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COMMONWEALTH EX REL. ANTONIO PETERSON v. EARLENE LASSITER HAYES. APPEAL ANTONIO PETERSON (12/28/77)

decided: December 28, 1977.

COMMONWEALTH EX REL. ANTONIO PETERSON
v.
EARLENE LASSITER HAYES. APPEAL OF ANTONIO PETERSON



No. 2422 October Term 1976, Appeal from the Order of the Family Division of the Court of Common Pleas of Phila. County, entered July 29, 1976 W.D. #71798.

COUNSEL

Otis R. Johnson, Philadelphia, for appellant.

Murray B. Dolfman, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs and Hoffman, JJ., concur in the result. Watkins, President Judge, and Cercone and Van der Voort, JJ., dissent.

Author: Spaeth

[ 252 Pa. Super. Page 489]

Antonio Peterson and Earlene Lassiter lived together, unmarried, for several years and had two children, Antoinette, born January 29, 1972, and Eric, born July 2, 1974. During the summer of 1975, Antonio and Earlene separated, and in December 1975 Earlene married Thomas Hayes. This is an appeal by Antonio from an order denying him the right to visit his children. We reverse and remand with instructions to the lower court to enter an order granting Antonio the right to visit his children.

-1-

It is established that "it is proper for the courts, in the appropriate circumstances, to grant visitation privileges to a putative father." Gwiszcz Appeal, 206 Pa. Super. 397, 399, 213 A.2d 155, 156 (1965). It is, however, not established by what standard the courts are to decide whether the circumstances are "appropriate."

[ 252 Pa. Super. Page 490]

A parent is rarely denied the right to visit a legitimate child. Visitation has been limited or denied only where the parent has been shown to suffer from severe mental or moral deficiencies that constituted a grave threat to the child. Commonwealth ex rel. Lotz v. Lotz, 188 Pa. Super. 241, 245, 146 A.2d 362, 364 (1958); see Commonwealth ex rel. Heston v. Heston, 173 Pa. Super. 260, 98 A.2d 477 (1953); Leonard v. Leonard, 173 Pa. Super. 424, 98 A.2d 638 (1953). Visitation has been granted parents who have ignored their children for a long period of time, Commonwealth ex rel. Turner v. Strange, 179 Pa. Super. 83, 115 A.2d 885 (1955); Commonwealth ex rel. Boschert v. Cook, 122 Pa. Super. 397, 186 A. 229 (1936), who have failed to support their children, Scott v. Scott, 240 Pa. Super. 65, 368 A.2d 288 (1976); Commonwealth ex rel. Lotz v. Lotz, supra, who have engaged in marital misconduct or who have lived with lovers, Commonwealth ex rel. Sorace v. Sorace, 236 Pa. Super. 42, 344 A.2d 553 (1975); Commonwealth ex rel. McNamee v. Jackson, 183 Pa. Super. 522, 132 A.2d 396 (1957), and even to parents whose children did not want to see them, Fernald v. Fernald, 224 Pa. Super. 93, 302 A.2d 470 (1973); Commonwealth ex rel. Turner v. Strange, supra.

There is no reason why these cases should not be applied when the child is illegitimate. In custody cases, where the petitioner seeks not simply a much more extensive relationship with the child than that sought in visitation cases, but an exclusive relationship, it has been held that the standard to be applied to cases concerning illegitimate children is the same as that applied to cases involving legitimate children. Commonwealth ex rel. Human v. Hyman, 164 Pa. Super. 64, 63 A.2d 447 (1949). Any harm that might be said to derive from a relationship between a parent and an illegitimate child must surely be greater in a custody case than in a visitation case. A parent seeking to visit an illegitimate child should therefore have no greater burden of proof than one seeking custody of the child.

Indeed, the standard applied to a mother seeking visitation or custody has always ...


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