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MARY ELLERBE v. EDWARD HOOKS (07/16/80)

decided: July 16, 1980.

MARY ELLERBE, APPELLANT,
v.
EDWARD HOOKS



No. 463 January Term, 1978, Appeal from the Order of the Superior Court, dated July 12, 1978 at No. 2265 October Term, 1977, reversing the Order dated July 28, 1977 of the Court of Common Pleas, Family Division, Domestic Relations Branch, Philadelphia, at 255488-D.R. No. 77-00172.

COUNSEL

Julian E. Harmon, Philadelphia, for appellant.

Samuel Kravitz, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Flaherty, J., joins in this opinion and files a concurring opinion in which Nix, J., joins.

Author: Roberts

[ 490 Pa. Page 365]

OPINION OF THE COURT

This is a child custody case involving a dispute between a parent and a non-parent. The case arose on the petition of the child's father seeking custody of his daughter Carla. Carla, then eleven years old, had been living with her maternal grandmother. The court of common pleas denied the father's petition and awarded custody of Carla to her grandmother. On appeal the Superior Court reversed, holding

[ 490 Pa. Page 366]

    that the trial court, in failing to give the parent-child relationship sufficient consideration, did not apply the proper legal standard. We granted allowance of appeal to consider the important question of what standard should be applied in custody disputes between a parent or parents and non-parents.*fn* We conclude that the standard adopted by the Superior Court is the appropriate one.

There can be no doubt that in every custody dispute the fundamental issue is the best interest of the child. Yet there can also be no doubt that the parent-child relationship should be considered of importance in determining which custody arrangement is in the child's best interest. The principles carefully fashioned by the Superior Court in In re Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977), and followed by the Superior Court in this case give appropriate weight to these important considerations and we now adopt those principles.

The Superior Court in In re Hernandez distinguished three types of custody disputes, those between parents, those between a parent or parents and the state, and those between a parent or parents and a third party. As the court noted, in disputes between parents we have long been guided by the controlling statutory direction to award custody with "regard first being had" to the relative fitness of the contesting parents and "the best interest and permanent welfare" of the child. Act of June 26, 1895, P.L. 316, § 2, 48 P.S. § 92. Thus in such cases the burden of proof is shared equally by the contestants and the child's well-being is the focus of consideration.

At the other extreme are custody disputes between a parent or parents and the state. And in these cases also our Legislature has established clear guidelines and procedures. Here either the Juvenile Act, 42 Pa.C.S. § 6301 et seq., or the Child Protective Services Law, 11 P.S. § 2201 et seq. are controlling. Yet the Juvenile ...


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