No. 64 May Term, 1979, APPEAL FROM THE ORDER OF THE SUPERIOR COURT
Jack M. Hartman, Harrisburg, for appellants.
Robert E. Campbell, Gettysburg, for appellees.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Flaherty, J., joins the opinion and filed a separate concurring opinion. Larsen, J., concurred in the result.
This is an appeal from an order of the Superior Court reversing a custody award entered in favor of the maternal grandparents by the hearing court. The Superior Court ruled that custody should be awarded to the natural father and remanded the cause to the trial court to set appropriate visitation rights for the grandparents. The grandparents sought review which was granted by this Court and for the reasons that follow, we now reverse the order of the Superior Court, 266 Pa. Super. 583, 405 A.2d 1260, and reinstate the hearing court's order.
This appeals involves a dispute over the custody of two minor children, Clark Lincoln Fetters and Theodore Leroy Fetters. Clark Fetters was born September 10, 1963, to Kenneth and Suzanna Fetters. Kenneth is the appellee herein. When Clark was four years of age, his parents separated and his father took him to live with his maternal grandparents, Eugene K. and Reba Albright, appellants herein. Shortly thereafter, the parents reconciled and on June 8, 1968, Theodore Leroy was born. The marital relationship terminated after Theodore's birth and their father entrusted the children to the care of their maternal grandparents, where they remained for the next four years. Theodore resided with his grandparents from birth.
In 1972, the mother was given permanent custody of the boys with visiting privileges awarded to the father. In the interim, the mother remarried and a third son, Andrew,
resulted from that union. That marriage also terminated by divorce. From 1972 until the summer of 1978, the three boys lived together with their mother on weekdays during the winter. The grandparents kept the children every summer and three out of every four weekends during the remaining months. One weekend each month, Clark and Theodore stayed with their father who also had remarried.
In the beginning of the summer of 1978, the mother left the three boys with their grandparents for their usual summer visit. On June 28, 1978, the mother died. The children have remained with their grandparents since the death of the mother. On July 12, 1978, the father sought custody of his two sons in the Court of Common Pleas of Adams County. As previously stated, that court, after hearing, awarded custody to the maternal grandparents. The Superior Court reversed that order and directed that custody be awarded to the father.
The resolution of the questions presented in this appeal is dependent upon a determination of the proper standard to be applied in such cases. Both the hearing court and the Superior Court asserted that they were proceeding in accordance with the principle that where the custody dispute is between a parent and a third party, 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. The different results reached by these two tribunals, ostensibly using the same standard, evidences the need ...