No. 58 Harrisburg, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of York County, No. 79-S-4020.
Marvin Beshore, Harrisburg, for appellant.
Keith Rene Nonemaker, Hanover, for appellee.
Brosky, Wieand*fn* and Montemuro, JJ. Montemuro, J., files a concurring opinion.
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Can a twenty-six year old woman, who is a victim of Down's Syndrome and has the mental ability of a child between the ages of four and a half and eight years, be compelled by court order to visit a parent against her will? The trial judge concluded, in a thoughtful and concerned adjudication, that the daughter should be compelled to visit her father but only under circumstances carefully circumscribed by safeguards intended to protect her emotional and psychological well-being. Despite the care which the trial judge exercised in attempting to resolve this difficult issue, we are constrained to hold that an adult person cannot be compelled by judicial decree to visit a parent against his or her will.
Kimberly Schmidt was born March 4, 1957, the second of four children born of the marriage of Stanley and Janet Schmidt. Kimberly unfortunately suffered from Down's Syndrome, commonly known as mongolism.*fn1 Despite her affliction, Kimberly's life was relatively serene and her family relationships harmonious until marital problems developed between her parents. Stanley and Janet Schmidt ultimately settled into separate homes and have been living separate and apart since May, 1978. Following the separation of her parents, Kimberly resided with her mother. Considerable acrimony developed after the marital discord became apparent to the children, and Kimberly's siblings, two of whom at the time of the hearing continued to live with their mother, have refused to visit their father under any circumstances. Kimberly's relationship with her father, once pleasant, has deteriorated badly. She bases her present dislike for him and her unwillingness to visit him upon observed incidents of violence directed by her father against her mother, her brother, her sister's fiance, and
[ 313 Pa. Super. Page 86]
even the family pet. Kimberly now refers to her father as a "beast" and a "burglar". Her strongly expressed desires not to see her father were heard by lay and expert witnesses and were confirmed by Kimberly herself during an in camera session with the hearing judge. She has been examined and tested by several psychologists who are unanimous in reporting that Kimberly has a deep-seated dislike for and unwillingness to visit her father. Her father seems to generate within Kimberly strong feelings of anger and fear. The psychologists differ in their opinions as to whether enforced visitations will be harmful to Kimberly.
In Fernald v. Fernald, 224 Pa. Super. 93, 302 A.2d 470 (1973), it was held that a court has no authority to force an adult daughter to visit her father even though he has been making and she has been accepting voluntary contributions toward her support. This decision, although factually not on all fours with the instant case, is persuasive.
Kimberly Schmidt is chronologically an adult. She has not been adjudicated incompetent. Her mental limitations do not compel the conclusion that she lacks capacity to make rational decisions regarding parental preferences. Because she is an adult she enjoys many of the same rights and privileges enjoyed by other adult citizens. These include a constitutionally protected freedom of choice to make certain basic decisions regarding marriage, procreation, family life and privacy. See, e.g.: Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). This freedom of choice, it would seem, should include the same right which an adult has to refuse to visit a parent. In the absence of an adjudication of incompetency, a handicapped adult should not be deprived of the freedom to make for himself or herself the same family related decisions which other adults enjoy. Such a person has the same needs as other
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adults for social approval, respect and privacy, as well as freedom to make important decisions regarding ...