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12/15/97 CORA E. ARGENIO v. CHAD FENTON

December 15, 1997

CORA E. ARGENIO, APPELLANT
v.
CHAD FENTON, DANIEL FENTON, AND RENEE FENTON; CORA E. ARGENIO, APPELLANT V. CHAD FENTON, DANIEL FENTON, AND RENEE FENTON, BRADFORD COUNTY CHILDREN & YOUTH



Appeal from the Order Entered January 17, 1995, Docketed January 18, 1995, In the Court of Common Pleas of Bradford County Civil Division, No. 94 FC 00328.

Appeal from the Order Entered January 10, 1996, Docketed January 11, 1996, In the Court of Common Pleas of Bradford County, Civil Division, No. 94 FC000328. Before SMITH, J.

Before: Tamilia, J., Hudock, J. and Cercone, P.j.e. Opinion BY Cercone, P.j.e.

The opinion of the court was delivered by: Cercone

OPINION BY CERCONE, P.J.E.:

FILED DECEMBER 15, 1997

This is a consolidated appeal from two orders denying appellant in loco parentis status and partial custody and/or visitation rights to her granddaughter. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

Appellant filed a complaint for custody alleging in loco parentis status of her granddaughter and/or partial custody and visitation rights following the death of her daughter from a one-vehicle accident. Chad Fenton, appellee and natural father to the minor child, resumed legal custody of his daughter but gave physical custody of the child to his brother and sister-in-law, Daniel and Renee Fenton. Although a stipulation had been reached between the parties concerning appellant's visitation of the minor child at the Fenton home, tensions erupted and appellees filed preliminary objections to appellant's custody complaint. Following a hearing before the trial court, the Honorable Jeffrey A. Smith, President Judge of the Court of Common Pleas of Bradford County entered an order on January 17, 1995 dismissing that portion of appellant's complaint seeking custody of her granddaughter. Appellant filed a notice of appeal to this court on January 26, 1995.

Daniel and Renee Fenton filed a petition for a stay on March 10, 1995 and hearings on the balance of appellant's custody complaint were conducted in March, August, and November of 1995. Appellant's visitation rights were suspended during this time period. On January 10, 1996 the Honorable Jeffrey A. Smith entered an order denying appellant's request for partial custody and/or visitation to her granddaughter. Appellant filed her notice of appeal to this order on February 2, 1996 and on November 7, 1996 by per curiam order we consolidated appellant's appeals pursuant to her petition to do so.

Appellant raises six (6) issues for our review:

1. Whether the maternal grandmother has standing to seek custody as against the natural father and a third party who has actual physical custody of the minor child and whether the maternal grandmother stands "in loco parentis " with respect to her minor grandchild in a situation where the natural mother is deceased and the natural father has placed the minor child in the actual physical custody of his brother and sister-in-law.

2. Whether appellees, Daniel Fenton and Renee Fenton, are "parents" within the meaning of the Grandparent's Visitation Act in a situation where the natural mother is deceased and the natural father had placed his child in the physical custody of his brother and sister-in-law.

3. Whether the trial court may deny any visitation or partial custody under the Grandparent's Visitation Act to the maternal grandmother of the minor child so long as she is pursuing her rights to custody.

4. Whether partial custody or visitation rights would be in the best interests of the minor child.

5. Whether partial custody or visitation rights for the maternal grandmother would interfere with the ...


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