No. 2265 October Term 1977, Appeal from Order of the Court of Common Pleas, Phila. County, Family Division, Domestic Relations Branch entered July 28, 1977 at No. 255488-D.R. No. 77-00172.
Ronald I. Kravitz, Philadelphia, for appellant.
Julian E. Harmon, Philadelphia, submitted a brief for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, Van der Voort, and Hester, JJ., dissent.
[ 257 Pa. Super. Page 221]
This is a child custody case. The child is a little girl -- she is now twelve -- and the contesting parties are her father and maternal grandmother. The lower court denied the father's petition, and awarded custody to the grandmother. At the least, this award would have to be reversed and the case remanded for further proceedings, for the court did not apply the legal principles that should be applied. However, we have concluded to reverse outright, and award custody to the father.
The father is Edward Hooks. In February 1964 he and Bernice Ellerbe married: Bernice had a son, Derrick, by a prior marriage. Carla, the child whose custody is here at issue, was born on January 24, 1966. In April 1967 Edward and Bernice separated; Bernice took Carla and Derrick, who was then twelve years old, and went to live with her mother, Mary Ellerbe. In January 1976 Bernice died; Carla continued to live with her grandmother. In January 1977 Edward filed a petition asking that he be awarded custody of Carla, as her father.
[ 257 Pa. Super. Page 222]
In denying the father's petition the lower court stated: "This court has always been guided by one controlling principle in these matters: the benefit, health and welfare of the child." Lower Court Opinion at 3. This is an oversimplified, and incorrect, statement of the principle that the court should have applied.
It is true, of course, that in a custody dispute between parents the court's paramount concern is to determine what would be in the best interest of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 107-8, 296 A.2d 625, 627 (1972); Cochran Appeal, 394 Pa. 162, 145 A.2d 857 (1958); Commonwealth ex rel. Graham v. Graham, 367 Pa. 553, 80 A.2d 829 (1951); Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973). However, when the custody dispute is between a parent and a third party, including a relative such as a grandparent, the parent has a prima facie right to custody, which will be forfeited only if convincing reasons appear that the child's best interest will be served by an award to the third party. In re Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977). See also Commonwealth ex rel. Williams v. Miller, 254 Pa. Super. 227, 385 A.2d 992 (1978).
When the judge is hearing a dispute between the parents themselves, the manner of inquiry is structurally relatively simple. The judge has one question to decide: What is in the child's best interest? After hearing all evidence relevant to best interest, the judge must award custody according to whether the evidentiary scale tips to the mother's side, or to the father's [footnote omitted]. When the judge is hearing a dispute between the parents, or a parent, and a third party, the manner of inquiry is more complex. The question still is, What is in the child's best interest? However, the parties do not start out even: the parents have a "prima facie right to custody, which ...