with this "settled purpose." Sarver Adoption Case, 444 Pa. 507, 281 A.2d 890 (1971). Further, just as under the Juvenile Act the question of the child's welfare -- of what is in the child's best interest -- is not even reached unless, and until, there has been a finding of "deprivation," In re: Clouse, supra; In re: LaRue, supra, so under the Adoption Act it is not reached unless, and until, there has been a finding of "abandonment." See Adoption of R. I., 468 Pa. 287,

[ 249 Pa. Super. Page 283361]

A.2d 294 (1976); Schwab Adoption Case, 355 Pa. 534, 50 A.2d 504 (1947); In re: McAhren's Adoption, 460 Pa. 63, 331 A.2d 419 (1975).

These similarities between, on the one hand, an adoption case, and on the other, a custody case in which the state is a party, might seem to suggest that in a case like the present one the burden of proof on the third party should be the same as in an adoption case. The argument might be, that while it is true that the third party is not a stranger to the child to the same degree as is the state, nevertheless, the third party's relationship to the child is likely to be very comparable to the third party's relationship to the child in an adoption case. Further reflection, however, will persuade one to the view that despite this likely fact, the burden on the third party should be less heavy in a custody case than in an adoption case. This conclusion follows from the differing natures of an adoption order and a custody order. An adoption order is by nature final; a custody order is by nature always subject to modification upon a showing of changed circumstances. Commonwealth ex rel. McGovern v. McGovern, 225 Pa. Super. 281, 301 A.2d 905 (1973); Commonwealth ex rel. Hickey v. Hickey, 216 Pa. Super. 332, 264 A.2d 420 (1970). Given this changeable nature of a custody order, the burden on a third party seeking custody of a child should not be so heavy as when the third party seeks to adopt the child.

So much is clear, partly from the cases, and partly as a matter of reasoning. When we go beyond this general conclusion, however, matters become a good deal less clear.

B

The lack of clarity just referred to occurs because the cases have used various, and it would seem inconsistent, expressions in describing the burden of proof that the third party bears. Sometimes it has been said that the parents have a "primary right" to custody of the child, although the right is not absolute and must yield to the child's best interest. Commonwealth ex rel. Bradley v. Bradley, 188 Pa. Super. 108,

[ 249 Pa. Super. Page 284146]

A.2d 147 (1958); Commonwealth ex rel. Galloway v. Galloway, 188 Pa. Super. 313, 146 A.2d 383 (1958); Commonwealth ex rel. Kraus v. Kraus, 185 Pa. Super. 167, 138 A.2d 225 (1958); Commonwealth ex rel. Shroad v. Smith, 180 Pa. Super. 445, 119 A.2d 620 (1956). Other times it has been said that absent "compelling reasons" to the contrary, it will be "presumed" that the child's best interest will be served by being raised by its parents. Commonwealth ex rel. Bendrick v. White, 403 Pa. 55, 169 A.2d 69 (1961); Auman v. Eash, 228 Pa. Super. 242, 323 A.2d 94 (1974); Commonwealth ex rel. Gifford v. Miller, 213 Pa. Super. 269, 248 A.2d 63 (1968); Commonwealth ex rel. Galloway v. Galloway, supra. Still other times it has been said that the parents have a "prima facie right to custody," which "may be forfeited if convincing reasons appear that the best interests of the child will be served by awarding custody to someone else." Commonwealth ex rel. Kraus v. Kraus, supra, 185 Pa. Super. at 170, 138 A.2d at 226-227; Commonwealth ex rel. Thompson v. Altieri, 184 Pa. Super. 431, 135 A.2d 811 (1957); Commonwealth ex rel. Shamenek v. Allen, 179 Pa. Super. 169, 116 A.2d 336 (1955).

The first of these formulations is unfortunate, partly, perhaps, because the expression "primary right" connotes a property interest, as though a child were a chattel, cf. Commonwealth ex rel. Children's Aid Society v. Gard, supra; Stapleton v. Dauphin County Child Care Service, supra; Commonwealth ex rel. Bankert v. Children's Services, 224 Pa. Super. 556, 307 A.2d 411 (1973), but particularly because there is no explanation of what type of evidence will cause the primary right to become less than "absolute", and to "yield."

[ 249 Pa. Super. Page 285]

The second formulation is also unfortunate, for it is stated as a "presumption." Although "[a] presumption itself contributes no evidence, and has no probative quality. It is sometimes said that the presumption will tip the scale when the evidence is balanced. But, in truth, nothing tips the scale but evidence, and a presumption -- being a legal rule or a legal conclusion -- is not evidence. . . ." Allison v. Page 285} Snelling & Snelling, Inc., 425 Pa. 519, 525, 229 A.2d 861, 864 (1967), quoting Watkins v. Prudential Ins. Co., 315 Pa. 497, 173 A. 644 (1934). In deciding a child custody case, one should avoid the use of a "presumption", which tends to focus the analysis on the respective rights of the parties rather than on close scrutiny of all of the particular facts relevant to determining what will serve the child's best interest. See Commonwealth ex rel. Grillo v. Shuster, supra; Auman v. Eash, 228 Pa. Super. 242, 248, 323 A.2d 94, 97 (Dissenting Opinion).

The second formulation is further unfortunate in its requirement of a showing of "compelling reasons". This requirement might appear synonymous with the "clear necessity" requirement of the Juvenile Act, in a case in which the state is a party. If one is "compelled" to do something, it might be said that it is "necessary" to do it. As has been discussed, however, the burden of proof on a third party should not be as heavy as that placed upon the state; the definitions, or descriptions, of the respective burdens should therefore plainly differ.

The third formulation is both more accurate and clearer than either the first or the second. This formulation, it will be recalled, is that the parents' "prima facie right to custody" may be forfeited if "convincing reasons appear that the child's best interest will be served by awarding custody to some one else." To say that a parent has a "prima facie right to custody" properly allocates the burden of proof to the third party who is opposing the parent. The requirement of "convincing" (rather than "compelling") reasons makes it clear that the third party's burden is in weight midway between the state's burden ("clear necessity") and the one parent's burden in a case where the dispute is with the other parent (preponderance of the evidence). Finally, under the third formulation, whatever may be the "reasons" presented by the third party in the effort to overcome the parent's prima facie right, they must relate to the child's "best interest," and not merely to some characteristic of the parent that the third party or the hearing judge may regard unfavorably.

[ 249 Pa. Super. Page 286]

Given these considerations, it is the third formulation that we shall apply in examining the facts of the present case. While it would be too strong to say that cases enunciating other formulations are disapproved -- for that would be to interpret those cases in a manner quite possibly not anticipated when they were decided -- still, such cases should be read in the light of what has been said here.

One further point remains to be made; it concerns the manner in which the hearing judge is to conduct the inquiry when the dispute is ...


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