No. 452 October Term, 1978, Appeal from Order of the Court of Common Pleas of Northampton County, Civil Division, No. 455 May Term, 1977.
Paul C. Hensel, Bethleham, for appellant.
Thomas J. Fischer, Bethleham, for Commonwealth, appellee.
Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Wickersham and Hoffman, JJ. Price, J., files a dissenting opinion, in which Hester and Wickersham, JJ., join.
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Appellant contends that the lower court erred in awarding custody of her two natural children to appellee. For the reasons which follow, we reverse and remand for further proceedings consistent with this opinion.
Appellant is the natural mother of M., born in March, 1972, and of P., born in May, 1973. Appellee is the stepfather of M. by virtue of his marriage to appellant,*fn1 and he is the natural father of P. In March, 1977, appellant and appellee separated. In July of that year, appellant petitioned the lower court to secure custody of the children, who were residing with appellee. After a hearing the lower court denied appellant's petition and ordered that the children remain in appellee's custody subject to "generous visitation privileges" in appellant. From that order, appellant now appeals.
Appellant first contends that the lower court erred in allocating the burden of proof with respect to M.'s custody
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as if the dispute were between two natural parents.*fn2 The court's basic inquiry in child custody cases focuses upon the best interest of the child. Bedio v. Bedio, 268 Pa. Super. 231, 407 A.2d 1331 (1979). See also Kriss v. Kriss, 272 Pa. Super. 383, 416 A.2d 92 (1979); Kessler v. Gregory, 271 Pa. Super. 121, 412 A.2d 605 (1979). "In a contest between parents, each party bears the burden of proving that an award to that party would be in the best interests of the child. In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977)." Lewis v. Lewis, 267 Pa. Super. 235, 240, 406 A.2d 781, 783 (1979). Where, however, a parent and a third party dispute the custody of a child, "the manner of inquiry is more complex." In re Custody of Hernandez, supra, 249 Pa. Super. at 286, 376 A.2d at 654. Although the best interest of the child remains of paramount concern, 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. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parent['s] side." Id. See also Commonwealth ex rel. Witherspoon v. Witherspoon, 252 Pa. Super. 589, 384 A.2d 936 (1978).
Prior cases have, without discussion, treated stepparents as unrelated third parties in custody disputes. See Auman v. Eash, 228 Pa. Super. 242, 323 A.2d 94 (1974); Commonwealth ex rel. Kraus v. Kraus, 185 Pa. Super. 167, 138 A.2d 225 (1958); Commonwealth ex rel. Grue v. Sanford, 183 Pa. Super. 32, 127 A.2d 800 (1956); Commonwealth ex rel. Gardner v. Eastman, 172 Pa. Super. 496, 94 A.2d 175 (1953). Auman, for example, involved a custody dispute which arose after the death of the natural mother between the natural
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father and the stepfather with whom the child had lived for almost two years. In affirming the lower court's award of custody to the natural father, the majority stated that the right of a natural parent to custody "is so moving and cogent that as against a third party seeking custody it can be forfeited only by his conduct or other factors substantially affecting the child's welfare." 228 Pa. Super. at 245, 323 A.2d at 96. Similarly, Hernandez indicates that anyone other than a natural parent is to be considered a third party in a custody dispute. While we therein noted that "there are two distinct categories of 'third parties': relatives and nonrelatives," we concluded that to draw a distinction between the burden of proof allocated to each would be "to indulge in over-refinement." 249 Pa. Super. at 287, 376 A.2d at 654. This dictum has been adopted in several of our later custody cases which classify grandparents as third parties under the Hernandez standard. ...