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filed: April 24, 1981.


No. 1428 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Division, at No. 80-06063


Robert J. Kerns, Lansdale, for appellants.

Mark E. Weand, Jr., Ambler, for appellee.

Spaeth, Brosky and Hoffman, JJ. Hoffman, J., concurs in the result.

Author: Brosky

[ 286 Pa. Super. Page 437]

Ignatius and Marion Zaffarano, maternal grandparents of Shannon Genaro, the two and one-half year old daughter of appellee, Richard Genaro, have appealed from the lower court's dismissal of their petition for visitation*fn1 filed against

[ 286 Pa. Super. Page 438]

    appellee after he cut off their visitation with Shannon in February, 1980. We reverse.

Appellants contend that it is in Shannon Genaro's best interests that they be granted partial custody of her. They maintain that they have always shown their love and devotion for Shannon and that they desire to continue the relationship they have established with her. It is in Shannon's best interests, they assert, to continue to have a close, loving relationship with her closest maternal relatives.

The denial of permission to see Shannon stems from the untimely death of appellee's wife, Carmella, on December 9, 1979, as a result of injuries sustained in a car accident. While she was alive, Carmella Genaro had frequently taken Shannon to visit with her parents, the appellants, at their home nearby. The Zaffaranos played with Shannon, took her shopping, took her to see the ducks in a nearby pond, and, in general, bestowed upon her the special love and affection that grandparents hold for their grandchildren. This pleasant state of affairs was shattered, however, when Carmella Genaro was hospitalized in September, 1979 following the accident. During the period of her hospitalization, a very emotional period for both her husband and appellants, strain developed between Richard Genaro and appellants. Despite the strained relations, however, appellee continued to bring Shannon to see the Zaffaranos a few times a week. In mid-February, 1980, following an argument with his sister-in-law, Donna Zaffarano, appellee cut off all contact with Shannon.

[ 286 Pa. Super. Page 439]

The court below based its decision on two grounds: that grandparents do not have a right of visitation;*fn2 and that because of the animosity existing between appellee and the Zaffaranos, visitation would not be in the child's best interests.

With respect to the first ground, the court cited no authority. Appellee, in his brief, cites the case of Wick v. Wick, 266 Pa. Super. 104, 403 A.2d 115 (1979), for the proposition that grandparents have no inherent right of visitation. Appellee refers to a portion of the opinion in which we stated that "Appellants have not cited any cases to convince us that grandparents . . . have a right to visit with a child." Id. at 116. (Emphasis in original.)

Wick, supra, involved an unusual factual situation in which both an aunt and uncle and the child's grandparents sought visitation; and they appealed jointly from the lower court's denial of visitation as to both. The mother was willing to allow visitation with the grandparents but not with the aunt and uncle. The grandparents, however, would not agree to visitation without the aunt and uncle being present as well. We affirmed, but not on the basis that neither grandparents nor aunts and uncles have an inherent right of visitation. Rather, our decision was based on the peculiar facts of the case.

Although it may be true that third parties in general have no inherent legal right of either visitation or partial custody, the test to be applied in situations in which a third party seeks visitation or partial custody was set forth in Commonwealth ex rel. Williams v. Miller, 254 Pa. Super. 227, 385 A.2d 992 (1978):

In a visitation case, the third party need only convince the court that it is in the child's best interest to give some time to the third party. Id., 254 Pa. Super. at 230, 385 A.2d at 994. (Emphasis in original.)

[ 286 Pa. Super. Page 440]

The question presented for our determination, therefore, is not whether the Zaffaranos, as Shannon's grandparents, have a right to visit with her or to have partial custody; it is whether or not it would be in Shannon's best interest to grant the Zaffaranos some time with her.

The second ground upon which the court below based its decision was the hostile relationship between the parties.

In Miller, supra, a case factually similar to the case at bar; appellant, the maternal grandmother of appellee's daughter, sought visitation with the child after the death of appellee's wife. The lower court had denied appellant's petition because inter alia, appellee mistrusted appellant. We reversed, holding that

[A]ppellee's "mistrust" of appellant is not a valid reason for denying visitation . . . A custodial parent's suspicion of or animosity towards . . . a third party seeking visitation should not alone warrant denial of visitation ; otherwise the custodial parent could always effectively deny visitation simply by testifying to suspicion or animosity. Id., 254 Pa. Super. at 231-232, 385 A.2d at 995. (Emphasis added.)

Appellee relies heavily on two cases involving visitation by grandparents decided prior to Miller: Commonwealth ex rel. Flannery v. Sharp, 151 Pa. Super. 612, 30 A.2d 810 (1943); and Commonwealth ex rel. McDonald v. Smith, 170 Pa. Super. 254, 85 A.2d 686 (1952).

Flannery, supra, involved a situation in which grandparents sought partial custody of their deceased son's child. The child's mother had remarried and bitterness had developed between her and the grandparents culminating in her decision to deny appellants any contact with the child. The grandparents took matters into their own hands, obtaining ex parte orders of court which resulted in a deputy sheriff being sent to the mother's home on several occasions to take the child for partial custody purposes. Each time, the child refused to go, and, on one occasion, was taken forcibly. Although the lower court found that this tug-of-war had caused the child emotional harm, it nonetheless entered a

[ 286 Pa. Super. Page 441]

    decree permitting visitation. Matters did not improve, however, and the child's health became endangered by the constant conflict. We reversed, holding that despite the fact that the grandparents were deeply attached to the child, "[T]he health and welfare of a child must not be shattered in the crossfire of supposedly conflicting legal rights as to its custody." Id., 151 Pa. Super. at 617, 30 A.2d at 812. In Flannery, supra, there was testimony by the child's physician that the child had intestinal disturbances due to the hostile relations between the parties and was becoming "neurotic." The record of the case at bar contains nothing which would indicate that Shannon Genaro has ever suffered emotional or physical harm as a result of the relationship between her father and appellants. We find the rationale of Flannery to be inapposite here.

In McDonald, supra, appellant-father sought modification of the lower court's order allowing the child's grandparents visitation rights. We found that there existed between appellant and the grandparents "[a] deep and apparently irreconcilable animosity" and held that it was not in the best interest of the child "[t]o subject her to an atmosphere of hate and estrangement." Id., 170 Pa. Super. at 258, 85 A.2d at 687-688.

In the instant case, the bad feelings that developed between appellee and the Zaffaranos arose from Carmella Genaro's hospitalization, when both parties were understandably distraught. Mr. Genaro's only testimony with respect to the existence of hostile feelings between him and the Zaffaranos concerned one occasion, which took place in the hospital during the time his wife was in a coma, on which he claimed to have overheard the Zaffaranos say something "nasty" about him. No testimony was presented with regard to hostile acts on the part of the Zaffaranos, such as found in Flannery v. Sharp, supra, or to arguments between the parties or as between the grandparents and the child. When asked whether, subsequent to the occasion he had related, the Zaffaranos had ever said anything nasty to him personally, appellee replied, "No, not really, no." It is

[ 286 Pa. Super. Page 442]

    equally significant to note that when asked about his feelings toward appellee, Mr. Zaffarano testified that he harbored no "ill will" toward him and that in making that statement he was speaking for his wife as well.

We find that there does not exist between these parties an "irreconcilable animosity" such as we found to exist in McDonald, supra. The situation here is closer to a temporary falling out than to a permanent estrangement.

We hold that appellants have shown that it would be in their grandchild's best interests to allow them partial custody of her. The record indicates that a pattern of frequent visitation existed up until February, 1980 and that the visits were pleasant and happy. The relationship between young Shannon and her grandparents appears to be a happy one, filled with love and affection on both sides. Although Shannon is but two and one-half years of age, we believe that she is capable of appreciating and cherishing her grandparent's affection and would experience a terrible loss if denied the opportunity to see and be with them on a regular basis. As we stated in Williams v. Miller, supra:

Except under unusual circumstances, no child should be cut off entirely from one side of its family. Commonwealth ex rel. Goodman v. Dratch, [citation omitted]. As said by the New Jersey Supreme Court, "[v]isits with a grandparent are often a precious part of the child's experience and there are benefits which devolve upon the grandchild from the relationship with his grandparents which he cannot derive from any other relationship. Mimkon v. Ford, 66 N.J. 426, 437, 332 A.2d 199, 204 (1975).

In this regard, we think it relevant to note that when the court asked appellee, "Don't you think it would be nice for the little girl to grow up knowing who her mother's people were?" He answered, "Of course."

Our paramount consideration here is what is in the best interests of Shannon, which includes her happiness, training and development as well as her moral, physical and spiritual well-being. Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380; In re Snellgrose, 432 Pa. 158,

[ 286 Pa. Super. Page 443247]

A.2d 596 (1968). Based on the record, we conclude that awarding partial custody to the grandparents would add measurably to Shannon's happiness, well-being and development. The Zaffaranos take Shannon on outings, play with her, open her eyes to new experiences, and, most important, give her love and affection. In a recent case concerning a custody fight between a parent and grandparents, Commonwealth ex rel. Fetters v. Albright, 266 Pa. Super. 583, 405 A.2d 1260 (1979), we reversed and awarded custody to the father*fn3 but held that the grandparents should be granted visitation,*fn4 stating:

Here, the grandparents have shown their love and devotion to [the sons] over the years . . . We believe, therefore, that while the father should have custody of his sons, the grandparents should be given liberal visiting privileges. Id. at 1262.

Similarly, in the case of Commonwealth ex rel. Goodman v. Dratch, 192 Pa. Super. 1, 159 A.2d 70 (1959), we upheld the order of the lower court allowing visitation by appellee-grandparents, despite bitter relations between the child's father and stepmother and the grandparents because the record indicated that there was great love and affection between the child and the grandparents. As Judge Ervin stated so aptly:

The order provides for visitation and visitation only. We consider it to be almost inhuman to completely isolate the child from his grandparents. If the parties will cooperate with heart and hand for Michael's best interests, the order will be a help and not a hinderance in the development of Michael's promising personality. Unless there be some compelling reason, we do not believe that a grandchild should be denied visitation to his grandparents. Id., 192 Pa. Super. at 3-4, 159 A.2d at 71. (Emphasis added.)

[ 286 Pa. Super. Page 444]

We find Judge Ervin's words to be as relevant today as when the Goodman, supra, case was decided. Here, we can find no compelling reason why partial custody should be denied.

Accordingly, the order of the trial court denying visitation to the grandparents is reversed and the case is remanded for the parties to amicably establish a schedule of partial custody for the grandparents, appellants herein, with the child, Shannon Genaro; or, in the alternative, to hold a hearing to establish the partial custody program.

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