HomeMy WebLinkAbout00-02351
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LEGAL SERVICES, INC.
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Franklin Fann Lane
Chambersburg, Pennsylvania 17201
(717)264-5354
8 Irvine Row
Carlisle, Pennsylvania 17013
(717) 243-9400
Fax (717) 243-8026
West Shore (717) 766.8475
Shippensburg (717) 530-5866
April 20, 2000
432S.WashingtonStreet
Gettysburg, Pennsylvania 17325
(717)334-7623
The Honorable Kevin A. Hess
Cumberland County Courthouse
Carlisle, P A 17013
Re: Stamm v. Hollen
No. 2000-2351 Civil
Custody
Dear Judge Hess:
Pursuant to your request I am enclosing the following cases which support our position
that the plaintiff /grandmother in the above referenced case does not have standing to sue for
primary custody:
Rowles v. Rowles v. Rowles, 668 A.2d 126
Burnett v. Verstreate, 742 A.2d 700
Argenio v. Fenton v. Fenton, 703 A. 2d 1042
The facts of the case before you do not warrant granting the grandparent standing to sue
for primary custody which is done in cases which pose a substantial risk due to parental abuse,
neglect...
See/distinguish:
Martinez v. Baxter, 725 A. 2d 775
Campbell v. Campbell, 672 A.2d 835
Thank you for your attention to this matter.
Sincere.IY' cI'
~~ GLu-<
a~ Carey
Attorney at Law
cc: Robert L. O'Brien
SERVING ADAMS, CUMBERLAND, FRANKLIN AND FULTON COUNTIES
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668A.2d 126 Y\): O? \ l' \ \ l \
64 USLW2375 . ~ I\J
(Cite as: 542 Pa. 443, 668 A.2d 126)
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Michelle A. ROWLES, Appellant,
v.
David E. ROWLES
v.
Blair ROWLES and Julia Rowles, hnsband and
wife, and Donna Jean Itowles,
Appelllees.
Supreme Court of Pennsylvania,
Argued Sept 18, 1995.
Decided Nov. 29, 1995,
Mother petitioned for physical custody of her children'
who were living with maternal grandparents. Tbt\
Court of Common Pleas, Clearfield County, Civil
Division, No. 1992-2040, H, Clifton McWilliams,
Senior Judge, ordered fuat primary physical custody be
retained by grandparents, and mother appealed. Tbe
Superior Court, No, 1719 Pittsburg/J .1993, affirmed,
and allocatur was granted, 1'heS\lpremeCourt;.NO. 73
. WD. Appeal Docket. 1994, Elaherty,J., held tbal: (1).
parents have no prima facie.tight to custody of childreJlj
abrogating Ellerhe, 49l1Pa. 363,416 A2d 512, but (2)
mother was entitled to physical custody of her children.
Reversed and remanded with directions.
Montemuro, J., concurred and filed opinion in which
Zappala and Cappy, n., joined,
[I] PARENT AND iClllLD ~2(2)
285k2(2)
~ arents haveno prima filcietight to custody of children
, against third parties; rather, courts should consider
vf5 . ~ fact rel"."~ to physi<:BI, emotional, intellectual,
(j . ., with two justices concuning),
1L"'u.~tW [2] PARENT AND CHILD ~2(2)
A 'J 28Sk2(2)
1 vi :J. In determinatiOll of custody arrangement, special
weig/Jt and deference should be accorded parent-child
relationship. '
[3) PARENT AND CHlLD ~2(2)
28Sk2(2)
In determination of custody arrangement, parent-child
relationship should not be disturbed without some
showing of hann or unless circumstances clearly
indicate appropriateness of awarding custody to
nonparen!.
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<44) PARENT AND CHILD ~2(3.7)
285k2(3.7)
Mother, rather than maternal grandparents, was entitled
to physical custody of her children, even thoug/J
children had lived with grandparents for almost two
. and a half years while mother and fa1her attempted to
resolve marital difficulties but ultimately divorced;
parents had shielded children. from disruption resulting
from marital breakdown by yielding custody to
grandparents during that time, mother had daily contact
with children and had lhem in her home for ovemig\lt
,visits on altemating weekends, and grandparents would
be awilable to care for cliildien between end of school
day and molher's return home from work.
..126.444 Thomas M, Dickey, Altmms, for}1ichelle
~s, " .
Jolm R. Ryan, dearlield, fOimmrand Blair Rowles,
Betsy D. Sanders, State College, for David Rowles,
Before NIX, C.J" and FLAHERTY, ZAPPALA,
CAPPY, CASTILLE and MON1EMURO, n.
OPINION ANNOUNCING TIffi JUDGMENT OF
TIffi COURT
FLAHERTY, Justice.
This appeal involves our reconsideration of the
stlUldard to be applied in deciding a custody dispute
between parents and third parties. The children are
R<,ryce Edward Rowles, born March 17, 1988, and
Kaitlyn ..127 Louise Rowles, born May 2, 1990, of
Michelle A. Rowles, appellant, and David E. Rowles.
In December, 1989, the parents, David and Michelle,
together with their only child, Royce, moved into the
home of David's "445 parents, Blair and Julia Rowles,
and sister, Donna Jean Rowles, appellees, In July,
1990, two months after Klritlyn was born, in order to
resolve marital problems without affecting the children
adversely, the parents moved out of the grandparents'
home, leaving the children in the physical custody of
the grandparents,
A year and a half later, in Febmmy, 1992, in
pursuance of divorce proceedings, the parties executed
a guardianship agreement in which the parents named
appellees guardians of the cbildren and granted
appellees physical custody. In May, 1992, the
guardianship agreement was incorporated into a
divorce decree terminating the parents' marriage,
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668 A2d 126
(Cite as: 542 Pa. 443, "445, 668 A.2d 126, "*127)
Six m.onths later, .on November 3, 1992, the m.other
petitioned f.or the physical custody of her children.
Foll.owing hearings, the trial court ordered that primary
physical custody be retained by the grandparents, The
Superior C.ourt affumed. We granted aIlocatur b.oth to
review the legal standard g.overning a custody dispute
between parents and third parties and to review its
application in this case.
Thus the first issue is t.o determine the proper standard
which controls custody disputes between parents and
third parties, The trial court acknowledged that the rule
.of Ellerbe v, Ho.oks, 490 Pa. 363, 416 A.2d 512
(1980), applied in this case, giving parents a prima
facie right 10 custody of their children.. though the
presumption in favor .of parents as against third parties
is n.ot conclusive, The Superior Court likewise
identified the case .of Ellerbe as setting forth the rule
governing custody cases between parents and third
parties, but cited several additional cases in which
cust.ody was denied parents despite the presumption in
their fav.or: e,g" Albright v, C.om, ex reI. Fetters, 491
Pa. 320, 327, 421 A.2d 157, 160 (1980) and Snarski v,
l\iincek, 372 Pa.Super. 58, 538 A.2d 1348 (1988),
(1] In Ellerbe, this court was confronted with a custody
contest between a parent and a third party, A majority
.of the c.ourt adopted the rule of In re Hernandez, 249
Ps.8uper, 274, 376 A.2d 648 (1977), lllld articulated
its new standard as foll.ows:
"446 [F]arents have a "prima facie right t.o custody,"
which "may be f.orfeited if convincing reasons appear
that the best interests .of the child will be served by
awarding custody to someone else," [T]he
Superior Court, through Judge Spaeth, articulated the
following approach:
"When the judge is hearing a dispute between the
parents, or a parent, and a third party, ,.. [t]he
question still is, what is in the child's best interest?
H.owever, the parties do n.ot start out even; the
parents have 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, Thus, even before the
proceedings start, the evidentiary scale is tipped, and
tipped hard, to the parents' side....
We agree that this approach is appropriate, Clearly
these principles do not preclude an award of custody
t.o the n.on-parent. Rather they simply instruct the
hearing judge that the non-parent bears the burden .of
production and the burden .of persuasi.on and that the
non-parent's burden is heavy,
Thus where circumstances do n.ot clearly indicate the
appropriateness of awarding custody to a non-parent,
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we believe the less intrusive and hence the proper
course is to award custody to the parent or parents."
Ellerbe v, Hooks, 490 Pa. at 367-69, 416 A.2d at
513-14 (citations omitted).
A concurring opini.on by this auth.or, j.oined by Mr,
Justice, '1ow Chief Justice, Nix, questioned the
legitimacy .of recognizing "a prima facie presumption
that parents have a right to custody of their children as
against third parties." Id, at 371-72, 416 A.2d at 516
(emphasis in .original) (Flaherty, J., concurring), The
opinion explained the vulnerability .of the presumption
as follows:
""128 In COmnlonwealth ex reI. Spriggs v. Carson,
[470 Pa 290,368 A.2d 635] [ (1977) ], where we
.ovenu1ed the "tender years" presumpti.on that custody
sh.ould be awarded to *447 m.others rather than
fathers, we stated: "Courts should be wary of
deciding matters as sensitive as questions of cust.ody
by the invocati.on of 'presumptions', Instead, we
believe that our courts should inquire into the
circumstances and relationships .of all the parties
involved and reach a detennination based solely upon
the facts of the case before the Court." The same
, reasoning sh.ould apply where the custody dispute is
between parents and third parties,
[T]he underlying tenor of the "presrnnplion"
reflects an archaic c.oncept that children are
proprietary assets of parents. Seri.ous question may
be p.osed with respect to the sOlmduess of the
apriorism that mere biological relationship assures
solicitude, care, devoti.on, and l.ove for one's
offspring....[ [FNI]] [W]here a third party better
fuliills these needs, .or where other circumstances
indicate third party custody to be preferable, the
courts, when exercising judgment as 10 a child's
welfare, should not be restrained solely by a
presumption,
FNI. Indeed, the majority opioion recognized as much,
stating: "Experience has taught the unhappy lesson that
the parental reletionsbip is not an infallible gnarantee
that the parent will provide the care and concern
essential to a cbildls proper development. II Ellerbe. 490
Pa, at 368, 416A.2d at 514,
[The majority's] approach should be replaced with a
rule which would simplliY and clarify application .of
the best interest standard, By clearly eliminating the
presrnnption per se, and mandating that custody be
determined by a preponderance of evidence,
weighing parenthood as a strong fact.or for
consideration, cust.ody proceedings w.ould be
disentangled fr.om the burden of applying a
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668 A,2d 126
(Cite as: 542 Pa. 4143, *447, 668 A.2d 126, **128)
presumption that merely becloods the ultimate
concern in these cases: the determinatiCill of what
affiliation will best serve the child's interests,
including physioal, emotional, intellectual, moral, and
spiritual well-being,
Id" 490 Pa, at 372-74, 416 A,2d at 516-17 (citation
omitted, emphasis in original) (Flaherty, 1,
conourring). For the reasons stated in the concurring
opinion, we now abandon the presumption that a parent
has a prima facie right to custody *448 as against third
parties, and follow the rule enunoiated in the last
paragraph of the above quotation,
[2][3] Thus there is no single overriding factor; rather,
courts should consider every fact relevant to the
physical, emotional, intellectua1, moral, and spiritual
well-being of a ohild. Parenthood. though not
paramount, will always be a factor of significant
weight In Ellerbe, both opinions, representing all
seven justices, agreed on several principles: "the
parent- ohild relationship should be considered to be of
importance in determining which custody arrangement
is in the ohild's Pest interest," "special weight" and
"deference" should Pe accorded the parent-child
relationship, and the relationship should not be
disturbed "without some showing of harm" or unless
circumstances "clearly indicate the appropriateness of
awarding custody (0 a non-parent" rd., 490 Pa, at 366,
369, 370, 373, 416 A,2d at 513, 514, 515, 516-17,
We adhere to these principles, for, in general, parents
have a deep, abiding commitment to the well-being of
their children.
[4] Having identified the standard governing custody
disputes between parents and third parties, we turn to
the application of the standard in this case. The trial
court found a number of facts which, in its judgment,
outweighed the mother's claim for custody,
First, the trial court listed a set of facts recognizing
good qualities of the grandparents: they are in good
mental and physical health; are morally fit; and
properly provide love, affection, guidance, education,
and religious training.
Second, the children had resided with 1I1e grandparents.
in. a stable emvirorunent. for fur more than the twelve
months. which would give the grandparents m.nding
under 23 Pa.C;S. ~. 5313 10 seek. partial. custody or
visitatiOlL The court emphasized the importance of this
fact based on the authority of Jackson v. Garland, 424
Pa.Super, 378, 622 A,2d 969 **129 (1993) and
Gradwell v, Strausser, 416 Pa.5uper. 118, 610 A,2d
999 (1992),
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The fina1 set of factors identified by the trial court
contrasts the stability of the grandparents' home with
the instability of the parents'. The gran<l{larents have
demOnstrated more *449 permanency as a family unit
lJiaHcthe pol...n, have done, Both parents have recently
established new relationships since their divorce,
Finally, the trial court found that "[t]he children have
been exposed to chaotic conditions throughout their
lives as a result of marital difficulties between the
parents, and the home of the grandparents has proven
to be the single stabilizing factor in the children's
lives...." In reaching this conclusion, the court echoed
the findings held to be dispositive in Albright, supra,
491 Pa. at 327, 421 A,2d at 160,
The Superior Court cited the facts found by the trial
court and found them to support the award of custody
to the grandparents. For the reasons that follow, we
disagree,
The first basis for the trial court's custody award--the
good qualities of the grandparents--is not persuasive,
A custody detennination requires a process of
comparing and weighing the relevant facts of the
competing custodial environments, The trial court
recited admirable facts about the grandparents without
making any reference to the mother's comparable
qua1ifications which appear in the record of this case,
It is disingenuous to commend one party for its virtues
while omitting all reference to the other party's equally
favorable qua1ifications, The record leads to the
conclusion that the first explanation for the decision
does not support the award of custody to the
grandparents rather than the mother, but rather
supports both parties equally,
The second and third grounds for the decision boil
down to the conclusion that the grandparents provided
a stable custodial environment for the children for the
two and a half years preceding the mother's petition for
custody, There is no question that young children crave
stability and that the ability to provide a stable
environment is, like parenthood. a factor worthy of
weighty cousideration by the trial court, [FN2] Yet
*450 it is possible to give excessive weight to this
consideration, in effect raising it to the status of a
controlling factor, [FN3]
FN2. This is borne out by three decisions of this court
cited in the Superior Court opinion: Ellerbe, Albright,
and Snarski, supra. It is ironic that Ellerbe, the case
establishing the presumptiou of a parents prima facie
right to custody, awarded custody to a grandmother
over the claim of the father.
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668 A.2d 126
(Cite as: 542 Pa. 443, *450, 668 A.2d 126, **129)
FN3, Ellerbe, Albrigh~ and Snarski are distiaguishable
from this case 00 the basis ably set forth by Judge Ford
Elliott, dissenting in the Superior Court, The subject in
Ellerbe had resided with her grandmother for nine of
her eleven years, Likewise, in A1brigh~ the children
had liVed with their mother or grandparents for tea
years; when the D).other died, the court awarded
custody to the grandparents rather than the father, In
Snarski, grandparents merited custody after the child
had lived with them for six and one-half of his eight
years and the father proved himself to be an ineffectual
parent in several respects. By contrast, the children in
this case were in the custody of the grandparents from
July, 1990 until November, 1992, wben the mother
filed her petilioo for custody, This two-aod-a.half-year
period is a far less significant period than that of
Ellerbe, Albright, or Snarski,
Moreover, the conclusion that "the children have been
exposed to chaotic conditions throughout their lives as
a result of marital difficulties betWeen the parents," is
simply not true, based on our review of the record,
Rather, the children were not exposed to chaotic
conditions precisely because of the good judgment of
the parents who yielded custody to the grandparents to
spare the children the disruption attending the parents'
marital breakdown, We tbink it would be unjust to
penalize the mother's responsible decision to insulate
children from her marital difl'icnlti"s by
surr""d~ring cusrody temporarily to their grandjlllrell!s,
and to. weigh. this as a significant factor j~ the,
denialofcustody inthisproceedingl.
In addition, it is not true that the grandparents' home
bas been the single stabilizing factor in the children's
lives. The record confirms that the mother had daily
contact with the children during the period they were in
the custody of the grandparents, The mother routinely
spent several bours in the grandparents' home with her
children **130 after work until bedtime, and her
children visited her bome for overnight visits on
alternating weekends. It is readily apparent that the
mother was very much a part of the stable environment
the children enjoyed while residing with the
grandparents, To transfer custody to the mother would
change little more than the children's sleeping
arrangements, for the mother has been a daily part of
the children's lives; moreover, the record *451 reflects
the grandparents' agreement that, if the mother were
awarded custody, they would continue to care for the
children on a daily basis between the hours of school
and the mother's return home from work
In summary, it appears that the trial court and Superior
Court attached far too much weight to the grandparents'
claims based on the stability of the home they provided
for the children, The courts exaggerated the length of
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time the grandparents had custody [FN4] and totally
ignored the mother's participation in that stable
environment. This factor cannot be viewed as one
which strongly indicates grandparental custody over
parental custody, On the other hand, the courts appear
to bave given no weight at all to the parental
relationship asserted by the mother, There is absolutely
nothing in the record which casts doubt on the
expectation that she bears normal hnman solicitude,
care, devotion, and love for her offspring nor any fact
which would justify denying the "special weight" and
"deference" that are normally to be accorded the parent-
child relationship, We cannot avoid the conclusion, on
the record of this case, that the parental relationship is
by far the most weighty factor in the custody
determination, and that the countervailing consideration
of the stable home provided by the grandparents is
comparatively insignificant as the mother was a
coustant part of that stable environment. It is therefore
necessary to reverse the order of the Superior Court
and remand the case for the trial court to grant custody
to the mother and to order visitation and other
appropriate relief consistent with this opinion.
FN4. The Superior Court erroneously stated that the
grandparents had custody of Royce beginning on
December 24, 1989, the date the parents moved into
the grandparents' home with Royce, rather than July,
1990, when the parents moved out of the grandparents'
home. leaving Royce in the custody of the
grandparents,
Order reversed; case remanded for entry of an order
granting custody to appellant and other appropriate
relief consistent with this opinion,
MONTEMURO, J., files a concurring oprmon ill
which ZAPPALA and CAPPY, JJ" join.
*452 MONTEMURO, J., participates by designation
as a senior judge as provided by Rule of Judicial
Administration 701(f),
MONTEMURO, Justice, concurring,
While I am in full agreement with the award of custody
to the mother in this case, I write separately because I
do not share the Majority's belief that the preswnption
of parental primacy in custody actions should be
abolished, My position is based on the view that the
presumption is gr01mded not in a possessory or
proprietary interest, but rather is an outgrowth of
parents' responsibility for their children, This is the
direction of the Majority in Ellerbe v. Hooks, 490 Pa,
363, 416 A.2d 512 (1980). Even with the
presumption, if the facts of a particular matter clearly
Copr, @West2000 No Claim to Orig, U,S, Gov!. Works
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668 A2d 126
(Cite as: 542 Pa. 443, *452, 668 A.2d 126, **130)
demonstrate that parents are failing to perform their
responsibilities, or are doing so inadequately, the best
interests of the child dictate placement with a third
party, Thus the presumption does not "becloud the
ultimate concern," as the MoUority here charges, since
the problem ouly arises where the outcome is already in
doubt, i.e" where it is uot immediately apparent where
lhe best interests of the child lie,
Moreover, there is no particular advantage in
dispensing with "presumption," a term readily
understood by the bench and bar given its
underpinnings, in order to replace it with a "significant
factor," which does not recognize lhe source and
importance of the parental interest. This d;m;nnrion of
emphasis could well prove extremely problematical
where a third party seeks custody from otherwise
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adequate parents based on a belief that, e,g., the
children are being provided **131 with "wrong" or
inadequate religious instruction.
In short, I see no reason to alter a process which
already takes into proper account bolh the ideal and the
reality of parental behavior: it begins with the notion
that parents conduct the life of the family in accordance
with the best interests of their children; however,
where lhey have been *453 shown not to do so, the
best interests of the children compel a change in
custody.
ZAPPALA and CAPPY, Jl, join in this concuning
opinion,
END OF DOCUMENT
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742 A,2d 700
(Cite as: 742 A.201l 700)
Jerry and Judy BUBNETT, Appellants,
v.
Ruby VERSTREATE, Appellee.
Superior Court of Pennsylvania.
Submitted Aug, 31, 1999,
Filed Dec. 3, 1999,
Paternal grandparents appealed from order of the
Court of Commou Pleas, Bradford County, Civil
Division, No. 96 FC 000867, Smith, J., awarding
lUlillarried mother legal and primary physical custody
of her cbild and awarding grandparents partial custody,
\ The Superior Court, NOSe 945 and 1290 Harrisburg
1998, 'l'"",nu".I;, 1Jcld. that trial court was required to
apply pr:esumption that natural parent had prima facie
right to custody as against 1hird party.
Affirmed,
[1] PARENT AND ClllLD ~2(U)
285k2(12)
In custody dispute between lUlillarried mother and
paternal grandparents, record supported trial court's
decisioo granting mother legal and primary physical
custody of her child and awarding grandparents partial
custody; record supported court's belief in mother's
redemption and mandated that she be given the
opportunity to exercise her right as a parent,
particularly since child evinced strong desire to live
with her,
[2] INFANTS ~I9.2(2)
2I1kI9.2(2)
In matters of child custody and visitation, ultimate
coosideflltion of the court is a determination of what is
in the best interests of the child,
[2] INFANTS ~I9.3(4)
211kI9.3(4)
In matters of child custody and visitation, ultimate
consideratioo of the court is a determination of what is
in the best interests of the child.
[3] PARENT AND ClDLD ~2(3.3)
285k2(3.3)
Although third party carries heavy burden to prove that
he can best provide for the child, it is not necessary in
custody cases between parent and third party to show
that parent is unfit
[3] PARENT AND ClDLD ~2(8)
285k2(8)
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Although third party carries heavy burden to prove that
he can best provide for the child, it is not necessary in
custody cases between parent and third party to show
that parent is unfit
[4] APPEAL AND ERROR ~1008.1(4)
30kI008.1(4)
On issues of credibility and weight of the evidence,
appellate courts must defer to findings of the trial judge
who has had opportunity to observe proceedings and
demeanor of the witnesses,
[4] APPEAL AND ERROR ~1012.1(1)
30kI012,1(1)
On issues of credibility and weight of the evidence,
appellate courts must defer to findings of the trial judge
who has had opportunity to observe proceedings and
demeanor of the witnesses,
[5] PARENT AND ClDLD ~2(8)
285k2(8)
Report. reassuring 1rial court Illat awarding custody to
unmarried mother would be proper IlIlder the (
circumstances required court to apply the presumptioo .
that, .all things being equal, natural parent has prima
facie right to custody as against third party for purposes
or custody dispure between mother and paternal
gIaUllparents,
[6] APPEAL AND ERROR ~ 1008.1(3)
30kI008.1(3)
It is not within Superior Court's capacity as an
appellare court to substitute its discretioo or findings
for those of the trial court.
[7) INFANTS ~19.3(4)
211kI9.3(4)
Best interest and permanent welfare of the child govern
visitation determinations,
(8) INFANTS ~19.3(1)
211kI9.3(I)
In child custody cases, trial court must consider all
factors which legitimately affect child's physical,
intellectual, moral, and spiritual well- being,
(9) CHILDREN OUT-OF-WEDLOCK ~20
76Hk20
Although trial court might have given greater weight to
wishes of child to be with her paternal grandparents
more frequently on weekends, court did not abuse its
discretioo in not doing so for purposes of custody
dispute between lUlillarried mother and paternal
grandparents; partial custody awarded grandparents for
ooe weekend each month, three weeks each summer
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742 A2d 700
(Cite as: 742 A.2d 700)
and part of child's Christmas holiday vacation was
fimdamentally adequate.
(9J PARENT AND CHILD <P2(l7)
285k2(17)
Although trial court might have given greater weight to
wishes of child to be with her paternal grandparents
nlOre frequently on weekends, court did not abuse its
discretion in not doing so for purposes of custody
dispute between unmarried mother and paternal
grandparents; partial custody awarded grandparents for
one weekend each month, tbree weeks each summer
and part of child's Christmas holiday vacation was
fundamentally adequate,
-701 Gerald A Keene, Waverly, N, Y., for appellants,
Fred N. Smith, Towanda, for appellee,
Before JOHNSON, JOYCE and TAMILIA, J1.
TAMILIA, 1.:
, I Appellants/paternal grandparents, Jel1}' and Judy
Burnett, appeal from the May 18, 1998 Order granting
appellee/mother, Ruby Verstreate, legal and primary
physical custody of her daughter, Kassandra, and the
July 7, 1998 Order (as corrected by the Order of July
22, 1998) awarding appellants partial custody. [FNI J
FNl. The Order in this case categorizes the award of
partial custody to .the grandparenls as "temporary
custody and visitu.tion". In accordance with the legal
definitions estsblished by the Custody Act, 23 Pa.C,S, ~
5302, Definitions, the award in this case is that of
Rpartial custody" (the right to take possession of a child
away from the custodial parent for a certain period of
time),
, 2 The minor child, Kassandra, was born on April 5,
1989 to appellee and appellants' son, Thomas Burnett,
who lived together until early 1992. After the couple
separated, the child remained in the physical custody of
her father, On May 14, 1996, Thomas Burnett was
awarded legal and primary physical custody and
appellee was awarded partial custody. Due to Thomas
Btlffiett's work schedule and, later, physical disability,
however, appellants acted as temporary caretakers of
the child until November 1996 when, after a dispute
with appellants, Thomas Burnett resumed his role as
primary caretaker, Shortly thereafter, in December
1996, appellee commenced her suit for custody of the
child and appellants petitioned for grandparent
visitation, The court denied appellants' petition and set
a date for a preliminaty custody conference. In April
1997, while Thomas Burnett recuperated from an
operation, the child was placed in appellants' custody
,-., "
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and, thereafter, 00 Janwny 5, 1998, appellants filed a
complaint for custody against appellee and Thomas
Bumett, A hearing was conducted on March 17,
1998, wherein the court found appellants had standing
to seek legal and physical custody of the child, On
May 6, 1998, appellee was awarded legal and physical
custody of the child and on July 7, 1998 appellants
were awarded partial custody, 'This timely appeal
followed,
, 3 Appellants raise three questions for our review:
1. Did the lower court err in its application of the
law regarding custody disputes between a parent and
a grandparent?
II. Did the lower court err in awarding custody of the
minor child to the Appellee?
m Did the lower court err in its order granting
visitation [partial custodyJ to the Appellants?
, 4 Recently, this Court, in Cardamone v, Elshoff, 442
Pa,Super, 263, 659 A2d 575 (1995), set forth the
appropriate standard "702 of review in a custody
dispute involving a parent and a third party,
The scope of review of an appellate court reviewing a
child custody order is of the broadest type; the
appellate court is not bound by the deductions or
inferences made by the trial court from its findings of
fact, nor must the reviewing court accept a finding
that had no competent evidence to support it....
However, this broad scope of review does not vest in
the reviewing court the duty or the privilege of
making its own independent detenninatioll.... Thus,
an appellate court is empowered to detennine
whether the trial court's incontrovertible factual
findings support its factual conclusions, but it may not
interfere with those cooclusioos unless they are
unreasonable in view of the trial court's factual
findings; and thus, represent a gross abuse of
discretion,
Id, at 578-79 (citations omitted),
1f 5 Appellantsoontend the trial court failed-t&.apply
tlte correct law regarding a custody dispute between a
natural parent and grandparents, relying 00 'the
Supreme Court's decision in Rowles v. Rowles" 542
Pac 443, 668 A2d .126 (1995), fur the proposition that
the Supreme Court has "explicitly abandoned ,;the
presumption that a parent hasaprlmaSacie rjght 10
custody of their child as against third ,patties,"
Appellants' Brief at II. In Rowles, the 'SlIJ>fl'II1"'Court
was divided three,three 00 reconsideration of the
presumption of parents'prima facie right toenlltOOy.
J1:Ililiee Flaherty, joined by Justices'ffixc"llW''Gastille,
would have replaced the prima facie presumption with
a rule that custody be detennined by a prepnnde..mce
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~'-
"",' -
742 A2d 700
(Cite as: 742 A.2d 700, *702)
ofeMiden<x:;'Weigjring,paren1hoofras a strongcfilGtonlw
consideration. Id, .at 444,668A2dJlU28'{~is
,jo,""l1ligimil), The Concurring Opinion l1Jrlnstice
Montemurro, joined by Justices Zappala illldCappy,
however, fuund "no particular advantage m <lispensiJjg
with the 'presumption' " and found "no reason to alter a
process which already takes into proper account both
the ideal and the reality of parental behavior.' Id. at
452, 668A2d,at 1.30- 31,
1 6 In Mollander v, Chiodo, 450 Pa'super, 247, 675
A2d 753 (1996), this Court recognized the possible
trend toward the elimination of a natural parent's
presumptive right to custody but.held this Court is JJQ/,
bound by the plurality decision inRowIes. 'flUs Court
reiterated the standard of Ellerbe v, Hooks, 490 Pa,
363,416 A,2d 512 (1980):
[fJhe..parents..mme ,!a';Prima.faciec:ri.gbt .w:.....u.dy,'
wmch will be i'orfeitedunlyif'oonvincin$ reasons'
appear that the child's best interest will be served by
~to the third party. Thus, even before1he
proceedings start, the evidentiary scale is tipped, and
\ tipped hard, to the parents' side. What the jU<jge must
\ d<>; therefore,.is first, hear all e\'idence relevant tothe
cIlilll's best mterest, and then, decide whetherlfhe
evidence on behalf of the third party is weighty
1"'~....ming:the:;Sll~)0 even, and downr0R,fue
tlllrd party's side,
.~ Monander.., .67.5 A2. d at 754 (c. ita. tions 0Ill1. 'tted. ),
[I] 1 71ifle,tria100nrt did Rot err by applying the
, pti.mafucie presumption. to 1hiscustod}- matl:e1:and did
not fail.t<lpro~assesstheevidence presented. The
court recognized the appropriate stillldard set forth in
Ellerbe, supra, and properly evalnated three days of
testimony regarding the parties' lifestyles, home
environments, personal relationships and contact with
the child. While we do not wish to diminish
appellants' substantial, positive influence on the child,
we find no mdication that the trial court's custody Order
waS unsupported by the record,
1 8 The court in this case has been the sole arbiter of
the custody litigation involving Kassandra, The initial
cu,;!ody action m 1996 pitted the parents against each
other for the custody of the child, Under the facts of
the case, as they existed at that time, the best interest of
the child appeared to favor custody with the father,
*703 While the court avoided characterizing the
mother as unfit, the court fuund that the most stable
re\tltionship for Kassandra would be achieved with the
father as primary custodian, In actuality, while the
father had a live-m partner, Ms, Mingos, to aid in this
performance, between the award of custody to the
father m May 1996 (and before) and the chaoge in that
..
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award in July 1998, the de facto caretakers were Jerry
and Judy Bwnett, the paternal grandparents, Their
care of the child was all that could be wished, however,
that alone cannot be the determining factor in this case.
lf such were the case, no parent who is out of custody,
regardless of the reformation and improvement in
lifestyle or parenting ability, could obtain the return of
custody, The record supports the trial court's belief in
the mother's redemption and also mandates she be
given the opportunity to exercise her right as a parent,
particularly smce the child evinces a strong desire to
live with her,
1 9 Appellants claim the trial court presumed the best
interest of the child required placing her with appellee
unless appellants proved appellee unfit. They argue the
trial cowt required a showing of appellee's unfitness in
order to grant custody to appellants because the court's
Opinion emphasized appellee's progress in life since
the last custody determination. The facts of this case
and the findings of the trial court do not compel
reliance on the presumption favoring the natural parent
or the test of fitoess being the make weight to trigger
the presumption,
[2][3] 1 10 It is clear that in matters of custody and
visitation, the ultimate consideration of the court is a
determination of what is in the best interests of the
child, Bupp v, Bupp, 718 A2d 1278, 1281
(pa,Super.1998), Although a third party carries a heavy
burden to prove that he or she can best provide fur the
child, it is not necessary to show that the parent is unfit.
In re David LC" 376 Pa,Super, 615, 546 A2d 694
(1988). In this case, the trial court addressed
appellee's relationship with the child, her contact with
the child's school and her ability to provide a stable
home, The trial court did not, however, allude to a
standard whereby appellants were reqnired to prove
appellee's unfitoess as a parent, but rather, the trial
court properly discnssed the substantial amount of
testimony regarding appellee's lifestyle and her present
capacity to be the person best able to fulfill Kassandra's
needs. The trial court recognized implicitly that in
situations such as this, while perfection may not be
attained, there is an optimum time wherem a child must
be reunited with the biological parent due to the
progress obtained by that parent in his or her capacity
to care for the child, and the age, maturing and natural
yeaming of the child to be reunited with the parent, If
the opportunity is not taken, the long term prognosis for
reuniting parent and child decreases mto hopelessness
on the part of both, That failure to achieve unity can
be a haunting burden on the lives of both parent and
child for as long as they live,
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lIlIIlill
742 A.2d 700
(Cite as: 742 A.2d 700, .703)
1f II Appellants also argue the trial court's findings are
mlreasonable in light of the recommendation of the
court-appoint~Ai psychologist and the court-appointed
child-advocate, both of whom recommended the child
remain in the custody of appellants, while not ruling out
the workability of a change in custody.
[4][5] 1]12 On issues of credibility and weight of the
evidence, appellate courts must defer to the findings of
the trial judge who has had the opportunity to observe
the proceedings and the demeanor of the witnesses.
Robinson v. Robinson, 538 Pa. 52, 645 A.2d 836
(1994), The parties cannot dictate the amount of
weight the trial court places on evidence, 1d. In this
case, Mr. Cornwall's report reassured the court that
awarding custody to appellee would be proper under
the circumstances, This required the court to apply the
presumption that, all things being equal, the natural
parent has a prima facie right to custody as against a
third party, (Trial Court Opinion, Smith, J, 12/23/98,
at 3-4,) Mr, Cornwall believed a change in custody
.704 was possible, and even desirable, with the
cooperation of the parties (N. T., 5/6/98, at 10), The
child's counsel agreed with Mr, Cornwall's assessment,
however, as legal counsel for the child, his arguments
were simply persuasive, and the court was not bound to
address his position.
[6] 1]13 Finally, appellants argue the partial custody
Order provides inadequate contact with the child, who
is accustomed to spending extensive time in their
home, and, therefore, is not in the child's best interest,
They further contend the trial court Order was
inadequate in light of the child's preference to visit with
appellants every other week. While this argument is
persuasive and contains considerable merit, it is not
within our capacity as an appellate court to substitute
our discretion or findings for those of the trial court,
[7][8][9] 1]14 The best interest and pennanent welfare
of the child govern visitation detenninations. Etter v,
Rose, 454 Pa,Super. 138, 684 A.2d 1092, 1093
(1996), The court must consider all factors which
legitimately affect the child's physical intellectual,
moral and spiritual well-being, 1d, Upon review of the
record, we find the trial court might have given greater
'*,,'-
Page 17
weight to the wishes of Kassandra to be with the
grandparents more frequently on weekends but he did
not abuse his discretion in not doing so, The partial
custody awarded appellants for one weekend each
month, three weeks each swnmer and part of the child's
Christmas holiday vacation is fundamentally adequate.
In its Opinion, the trial court expressed concern over
the amount of time required to travel from appellee's
home in New York to appellants' home in
Pennsylvania, stating "it would not be appropriate to
subject a child of Kassandra's age to more frequent
travel." (Trial Court Opinion at 3.) The court sought
to preserve the strong bond between appellants and the
child but did not agree with the child's preference to
visit appellants every other week, noting "the child was
naive both about the burdens of travel that would have
been placed upon the mother and the paternal
grandparents and about the potential for physical and
mental exhaustion which the child might suffer from so
much time being devoted to highway travel." 1d. at 3,
5. The argument could be made that during this period
of transition, the child would be less likely to have
second thoughts about separating from her
grandparents if greater partial custody was permitted,
but we can do nothing more than suggest the trial court
carefully monitor this aspect of the partial custody
Order. The record supports the trial court's findings in
all respects.
1] 15 In light of the foregoing discussion, we find no
abuse of discretion in the trial court's Order of May 18,
1998 awarding legal and primary physical custody of
Kassandra to her mother, AB to the grandparents'
award of partial physical custody, it is consistent with a
considered evaluation and weighing of the facts and
law and is affirmed. The Order of July 7, 1998
regarding partial custody, summer and holiday
vacations and transportation is likewise affirmed,
1] 16 The Order of May 18, 1998 as to legal and
primary physical custody of Kassandra is affirmed,
The Order of July 7, 1998 as to appellants' periods of
partial physical custody is also affirmed,
1]17 Jurisdiction relinqnished,
END OF DOCUMENT
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703 A.2d 1042
(Cite as: 703 A.2d 1042)
Cora E. ARGENIO, Appellant (at 166),
v.
Chad FENTON, Daniel Fenton, and Renee Fenton.
Cora E. ARGENIO, AppeUant (at 131),
v.
Chad FENTON, Daniel Fenton, and Renee Fenton,
Bradford County Children & Youth.
Superior Court of Pennsylvania,
Argued June 19, 1997,
Filed Dec, 15, 1997,
Grandmother filed consolidated appeal from order
entered in the Court of Common Pleas, Bradford
County, Civil Divmion, No. 94 FC 00328, and from
order entered in the Court of Common Pleas, Bradford
County Civil Division, No. 94 FC000328, Smith, 1.,
denying grandmother in loco parentis status and partial
custody and/or visitation rights to her granddaughter.
The Superior Court, Nos, 166 Harrisburg 1995, 131
Harrisburg 1996, Cercone, President Judge Emeritus,
l. held that: (1) grandmother did not stand. in loco
parentis to the chi1d, even thongh she performed
babysitting aud caretaking tasks when child's mother
was alive, but (2) remand of visitation issue was
required.
Affirmed in part; reversed and remauded in part.
[I) PARENT AND CIllLD ~2(5)
,285k2(5)
Disputes. involving custody of a minor child, other 1han
1hose irnloh>ing a parent against another parent, are
considered to be "third party" disputes; as such. absent
a prima facie right to. custody, third party lacks standing
to seek custody as against th.e natural parent,
See publication Words aud Phrases for other judicial
constructions and definitions,
[2) PARENT AND CIllLD ~15
285k15
Third party who stands in loco parentis to child has
standing to seek custody.
[3) PARENT AND CIllLD ~15
285kl5
Babysitting aud perlbrming caretaking tasks did not
\ place maternal grandmother in loco parentis with
regard to her grandcbild; accordingly, grandmo1her
lacked standing to seek custody after 1he child's mother
died.
(4) COURTS ~90(2)
'l;"J
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106k90(2)
court.
Superior Court was not bound by plurality opinion of
Supreme Court,
[5) PARENT AND CIllLD ~2(20)
285k2(20)
Remand of visitation issues was required, where trial
court did not write an opinion as to why it denied
maternal grandmother any rights to see her
granddaughter after child's mother died,
*1042 Howard M, Spizer, Scranton, for appellant.
Susan E, Hartley, Athens, for Chad Fenton, appellee.
Alida O'Hara, HonesdaJe, for Daniel aud Renee
Fenton, appellees,
Before TAMlLIA and HUDOCK, J1., and CERCONE,
President Judge Emeritus,
CERCONE, President Judge Emeritus:
This is a consolidated appeal from two orders denying
appellant in loco parentis status aud 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 *1043 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.
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703 A.2d 1042
(Cite as: 703 A.2d 1042, *1043)
Snrith entered an order denying appellant's reqnest for
partial custody and/or visitation to her granddaughter,
Appellant filed her notice of appeal to this order on
F ebmmy 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 ill
seek cnstody 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 sitnation where the natural mother is
deceased and the natural father has placed the minor
child in the actnal physical custody of his brother and
sister-in-law.
2, Whether appellees, Daniel Fenton and Renee
Fenton, are "parentsll within the meaning of the
Grandparent's Visitation Act in a sitnation where the
natural mother is deceased and the natural father had
placed his child in the physical custody of his brother
aIld 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 cnstody,
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
parent-child relationship.
6, Whether the trial court erred in refusing to permit
testimony regarding Norman Fleet who had been the
child's caretaker on a daily basis which would be
relevant to the welfare and best interest of the child,
Appellant's brief at 4. In reference to appellant's first
order on appeal denying her in loco parentis status to
her grandchild the trial court sustained appellees'
preJiminary objections in the nature of a demurrer.
[FNI] It is well established in this Commonwealth
that:
FNl. This order is docketed at No. 166 Harrisburg
1995,
[\\']hen reviewing an order granting preliminary
objections in the nature of a demurrer, an appellate
court applies the same standard employed by the trial
murt: all material facts set forth in the complaint as
well as all inferences reasonably deducible therefrom
are admitted as true for the pwposes of review, The
question presented by the demurrer is whether, on the
facts averred, the law says with certainly that no
recovery is possible, Where any doubt exists as to
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whether a demurrer should be sustained, it should be
resolved in favor of overruling the demurrer.
Jackson v, Garland, 424 Pa.Super, 378,381,622 A,2d
969 970 (1993) (citations omitted). Instantly,
appellant argues that the trial court erred when it
denied her in loco parentis standing to sue for custody
of her minor grandchild, Appellant recites a lengthy
and exhaustive factual history ofher daughter, a sixteen
(16) year old, and grandchild living in her household
for the first year of the minor child's life, Appellant
vehemently argues that she cared for the child on a
daily basis, both in the presence and the absence of her
daughter. Appellant avers that she arranged *1044 for
and instructed the child's babysitter while her daughter
attended school and/or was away from the child for
general pwposes, Thus, appellant submits that she
stood in loco parentis to her granddaughter.
[1][2][3][4] Disputes involving custody of a minor
child, other than those involving a parent against
another parent, are considered to be "third party"
disputes, Van Coutren v, Wells, 430 Pa'super. 212,
633 A.2d 1214 (1993), As such, "[a]bsent a prima
facie right to custody, a third party lacks standing to
seek custody as against the natural parent" Id" 430
Pa,Super, at215, 633 A.2d at 1215-16 quoting Rosado
v. Diaz, 425 Pa,Super, 155, 158,624 A2d 193, 195
(1993), However, an exception to this rule, other than
a child being declared dependent, is for the third party
to prove that she stands in loco parentis to the child,
The court in Van Coutren reiterated the meaning and
,\legal implication of in loco parentis when it held:
[t]OO phrase 'in loco parentis' refurs to a person who
puts himselfIlherself] in the situation of assuming the
i obligation incident ill the parental relationship
l without going through the furmalily of a legal
i,adoption. The status of 'in loco parentis' embodies
i \ two ideas: first, the assumption of a parental status,
:! and second, the discharge of parental duties.
ild" 430 Pa,Super, at 215,633 A.2d at 1216 (citations
I.
<jmitted), Although we recognize and applaud
appellant's participation in the care-taking of her
granddaughter, our review of the record before us and
the arguments of the parties brings us to the same
conclusion as that of the trial court that "[a ]ppellant
proved that she acted as no more than a care-taker, in
effect, a baby-sitter for the child, albeit a frequent
caretaker, That is not enough to confer standing,"
Trial court opinion at 3, We agree with the trial court's
characterization that appellant's daughter's acts of
leaving her child with appellant "were appropriate and
were consistent with that which would be expected of a
young, unwed mother who was trying to obtain an
education, be productive, and continue to develop
socially, Fortunately, she had a mother, [a]ppellant,
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"~ ~"_...~
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703 A,2d 1042
(Cite as: 703 A.2d 1042, "1044)
who was willing and able to help her with child care, "
Id, at 2 n. I. As we find nothing further in the record
we acquiesce with the trial court's holding that "[t]he
evidence in this case can in no way be stretched so far
as to reach the conclusion that [a ]ppellant acted as one
who had infurmally adopted the child or that she
intended to be bound to the legal duties and obligations
of a parent" Id, at 4, Accordingly, appellant's claim of
standing in loco parentis to her granddaughter is
baseless and the trial court's order sustaining appellees'
preliminmy objections in the nature of a demurrer is
affirmed, [FNZ]
FN2. We are cognizant of appellant's reliance on
Rowles., Rowles, 542 Pa, 443, 668 A.2d 126 (1995)
for the proposition that the Snpreme Court "has
abandoned the presumption that a parent has a prima
facie right to custody as against third parties [and
substitutod it with the axiom] that custudy [sbould be]
determined by a preponderance of the evidence,
weighing parenthood as a stroug factor for
considellltion with the ultimate concern being what is in
the child's best interests" Appellant's brief at 35. .As
Rowles is a plurality decision on this specific issue of
law, we are not bound to follow it. See Mollander v.
Chiodo, 450 Pa,Super, 247, 675 A.2d 753 (l996)(held
that Superior Court was not bound to follow Rowles
nor would the application of Rowles change the
outcome of the case). Moreover, it appears to this court
that appellant is confusing the concepts of "standing"
with the "burden of proof' required in custody disputes.
Clearly, one must have standing in a matter before
attempting to meet the requisite burden of proof. See
Campbell .. Campbell, 448 Pa.Super, 640,672 A2d
835 (1996)(discussion of standing and burden of proof
issues in a third party custody suit).
[5] Appellant's remaining issues deal with her request
for partial custody and/or visitation of her grandchild,
[FN3] Our review of the record reveals that the trial
court did not write an opinion as to why he denied
appellant any rights to see her granddaughter. The trial
court simply stated in its Janumy 10, 1996 order that its
explanation on the record at the November 9, 1995
hearing should be sufficient as to its denial of
appellant's rights, However, a certified copy of the
closing remarks of the November 9th hearing has not
been supplied 10 this court, As we are limited to ouly
those facts that have been certified in the record on
appeal, we are unable to make an assessment of the
"1045 trial court's decision concerning appellant's
rights of partial custody and visitation, Commonwealth
v. Osellanie, 408 Pa.super, 472, 597 A2d 130 (1991),
[FN4]
FN3. This order is docketed at No. 131 Ramsburg
1996,
.~
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Page 12
FN4. Appellant has provided in her Reproduced Record
a copy of the trial court's comments at the close of the
hearing that day. Essentially, the trial court denied
visitation at that time due to the tension and animosity
that had arisen between the parties. Reproduced
Record at 682(a)-689(a), The trial court believed that if
the parties made a concerted effort toward healing their
relationship that' the minor child would be the
beneficiary. Id. Also, the trial court acknowledged that
appellant's appeal of her custody claim was a
contributing impediment to the partiesr desire and ability
to resolve their differences. Id. Nevertheless, as
appellant has abrogated her responsibility of providing a
complete and comprehensive record to the reviewing
court, her reproduction of the closing remarks cannot be
substituted for the certified transcription.
Commonwealth v. Feflie, 398 Pa.Super. 622, 581 A.2d
636 (1990); Gemini Equipment v, Peunsy Supply, 407
Pa,Super, 404, 595 A2d 1211 (1991),
The applicable statute, as recognized by the parties
and the trial court, providing for appellant's partial
custody and/or visitation rights to her granddaughter is
23 Pa,C.sA p311. It provides:
[i]f a parent of an unmanied child is deceased, the
parents or grandparents of the deceased parent may
be granted reasonable partial custody or visitation
rights, or both, to the unmanied child by the court
upon a finding that partial custody or visitation rights,
or both, would be in the best interest of the child and
would not interfere with the parent-child relationship.
The court shall consider the amount of personal
contact between the parents or grandparents of the
deceased parent and the child prior to the application,
Id, Further this court has held that the paramount
concern in deciding issnes of custody and visitation,
even in cases involving the rights of grandparents, is
the best interest of the child, Norris v, Teamey, 422
Pa,Super, 246, 619 A,2d 339 (1993). Also, "[i]n a
grandparent visitation case, the grandparent has the
burden to prove that it is in the child's best interest to
have 'some time' with the grandparent." Id" 422
Pa.Super, at 249, 619 A,2d at 340 citing Bishop v.
Piller, 399 Pa.Super. 52, 56, 581 A,2d 670, 672
(1990), afl'd 536 Pa. 41, 637 A2d 976 (1994),
Instantly, appellant argues that the trial court erred in
denying her any visitation with her granddaughter,
Appellant also complains that because appellees,
Renee and Daniel Fenton, are not the parents of the
minor child in question, but merely her physical
custodians, she is not clear as to what weight the trial
court placed on their "status" within the meaning of the
statute, 23 Pa.C,SA ~ 5311. Our review of the
voluminous record in this case, surely discloses a
variation of the roles assumed in the rearing of this
Copr, @ West 2000 No Claim to Orig, D,S, Govt, Works
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703 A.2d 1042
(Cite as: 703 A.2d 1042, *1045)
young child, Although appellees, Renee and Dlllliel
Feutou, have physical custody of this child, from the
record before us, they do not have legal custody, Also,
we are not clear on what role, if any, appellee, Chad
Fentou, has in his daughter's life at this time. Finally,
we are well aware of the accusations made by the
parties in this matter regarding the care of this child, as
well as her deceased mother, and the history of the
parties' relationships, particularly with this child,
Because the trial court has not supplied us with a
comprehensive opinion as why it denied appellant
partial custody and/or visitation rights to her
.,,",,,~ - - ~. .Ii..
,.,.
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Page 13
granddaughter and we do not have a certified record of
the trial court's closing remarks on the matter, we find
it necessary to reverse the trial court on this issue and
remand for hearings to detennine if it is, and to what
extent, in the best interests of this child to have contact
with appellant See 23 Pa,C.SA ~ 5311, Norris v,
Tearney, supra,
Affirmed in part, reversed in part, and remanded for
proceedings consisteut with this opinion.
END OF DOCUMENT
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725 A.2d 775
(Cite as: 725 A.2d 775)
Rita MARTINEZ, AppeDant,
v.
Barbara S. BAXTER, Guardian Ad Litem for
Tyler Martinez, Huntingdon County
Children 's Services, Mary EDen "Evelyn"
Martinez, Mother, Norman Michael
"Mike" Martinet, Father, John and Jane Doe,
Foster Parents, AppelIees.
Superior Court of Pennsylvania,
Argued Sept. 2, 1998.
FiledJilIl, 22,1999,
Reargument Denied March 30, 1999,
"'.",'
Page 1
or: .bas assumed respODBibility for child round to he
. dependent, or .bas deemed it ~y to as"""",
resp0llSlbili1y far a cbild at risk due to parental OOWl6,
23 Pa,C,S.A. ~ 5313',
[4J INFANTS <i=232
211k232
Fact that cbild had been declared dependent did not
negate the fact that his paternal grandmother deemed it
necessary to assume responsibility for child who was
substantially at risk due to parental abuse for purposes
of grandparent visitation ilIld custody statute; parental
rights of child's mother had not been terminated or
relinquished, and it was possible that she might seek
reunification with child, 23 Pa,c'S.A. ~ 5313(b)(3).
,~"iDjlIriesc.wbile~~~~=~~,:~ry: 1~1~:ms <i=I92
baby ~ was;.decfareddep~~k<. GrilIldparent visitation ilIld custody statute allows
"WiJa . in gal C'IJStody of CJri!dren f:i A grandparent to seek custody over the status of third
ana YOl1IIr ' (CYS).. e Court of Common ';;L.t/ parties who have no familial relationship with child,
Pleas, Huntingdon , Civil Division, No, 97. ~ and statute does not deprive grandparent of this
1347, Kurtz, J" dismissed grilIldmother'S complaint for privileged status merely because Children ilIld Yonth
custody, ilIld she appealed. The Superior Court, No, 30 Services (CYS) has stepped in before the grandparent
Harrisburg 1998, Hester, J..heJd that grandmother had .bas had ilIl opportunity to assert her interest in raising
standing to seek cus1odyofher grandcbild. her grandchild. 23 Pa,C,SA ~ 5313.
Reversed and remanded,
Joyce, 1., filed dissenting opinion.
[IJ PLEADING <i=I87
302kl87
Preliminary objections, the end result of which would
be dismissal of a cause of action, should be sustained
ouly in cases that are clear and free from doubt; test is
whether it is clear and free from doubt, from all of the
facts pleaded, that the pleader will be unable to prove
facts legally sufficient to establish his right to relief.
[2J PLEADING <i=I87
302kl87
To determine whether preliminary objections have
been properly sustained, Superior Court must consider
as true all of the well-pleaded material facts set forth in
appellant's complaint and all reasonable inferences that
may be drawn from those facts.
[3J PARENT AND CHILD <i=2(5)
285k2(5)
Grandparents occupy. favored. peaitiott among other
third partieSc in. cbild custody disputes and have
standing tnpetition fur:~alandlegal custody from
natural parent,. provided that grandparent bas assumed
a parental role with respect to child for twelve monlhs,
[5] INFANTS <i=222
211k222
Grandparent visitation and custody statute allows
grandparent to seek custody over the status of thirdoparties who have no familial relationship with child,
and statute does not deprive grandparent of this
privileged status merely because Children and Y ooth
Services (CYS) has stepped in before the grandparent
has had an opportunity to assert her interest in raising
her grandchild 23 Pa,C,S.A. ~ 5313.
[5] INFANTS <i=232
211k232
Grandparent visitation and custody statute allows
grandparent to seek custody over the status of third
parties who have no familial relationship with child,
and statute does not deprive grandparent of this
privileged status merely because Children and Youth
Services (CYS) has stepped in before the grandparent
has had an opportunity to assert her interest in raising
her grandchild 23 Pa.C.SA ~ 5313,
[6J INFANTS <i=232
211k232
Grandmother had standing to seek custody of
grandchild, who suffered injuries while in his parents'
care as result of shaken baby syndrome, who was
declared dependent child, and who was placed in legal
Copr, @ West 2000 No Claim to Orig, U.S. Govt, Works
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"~~;)!ll~li~~liWhl~1ffl!l,~~~~ir~~,iI,Il,&~./i.jlllii'>lli""X -~~"'1I11tliM
725 A2d 775
(Cite a,,, 725 A.2d 775)
custody of Children and Youth Services (CYS); fact
that grandchild had been declared dependent and that
CYS had stepped in before grandmother had had
opportunily to assert her interest did not deprive her of
standing, 23 Pa,C.SA ~ 5313,
"776 Elaine 1 Novacco, Warriors Mark, for appellant.
Peter McManamon, Huntingdon, for Huntingdon
Counly Children's Services, Appellee.
Before JOYCE and HESlER, J1 and CIRILLO,
President Judge Emeritus.
HESTER, J.:
11 I Appellant, Rita Martinez ("Grandmother"), appeals
from an order of the Huntingdon Counly Court of
Common Pleas in which the trial court sustained the
preliminary objections of the guardian ad litem of her
grandson, Tyler Martinez, and dismissed Appellant's
complaint fur custody of Tyler. Upon review, we
reverse and remand for further proceedings,
11 2 Appellant is the paternal grandmother of Tyler
Martinez, who was born March 9,1996, Tyler resided
with his parents from his birth until June 19, 1996,
when he was rushed to a Huntingdon hospitaL He later
was transferred by helicopter to Hershey Medical
Center, Hnotingdon Counly Children and Youth
Services ("CYS") obtained an emergency protective
order so that Tyler would not be returned to his parents'
home. Apparently, Tyler suffered grievons injuries
while in his parents' care as a result of Shaken Baby
Syndrome. Tyler's mother pled guilly to endangering
the welfare of a child, With his parents' consent, Tyler
was declared a dependent child on July 16, 1996, and
legal custody was awarded to CYS. Tyler was placed in
a foster home where he remains today, Grandmother
has been afforded visitation with Tyler, The present
goal in the dependency action is adoption,
11 3 On September 2, 1997, Grandmother filed a
complaint for custody, and both Tyler's guardian ad
litem, Barbara S, Baxter ("Guardian'), and CYS filed
preliminary objections to the complaint. They
challenged Grandmother's standing to seek custody,
Following argument on Octoher 30, 1997, the common
pleas court sustained the preliminary objections and
dismissed Grandmother's complaint for custody on
November 13, 1997; this appeal followed,
[I ][2] 11 4 We set forth our scope of review:
Preliminary objections, the end result of which would
be dismissal of a cause of action, should be sustained
only in cases that are clear and free from doubt.
.~ .. . .~ ~ "=
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Page 2
Bakerv. Brennan, 419 Pa, 222, 225, 213 A2d 362,
364 (1965), The test on preliminary objections is
whether it is clear and free from doubt from all of the
facts pleaded that the pleader will be unable to prove
facts legally sufficient to establish his right to relief.
Firing v, Kephart, 466 Pa, 560, 563, 353 A2d 833,
835 (1976). To determine whether preliminary
objections have been properly sustained, this Court
must consider as true all of the well-pleaded material
facts set forth in appellant's complaint and all
reasonable inferences that may be drawn from those
facts. Feingold v, Bell of Pennsylvania, 477 Pa. 1,4,
383 A2d 791, 792 (1977); pennsylvania Liquor
Control *777 Board v, Rapistan, Inc" 472 Pa, 36,
371 A2d 178, 181 (1976),
Bower v. Bower, 531 Pa, 54, 56-57,611 A2d 181,
182 (1992).
11 5 This case concerns the interpretation of 23 PaC,S,
S 5313, which we will set forth in full:
~ 5313. When grandparents may petition
Ca) Partial custody and visitation.-.If an unmarried
child has resided with his grandparents or great-
grandparents for a period of 12 months or more and
is subsequently removed from the home by his
parents, the grandparents or great- grandparents may
petition the court for an order granting them
reasonable partial custody or visitation rights, or
both, to the child The court shall grant the petition if
it finds that visitation rights would be in the best
interest of the child and would not interfere with the
parent-child relationship,
(b) Physical and legal custody,--A grandparent has
standing to bring a petition for physical and legal
custody of a grandchild If it is in the best interest of
the child not to be in the custody of either parent and
if it is in the best interest of the child to be in the
custody of the grandparent, the court may award
physical and legal custody to the grandparent. This
subsection applies to a grandparent
(I) who has genuine care and concern for the child;
(2) whose relationship with the child began with the
consent of a parent of the child or pursuant to an
order of court; and
(3) who for 12 months has assumed the role and
responsibilities of the child's parent, providing for the
physical, emotional and social needs of the child, or
who assumes the responsibilily for a child who has
been detennined to be a dependent child pursuant to
42 Pa,C,S, Ch. 63 (relating to juvenile matters) or
who assumes or deems it necessary to assume
responsibilily for a child who is substantially at risk
due to parental abuse, neglect, drug or alcohol abuse
or mental illness, The court may issue a temporary
order pursuant to this section.
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.'~ ~ ~j
.......
725 A,2d 775
(Cite as: 725 A.2d 775, *777)
A 1996 amendment revised the heading, designated
the former text as subsection (a), and added subsection
(b).
~ 6 The trial court determined that Grandmother
"lacked standing to bring this action and therefore
sustained the objection of [Guardian]." Trial court
opinion, 1/26/98, at 4 ~ 20. In supporting its decision,
the trial court concluded that subsection (a) was not
applicable herein, and we agree. Secondly, the trial
court concluded that Grandmother met the criteria of
(b)(l) and (2) in that she pled she had genuine care and
concern for Tyler and her relationship with Tyler began
with the consent of one of Tyler's parents, ld. at 7,
Finally, the trial court examined subsection (3) and
concluded that Grandmother did not plead the existence
of one of the three sets of circumstances set forth in
subsection (b )(3), The trial court stated:
The first is that he or she fur 12 months has assumed
the role and responsibiIities of the child's parent. The
second alternative that confers standing is that the
petitioner has assumed the responsibilities for a child
determined to be dependent. The third circumstance
is when the grandparent "deems it necessary to
assume responsibility for a child who is substantially
at risk. !I
Finally, if all of the above criteria are established, the
grandparent uonetheless must prove that the best
interest of the child would be served by an award of
physical and legal custody to the petitioning
grandparent.
ld,
~ 7 In her complaint for custody, Grandmother
asserted that she "deem[ed] it necessary to assume
responsibility for the Child due to the adjudicated guilt
of the Child's Mother, the Defendant Mary Ellen
'Evelyn' Martinez for, inter alia, Endangering the
Welfare of a Child, namely Tyler Martinez,"
Complaint for Custody, 9/2/97, at 4.
~ 8 The trial court agreed with the Guardian's
interpretation of 23 Pa.C,S, ~ 53I3(b)(3), that Tyler
was not at risk since he had been declared dependent
and had been placed in the legal and physical custody
of CYS, The trial court continued that in its judgment,
"[T]he intention of the legislature *778 was clear and
unambiguous, and the words, 'assumes or deems it
necessary to assume responsibility fur a child who is
substantially at risk' connotes a sitoation where there is
a present threat of immediate harm." Trial Court
Opinion, 1/26/98, at 8 (emphasis in original). We
disagree,
[3][4] ~ 9 Subsection (b) obviously was added to give
.,
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Page 3
grandparents a preferential status as to other third
parties in custody disputes.
Grandparents occupy a favored position among other
third parties in custody disputes, and have standing to
petition for physical and legal custody from a natural
parent, provided that the grandparent has assumed a
parental role with respect to the child for twelve
months, or who assumes responsibility for a child
found to be dependent, or who deems it necessary to
assume responsibility for a child at risk due to
parental abuse, neglect or illness.
Wilder, Pa. Family Law Prac, And Proc. (4 th ed.), ~
28-4 at 340 (footnotes omitted), That Tyler has been
declared dependent does not negate the fact that
Grandmother "deems it necessary to assume
responsibility for a child who is substantially at risk due
to parental abuse," 23 Pa,C,S, S 5313(b)(3).
Otherwise, anytime CYS sought dependent status for a
child, a grandparent's ability to seek custody of his
grandchild would be negated, in clear opposition to the
mandate of this statnte.
~ 10 Standing to petition for physical and legal custody
pursuant to 23 Pa.C,s, ~ 5313(b) is automatically
conferred by virtue of the familial relationship,
grandparent to grandchild. Indeed, that subsection
states at the outset, "A grandparent has standing to
bring a petition for physical and legal custody of a
grandchild," Id. The circumstances set forth in
subsections (I), (2), and (3) are questions offset to be
resolved by the trial court after a hearing held to
determine "[I]f it is in the best interest of the child uot
to be in the custody of either parent and if it is in the
best interest of the child ro be in the custody of the
grandparent...." 23 Pa,C.S. ~ 53I3(b).
~ I I We agree with Grandmother's observation that
the
legislative intent in enacting the new statnte is
obviously to provide a basis and procedure for a
grandparent to obtain physical and legal custody of a
grandchild in the unfortunate circumstances
confronting many grandparents today: when their
own children or individuals in their children's
households are abusive or neglectful 10 their
grandchildren, whether due to alcohol or substance
abuse or mental illnesses resulting therefrom, The
court is procedurally authorized to hold a hearing and
enter appropriate orders to provide for the best
interest of the grandchild in those unfortunate
circumstances.
AppellllI1t's brief at 10,
~ 12 GrllI1dmother sought physical and legal custody or
partial custody or visitation with Tyler under 23
Copr, @West2000No Claim to Orig, U.S. Govt, Works
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725 A.2d 775
(Cite as: 725 A.2d 775, *778)
Pa,C,SA 5313(b), In paragraph seven of her
r.omplaint for custody, Grandmother set forth her
relationship to Tyler, that she has genuine care and
concern for Tyler, that her relationship with Tyler
began at his birth with the consent of hoth parents, and
that due to the adjudicated guilt of Tyler's mother for
endangering his welfare, Grandmother deemed it
necessary to assume responsibility for Tyler, It is of no
moment that Tyler has been declared a dependent child,
The parental rights of Tyler's mother had not been
terminated or relinquished. It is possible that she may
seek reunification with Tyler. Thus, Grandmother
deemed it necessary to assume responsibility for a
grandchild perceived to be substantially at risk dne to
parental abuse, and she filed her complaint pursuant to
23 Pa,C,SA 5313(b),
[5] 11 13 This subsection is a clear mandate which
allows a grandparent to seek custody, indeed to have
standing to do so, over the statos of third parties who
have no familial relationship with a child. We will not
interpret this statute to deprive grandparents of this
privileged status merely because CYS has stepped in
before the grandparent has had an opportunity to assert
her interest in raising her grandchild,
[6] 11 14 Grandmother did not have the opportunity to
be heard on her petition and did not have an evidentiary
detennination as *779 to whether it was in the best
interests of Tyler to be placed in her custody, The
dismissal of the complaint, premised upon a lack of
...-
Page 4
standing, is a clear misinterpretation of the very clear
statutory mandate of 23 Pa.C.s. ~ 5313(b), which
states in unequivocal terms: "A grandparent bas
standing to bring a petition for physical and legal
custody of a grandchild." Thus, the trial court erred in
dismissing Grandmother's complaint for lack of
standing,
11 15 Order reversed; case remanded for proceedings
consistent with this Opinion, Jurisdiction relinquished,
11 16 JOYCE, J., Files a Dissenting Opinion,
JOYCE, J., dissenting,
11 1 I respectfully dissent from the majority opinion. I
agree with the trial court's interpretation of the statute
in that the grandmother failed to establish that she had
standing pursuant to 23 Pa.C.SA ~ 5313, Under the
relevant section, the grandparent must show that for 12
months she has assumed the role and responsibility for
a child who is substantially at risk, or deems it
necessary to assume responsibility for a child who is
substantially at risk 23 Pa,C,SA ~ 5313(b)(3), The
grandmother did not assume responsibility of the child
prior to the child being adjudicated dependant.
Furthermore, because the child was already taken out of
the parents' home, the child was no longer at risk, The
plain meaning of the statute does not provide standing
for the grandparent in this case,
END OF DOCUMENT
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When the parents separated and divorced, Mother and
the children lived with Grandparents in early 1990, In
the fall, Mother enrolled Michael in kindergarten, left
him in Grandparents' care, and took Nicole to Yode,
Pennsylvania. Some weeks later she returned, took
Michael out of school, and went back to York. Id at
18. In December, 1990, **836 Mother called
Grandparents and asked them to come to York and get
the children, Id. at 19. Mother then granted
Grandparents temporary legal and physical custody in
February, 1991, and the children resided with
PARENT AND CHILD ~2.(18) II ..1..,: ^ Grandparents until August, 1991, when Mother took
285k2(l8) t.WJ;-~(' the children away again, Id, at 20, Grandparents
%Havinl> been gr<mted. joint legal c:ust<ldy and. partial p...." . unsuccessfully tried to locate the children throughout
. physical cusllJdy of childret4 paternal grandparents. had :h<o CI- the next twelve months. Id, at 22,
standingto seek. primary physical custody. O"dJhi.(
**835 *640 Edward 1. Crow, York, fur appellant. tiff''' Upon locating Mother, Grandparents filed a petition
for visitation or partial custody in August, 1992, and a
dependency *642 action in October, 1993, based upon
the deplorable care Mother was providing the children,
The children were dirty, smelled of urine, had feces on
their clothing, and at times lacked proper clothing,
including underwear. On March 23, 1994, pursuant to
a negotiated agreement between Mother and
Grandparents, the common pleas court ordered that
Grandparents and Mother share legal custody, Mother
was awarded primary physical custody [FNl] and
Grandparents were given partial physical custody every
third weekend, one-half of the summer vacation, and
various other school vacations, The court also ordered
Mother, inter alia, to cooperate with York County
Children and Youth Services and to obtain counseling
for the children, Mother never appcaled this custody
order,
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~-~".
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672 A,2d 835
(Cite as: 448 Pa.Sllper. 640, 672 A.2d 835)
Ronald B. CAMPBELL and Anna Mae Campbell
v.
Sherry Daniel CAMPBELL, Appellant.
Superior Court of Pennsylvania
Argued Oct. 25, 1995,
Filed March II, 1996.
In action initiated by paternal grandparents, the Court
of Common Pleas of York County, Civil Division, No,
92-SU-03534-03, Blackwell, J., awarded primary
physical cusllJdy to grandparents and partial physical
custody to mother, and mother appealed, The Superior
Court, No, 179 Harrisburg 1995, Hester, J..,held that
grandparents had standing to seek physical custody:.
Affirmed,
Cavanaugh, 1., concurred in result.
Susan A. Docktor, Y oIk, for appellee,
Before CAVANAUGH, KELLY and HESTER, J1.
HESTER, Judge:
Sherry Campbell, the natur;ll mother of Michael and
Nicole Campbell, appeals from the January 23, 1995
order of the York Comty Court of Common Pleas
which transferred primary physical custody of her
children to the paternal grandparents, *641 Ronald and
Anna Mae Campbell, appellees herein, We affirm,
Appellant ("Mother") is divorced from appellees'
("Grandparents") son ("Father"), Two children were
born of the marriage: Michael, bomJuly 30,1985, and
Nicole, born July 3, 1987, Father, an alcoholic who
subsists on social security disability income, is not
involved with the children and. sees them sporadically
only under the supervision of Grandparents and ouly
when he is sober. Notes of Testimony ("N, T. "), 1/6/95,
at 40-41. Father is not involved in this appeal,
Mother and Father moved frequently after Michael's
birth in 1985. Mother, Father, and Michael lived with
Grandparents outside of Johnstown, Pennsylvania, from
~~.
'""lI Oil&., ,
Page 18
November, 1985, mtil April, 1986, when they moved
to York, Pennsylvania, Id, at 15. The parents moved
again in the fall of 1986, stopping in North Carolina en
route to Florida, The parents called Grandparents from
North Carolina and asked them to come and get
Michael, which they did. Id, at 17. Michael lived with
Grandparents until sometime in the winter of 1987, Id.
Nicole was born in July of that year, and the children
often were left with Grandparents for weeks or months
at a time, Id, at 16,
FNl. The common pleas court termed this "majority"
physical custody,
As a result of information gained through the exercise
of their partial cusllJdy rights and due to Mother's non-
compliance with the March 23, 1994 order,
Grandparents eventually sought primary physical
custody of the children. Hearings were held on January
6 and 13, 1995, Grandparents testified and presented
Copr, @ West 2000 No Claim to Orig. U,S, Govt, Works
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672 A2d 835
(Cite as: 448 Pa.Super. 640, *642, 672 A.2d 835, **836)
the testimony of various wi1nesses, including Mother's
friends and neighbors, and the expert testimony of a
licensed psychologist who evaluated the parties and the
children. Mother presented only her testimony, The
court interviewed the children in chambers,
On January 23, 1995, the common pleas court
awarded primary physical custody to Grandparents and
partial physical custody to Mother. This appeal
followed. Mother does not question the findings offact
and conclusions of the trial court; rather, she asserts
that Grandparents lacked standing to maintain this
action. We reject Mother's claim,
Mother has confused principles of standing with the
proper standard 1n be applied in deciding a custody
dispute between parents and third parties, See
Walkenstein v, Walkeostein, 443 Pa,Super, 683, 663
A2d 178 (1995) (natural mother confused burden of
proof as 1n custody with principles of standing as they
relate to a third party's ability to pursue custody action
against a natural parent), In making her claim that
*'43 Grandparents lacked standing to seek primary
physical custody of Michael and Nicole, Mother argues
that "the trial court failed to make a finding that the
mother's prima facie right to custody was overcome,"
[FN2]
FN2, We are unable to cite to pages of appellanrs brief
as she has failed to number it.
Mother's argument in this regard is re:terring to a
natural parent's prima facie right to custody, a standard
articulated in Ellerbe v. Hooks, 490 Pa. 363, 416 A2d
512 (1980), and based upon the rule discussed in In re
Hernandez, 249 Pa,Super. 274, 376 A.2d 648 (1977),
which pertains to custody disputes between parents and
third parties, However, our Supreme Court departed
from this per se preswnption in favor of natural parents
in Rowles v, Rowles, 542 Pa, 443, 668 A2d 126
(1995), and held that parenthood is to be weighed as a
strong factor for consideration by the court The
Rowles Court stated, "Thus, there is no aingie
overriding factor; rather, courts should consider evCIy
fact relevant to the physical, emotional, intellectual,
moral, and spiritual well-being of a child Parenthood,
though not paramount, will always be a factor of
significant weight" Id" 542 Pa, at 448, 668 A2d at
128 (emphasis added),
This process of weighing and comparing the relevant
factors of the competing custodial environments is not
the issue raised by Mother, however. Wbi1e she has
utilized case law pertaining to the standard to be
'_i'''';'':-.liilllalili~ .........-.;.-
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Page 19
applied by the courts in deciding custody disputes
between natural parents and third **837 parties, the
issue she raises is that Grandparents lacked standing to
pursue this matter,
The question of standing is rooted in the notion that
for a party to maintain a challenge to an official order
or action, he must be aggrieved in that his rights have
been invaded or infringed, The law of standing
provides that one cannot evoke the jurisdiction of the
court to enforce private rights or to maintain a civil
action for the enforcement of such rights, unless he or
she has, in an individual or representative capacity,
some real interest in the cause of action, or a *644
legal right, title or interest in the subject matter or
controversy,
Kellogg v, Kellogg, 435 Pa.super. 581, 584,646 A2d
1246, 1248 (1994), quoting Jackson v, Garland, 424
Pa.super, 378, 383, 622 A2d 969, 971 (1993), We
noted in Kellogg that traditional principles of standing
are modified in child custody cases in that the relevant
analysis considers the relationship of the parties
asserting standing,
Clearly, there is no issae of standing in. this case,
~1"".kwere.,grJll\ted:iPintklgalcustody of these
chilm.... wilkM0lllet',. ~,in.~ 1994..
Mother never appealed that order of custody: HaviI!g
joint legal custody of the children and partiaL~
. custody, GnlndpaIenm, cl,early had standing to seek
primatypl1ysiealcustody: See Tracey L v, Mattye F.,
446 Pa.Super, 281, ----, 666 A2d 734, 735 (1995)
G1hird. party, who not OIllyacted in 1000 parentis but
previously wasl\Warded custody:, clearly hadstandfug
to .cbaJlenge. custody order); Walkenstein v,
Walkeostein, supra(Grandmolher estahli.hed..her
~ since she was gr<m1ed custody .of child by
cow;torder;andorderneverWllS:appeaIed)_
Mother's related argument in this appeal is that since
Grandparents lacked standing to pursue primary
physical custody, the only valid basis for the trial
court's order was a finding of dependency, and the court
erred, if its order is interpreted as a finding of
dependency, in fai1ing to establish a service plan, We
need not address this issue as we have determined that
Grandparents did indeed have standing to seek physical
custody, Thus, any argument based on dependency is
irrelevant
Order affirmed,
CAVANAUGH, J., concurs in the result
END OF DOCUMENT
Copr. @ West 2000 No Claim to Orig, U.S. Govt, Works
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ANNE ZIKORUS-STAMM,
Plaintiff
v,
STEPHANIE HOLLEN,
Defendant
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: IN 1'1= (,~UilT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO, 00- 2351
CIVIL TERM
4!lJ;STODY
RULE TO SHOW CAUSE
AND NOW, this day of April, 2000, upon consideration of the attached Petition
for Special Relief, a rule is issued upon Plaintiff; 1\nne Zikorus-Stamm, to show cause why the
relief requested should not be granted.
The Rule is returnable on the _ day of April, 2000, at _ ID. at a Conference in
Chambers.
Pending further order of court, the Temporary Order dated April 13, 2000, is vacated.
Joan Carey,
Attorney for Defendant / Petitioner
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, P A 17013
Robert L. O'Brien
Attorney for Plaintiff / Respondent
O'BRlEN, BARIC, AND SCHERER
17 West South Street
Carlisle, PA 17013
,"'-
By the Court,
Kevin A. Hess, J.
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ANNE ZIKORUS-STAMM,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 00- 2351
CIVIL TERM
STEPHANIE HOLLEN,
Defendant
: CUSTODY
TEMPORARY CUSTODY ORDER
AND NOW, this _ day of April, 2000, upon consideration of the Petition for Special
Relief, legal and primary physical custody is granted to the Defendant commencing on
April , 2000, until further order of Court.
The police, or other appropriate law enforcement agencies, shall facilitate transfer of
custody to the Defendant pursuant to this order.
This order shall remain effect pending a further order of court,
By the Court,
Kevin A Hess, 1.
Joan Carey,
Attorney for the Defendant
Robert L. O'Brien,
Attorney for the Plaintiff
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ANNE ZIKORUS-ST AMM,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v,
: NO, 00- 2351
CIvrr. TERM
STEPHANIE HOLLEN,
Defendant
: CUSTODY
PETITION FOR SPECIAL RELIEF
The petitioner, by and through her attorney, Joan Carey, Legal Services, Inc., represents the
following:
1, The defendant, Stephanie A Hollen, hereinafter referred to as the mother, resides at
4182 Elk Court, Apt. 113, Mechanicsburg, Cumberland County, Pennsylvania.
2, The plaintiff, Anne Zikorus-Stamm, hereinafter referred to as the grandmother, resides
at 51 Heisers Lane, Carlisle, Cumberland County, Pennsylvania.
3. The parties are the mother and grandmother of Christopher Joseph Dietz, whose date
of birth is 1/12/86,
4, A Complaint for Custody was med in the above captioned matter on April 13, 2000.
A custody conciliation date has not yet been scheduled,
5. A Temporary Custody Order was signed on April 13, 2000, giving the grandmother
primary legal and physical custody of the child,
6, The 1llother bas been the primary caretaker of the child since his birth.
. . I.
7. $in~~ Fepf\}l\fY 20QO, the child has temporarily stayed with the grandmother without
tile [?fIl!lI\ ~~~~ent \'Irth~ j11otll%. .
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8. Tb~ ffi~n~~ ~1llawtluned contact with the child and since March 2000, has made
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repeated attempts to have the child returned to her custody.
9. On or about April 13, 2000, the police facilitated the return of the child to his mother
who took him to the residence she has established in the child's school district,
10, The mother has shared legal and physical custody of her other two children, Chelsea
Sheeder, age 8, and Cody Hollen, age 2, who reside with her.
11, The grandmother lacks standing to bring an action in custody for reasons including
the following:
a.) The child has not resided with the grandmother for a period of 12 months
or more.
b,) The child is not at risk of parental abuse, neglect, drug or alcohol abuse or
mental illness in the custody of the mother,
12. The best interest and permanent welfare of the child will be served by granting the
immediate relief requested for reasons including the following:
a,) The mother has always been the primary care giver of the child.
b.) The grandmother lacks standing to bring an action is custody
c.) The grandmother has not acted in the child's best interests by denying
contact with his mother.
13, The mother will be harmed without this Court's intervention granting Special Relief
because she is being lIeJlied l;ontact with her child,
" 'I
WfW~JlPIW~ t~e defendant requests that this court vacate the Temporary Custody
Order dated April 13., 2~Oq,. <Ii~nr~s tll~ pl~iff' s cQmplaint for custody, and return custody of
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the child to her immediately.
In addition, the defendant also request that this court grant her any other relief that is just
and proper.
Respectfully submitted,
~~.
Attorney for Plaintiff
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, PA 17013
(717) 243-9400
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VERIFICATION
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I verify that I am the petitioner as designated in the present action and that the facts and
statements contained in the above Petition are true and correct to the best of my knowledge. I
understand that any false statements are made subject to the penalties of 18 Pa.C.S. g4904,
relating to unsworn falsification to authorities.
~@1~:F~1~~
ie Hollen ~
Date:
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ANNE ZIKORUS-STAMM,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v,
: NO. 00- 2351
CIVIL TERM
STEPHANIE HOLLEN,
Defendant
: CUSTODY
RULE TO SHOW CAUSE
AND NOW, this day of April, 2000, upon consideration of the attached Petition
for Special Relief, a rule is issued upon Plaintiff, Anne Zikorus-Starnm, to show cause why the
relief requested should not be granted.
The Rule is returnable on the _ day of April, 2000, at _ m, at a Conference in
Chambers,
Pending further order of court, the Temporary Order dated April 13, 2000, is vacated,
By the Court,
Kevin A. Hess, J.
Joan Carey,
Attorney for Defendant / Petitioner
LEGAL SERVICES, INC,
8 Irvine Row
Carlisle PA 17013
,
Robert L. O'Brien
Attorney for Plaintiff / Respondent
O'BRIEN, BARIC, AND SCHERER
17 West South Street
Carlisle PA 17013
,
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ANNE ZIKORUS-STAMM,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v,
: NO, 00- 2351
CIVIL TERM
STEPHANIE HOLLEN,
Defendant
: CUSTODY
TEMPORARY CUSTODY ORDER
AND NOW, this _ day of April, 2000, upon consideration of the Petition for Special
Relief, legal and primary physical custody is granted to the Defendant commencing on
April , 2000, until further order of Court
The police, or other appropriate law enforcement agencies, shall facilitate transfer of
custody to the Defendant pursuant to this order.
By the Court,
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This order shall remain effect pending a further order of court,
Kevin A. Hess, J,
Joan Carey,
Attorney for the Defendant
Robert L. O'Brien,
Attorney for the Plaintiff
-I
I
ANNE ZIKORUS-STAMM,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v,
: NO. 00- 2351
C~ TERM
STEPHANIE HOLLEN,
Defendant
: CUSTODY
PETITION FOR SPECIAL RELIEF
The petitioner, by and through her attorney, Joan Carey, Legal Services, Inc" represents the
following:
1, The defendant, Stephanie A. Hollen, hereinafter referred to as the mother, resides at
4182 Elk Court, Apt. 113, Mechanicsburg, Cumberland County, Pennsylvania,
2, The plaintiff, Anne Zikoms-Stamrn, hereinafter referred to as the grandmother, resides
at 51 Heisers Lane, Carlisle, Cumberland County, Pennsylvania.
3. The parties are the mother and grandmother of Christopher Joseph Dietz, whose date
of birth is 1/12/86.
4. A Complaint for Custody was filed in the above captioned matter on April 13, 2000,
A custody conciliation date has not yet been scheduled.
5, A Temporary Custody Order was signed on April 13, 2000, giving the grandmother
primary legal and physical custody of the child,
6, The mother has beel! the primary caretaker of the child since his birth,
. . I ' - .
7. $in~ll Fepf\!!\fY 20QQ, the child has temporarily stayed with the grandmother without
*\1 fofmif\ rWW!lms{th~ fllot~eJ" .
. " "', "'.. . .
8. TIlf mm>>\ltM~Iplljp.tained contact with the child and since March 2000, has made
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repeated attempts to have the child returned to her custody,
9. On or about April 13, 2000, the police facilitated the return of the child to his mother
who took him to the residence she has established in the child's school district.
10, The mother has shared legal and physical custody of her other two children, Chelsea
Sheeder, age 8, and Cody Hollen, age 2, who reside with her.
II. The grandmother lacks standing to bring an action in custody for reasons including
the following:
a.) The child has not resided with the grandmother for a period of 12 months
or more,
b,) The child is not at risk of parental abuse, neglect, drug or alcohol abuse or
mental illness in the custody of the mother.
12. The best interest and permanent welfare of the child will be served by granting the
immediate relief requested for reasons including the following:
a.) The mother has always been the primary care giver of the child,
b,) The grandmother lacks standing to bring an action is custody
c.) The grandmother has not acted in the child's best interests by denying
contact with his mother.
13. The mother will be hanned without this Court's intervention granting Special Relief
because shl; is being qenilld vOntact with her child.
. . wm:~fP~~ t~ll defendant requests that this court vacate the Temporary Custody
... "'" ''-.', -'; , .... ,
Order datedApril13, 29oq,4i~nr~s th~ pl~l\~itrs cq~pjaint for custody, and return custody of
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the child to her immediately.
In addition, the defendant also request that this court grant her any other relief that is just
and proper.
Respectfully submitted,
(I W-
~y
Attorney for Plaintiff
LEGAL SERVICES, INe.
8 Irvine Row
Carlisle, PA 17013
(717) 243-9400
" ~
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VERIFICATION
I verifY that I am the petitioner as designated in the present action and that the facts and
statements contained in the above Petition are true and correct to the best of my knowledge. I
understand that any false statements are made subject to the penalties of 18 Pa.C.S. S4904,
relating to unsworn falsification to authorities.
~-
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ie Hollen
Date: L-I_ I/~OO
-. ~~
.
'.
ANNE ZIKORUS-STAMM,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v,
: NO, 00- 2351
CIVil.. TERM
STEPHANIE HOLLEN,
Defendant
: CUSTODY
RULE TO SHOW CAUSE
AND NOW, this day of April, 2000, upon consideration of the attached Petition
for Special Relief, a rule is issued upon Plaintiff, Anne Zikorus-Stamm, to show cause why the
relief requested should not be granted,
The Rule is returnable on the _ day of April, 2000, at _ m, at a Conference in
Chambers,
Pending further order of court, the Temporary Order dated April 13, 2000, is vacated.
By the Court,
Kevin A Hess, 1.
Joan Carey,
Attorney for Defendant / Petitioner
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, PA 17013
Robert L. O'Brien
Attorney for Plaintiff / Respondent
O'BRIEN, BARIC, AND SCHERER
17 West South Street
Carlisle, PA 17013
-
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ANNE ZIKORUS-STAMM,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v,
STEPHANIE HOLLEN,
Defendant
: NO, OO.,;BSl
: CUSTODY
CIVIL TERM
TEMPORARY CUSTODY ORDER
AND NOW, this _ day of April, 2000, upon consideration of the Petition for Special
Relief, legal and primary physical custody is granted to the Defendant commencing on
April , 2000, until further order of Court,
The police, or other appropriate law enforcement agencies, shall facilitate transfer of
custody to the Defendant pursuant to this order.
By the Court,
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This order shall remain effect pending a further order of court.
Kevin A. Hess, J.
Joan Carey,
Attorney for the Defendant
Robert L. O'Brien,
Attorney for the Plaintiff
,,,"~,",~ ~ -~ ~
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ANNE ZIKORUS-STAMM,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v,
: NO, 00- 2351
CIVIL TERM
STEPHANIE HOLLEN,
Defendant
: CUSTODY
PETITION FOR SPECIAL RELIEF
The petitioner, by and through her attorney, Joan Carey, Legal Services, rnc" represents the
following:
1, The defendant, Stephanie A. Hollen, hereinafter referred to as the mother, resides at
4182 Elk Court, Apt. 113, Mechanicsburg, Cumberland County, Pennsylvania.
2. The plaintiff, Anne Zikorus-Stamm, hereinafter referred to as the grandmother, resides
at 51 Heisers Lane, Carlisle, Cumberland County, Pennsylvania.
3, The parties are the mother and grandmother of Christopher Joseph Dietz, whose date
of birth is 1/12/86.
4, A Complaint for Custody was filed in the above captioned matter on April 13, 2000,
A custody conciliation date has not yet been scheduled,
5, A Temporary Custody Order was signed on April 13, 2000, giving the grandmother
primary legal and physical custody of the child,
6. The tllother has beep. the primary caretaker of the child since his birth,
o _ I . ' .
7. !1mcfi! Fepf\f!1fY 20QQ, the child has temporarily stayed with the grandmother without
," 0'
*~fPF8r\ ~9:,~~m, \1fth~ fPt~t!f-.
. 8. Th~ m~Hwr/i<l~tpl\/11tained contact with the child and since March 2000, has made
. ..t. ':,! ':'0,0
:,_,; I. :,~,:;i I':; ; ;i' :.' 0 i r
'.
repeated attempts to have the child returned to her custody,
9. On or about April 13, 2000, the police facilitated the return of the child to his mother
who took him to the residence she has established in the child's school district.
10, The mother has shared legal and physical custody of her other two children, Chelsea
Sheeder, age 8, and Cody Hollen, age 2, who reside with her.
11. The grandmother lacks standing to bring an action in custody for reasons including
the following:
a.) The child has not resided with the grandmother for a period of 12 months
or more,
b,) The child is not at risk of parental abuse, neglect, drug or alcohol abuse or
mental illness in the custody of the mother,
12. The best interest and permanent welfare of the child win be served by granting the
immediate relief requested for reasons including the following:
a.) The mother has always been the primary care giver of the child,
b,) The grandmother lacks standing to bring an action is custody
c,) The grandmother has not acted in the child's best interests by denying
contact with his mother.
13. The mother will be hanned without this Court's intervention granting Special Relief
becl!use shl; is being 4enierl vontact with her child,
.\Vlifff,FP~~ t~e defendant requests that this court vacate the Temporary Custody
,.. .; -I, :"". .'" _ . ,
Order dated April 13, Z?qp, 4i~Hf~s th~ p\am~iff s C91llplaint for custody, and return custody of
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the child to her immediately,
In addition, the defendant also request that this court grant her any other relief that is just
and proper.
Respectfully submitted,
() ~
~y
Attorney for Plaintiff
LEGAL SERVICES, INC,
8 Irvine Row
Carlisle, PA 17013
(717) 243-9400
'"'-
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, .
-
~~
VERIFICATION
._.;~:
I verilY that I am the petitioner as designated in the present action and that the facts and
statements contained in the above Petition are true and correct to the best of my knowledge. I
understand that any false statements are made subject to the penalties of 18 Pa.C.S. 94904,
relating to unsworn falsification to authorities.
~~~\(fr~
ie Hollen ~
Date: L-/ -- I/~OO
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,
ANNE ZIKORUS-STAMM,
Plaintiff
: IN TIlE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v,
: NO, 00- 2351
CIVIL TERM
STEPHANIE HOLLEN,
Defendant
: CUSTODY
RULE TO SHOW CAUSE
AND NOW, this day of April, 2000, upon consideration of the attached Petition
for Special Relief, a rule is issued upon Plaintiff, Anne Zikorus-Stamm, to show cause why the
relief requested should not be granted.
The Rule is returnable on the _ day of April, 2000, at _ m, at a Conference in
Chambers,
Pending further order of court, the Temporary Order dated April 13, 2000, is vacated,
By the Court,
Kevin A. Hess, 1.
Joan Carey,
Attorney for Defendant I Petitioner
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, PA 17013
Robert L. O'Brien
Attorney for Plaintiff I Respondent
O'BRIEN, BARIC, AND SCHERER
17 West South Street
Carlisle, PA 17013
~.-
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ANNE ZIKORUS-STAMM,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
v,
: CUMBERLAND COUNTY, PENNSYL VANIA
: NO, 00- 2351
CIVIL TERM
STEPHANIE HOLLEN,
Defendant
: CUSTODY
TEMPORARY CUSTODY ORDER
AND NOW, this _ day of April, 2000, upon consideration of the Petition for Special
Relief, legal and primary physical custody is granted to the Defendant commencing on
April , 2000, until further order of Court,
The police, or other appropriate law enforcement agencies, shall facilitate transfer of
custody to the Defendant pursuant to this order,
This order shall remain effect pending a further order of court.
o
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By the Court,
Kevin A. Hess, 1.
Joan Carey,
Attorney for the Defendant
Robert L. O'Brien,
Attorney for the Plaintiff
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ANNE ZIKORUS-STAMM,
Plaintiff'
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v,
: NO. 00- 2351
CIVll, TERM
STEPHANIE HOLLEN,
Defendant
: CUSTODY
PETITION FOR SPECIAL RELIEF
The petitioner, by and through her attorney, Joan Carey, Legal Services, Inc., represents the
following:
1. The defendant, Stephanie A. Hollen, hereinafter referred to as the mother, resides at
4182 Elk Court, Apt. 113, Mechanicsburg, Cumberland County, Pennsylvania,
2. The plaintiff, Anne Zikorus-Stamm, hereinafter referred to as the grandmother, resides
at 51 Heisers Lane, Carlisle, Cumberland County, Pennsylvania.
3, The parties are the mother and grandmother of Christopher Joseph Dietz, whose date
of birth is 1/12/86,
4. A Complaint for Custody was filed in the above captioned matter on April 13, 2000,
A custody conciliation date has not yet been scheduled,
5, A Temporary Custody Order was signed on April 13, 2000, giving the grandmother
primary legal and physical custody of the child,
6, The mother pas beep. the primary caretaker of the child since his birth.
7. $inCIjl Fepffil\fY 2000, the child has temporarily stayed with the grandmother without
\" ;' i .
thefofil)'tl. ~9lj~~m, \lfth~ fIlotper-.
8, Thr mpHWrM~J11lIiPt~ined contact with the ~hild and since March 2000, has made
, ' ..,. ~.,! "\ ; .
'J.."
, : _ ,; 1.,', ~_; ; i ), .'
","-' ."
11"'..1,:
".. 0 "r
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repeated attempts to have the child returned to her custody,
9. On or about April 13, 2000, the police facilitated the return of the child to his mother
who took him to the residence she has established in the child's school district.
10. The mother has shared legal and physical custody of her other two children, Chelsea
Sheeder, age 8, and Cody Hollen, age 2, who reside with her.
11. The grandmother lacks standing to bring an action in custody for reasons including
the following:
a,) The child has not resided with the grandmother for a period of 12 months
or more.
b.) The child is not at risk of parental abuse, neglect, drug or alcohol abuse or
mental illness in the custody of the mother,
12. The best interest and permanent welfare of the child will be served by granting the
immediate relief requested for reasons including the following:
a.) The mother has always been the primary care giver ofthe child,
b.) The grandmother lacks standing to bring an action is custody
c.) The grandmother has not acted in the child's best interests by denying
contact with his mother,
13. The mother will be harmed without this Court's intervention granting Special Relief
because she is being lIellied ~ontact with her child,
, .\VlWFfP~~ t~e d~fe~dant r~uests that this court vacate the Temporary Custody
Order dated April 13, ~9oq,4i~Hf~s th~ plaif\tilrs Cl:llJ}plaint for custody, and return custody of
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the child to her immediately.
In addition, the defendant also request that this court grant her any other relief that is just
and proper.
Respectfully submitted,
~~
Joan Carey
Attorney for Plaintiff
LEGAL SERVICES, INC,
8 Irvine Row
Carlisle, PA 17013
(717) 243-9400
" 0 ;:..;;-=or
VERIFICATION
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I verifY that I am the petitioner as designated in the present action and that the facts and
statements contained in the above Petition are true and correct to the best of my knowledge. I
understand that any false statements are made subject to the penalties of 18 Pa.C.S. ~4904,
relating to unsworn falsification to authorities.
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Date:
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ANNE ZIKORUS-STAMM,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v,
: NO. 00- 2351
CIVIL TERM
STEPHANIE HOLLEN,
Defendant
: CUSTODY
RULE TO SHOW CAUSE
AND NOW, this day of April, 2000, upon consideration of the attached Petition
for Special Relief, a rule is issued upon Plaintiff; Anne Zikorus-Stamm, to show cause why the
relief requested should not be granted,
The Rule is returnable on the _ day of April, 2000, at _ m, at a Conference in
Chambers,
Pending further order of court, the Temporary Order dated April 13, 2000, is vacated,
By the Court,
Kevin A. Hess, 1.
Joan Carey,
Attorney for Defendant / Petitioner
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, PA 17013
Robert L. O'Brien
Attorney for Plaintiff / Respondent
O'BRIEN, BARlC, AND SCHERER
17 West South Street
Carlisle, PA 17013
--~
ANNE ZIKORUS-STAMM,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO, 00- 2351
CIVIL TERM
STEPHANIE HOLLEN,
Defendant
: CUSTODY
TEMPORARY CUSTODY ORDER
AND NOW, this _ day of April, 2000, upon consideration of the Petition for Special
Relief, legal and primary physical custody is granted to the Defendant commencing on
April , 2000, until further order of Court.
The police, or other appropriate law enforcement agencies, shall facilitate transfer of
custody to the Defendant pursuant to this order,
This order shall remain effect pending a further order of court.
By the Court,
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Kevin A, Hess, J.
Joan Carey,
Attorney for the Defendant
Robert L. O'Brien,
Attorney for the Plaintiff
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ANNE ZIKORUS-STAMM,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: NO, 00- 2351
CIVIL TERM
STEPHANIE HOLLEN,
Defendant
: CUSTODY
PETITION FOR SPECIAL RELIEF
The petitioner, by and through her attorney, Joan Carey, Legal Services, lnc" repTesents the
following:
1, The defendant, Stephanie A Hollen, hereinafter referred to as the mother, resides at
4182 Elk Court, Apt. 113, Mechanicsburg, Cumberland County, Pennsylvania,
2, The plaintiff, Anne Zikorus-Stannn, hereinafter referred to as the grandmother, resides
at 51 Heisers Lane, Carlisle, Cumberland County, Pennsylvania,
3, The parties are the mother and grandmother of Christopher Joseph Dietz, whose date
of birth is 1/12/86,
4, A Complaint for Custody was filed in the above captioned matter on April 13, 2000,
A custody conciliation date has not yet been scheduled.
5. A Temporary Custody Order was signed on April 13, 2000, giving the grandmother
primary legal and physical custody of the child,
6, The IJ1oth!lr pas beep. the primary caretaker of the child since his birth.
7. Sin~e Fepffil\fY 20QQ, the child has temporarily stayed with the grandmother without
th~ fPfU\~\ f\ll\~!l~tPfth~ fUo*ef' .
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8. Thf ID?t/}\lf ~~~fI1alPtained contact with the child and since March 2000, has made
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repeated attempts to have the child returned to her custody,
9. On or about April 13, 2000, the police facilitated the return ofthe child to his mother
who took him to the residence she has established in the child's school district.
10, The mother has shared legal and physical custody of her other two children, Chelsea
Sheeder, age 8, and Cody Hollen, age 2, who reside with her.
11. The grandmother lacks standing to bring an action in custody for reasons including
the following:
a,) The child has not resided with the grandmother for a period of 12 months
or more,
b.) The child is not at risk of parental abuse, neglect, drug or alcohol abuse or
mental illness in the custody of the mother.
12, The best interest and permanent welfare of the child will be served by granting the
immediate reIiefrequested for reasons including the following:
a.) The mother has always been the primary care giver of the child.
b.) The grandmother lacks standing to bring an action is custody
c,) The grandmother has not acted in the child's best interests by denying
contact with his mother.
13, The mother will be harmed without this Court's intervention granting Special Relief
lJec!!use sht; is lJeing qepic;ll\ contact with her child,
Wfff~JlPIW~ t!te def~~dant requests that this court vacate the Temporary Custody
:" :. ''':, :. ;', '~ . :' .. '. - ' . -' -j .. .
Order dated APril 13, 4poq,qi~nf~s th~ v1aimiJrs cQlllplaint for custody, and return custody of
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the child to her immediately,
In addition, the defendant also request that this court grant her any other relief that is just
and proper,
Respectfully submitted,
(J ~
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Attorney for Plaintiff
LEGAL SERVICES, INC,
8 Irvine Row
Carlisle, PA 17013
(717) 243-9400
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VERIFICATION
I verifY that I am the petitioner as designated in the present action and that the facts and
statements contained in the above Petition are true and correct to the best of my knowledge. I
understand that any false statements are made subject to the penalties of 18 Pa.C.S. g4904,
relating to unsworn falsification to authorities.
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Date:
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ANNE ZIKORUS-STAMM
Plaintiff/Petitioner
Vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2000-,;uSI CIVIL TERM
IN CUSTODY
STEPHANIE HOLLEN
DefendanURespondent
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For a period of approximately two years when the child was l ~ -j'<I
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preschooler, the mother and child resided in the Plaintiff's home. During that time, the
ANSWER TO PETITION FOR SPECIAL RELIEF
1-5.
Admitted.
6.
Plaintiff provided primary care for the child.
I,
7.
Christopher moved with his grandmother when his mother left the home in
which he was residing.
8. The child has repeatedly told his mother that he does not wish to return to
live with her because she makes his life miserable, An Affidavit executed by the child
indicating his desire to remain with his grandmother is attached hereto as Exhibit" p.:'
and is incorporated herein by reference.
9. With the assistance of the police, the mother forced the child to return to
a home in which he does not wish to reside in.
10. The parents of the two other children are attempting to change the
custody arrangements as they believe the mother is not suited to have the children in
her care.
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11. The grandmother has standing to bring an action in custody because the
child had resided with the grandmother for a period in excess of 12 months. The child
wishes to reside with the grandmother in a home he feels safe and secure in, The child
is at risk because the mother abuses drugs and alcohol. It was not uncommon for the
mother to leave the home on a Friday evening and not return until Monday morning.
During the times that she was in the home, she was often times found in bed, The
mother consistently neglected the children.
12. The best interest and welfare of the child will be promoted by allowing him
to remain in the home with the grandmother. The mother is incapable of caring for her
children.
13. The grandmother wants the mother to have contact with the child and the
child desires to have some limited contact with his mother.
WHEREFORE, Petitioner respectfully requests this Honorable Court
grant her primary, physical and legal custody of Christopher Joseph Dietz.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
By:-- \dD~A.U-
Robert L. O'Brien, Esquire
Attorney for
1.0. # 28351
17 West South Street
Carlisle, Pennsylvania 17013
robrien@obslaw.com
rob/domestlclstamm.ans
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VERIFICATION
I verify that the statements made in the foregoing Answer to Petition For Special
Relief are true and correct. I understand that false statements made herein are made
subject to the penalties of 18 Pa. C,S. ~ 4904, relating to unsworn falsification to
authorities.
Date:
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korus-Stamm
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AFFIDAVIT
The undersigned, Christopher Joseph Dietz, age 14, borg;?1;j12iss; ~ffi~
that it is my desire to remain in the home of myh1alefiial grandparents, Ann Zikonls-
Stamm and N. Lee Stamm who reside at 51 Heisers Lane, Carlisle, ;Pennsylvania. '""
have no desire to be forced to return to my mother's home. My mother has been both
verbally and physically abusive towards me and has neglected me on a regular basis,
WITNESS:
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Christopher Joseph Di tz
(seal)
COMMONWEALTH OF pENNSYLVANIA )
): SS.
COUNTY OF CUMBERLAND )
On this, the 13th day of April, 2000, before me, the undersigned officer,
personally appeared Christopher Joseph Dietz, known to me (or satisfactorily proven)
to be the person whose name is subscribed to the within instrument, and acknowledged
that he executed the same for the purposes therein contained,
IN WITNESS WHEREOF, I hereunto set my. hand and official seal.
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Notarial Seal
Angela F. Unger, Notal}' PubflC
Carlisle Boro. Curill;>l!rland County
My Commission Expires Qcl. 7, 2000
MllIllber, Pennsylvahla Association 01 Notarles
,
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ANNE ZIKORUS-STAMM
Plaintiff/Petitioner
Vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2000- .;{3,,/ CIVIL TERM
STEPHANIE HOLLEN
DefendanURespondent
IN CUSTODY
ORDER
AND NOW, this 13th day of April, 2000, upon review of the attached
Petition for Emergency Relief, and giving consideration of the Custody Complaint, the
Court enters a temporary order granting primary, physical and legal custody of
Christopher Joseph Dietz to Anne Zikorus-Stamm.
AND FURTHER, it is ordered that a short court conference will be held
"It ~~_r
with the parties and their attorneys Pt/l /L ~~ _______hIi'
o , at which time the Court will consider dissolving this ex parte
order.
BY THE COURT,
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ANNE ZIKORUS-STAMM
Plaintiff/Petitioner
Vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO, 2000..<3$1 CIVIL TERM
STEPHANIE HOLLEN
DefendanURespondent
IN CUSTODY
PETITION FOR EMERGENCY RELIEF
1. Plaintiff/Petitioner is Anne Zikorus-Stamm, an adult individual, who
currently resides at 51 Heisers Lane, Carlisle, Cumberland County, Pennsylvania
17013. She incorporates the custody complaint attached hereto,
;2, DefendanURespondent is Stephanie Hollen, an adult individual, who
currently resides at 41282 Elk Court, Unit 113, Mechanicsburg, Cumberland County,
Pennsylvania 17055,
3, As stated in the Custody Complaint, Plaintiff/Petitioner has been
threatened by the Hampden Township Police of being arrested if she doesn't force her
grandson to return to live with his mother. The grandson has stated that he does not
wish to be forced to return to his mother's home but rather to remain living with his
grandparents.
4. Unless an ex parte order is granted by the court, the grandmother faces a
serious dilemma. Plaintiff/Petitioner avers that the best interest and welfare of the
child, Christopher Joseph Dietz, is served by granting an ex parte order.
..- -_,' ."c; '''~'' -', - " ,. '
WHEREFORE, Plaintiff/Petitioner respectfully requests that this
Honorable Court grant temporary custody of Christopher Joseph Dietz to her.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
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Robert L. O'Brien, Esquire
Attorney for
I.D, # 28351
17 West South Street
Carlisle, Pennsylvania 17013
robrien@obslaw.com
By:
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I verify that the statements made in the foregoing Petition for
Emergency Relief are true and correct. I understand that false statements herein are
made subject to the penalties of 18 Pa. C.S. !} 4904, relating to unsworn falsification to
authorities,
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ANNE ZIKORUS-STAMM
Plaintiff
Vs,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO, 2000- CIVIL TERM
STEPHANIE HOLLEN
Defendant
IN CUSTODY
!
ORDER OF COURT
I AND NOW THIS _ day of , 2000, upon consideration of
I the attached complaint, it is hereby directed that the parties and their respective
counsel appear before , the conciliator, at
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II A.M.lP,M., for a Pre-Hearing Custod~n~~~feren~~y~: such conference, ~~~~~tWill be
II made to resolve the issues in dispute; or if this cannot be accomplished, to define and
narrow the issues to be heard by the court, and to. enter into a temporary order. All
children age five or older may also be present at the conference. Failure to appear at
the conference may provide grounds for entry of a temporary or permanent order,
,
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BY THE COURT,
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BY
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Custody Conciliator
The Court of Common Pleas of Cumberland County is required by law to comply
with the Americans with Disabilities Act of 1990, For information about accessible
facilities and reasonable accommodations available to disabled individuals having
,I business before the court, please contact our office. All arrangements must be made at
Ii
, , least 72 hours prior to any hearing or business before the court, You must attend the
scheduled conference or hearing,
: YOU SHOULD TAKE THIS PAPER TO YOUR lAWYER AT ONCE. IF YOU DO NOT
ii HAVE A LAWYER OF CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
Ii OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
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Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
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ANNE ZIKORUS-STAMM
Plaintiff
Vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO, 2000- CIVIL TERM
STEPHANIE HOLLEN
Defendant
IN CUSTODY
COMPLAINT FOR CUSTODY
,
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1.
Plaintiff is Anne Zikorus-Stamm, an adult individual, who currently resides
at 51 Heisers Lane, Carlisle, Cumberland County, Pennsylvania, 17013.
2. Defendant is Stephanie Hollen, an adult individual, who currently resides
at 4182 Elk Court, Unit 113 Mechanicsburg, Cumberland County, Pennsylvania, 17055,
3, Plaintiff seeks custody of the following child: Christopher Joseph Dietz,
: age 14 years, born 1/12/86.
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The child was born out of wedlock.
The child is presently in the custody of Plaintiff,
During the past five years, or since the child's birth, he has resided with
the following persons at the following addresses:
,
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(a) from 1994 to May 1998 with the Defendant and his step father, Terry
Hollen and two siblings at Country Manor Mobile Home Park.
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Ii (b) from May 1998 to February 2 with the same people at 25 South Letort
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(c) from February 2,2000 to the present with the Plaintiff and her
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II husband N. Lee Stamm at 51 Heisers Lane, Carlisle PA 17013.
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The natural Mother of the child is Stephanie Hollen,
She is married,
The natural Father of the child is Gary Dietz, however, he has had no
contact with the child since his first year of birth.
4, The relationship of the Plaintiff to the child is that of Maternal
Grandmother. The Plaintiff currently resides with Christopher and her husband Lee.
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5. The relationship of the Defendant to child is that of natural Mother.
6. Plaintiff has not participated as a party or witness, or in any other capacity
in other litigation, concerning the custody of the children in this or in any other Court,
Plaintiff has some information of a custody proceeding concerning the
child in a court of this Commonwealth. She has been informed there is an old custody
order giving custody of Chris to the Defendant
Plaintiff does not know of a person not a party to the proceedings who
has physical custody of the child or claims to have custody or visitation rights with
respect to the child,
7. The best interest and permanent welfare of the child will be served by
I
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,
granting the relief requested because:
(a) The Mother had been the primary caretaker of the child but for a
I,
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relatively lengthy period of time has had major problems with alcohol and/or drugs.
She is both verbally and physically abusive towards Christopher, When she separated
from her current husband Christopher asked the Plaintiff if he could live in her home.
He has lived in her home and attended school in CV district based upon his prior
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residence. Chris has had little contact with his Mother since moving with his
grandparents. On Wednesday, April 12, 2000, the Mother came to the school field
where Christopher was practicing lacrosse and demanded that he return to live with
her. The Mother got the Hampden police involved and they have told the Plaintiff that
they will arrest her if there is no change in the current custody order.
(b) Christopher had lived in the Plaintiff's prior home earlier in his life from
1987 through 1989, He is comfortable and secure there. The Plaintiff needs to have
an emergency Court Order so as to permit Chris to remain in a safe and stable home
where he wants to live.
I 8. Each parent whose parental rights to the child have not been terminated
I
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!. and the person who has physical custody of the child have been named as parties to
II this action, All other persons, named below, who are known to have or claim a right to
II
II custody or visitation of the child will be given notice of the pendency of this action and
II
the right to intervene.
NAME
-ADDRESS
BASIS OF CLAIM
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!I Gary Dietz
unknown
natural father
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WHEREFORE, Plaintiff requests your Honorable Court to:
A) grant custody of the child to the Plaintiff;
B) set an emergency hearing in order to set the parties rights until such
time as there can be a full hearing in this matter;
C) grant an ex parte Order giving temporary custody of Christopher to the
Plaintiff so as to have her avoid being arrested or forcing the return of a child to a
parent he does not wish to live with;
(D) grant such other relief as is just and in the best interest of the child.
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Respectfully submitted,
/.f1131~
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Robert L. O'Brien, Esquire
O'BRIEN, BARIC & SCHERER
17 West South Street
Carlisle, PA 17013
(717) 249-6873
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I verify that the statements made in the foregoing Complaint for
Custody are true and correct. I understand that false statements herein are made
subject to the penalties of 18 Pa. C,S. S 4904, relating to unsworn falsification to
authorities.
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ANNE ZIKORUS-STAMM
Plaintiff/Petitioner
Vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO, 2000- .;l3SI CIVIL TERM
IN CUSTODY
STEPHANIE HOLLEN
DefendanURespondent
ANSWER TO PETITION FOR SPECIAL RELIEF
1-5, Admitted.
6, For a period of approximately two years when the child was a
preschooler, the mother and child resided in the Plaintiff's home. During that time, the
Plaintiff provided primary care for the child.
7. Christopher moved with his grandmother when his mother left the home in
which he was residing,
8. The child has repeatedly told his mother that he does not wish to return to
live with her because she makes his life miserable. An Affidavit executed by the child
indicating his desire to remain with his grandmother is attached hereto as Exhibit "A"
and is incorporated herein by reference,
9. With the assistance of the police, the mother forced the child to return to
a home in which he does not wish to reside in,
10. The parents of the two other children are attempting to change the
custody arrangements as they believe the mother is not suited to have the children in
her care.
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11. The grandmother has standing to bring an action in custody because the
child had resided with the grandmother for a period in excess of 12 months. The child
wishes to reside with the grandmother in a home he feels safe and secure in. The child
is at risk because the mother abuses drugs and alcohol. It was not uncommon for the
mother to leave the home on a Friday evening and not return until Monday morning.
During the times that she was in the home, she was often times found in bed, The
mother consistently neglected the children,
12. The best interest and welfare of the child will be promoted by allowing him
to remain in the home with the grandmother, The mother is incapable of caring for her
children.
13, The grandmother wants the mother to have contact with the child and the
child desires to have some limited contact with his mother.
WHEREFORE, Petitioner respectfully requests this Honorable Court
grant her primary, physical and legal custody of Christopher Joseph Dietz.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
BY:~ \dD~(\.U-
Robert L. O'Brien, Esquire
Attorney for
1.0. # 28351
17 West South Street
Carlisle, Pennsylvania 17013
robrien@obslaw.com
rob/domestlc/stamm.ans
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,
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VERIFICATION
I verify that the statements made in the foregoing Answer to Petition For Special
Relief are true and correct. I understand that false statements made herein are made
subject to the penalties of 18 Pa. C.S, S 4904, relating to unsworn falsification to
authorities,
a~,~
An
Date:
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AFFIDAVIT
The undersigned, Christopher Joseph Dietz, age 14, born 1/12/86, affirm
that it is my desire to remain in the home of my maternal grandparents, Ann Zikorus-
Stamm and N, Lee Stamm who reside at 51 Heisers Lane, Carlisle, Pennsylvania, I
have no desire to be forced to return to my mother's home. My mother has been both
verbally and physically abusive towards me and has neglected me on a regular basis,
WITNESS:
~ ~A;'---
~4:') J1~
Christopher Joseph Di tz
(seal)
COMMONWEALTH OF PENNSYLVANIA )
): SS,
COUNTY OF CUMBERLAND )
On this, the 13th day of April, 2000, before me, the undersigned officer,
personally appeared Christopher Joseph Dietz, known to me (or satisfactorily proven)
to be the person whose name is subscribed to the within instrument, and acknowledged
that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notarial Seal
Angela F, Unger, Notery PubliC
Carlisle Boro, Cumberland CounlYo
My Commission Expires QcI. 7, 200
Memller,PennsylvaniaASSociatiOfl Of Notal1eS
ANNE ZIKORUS-STAMM
Plaintiff
IN THE COURT OF ,COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO.2000-..230') CIVIL TERM
IN CUSTODY
Vs,
STEPHANIE HOLLEN
Defendant
ORDER OF COURT
f1- A' I
AND NOW THIS )!L day of fA' / ' , 2000, upon consideration of
the attached complaint, it 's ~bY d'r te t~ t the parties and their respective
c<Lun i~1 appe before of.. S , the conciliator, at
Ifr /""" ...Iw./. r n the )1.\:h. d yof ,2000 atg;jQ
~P.M" for a Pre-Hearing Custody Conference. At such con erence, an effort will be
maae to resolve the issues in dispute; or if this cannot be accomplished, to define and
narrow the issues to be heard by the court, and to enter into a temporary order. All
children age five or older may also be present at the conference, Failure to appear at
the conference may provide grounds for entry of a temporary or permanent order.
BY THE COURT,
BY
The Court of Common Pleas of Cumberland County is required by law to comply
with the Americans with Disabilities Act of 1990. For information about accessible
facilities and reasonable accommodations available to disabled individuals having
business before the court, please contact our office. All arrangements must be made at
least 72 hours prior to any hearing or business before the court, You must attend the
scheduled conference or hearing,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OF CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
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Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
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ANNE ZIKORUS-STAMM
Plaintiff
Vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
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NO. 2000-..2351 CIVIL TERM
STEPHANIE HOLLEN
Defendant
IN CUSTODY
COMPLAINT FOR CUSTODY
1, Plaintiff is Anne Zikorus-Stamm, an adult individual, who currently resides
at 51 Heisers Lane, Carlisle, Cumberland County, Pennsylvania, 17013.
2. Defendant is Stephanie Hollen, an adult individual, who currently resides
at 4182 Elk Court, Unit 113 Mechanicsburg, Cumberland County, Pennsylvania, 17055.
3, Plaintiff seeks custody of the following child: Christopher Joseph Dietz,
age 14 years, born 1/12/86.
The child was born out of wedlock,
The child is presently in the custody of Plaintiff.
During the past five years, or since the child's birth, he has resided with
the following persons at the following addresses:
(a) from 1994 to May 1998 with the Defendant and his step father, Terry
Hollen and two siblings at Country Manor Mobile Home Park,
(b) from May 1998 to February 2 with the same people at 25 South Letort
Dr., Carlisle PA 17013.
(c) from February 2, 2000 to the present with the Plaintiff and her
husband N, Lee Stamm at 51 HeisersLane, Carlisle PA 17013,
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The natural Mother of the child is Stephanie Hollen,
She is married,
The natural Father of the child is Gary Dietz, however, he has had no
contact with the child since his first year of birth,
4, The relationship of the Plaintiff to the child is that of Maternal
Grandmother. The Plaintiff currently resides with Christopher and her husband Lee.
S, The relationship of the Defendant to child is that of natural Mother.
6, Plaintiff has not participated as a party or witness, or in any other capacity
in other litigation, concerning the custody of the children in this or in any other Court,
Plaintiff has some information of a custody proceeding concerning the
child in a court of this Commonwealth. She has been informed there is an old custody
order giving custody of Chris to the Defendant
Plaintiff does not know of a person not a party to the proceedings who
has physical custody of the child or claims to have custody or visitation rights with
respect to the child.
7. The best interest and permanent welfare of the child will be served by
granting the relief requested because:
(a) The Mother had been the primary caretaker of the child but for a
relatively lengthy period of time has had major problems with alcohol and/or drugs.
She is both verbally and physically abusive towards Christopher. When she separated
from her current husband Christopher asked the Plaintiff if he could live in her home,
He has lived in her home and attended school in CV district based upon his prior
residence, Chris has had little contact with his Mother since moving with his
grandparents, On Wednesday, April 12, 2000, the Mother came to the school field
where Christopher was practicing lacrosse and demanded that he return to live with
her. The Mother got the Hampden police involved and they have told the Plaintiff that
they will arrest her if there is no change in the current custody order.
(b) Christopher had lived in the Plaintiff's prior home earlier in his life from
1987 through 1989. He is comfortable and secure there. The Plaintiff needs to have
an emergency Court Order so as to permit Chris to remain in a safe and stable home
where he wants to live,
8. Each parent whose parental rights to the child have not been terminated
and the person who has physical custody of the child have been named as parties to
this action. All other persons, named below, who are known to have or claim a right to
custody or visitation of the child will be given notice of the pendency of this action and
the right to intervene,
NAME
Gary Dietz
ADDRESS
BASIS OF CLAIM
natural father
unknown
WHEREFORE, Plaintiff requests your Honorable Court to:
A) grant custody of the child to the Plaintiff;
B) set an emergency hearing in order to set the parties rights until such
time as there can be a full hearing in this matter;
C) grant an ex parte Order giving temporary custody of Christopher to the
Plaintiff so as to have her avoid being arrested or forcing the return of a child to a
parent he does not wish to live with;
(D) grant such other relief as is just and in the best interest of the child.
Respectfully submitted,
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Robert L. O'Brien, Esquire
O'BRIEN, BARIC & SCHERER
17 West South Street
Carlisle, PA 17013
(717) 249-6873
I verify that the statements made in the foregoing Complaint for
Custody are true and correct. I understand that false statements herein are made
subject to the penalties of 18 Pa. C,S, S 4904, relating to unsworn falsification to
authorities.
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ANNE ZIKORUS-STAMM,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
CNIL ACTION - LAW
STEPHANIE HOLLEN,
Defendant
NO. 2000 - 235 I CNIL
IN CUSTODY
COURT ORDER
AND NOW, this ~J1t{ day of May, 2000, upon consideration of the attached Custody
Conciliation Report, it is ordered and directed as follows:
1. A hearing is scheduled in Courtroom Number 4 of the Cumberland County
Courthouse on the /j-tiJ day of ~ L _ , 2000, at /; 30 ,
e M. at which time testimony will be tak in th'l above case. At this time, the
Maternal Grandmother, Anne Zikorus-Stamm, shall be the moving party and shall
proceed initially with testimony. Counsel for the parties shall me with the Court and
opposing counsel a memorandum setting forth the history of custody in this case, the
issues currently before the Court, a list of witnesses who will be called to testify at
the hearing and a summary of the anticipated testimony of each witness. This
memorandum shall be filed at least five (5) days prior to the mentioned hearing date.
2. Pending further order of this Court, this Court's April 13, 2000 Order is ratified
subject to the Mother, Staphanie Hollen, enjoying periods of temporary physical
custody with the minor child, Christopher Joseph Dietz, on every Sunday evening
from 4:00 p.m. until 7:00 p.m.
3. Transportation shall be handled with the Mother picking up Christopher at 4:00 p.m.
and the Grandmother picking up Christopher at 7:00 p.m. unless agreed otherwise
by the parties.
BY THE COURT,
1.
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Robert O'Brien, Esquire
Joan Carey, Esquire
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ANNE ZIKORUS-ST AMM,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
CIVIL ACTION - LAW
STEPHANIE HOLLEN,
Defendant
NO. 2000 - 235 I CIVIL
IN CUSTODY
Prior Judge: Kevin A. Hess
CONCILIATION CONFERENCE SUMMARY REPORT
IN ACCORDANCE WITH THE CUMBERLAND COUNTY CIVIL RULE OF PROCEDURE
1915.3-8(b), the undersigned Custody Conciliator submits the following report:
1. The pertinent information pertaining to the child who is the subject of this litigation is as
follows:
Christpher Joseph Dietz, born January 12, 1986.
2. A Conciliation Conference was held on May 17, 2000, with the following individuals in
attendance:
The Maternal Grandmother, Anne Zikorus-Stamrn, with her counsel, Robert O'Brien,
Esquire; and the Mother, Stephanie Hollen, with her counsel, Mary Ann Murphy, Esquire.
3. This is an issue where a Maternal Grandmother is seeking custody based upon an allegation
that the Mother was not properly caring for the child and that the Mother has some drug and
alcohol problems. Furthermore, we have a 14 year old young man who, according to the
Maternal Grandmother, is asserting that he desires to stay with the Grandmother rather than
the Mother. Judge Hess did conduct an in chambers interview of the child and met with
counsel and issued an April 13, 2000 interim order granting the Maternal Grandmother
custody.
4. The Mother contests the standing of the Maternal Grandmother to seek custody, and the
Mother denies any drug or alcohol problems at this time. Mother desires to have custody of
the minor child returned to her.
5. The parties cannot agree on the major issue of custody. The Mother is seeking some type of
temporary custody pending the hearing. The Maternal Grandmother suggests the boy is
willing to go to visit the Mother every Sunday evening from 4:00 p.m. until 7:00 p.m. The
Conciliator will recommend that temporary custody for the mom and the Mother can
petition the court for additional custody if necessary between now and the date of the
hearing.
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6. The Conciliator recommends the entry of an order in the form as attached.
>/17/ ()6
DATE '
Hubert X. Gilroy, Esq' e
Custody Conciliator
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ANNE ZIKORUS-STAMM
PlaintifflPetitioner
VS.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION-LAW
: NO, 2000-235 I CIVIL TERM
STEPHANIE HOLLEN
Defendant/respondent: IN CUSTODY
ORDER
AND NOW, this 2 , ~. day of April, 2004, upon review of the attached Stipulation
and the prior Pleadings, and giving consideration to the Custody Complaint and Petitions filed
therein, the Court amends the Order of April 13, 2000 and now grants primary physical and legal
custody of Christopher Joseph Dietz to his Aunt Heidi J. Zikorus of Spring, Texas effective
December 29,2001.
BY THE COURT,
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ANNE ZIKORUS-STAMM
PlaintifflPetitioner
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
VS.
: CIVIL ACTION-LAW
: NO. 2000-235 I CIVIL TERM
STEPHANIE HOLLEN
Defendant/respondent: IN CUSTODY
STIPULATION
1. Anne Zikorus-Stamm, is the Grandmother ofthe child Christopher Joseph Dietz at
issue in this matter.
2. Stephanie Hollen, is the Natural Mother of Christopher Joseph Dietz.
3. Heidi J. Zikorus is the Maternal Aunt of Christopher Joseph Dietz.
4. The Parties hereto Stipulate that Christopher Joseph Dietz entered the care and
custody of his aunt Heidi J. Zikorus of Spring, Texas on or about December 29,2001
and all parties request the Court enter a Order reflecting that fact.
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Date
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anie Hollen
Natural Mother
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