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COMMONWEALTH EX REL. IGNATIUS ZAFFARANO AND MARION ZAFFARANO v. RICHARD GENARO (02/01/83)

decided: February 1, 1983.

COMMONWEALTH EX REL. IGNATIUS ZAFFARANO AND MARION ZAFFARANO, APPELLEES,
v.
RICHARD GENARO, APPELLANT



Appeal No. 81-3-422, Appeal from Order of Superior Court dated April 24, 1981, at No. 1428 Phila. 1980, on appeal from Order of May 21, 1980, of the Court of Common Pleas of Montgomery County, Civil Division at No. 80-06063, O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. O'Brien, Former C.j., did not participate in the decision of this case. Roberts, C.j., and McDermott, J., join in the majority. Flaherty, J., joins Order and files concurring opinion. Hutchinson, J., also joins Order and joins with Justice Flaherty's concurring opinion. Nix, J., files a dissenting opinion.

Author: Larsen

[ 500 Pa. Page 257]

OPINION

On April 10, 1980, appellees Ignatius and Marion Zaffarano filed a petition for visitation in the Court of Common Pleas of Montgomery County. The petition sought an order granting appellees "visitation and temporary custody rights" with respect to their granddaughter, Shannon Genaro. After a hearing, the court of common pleas dismissed the petition. On appeal, the Superior Court reversed and remanded

[ 500 Pa. Page 258]

    the case for the establishment of a partial custody schedule for appellees with their granddaughter. Commonwealth ex rel. Zaffarano v. Genaro, 286 Pa. Super. 436, 429 A.2d 17 (1981). We granted allocatur and we now reverse.

Shannon Genaro was born on June 4, 1978, the daughter of appellant, Richard Genaro, and appellees' daughter, Carmella Genaro. On September 16, 1979, Carmella was critically injured in an automobile accident.*fn1 She remained in a coma from the date of the accident until her death on December 9, 1979.

Prior to the accident, appellees saw Shannon frequently. At the hearing, appellee Ignatius Zaffarano testified that he saw Shannon five to seven days a week prior to Carmella's hospitalization.*fn2 During these visits he and Carmella would take Shannon to get ice cream, to see the ducks at a nearby pond, to the airport, or to the store. Appellees also babysat for Shannon and kept her overnight on several occasions when her parents went out for the evening. A single visit took place during the six weeks following the accident. Thereafter, during November, 1979, December, 1979, and January, 1980, appellees saw Shannon two or three times each week. Typically, these visits were initiated by a telephone call from appellees to appellant, following which appellant would leave Shannon at appellees' home for a few hours.*fn3

Appellees last saw Shannon on February 9, 1980. On that date, appellant had an argument with his sister-in-law, Donna Zaffarano, during which Donna told appellant that he was not spending enough time with Shannon and that he should be home with her more often.

[ 500 Pa. Page 259]

Appellant testified that although he believed that appellees love Shannon, he did not want to leave Shannon alone with appellees because they had been saying nasty things about him,*fn4 and he felt that appellees were not capable of caring for Shannon because Mrs. Zaffarano had emotional problems and Mr. Zaffarano drank a lot. Appellant described his February 9 argument with Donna Zaffarano as "the last straw," and has refused to leave Shannon alone with appellees since that date. Nevertheless, appellant did testify that he was willing to allow appellees to visit with Shannon in his presence. Appellees have, however, repeatedly rejected this offer.

Although the hearing court concluded that appellees were not unfit to act as partial custodians for Shannon, it refused to order any visitation because "[t]he present hard feelings which unhappily exist may well serve to place Shannon in a cross-fire between conflicting adults which would certainly not be in her best interests." On appeal, the Superior Court found that there was no "irreconcilable animosity" between the parties and concluded "that appellants [Ignatius and Marion Zaffarano, appellees herein] have shown that it would be in their grandchild's best interests to allow them partial custody of her." 286 Pa. Super. at 442, 429 A.2d at 20. We granted allocatur.

In light of the relief requested in this case -- an order granting "visitation and temporary custody rights" -- we must differentiate between custody, partial custody, and visitation.*fn5 The distinguishing elements of these arrangements

[ 500 Pa. Page 260]

    are "[t]he length of existing visits, the frequency with which they occur, whose home the visits take place in, and who is in effective control of the children during the visit." Note, Visitation Rights of a Grandparent Over the Objection of a Parent: The Best Interests of the Child, 15 J.Fam.L. 51, 67 (1976-77). Thus, at one end of the spectrum is custody, which is a relatively permanent arrangement that involves keeping and caring for a child on a continual basis and that affords the custodian the greatest degree of day-to-day control over the child.*fn6 At the opposite end of the spectrum is visitation, which allows for the least amount of control over the child and contacts of a relatively short duration since visits must be held in the presence of the child's custodian.*fn7 Between these extremes is partial custody, which involves greater control over the child than does visitation because it takes place away from the child's custodian, and which may involve contacts of relatively long duration, such as a weekend or a month of summer vacation.*fn8

[ 500 Pa. Page 261]

In this case, appellees seek partial custody of Shannon.*fn9 Accordingly, our review of this case must focus upon the appropriate standards for granting partial custody to a child's grandparents.

We have repeatedly held that "[o]ur paramount concern in custody cases is the best interest and permanent welfare of the child." Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 295, 426 A.2d 555, 557 (1981). Our concern is no less in cases of partial custody and visitation, since the goal in each case is to foster those relationships which will be meaningful ...


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