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4.
The respondent had full custody of the minor child for the first six (6) months of her life.
5.
For the first six (6) months of the child's life, the respondent failed to provide to the minor
child her basic needs, including but not limited to feeding, bathing, and general nurturing.
6.
Due to this neglect, the petitioners intervened and assisted the respondent in caring for the
minor child. Generally, the petitioners went to the respondent's residence daily to be sure that the
child was at a minimum being fed.
7.
During the first six (6) months of the child's life, Children and Youth were involved due to
this neglect.
8.
The petitioners continued to be involved in the child's life due to the inability of the
respondent to care for said child, and by June, 1994, the child was living with the petitioners every
day by consent of the respondent.
9.
During the time that the minor child lived with the petitioners, the respondent saw the
minor child for approximately one-half hour during the week days. The respondent generally did
not see the child on weekends.
Also on December 16, 1996, the respondent kicked the petitioners out of her apartment.
16.
Children and Youth indicated to the petitioners that they would do a thorough
investigation and take the minor child from the respondent's home, but, to this date, has done
nothing.
17.
There have been several incidents since December 16, 1996 which again clearly indicates
the respondent's inability to care for the child, including but not limited to the following:
a. On Christmas Day, a friend stopped to see Lillie, and apparently
the door to the respondent's apartment was unlocked, and the
respondent and her grandmother (who lives with her) were both
sleeping. The minor child was in the apartment, and could have
easily left the apartment;
b. Also, on Christmas Day, the respondent took the minor child to
the emergency room because she was sick, and later that day,
the petitioners' daughter and son-in-law visited the minor child
and found her lying on the couch with nothing to drink or eat.
The doctor's instructions were to force fluids. The petitioners'
daughter and son-in-law gave her water and ice cream, which
the child drank and ate.
c. On December 26, 1996, the petitioners' daughter and son-in-law
stopped to check on the minor child, and the minor child came
out of the apartment and began running across the street to
greet them and the petitioners' son-in-law had to stop her from
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going into the street.
d. The respondent continues to fail to feed and bath the child
properly while she is in her care, claiming that the child will
not eat for her, and also claiming that a bath is not necessary.
18.
The petitioners have been unable to see the minor child since December 16, 1996, and
Children and Youth has not provided any repons or any indication that the child will be removed
from the respondent's home.
19.
The petitioners are the parents of two (2) children, James R. Hockenberry, date of binh,
March 4, 1973 (23 years of age) and Jennifer L. Soto, date of binh, June 27, 1977 (19 years of
age). The petitioners' son is currently studying for his masters in engineering at MIT with
intentions to receive his doctorate, and the petitioners' daughter is currently in the School of
Environmental Science and Forestry studying landscape architecture.
20.
The petitioners are very capable of caring for the minor child, and are most familiar with
her handicap and her current needs.
21.
The respondent is unable to care for the minor child's basic needs, and has evidenced this
on several occasions, including but not limited to the following:
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LARRY V. HOCKENBERRY. and
ELLA I. HOCKENBERRY.
PETITIONERS
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY. PENNSYLVANIA
DENISE BAUM,
RESPONDENT
CIVIL ACTION - LAW
97-016 CIVIL TERM
IN CUSTODY
BRIEF IN SUPPORT OF PETITIONERS
LARRY and ELLA 1I0CKENBERI{Y
I. PROCEDURAL HISTORY AND FACTS:
This case came before this Court on March 3, 1997, pursuant to the petitioners' Special
Relief action. Additionally, a Complaint in Custody has been filed by the petitioners with a
current conciliation date of March II, 1997, before Hubert X. Gilroy, conciliator.
Fortunately, the facts to this case are undisputed. The child to this action, Lillie Baum,
was born on August II, 1992. The petitioner, Ella Hockenberry, was initially invited to be
involved in the celebration of the birth of Lillie at the hospital. The boyfriend of the respondent
called the petitioner, Ella Hockenberry, to advise her that the respondent was going into the
hospital to deliver the baby. This initial involvement of the petitioner, Ella Hockenberry, led to
further involvement by her, through visits to the respondent's apartment to check on the baby.
Upon observing extreme uncleanliness and possible neglect, the petitioner, Ella Hockenberry,
continued to check in with the respondent to help her with general care of the baby. This help
included teaching the respondent how to change a diaper, how to mix formula, as well as how to
sterilize bottles. The petitioner also began doing the baby's laundry with the acquiescence of the
respondent.
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In February, 1993, the respondent moved in with her grandmother, and upon agreement of
the panies, the petitioners began taking the minor child every weekend. The petitioners continued
to check in through the week at the residence of the respondent. The petitioners noticed that the
child was still being neglected in her basic needs, and contacted Children and Youth who assisted
the respondent in caring for the minor child. However, the petitioners continued to keep the
minor child every weekend with the agreement of the respondent.
Subsequently, the respondent took a job at a local grocery store working evenings and
weekends. Again, pursuant to the agreement of the panies, the petitioners took the minor child
during the week when the respondent worked, as well as every weekend.
In June, 1994, the respondent was evicted from her apanment and moved into a new
apartment. At this time, the petitioners offered to take the minor child on a full-time basis until
the respondent could get settled in her new apanment and also get settled financially. The
respondent agreed. From June, 1994, through October 19, 1994, the minor child spent only two
(2) nights with the respondent.
On October 19, 1994, the respondent moved in with a family, the Eckards, and stayed
there through December II, 1994. Between October 19, 1994, and December 11, 1994, the
minor child spent every night with the petitioners. Additionally, on trick or treat night, the
respondent took the minor child out to trick or treat, then called the petitioners to pick her up at
8:30 p.m.
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On December II, 1994, the respondent moved in with the petitioners. The respondent
remained in the petitioners' home through the end of January, 1995. During the time that she
lived with the petitioners, the respondent did not participate in the care of the minor child. She
continued to rely on the petitioners to care for the child's basic needs.
At the end of January, 1995, the respondent moved out of the petitioners' home and began
living with her grandmother. Initially, the petitioners and respondent would schedule one (I)
night a week, according to the respondent's work schedule, wherein the minor child would spend
the night with the respondent. After a few weeks of this arrangement, the respondent told the
petitioners that she did not want to take the minor child because she had other things to do on her
night off. The petitioners, then, continued to keep the minor child every night. In August, 1995,
the minor child started preschool due to her hearing impairment. The school bus would pick up
the minor child in the morning at the respondent's home after the petitioners dropped her off. The
school bus would then drop her off again at the respondent's home, and the petitioners would pick
her up a few minutes later. There were times after the child finished school that she requested to
stay with the respondent. However, the respondent refused to allow the minor child to stay, and
physically carried her to the petitioners' car.
In summary, the petitioners have been involved in the minor child's life since her birth.
The involvement became full-time in June 1994, when the petitioners became the minor child's
primary care giver. The petitioners continue to be the minor child's primary care giver through
December 16, ) 996. At that time, the respondent left a note for the petitioners indicating that
they could either take her all the time, or she wanted to keep her all the time. Upon attempting to
discuss this matter, the respondent's grandmother threatened to call the police if they did not
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leave. Thereafter, the petitioners left the apanment. Since that time, the petitioners have been
granted every weekend with the minor child, However, other activities that the petitioners did
with the minor child have ceased, and, since December 16, 1996, the minor child has displayed a
noticeable change in both her academic achievements and her demeanor.
The Co un should also note the undisputed facts that the petitioners were greatly involved
in the medical care of the minor child, The minor child is legally deaf, and has needed close
medical attention at the Polyclinic Hospital in Harrisburg. The petitioner, Larry Hockenberry, has
taken the minor child to every appointment, approximately twenty-six (26) times since her binh.
Funhennore, the doctors have communicated directly with the Hockenberrys regarding the status
of the minor child. The petitioners have also been greatly involved in the minor child's schooling.
The respondent has shown only irresponsibility towards the minor child. The respondent
admitted during the hearing on March 3, 1997, that she would disappear for three (3) 10 four {4)
days at a time without advising of her location. The respondent also admitted that her current
actions of wanting the minor child back stems from her emotional difficulties with the tennination
of her parental rights pursuant to an adoption of her second child. Her instability is also noted in
the various changes of residency made by the respondent. The respondent fun her admitted that
she was also in agreement with the time that the petitioners spent with the minor child. In fact,
there were times when the petitioners worked with the respondent to help her schedule more time
to be with the minor child; however, the respondent never followed through with these effons.
4
II. ARGUMENT:
The petitioners ackuowledge their high burden of proof in this matter beiog third parties to
the minor child. However, the petitioners feel strongly that they have established in loco parentis
with the minor child due to the great involvement they have had in the child's life. As noted in the
petitioners' Pre-Hearing Memorandum:
The phrase 'in loco parentis' refers to a person who puts himself/herself in
the situation of assuming the obligation incident to the parental relationship
without going through the formality of a legal adoption. The status of ' in
loco parentis' embodies these two ideals: first, the assumption of parental
status and second, the discharge of parental duties. Rosado v. Diaz, 421
Pa Super 161,624 A.2d 196 (1993).
The petitioners further acknowledge that in the case where a third party is attempting to establish
in loco parentis, the law is very fact sensitive to each case.
In addition to the cases as presented in the petitioners' Pre-Hearing Memorandum, an
additional case may give some guidance for the case at hand. In Cardamone v.Elshoff, 442 Pa
Super 263,659 A.2d 575 (1995), the subject child moved in with her maternal aunt due to the
mother's tumultuous marriage. Four months later, the maternal aunt filed a petition to confirm
custody of the minor child. Two months after that, the mother filed an emergency petition
seeking to regain custody of the minor child. Apparently, the mailer was continued on several
occasions, and a full hearing on the merits was held approximately fifteen (15) months later. The
Trial Court held two additional hearings and finally awarded primary physical custody to the
matemal aunt approximately twenty-eight (28) months later. The Superior Court held that the
mate mal aunt had clearly established in loco parentis since the minor child had been in the custody
s
of the maternal aunt for twenty-eight months. As noted by the Superior Court, during these
twenty-eight months, the minor child's basic needs were provided for by the maternal aunt.
Because the maternal aunt had assumed these primary parental responsibilities for this period of
time, the Superior Court held that she clearly had standing to seek custody of the minor child.
ill.. 581-582. The Superior Court was careful to note that the mother was agreeable to the
arrangements when the maternal aunt took in the minor child. Id., 582.
The Superior Court further examined the record to determine that the Trial Court did not
error in granting primary physical custody of the minor child to the maternal aunt. This decision,
after establishing in loco parentis on the part of the maternal aunt, is based solely on what is in the
best interest of the child, without giving any additional weight to the natural parent.
In comparing this Superior Court case to the case at hand, the facts are quite similar.
Specifically, the petitioners were the primary care givers of the minor child for thirty (30) months.
This was done with the acquiescence of the respondent. It was also done out of the need for the
child to have stability. Several attempts were made by the petitioners to resume the relationship
between the respondent and the minor child, however, the respondent continually refused to
follow through with the relationship. Furthermore, the petitioners were greatly involved in both
the medical and academic activities in the child's life. These factors, as are also found in
Cardamone. supra., clearly establish in loco parentis. See also, Kamer v. McMahon, 433 Pa
Super 290, 640 A.2d 926 (1994) (stepfather of minor child was found to be in loco parent:s to the
minor children after caring for them for approximately three (3) years, and was granted primary
custody.).
6
Additionally, the instability displayed in the respondent's life provides also that the best
interests of the minor child would be beller served if the petitioners were granted primary physical
custody of the child. This action is now in the special relief proceeding, however, great emotional
damage can be done if the child remains primarily with the respondent after living nearly
exclusively with the petitioners for two and one/half (2\1,) years. The respondent has agreed to
the petitioners' primary care of the child for the last two and one/half years, and made the sudden
switch due to her emotional instability associated with the adoption of her last-born child. It
appears that the respondent made the decision to keep the minor child for the respondent's best
interests, not the child's best interests. The petitioners strongly assert that the rights of the natural
parent are clearly subordinate to the child's best interests. Constant A. v. Paul C.A., 344 Pa.
Super. 49, 496 A.2d I (1985).
In summary, the petitioners assert that they have clearly established in loco parentis
through the extensive amount of time they have cared primarily for the minor child. as well as the
respondent's continuing acquiescence to their involvement. The petitioners attempted to
reestablish time between the respondent and the minor child, however, the respondent refused to
maintain any regular schedule with the minor child. Although the respondent is the natural
mother of the minor child, because of her lack of involvement in the child's life, the situation
which existed since June, 1994, should continue. Additionally, the right of the respondent as the
natural mother to the minor child is subordinate to that of the child's best interest. Therefore,
simply because the respondent needs the minor child in her custody for her own emotional needs
does not give her the prima facia right to have the minor child.
7
Therefore, the petitioners respectfully request that this Court find them in loco parentis to
the minor child as well as order the child back into their custody as had been previously arranged.
Respectfully submitted,
IRWIN, McKNIGHT & HUGHES
By:
Rebecca R. Hughes, Es
60 West Pomfret Street
Carlisle, P A 17013
717-249-2353
Supreme Court J.D. No: 67212
Attomey for the petitioners,
Lany V. Hockenbeny
Ella I. Hockenbeny
March S . 1997
fAJ.IIL YfCUSTOOYfBOCKINBERR Y MEIo'O!lANWI
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58.1 POI,
li:'H ATLA:'>'\'I(, I/EI'OIlTEIl. 2d SEHIES
numerous V.;tIJeSSI~.s in this C;ISt!, wei~ht'll
that t('stimony carcfully lllld foun,1 that
Dau~htcl"s o\'erall best intcrl'sts woult! be
fiL'I'\'cd hy thl! award of custody tll ~latel'l1al
Aunt. nlthough thiJo\ nel'l~:;sitaled Daughter's
separation from Gregory.
While Matel'Oul Aunt \\'a:; UW:tl'dl'd IlIi.
nlllry phy,ical cu,tody of Daughler. Judge
Jackson awarded liheral pa,'lial physical eu,-
lody to Mother on alternaling weekend,. If
~lothel' chooses to exercise her' light to take
D<lughtcr every other wcekerul,s and there is
nl) evidence of l'ecOI'(1 to ilulicate that Mater-
nnl Aunt would do un~1hing- to hindeI' t1mt
right, she can be 855Ul'cd that hel' duughtl'I'
and son's relationship \\ill continue to brJ.'O\\'.
The same can be saill fur ~tothel' and Stepfa-
ther's I'clatiom;hip \\;th Ouughtcl',
For the5e reasons, we cannot find that the
hial court committed a ~T}'o!'~ abuse of di!'cl'e-
tion in uwal'ding cU5tolly to ~ti.ltel'nal Aunt.
Kn"r,'1ki, 8llpm; McMilIt'I/, !fitI'm,
Ol'der affilmed.
.
o i 111 NUIol'" S~~!I"'1
CIHDlO:'>\\'IULTII of l'enns)'lmnln
\'.
1I'11\'(;AIT F,IIDIS.
Appelll or Gcorge JIEITZ, Appellllnt.
(Three Ca,es.)
CIHBI01\'II'EALTII or l'enn,)'h'anlll
\'.
01>E 1I00lSE KNOW:'> AS "OLnII'L\-
KOS'\ One Horse Known us u:\Inrmn-
lade's Fenst", One Hurse Knuwn os ":\Ii-
jlta IlIcll", One Horse Known "' "~lIjllll
Riru's Foul", One Hurse linown us "Cnll
:\le Goin'" One Hurse Known ns "Dou-
ble Lender", One lIorse lil\oWI1 os
"Yellrllng Colt Oul oC ~Illjcstie JIo)'al",
5. In aJdition 10 Olhl.'n1Oltin~ \\l'l.'kl.'lld~, JuJ~L'
Jack~(Jn llwarded partial cmlod~" It) Mother for
om'.hall of the Winter and Spring sdlOnl \'IlCl-
One IIUnil! Known {I:; "YeurllnK Cult
Oul of ('run)' & II11S1)''', One lIo,"e
lino",n lU "Bluze Lender", OUl! Hunt'
linn",n us "L1ehenheek", One lIul1ie
lil\u",n us "UtUIUeUc". One lIorse
Iinown a, "YearllllK Coil Out of
Prinl'C:O;S Kumehu". One lIemiC linown as
"Yellrllng Coil Out nr C-IlI11nll", Oil.
lIurse Knnwn Oll ulndepcndl'nt Lender",
One Hursc linnwn os uDomo:o;cus
HOllse". One lIorse Known os "numas-
ellS lIou:o;c Foul", One Horse Known U8
"Grupe Jam", One Hurse Known as
"Grllpe JlIm's FOlll".
cmDIO~'WEALTII of l'enn,)'I\'Unla
\'.
1I00/SES: I'IUr\CESS K.DIEJlA
T1UCK IIAUlU:'>.
cmDIO:'>II'EALTlI of l'enn5)'I\'Unla
\'.
WINGAIT FAJI~IS.
Appelll oC Linda nEITZ. Appellant.
Cnrnmomn>alth Court of Penn:\yl\':mia,
Ar,'\led Feh. Ii. W9.1.
!ledde,1 ~Iaj' 8. W9.;,
Real'J.,rument Denied .June 2U, WUri,
Aftl'l" owner of hUI'Re f:tllll ple:.Hlct.l guilty
to \'a!'iou:, dl'lll! chill'l!es, forfeiture actiun WUli
Ill'ought. The Cuurt of Common Pleas.
Bucks Count)., Miscellaneous K 0'. 424. 808.
and 1088 of 1!192. Cla,'k. J.. forfeiled fann
anil othel' pl'operty upon finding that pl'oper-
ty WlIS u5ed to facilitate violation of Con-
trolled Sub,tanee. Drug, Device and Cosmet-
ic Act. The Common\\'ealth Court, Nos,
272:1. 2724, 2725 and 2010 C.D. 193:!, New-
man. J.. held that: (\) whethe,' forfeiture WllS
displ'OpOl1.ionate or was an excessive fine was
not for jurj'; (21 ju.'Y instructions on govern-
ment's bu,'den of proof and definition of "fa-
cilil:1te" was correct; (:I) forfeiture did not
\;olale douhle jeopardy clause; (4) redacled
lions, nnd for ,i, weeks during Daughlds Sum-
mer ~d\l)(Jl vacalinlt.
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filII ATLANTIC IlEI'OIlTEIl, 2d SImms
From shortly oftCI' the 5t~(lal'uliun. until
approximately June, 1U9!. Father did not
see the Children on any rCbrular basis, und
periods between visits sometimes would
last up to six month!:!. Huwever, around
June. 1991, Father began seeing the Chil.
dren on a rCJ.,rular basis, usually one over-
night or day visit, although sometime, he
wus to have them two consecutive over-
nights. Stepfather hud enrouraged Father
to see the Children more often hut, de'pite
this enrouragement. Father did not make
any extra effort to spend more lime \\;l.h
the boys.
Father wus to have the Children on the
weekend of January 21i, 1992. Hawever,
he retw'ned the Children on Saturday, a
day eurl)', which was apparently a reb'lllar
practice of Father. Father te,tified that
~lathH needed a baby.itter (Fatber'.
words) for the Cbildren and far Kristin fill'
Sunday, since the Stepfather waR on suh.
marine duty at that time, but agreed to
"bab)'sit" so long us he woald have the use
of Mother's car. While Mother, Father,
the two boys and Kristin were together in
the cur, they were Involved in a tl'Ugic
automobile accident in Churleston, South
Carolina. As a result of thl. accident,
~[other has suffered permanent InjUlies
which have rendered bel' incompetent.
One of the boys, Michael, had a severe
closed head trauma which, after several
months of hospitalization, has left him \\ith
some residual problems and concerns for
his psychological well being. The other
boy, Andrew, suffered a \e5s severe clo,ed
head Injury. Kri,tin suffered a severe
open head Injury whlrh resulted in the
removal of part of her brain and has left
her \\ith significant motor problems on the
light side of bel' body. Father was not
admitted to the hospital, but had some
bruised ribs and a cut over his eye. He
was, by far, the least injured In this acci.
dent. Father did not assume a declslon-
making role ror the Children's medical
cure after this accident, either immediately
or long term. Stepfather, who was given
an emergency leave and arrived at the
hospital shortly after the accident, began
making medical decisions for the entire
famil)'. Father's contrihution principally
rch.ltt'd to tilt! hisuc or whether he could
bring a law suit for his own injurie,.
Andrl!w was relea~l!d from the hO!lt1ilaJ
approximately two weeks afte,' the acd;
dent Into the custody of Stepfather. Sl<p.
father's mother came from Philadelphia lo'
help care for Andrew. Michael WllS in the' ,
hospital for a longer period and eventually'.
was transferred to the Seushore House at
Childrens Hospital in Philadelphia for fol-;
low-up care. Father did not, even afl.r ':
the Children were releused from the hospi. :~
tal, attempt to assume any custody. When'~
asked wh)' he waited until Stepfather 0_
asked for custody Father replied: "[ wa"~
going to file for custody despite the po. :,".
pers. but It \I'as a matter of just the timing. o.!"',
1 wanted to make .ure that my boys were' .
better, and that the liabilit)' that was in. ." "
herent in the accident was met." (N.T.,'
1/4/93, p. 79). '
While Michael wus In the hospital in
Charleston, and at Stepfather's reques~
Anthony Brady stayed \\ith him at nigh~
as Michael was waking up \\ith night tel"
rors. At the time, Stepfather WllS dividing
his time between his cdtically ill \life Wld
daughter and his stepchildren. Mr. Brady
asked Father to sta)' \lith Michael at night.
Father complied one time, but two other
times when he was asked, he did not ap-
pear and offered no explanation as to why 'j
he would not stay \\ith Michael.
Stepfather also inl'estigated, after con.
sultation \\ith the doctors, as to the best
place for treatment of the Children and his
\\ife and a decision was made by Stcpfa. 'l
ther that the family should be moved to -
the Philadelphia urea. Stepfather consult. .
ed \lith Father, and as Father testified, he
did not oppose the move. Father left the
derision to Stepfather. Along those lines,
Stepfather obtained a transfer with the
Navy to the Philadelphia area. Mother
was el'entually transfcrred to Moss Reha.
billtation Hospital In Philadelphia and is
presentl)' In Leader Nursing Home.
Mother's father indicated that to some e."
tent shc appears to know her surround.
Ings. There appears to be some minimal
Improvement in Mother's condition but
there is no Indication that .he \\ill ever,
1314 Po.
6M2 ATLANTIC IIEI'OIlTEII, 2d St:IlIES
guuge precluded coverage under the fadual
circumstances oC the underlling turt action.
We agree with the trial court's dedsion
granting aummary Judl,~nentln Cavor oC Na.
tlonwlde.
(91 Appellanta also contend Nationwide
walved the deCense oC exeluslon 3 b(2) by
railing to Include It In Ita reservation oC righta
leller sent to Its Insured Paul C. Nixon, os a
result oC the October 10, 19'J3 accident, on
December 28, 1993. Appellants argue "[I]t ill
apparent that Nationwide initially attempted
to decline coverage bosed upon an Inapplica.
ble aectlon oC Its policy and only later round
another aectlon on which to attempt to hang
Its hat". (Appellants' brieC at 32.) Appellee
Nationwide concedes it "inappropriately
Identified an inapplicable section oC the polio
ey" in Its December 28, 1993 reservation or
rights letter to the Insurell. but adds the
letter did put its insureds on notice coverage
would be denied. (Appellee's brier at 15.)
Appellee also avers the Insureds were not
prejudiced by its misidentification oC the
clause upon which It planned to rely In sup.
port or its decision to deny coverage.
Appellants have provided this Court with
no controlling case law In support oC their
position.' Furthennore, contained In appel.
lanls' reproduced record, at exhibit 0, bely-
Ing claims oC prejudice, Is correspondence
Cram appellants' counsel to appellee, rerer.
ring to a December 20, 1993 Natlon\\ide
letter wherein pages 7 and 8 or the policy
were reCerenced in support or its denial or
the Nixons' claim. Pages 7 and 8 or the
policy contain the Use or Other Motor Vehi.
c1es section, us well as section 3 b(2), the
elause upon which Nationwide has correctly
relied in denying coverage. Lastly, us
averred by appellee, appellant. received no.
tlce or Natlon\\;de's intended deCense In its
January 4, 1995 action ror declaratory judg.
ment, allo\\;ng appellants sufficient time
,,"thln which to ronnulate an InConned re.
sponse. We find appellee's Callure to Include
aectlon 3 b(2) us a possible derense In Its
3. Appell.1nu' reliance on Atltl/.I Llr~ CHId CdJlliJlty
Co. v. j\kCiJbt. 556 F.Supp. 1).&2 (E.D,P,l.1983),
rl'~en'atitJn of rij.;ht:l h'lh'r dllnyin~ c()\'era~l'
dill not su (lI'l'juclil'c uflpt'lIant.'i' ability to
defend a.'i to l'tln~tilute revcrMihlc error.
Hlantlill~!
during'
Ilarlnt'r.
Iy. alh..;,
Having round a(ll'ellants' arKUment.a de.
vuid of merit, we arnnn the Order granting
summary Judgment in ravor or Nationwide.
Order affinned.
2. Inrall
ApI
is of till'
tu deler
vcrtlhle
cnnc1usif
~hose cc,
ahle In
reprcsel
.
o lU'lllJllll'I""'H
J.A.L., Appellant,
3. Actio
No
unlcHs j'
that hi,
infringe I
".
4. Actio
Pur
that ca,
having ~
interest
E.I'.lI.
Superior Court or Pennsylvania.
Argued May 2:1, 19!1H.
Flied Sept. 19, W96.
5. Actio
Tra
ponent I
tial, ani
hand; It
shares i
ensurinl
Mother's Conner domestic partner petl.
tioned Cor partial custody oC chUd. The
Court oC Common Pleus, Philadelphia Coun.
ty, Family, No. D.R. 009502611, Tereshko, J.,
denied standing to partner, and she appeal.
ed. The Superior Court, Beck, J., held thot
e,;dence that ronnor domestic partner and
child were comembers oC nontraditional Caml.
Iy was aufficlent to establish that partner
stood In loco parentis to child and had stand-
Ing to seck partial custody.
Reversed and remanded; jurisdiction re-
linquished.
6. Inrar
In
stand in!
interest
actions
and the;
cd dom
merely,
7. Infm
Cu,
by pers
dy.
1. Parenl and Child ~2(17)
Mother's Conner domestic partner stood
In loco parentis with child and, thereCore, had
is misplaced a.s the racLs therein are dlstlnlJlllsh.
able from those before this Caun.
8. Pare
Blo
to custl
J.A.L. v. t;.I'.II.
CIl...6U ".ld 1]14 (P..Supu. 19'1ftl
ing to seek partial cu.tody or child born the only source or .ul'h right; cognizahle
g their relationship, where mother, right to se"k full ond partial cu,tndy moy
i ~er, and child h.d lived together as rami- ari.e under slatut" or hy vIrtue or partld
.'lbeit nontrllditional ramily. eonduct. 2:1 P.R. ~ /i:1II et a"~,
'0\.
)fants $019.3(7) ,
'r,;p~IGle ';:"~ie;' 'of child custody order
.f the broadest type; court is empowered
rtennlne whether trial court'. incontro-
'P.'le factual findings support i15 factual
.,jluslons, but it may not interfere with
~ conclusions unless' they are unreason.
, 'I in view or factual findings' and, thus,
;, .:; ,:;<"~".,/_,._,.,,.Jrsent grass abuse or dis"retion.
.. "',~." ..:..y..-:-:..-;.:~:-;.;.::..,;.;~....".:.~. .
,. ' , . 'Action $013 '
~tNo matt.er will be adjudicated by court
rss It is brought by party aggrieved in
i his or her rights have been invaded or
rnged by the matter complalned or.
'l.tlon $013
I Purpose or requiring slanding to ensure
! ,cases arc' presenU,d to court by one
g genuine, and not merely a theoretical,
st in the matter.
:.....~>.:...~-.....'v...... .
'.. ......~. u'" ........
. .~ ..... ",t
.... -. "'.
.-............,.
. .
ctlon o!?13
Tr~diti~~al t.est ror standing is that pro-
nt of action must have direct, subs tan.
. and immediate interest in matter at
; It is not enough that proponent merely
, 's in common Interest or all citizens in
" ,: 'ng obedienceto laws.
onts o!?19.311l
; In arca of child custody, principles of
ding hove dual purposes: they protect
, st or court system in assuring that
-: ns arc litigated by appropriate parties,
.they also prevent intrusion into protect-
domaln or the family by those who arc
ly strangers, however weU meaning.
I. .
,nrants <i?19.3(4)
I Custody ea.'e may not be brought except
.!>Crson having prima facle right to custo.
",
"::' :. .::;~~~~;~?i:;~~~.~
".;; ,~"0':: '."f;i,:':
", '-.'~:v?A'/~k"'.:t
.~ ,......~ ~_~':'7~J.,
'. ...'," .... -4'
. ~\ .-;~..{t(i.~~~'~~~t? ~.:~. .', .
..,
~ . ..' . ' , . ;-'.
.\. ....::,r,
,,~i,', l. ",~""_;",
.':, ;,' -
.'. ~"'~~:,~,~~'~,::, ....
..... .' "l"";"
Parent and Child e=>2(2, 7)
; Biological parent.'! have prima facie right
.custody, but biological parenthood is not
:, :: ,.:;..';';~::~~..~:.'.~~~
."
. i;,~~ ..,>~~:.'
'0,"'",..
..'v' .-.
'.'1'"
.I'f,;<:fj
. .. ;....
-,' ,",'
.... ...... ~... .-. .. ......... ...
ri:
s
I
Po. 1315
9. Infants e=>19.311, 3)
For purposes or detennlning standing,
tenn "prima facie right to custody" means
only that the party has a cnlorable ciaim to
custody or the child.
See publication Words nnd Phrases
ror other judicial f;onstructions and dC[.
Initions,
10. Infants e=>19.3(3)
Finding of prima rade right to custody
sufficient to establish standing does not af.
fect that party's evidentiary burden, and In
order to be granted full or partial custody, he
or she stili must establish that such would be
In best interest or child under standards ap-
plicable to third parties.
11. Parent and Child <i?2(12)
Natural parent's prima rade right to
custody has the effect of increasing eviden-
tiary burden on nonparent seeking custody.
12. Parent and Child e=>15
In loco parentis basis for granting stand-
ing to seck custody recob'11izes that need to
guard family from inlnisions by third parties
and to protect rights of natural parent must
be tempered by paramount need to protect
child's best interest; thus, while it is pre-
sumed that child's best inlcrest is served by
maintaining family privacy and autonomy,
that presumption must give way where ehUd
has established strong psychological bonds
with person who, although not a biological
parent, has lived with child and provided
care, nurture, and affection, thereby assum-
ing In child's eye a stature like that of a
parent.
13. Parent and Child o!?15
Showing necessary to establish in loco
parentis status must be flexible and depen-
dent upon particular facts of the case.
U. Parent and Child ~2(7), 15
It is an important factor, In detenn\nlng
whether third party has standing to seek ,
" ~. '... :
. :-... "'~ ;~';. ..". ~.: :. . ',..
. , . ,'~:;;' .;..' //:7' {C";';':,
. .~, :. '.' . ... . '.'" . , .
'.' :~ '::~'~t.:.,,::
,'. ....
. ....
"."'.
.'~:' I '.~
'1
!
.-..-.....-_...'.'-.,.......
. ,... ..
"
j
.1
I
~
t
....,-..-.-N II
11
1316 Pa.
6H2 ATLAl\/TlC ItEPOltTEIt, 2d SEIUES
custody of child, that U,ird party lived \lith
chlld and natural parent In family selling,
whether traditional family or nontraditional
one, and developed relationship \\ith chlld us
result of participation In acqoiescence of nat.
ural parent; additionally, where only limited
custody rights are sought, limited nature or
the intrusion Into the biological family must
b. considered.
15. Parent and Child ~15
Mother's fanner domestic partner stood
In loco parentis to child, where mother and
partner contemplated that partner would be
in parent-like relationship with child and for-
malize relationship to extent legally possible,
partner aeled as mother's parenting partner
for the first ten months of child's life, partner
and child engaged In postseparation ,isits
similar to those between children and non-
custodial parents, partner showed a constant
and sincere interest In the child, and child
recognized partner'as significant person In
her life.
16. Parent and Child ~15
Mother's rights as biological parent did
not extend to erasing relationship she vol un-
larlJy .created and actively fostered between
her child and her fonner domestic partner,'
even though af'Wr parties' separation she re-
gretted having done so.
, ."
Bernard D. Faigenbaum, Philadelphia, for
appellant. .
. Jonl J. Berner, Philadelphia, for appellee.
'.
II
Berore BECK, KELLY and BROSKY, J~.
and remand for consideration or appellant's
pelilion for partial eustody.
Appellant J.A.L. and appellee E.P.H. en-
tered Into a lesbian relalionshlp In 19RO and
began living together as life partners in 1982,
purchlllling a home together In 19811. From
quite early in the relationship, E.P.Il. wished
to have a child. Following several years or
discussion, the parties agreed that E.P.H.
would be artificially inseminated to attempt
to conceive' a child whom ,the parties would
raise together. Together, E.P.H. and J.A.L.
selecied a spenn donor and made arrange-
ments for a contract between E.P.H. and the
donor whereby the donor relinquished his
parental rights In any child E.P.II. might
bear.' '
In August 1989, the insemination process
began. The inseminations' occurred In
J.A.L.'s and E.P.H.'s home. For each insem-
ination, the donor would produce the spenn
in one room"and JAL. would receive the
spenn and take them to E.P.H. in another
room, 'whcre J.A.L. would perfonn the In-
semlnalion. This procedure was repeated
several times each month until E.P.H. be-
came pregnant In October, 1989, then're-
sumed in 1990 after E.P.H. had a miscar-
rlagetn December,' 1989. In September,
1!l9O; E.P.H.' again' became pregnant. Dur-
ing', the' pregnancy, JAL. accompanied
E.P.II. to doetor's visits and attended child-
birth elasses with her. E.P.H. successfully
cnnied the child to !enn, andJ.A.L., as well
as two friends of E.P.H., waspreserii "tthe
birth or the child, C.H., in' June, 1991. In
registering the child's birth, E.P.H. guve
JAL.'s surname as the child's middle name;
E.P.H. subsequenUy had the child's middle
name legally' changed.
During E.P.II.'s pregnancy, E.P.H. and
JAL. consulted with an attorney regarding
the status oC the child. The attorney pre-
pared draft.ol of several doeuments for the
parties' eonsideration. The fll'llt docwnent
was a Nomination of Guardian In which
E.P.H. named JAL. as the guardian oC the
child In the event of E.P.H.'. death or dis-
ability. The document Included the following
statement:
.............................................. ......... ....... . ,-- .....,_.,... ~..-..~-,~-..-_..-.-'...._-.._._..__.
,
"
BECK, Judge:
11l We are asked to decide whether ap-
pellant JAL., the fonner lesbian life partner
of nppellee .E.P.H., has standing to petition
for partial custody or the child born to
E.P.H. during their relationship. We con-
clude that the trial court erred in denying
standing to JAL. Therefore, we reverse
i!
il!
"
!
"
..
:,
;1
"
This nor
[J.A.L.I
thntl sh
we wou'
intentiol
birth n
with the
live with
to her r,
It wouh
deprive
tionshlp
provide'
my child
The acconl
ties was ;
Medical 1
J.A.L. to ('
ment or tI
pared a L
party, pro'
ehlld. E.I
nppoinling
child, stath
I have 5
[J.A.L.]
I intend
[JAL.].
import..
jointly <:
bear m)
child to,
that the
relatiom
will be .
and that
ests to r
Thc final c
was a co
Corth the J
together, t
ror the cI
child joint
fado pare
also provic
separation
tinuing to
child joint
sponaibiUt.
I. These d
.r appell.nt's
~ 1:,1'.11. en-
I in WHO anol
;l1l'rS in l~H:!.
;1 ~l.~H. From
'.1',11. wished
~r.1 years of
tliat E.P.II.
~ to attempt
~altieg would
I, and J.A.L.
:1 \: arrange-
TII. and the
:lljuished hi~
,.!'.H. might
tbn prOCCBS
l'o::urrcd in
l';lch insem-
l' the spenn
rrcei\'c the
. in another
ol1n the in-
'n~ repeated
lO,P.H. be-
. \, then re-
I i a miscar-
::::eptember.
....''It. Our.
Ul":;lmpanied
en, led child.
l't1ccessfully
AL., as well
('scnt at the
e. 1991. In
E.I'.H. gave
jr!dle name;
.i!Ii'S middle
E.P.H. and
y rCl{arding
ttomey pre-
ent., ror the
. t document
In in which
rdi.n of the
l,:\th or dis-
the following
J.A.L. v. E.I'.II.
CU...6U ".ld 1114 IPI.SuJKr. 19'1t11
Thu. nomin.tion u. based on ti,e (ad that
[J.A.L.] and I jointiy made the deeislon
that I should eonceive and bear a child that
we would then jointly raise. It is our
intention that [JAL.] will estubllsh (rom
birth a loving and parental relutionship
with the child. Furthennore, my child will
live with this adultJrom birth and will look
to her for guidance, support and affection.
It would be detrimenwl to my ehild to
deprive my child of this established rela-
tionship at a time when I am unable to
provide the security and eare ncce,sary to
my child's healthy development.
The second document prepared (or tile par.
ties was an Authorization ror Consent to
Medical Treatment of Minor, pennitting
J.A.L. to consent to medical or dental treat.
ment o( the child. The ottorney olso pre.
pared a Last Will and Testament (or each
party, providing ror the other party and the
child. E.P.H.'s will also included a clause
appointing JAL. as the. guardian or the
child, slating:
I have specifically and purposcfully named
[J AL.) as primary guardian or my child as
I intend (or the bond between my partner,
[J.A.L.], and my child to be o( primary
importance and strength. [J.A.L.] and I
jointiy decided that I would conceive and
bear my child. We 'illtcnd to rai,e the
child together as 0 ramily. It is my belief
thot the continuotion o( the parent-ehild
relationship between [J.A.L.] and my child
will be essential to my child's well-being,
and thot it will be in the c~.i1d's best inter-
ests to remain with [J.A.L.].
The final document prepared by the attorney
was a co-parenting agreement which set
forth the partie,' intention to raise the child
togcther, to share the financial responsibility
for the child, to make decisions ahout the
child jointly, and ror J.A.L. to become a de
furll) parent to the child. The agreement
.Iso provided that in the event or the parties'
separation, the)' would share custody, con-
tinuing to moke major decisions about the
child jointly and splitting the fin.ncial re.
sponsibility (or the child's support.
I. These documcnls \'o'ere rC'\'oked by [.P.IL after
.I
1'.. 1:117
Shortly h..ro", the ehili)'s hlrtli, the parth's
l'xecult~d UU~ nmnlnatlun of guardian. tlw au.
thorizallon ror cunsent to medical trcutnwnl
and the will..' J.A.L. l'l,rused ~l execute the
co. parenting agreement, which the attonll'Y
advised tite pmies WWl not en(oreeahle in
Pennsylvania.
After the birth, E.I'.II., J.A.L. and the
child lived together in the house owned hy
E.P.II. and J.A.L. E.P.H. was the primary
careh~ver to the child, hut J.A.L. assu.ted
with all sspecls or the care o( the baby,
particularly during the first few weeks after
the birth wltile E.P.H. recovered from a cae-
sarean section. J.A.L. also cared (or the
baby alone rrom time to time when E.P.H.
went out. During E.P.H.'s maternity leave,
JAL. prm;ded tile primary financial support
(or the household, and titroughout 1991 she
continued to prm;de the maJOIity or the
household's income hecause E.P.H. Initially
returned to work only part-time.
In late 1991, ,erious problems developed in
the relationship between E.P.II. aOlI J.A.L.,
and in the spring or 1992, E.P.H. len the
parties' home, uking the child \\ith her and
infonning J.A.L. that she intended to raise
the child as a single p.rent. For the rlrSt
year o( the ,eparation, by ah'l'eement o( the
parties, J.A.L. took the child ror vlsils twice a
week, one on a weekday afternoon and the
other (or 0 (ull day on the weekend. During
the second year or the separation, E.P.H.
reduced the visiL", still allowing one after-
noon visit per week, but limiting the rull-day
weekend visits to once every two weeks. On
the days o( her ,;sits, J.A.L. would pick up
the child, who was then one to two years old,
either from day care ((or the weekday vlsils)
or E.P.H.'s residence (for the weekend \isit.,)
and would return tile child In the evening.
During the ,isits, .J.A.L. would feed the child.
arrange Cor naps, provide" toys and acti\ilies,
and generally care ror the child. Both par.
ties te,tified that the child enjoyed and
looked rorward to these \islls and felt an
atuchment to J.A.L. E.P.II. also testified
that the child ha., similar visits lInd relation.
ships w;th other adult "special rriends."
Ihe p3rtic'lo' lcparntlun.
1318 ra.
6S2 ATLANTIC IlEI'Onn;n, 2d SEllIES
In April, 1994, E.P.H. advised J.A.L. that
she no longer wished 10 have any conwet
whatsoover with JAL. and that she also
wished to end the visits between JAL. and
the child. E.P.H. testified that sho took this
action because she reltthat J.A.L. was trying
10 eswhUsh a parenwl relationship with the
child and 10 undennine E.P.H. as parent and
that this could be hllnorul 10 the child. AI.
though JAL. sought to continue seeing the
child, the parties were unable 10 come 10 any
agreement to continue J.A.L.'s visits, and in
Febnmry, 1995, J.A.L. Initiated this action
for partial cuslody.
In response 10 J.A.L.'s complaint for par.
tial custody, E.P.H. filed preliminary objec.
tions challenging J.A.L.'s swnding. Follow-
ing a hearing at which both Parties and
several other \litnesses testified, the trial
court granted the preliminary objections and
dismissed the complaint ror partial cuslody
based upon JAL.'s lack of swnding to bring
such an action. This appeal foUowed.
an adoptive purent of the chUd, she must be
viewed as II "third party" In her allempt 10
obtain partial custody and thus would have
standing to seek cuslody only if she slood In
loco parentis 10 the child. The court went on
to conclude that J.A.L. did not stand in loco
parentis 10 the child because E.r.H. never
Intended 10 grant her that status ard JAL.
understood that she wall considered only 10
be a friend, not a parent, or the child. Ac.
cordlngly, the triai court held that JAL.
lacked standing to seek partial eustody of the
child. We hold that the trial court's applica-
tion or the concept of Slanding in this cuslody
matter Was overly technical and mechanistic
and that it w... error 10 preclude J.A.L. from
seeking a judicial detenoination of her claim
ror partial custody of the child.
13-5] The concept of swnding, an ele-
ment of justiciability, is a rundamental one in
our jarispMldence: no matter will be adjudi-
cated by our court.. unless it Is brought by a
party aggrieved in that his or her rights have
been Invaded or infringed by the matter com-
plained of. lVilliam PCIIll ParkillU Garaue,
IlIc. v. City 4 Pittsbury", 4&1 ra. 168, 346
A.2d 269 (197.1); In re M.nue~ 2117 Pa.Super.
186, 429 A.2d 1162 (1981). The purpose or
this MIle is ta ensure that cases are present.
ed to the court by one haling a genuine, and
not merely a theoretical, tnterestln the mat.
ter. Thus the traditional test for standing Is
that the proponent of the action must have a
direct, substantial and immediate interest In
themallerathand.lVilliam PCIIII ParkillU
Garaue, IIIc. ". City of Pittsbury/4 su/lTo.
St'e nl.,o Cheslcr COlluty Childrru nlld Youth
Servieco v. Cllllllilluhall4 r>40 ra. 2.18, 6.16
A.2d 1:J.lii (1995) (Opinion in Support of ne-
vernal by Montemuro, J.). It is not enough
thutthe proponent merely share In the com-
moo inh.1rest of all citizenli in ensuring obedi.
(!Oee to Ollr laws. lei Issue:; of standing
thus require us to resolve "U,e basically sim-
ple problom of whether or not petttioner's
asserted Interest is in the circumstances de.
sening of legal proteclion." KC. Dalis, Ad-
McMillen v. McMillen, 529 Pa. 198, 202, 602 IIlilli.,tratil'e Lal<'. (19,,1) at 714, quotcd ill III
A.2d &15,847 (1992) (c1talion. omitled). rc ,lfellUrl. supra at 189, 429 A.2d at 11&1.
The trial court in this case detenoined that \ [6,71 In the area or ehild custody, prtnci-
because J.A.L. was neither a biological nur \['Ies of standing have been applied \lith par-
[2J In relielling the trial court's detenni-
naUon, we are mindful of our proper scope
and standard of review:
[tlhe scope of review of an appellate court
reviewing a child custody order is or the
broadest type; the appellate court Is not
bound by the deductions or inferences
made by the trial court rrom Its find in!.", of
raet, nor must the reliewing court accept a
finding that h... no competent evidence to
support It. However, this broad Scope or
review does not \lest in the re\iC\\ing court
the duty or the prtlilege or making its 01111
Independent detenoinallon. Thus, an ap-
pellate court Is empowered to detennine
whether the trial court's Incontrovertible
factual findings support its factual eonclu-
sion~. but it 013)' not intl11'fere \\;th those
conclusions unless thf!Y are unreasonable
in view or the trial court's ractual rlOdlngs;
and thus, represent a gross abuse of dis-
crellon.
.... '-.-'- .... ...
licular
dual flU:
of tilt! l'
aro Iiliv
to Ilrev,
main or
8trang-pt
8011 v. (
9t.Hl (I!J!
KiIlU. l'
Thus in
an actio
haling
E.U., _~
212. 6:J:j
COIHa'l
ra.~upe'
I
I
I
I
I
I
I
,
I
I
I
,
I
,
I
18] l.'
right to,
not Ule ()
ble rtght
also ansl
of the D
~~ 5311 ,
greatgra,
tial CUStl
grandchil
conduct,
has stOOl
nized as
cient to I
of eustad
has carel
Pa.Supor.
I'. Mr.\f"
926 (199.1
[9,101
this cont(
custody"
colorahle
existence
grants sl
2. \\'c nlll
668 A.:J
Court n'
proof in \
non.part'
men I of
sumplior1
lnslead I:
Ihough t
child, she must be
In her attempt to
thus would hove
nil' if she stood in
The court went on
not stand in loco
use E.I'.Il. never
status and J.A.L.
cunsldered only to
of the child. Ac-
held that J AL.
ia! custody of the
'a! court's applica-
ing in this custody
a! and mechanistic
eclude J.A.L. from
atlon or her claim
hild.
J.A.L. v. E.I'.II.
Cllla.6lU ".ld IJ ,<I IP..Sulwr. 19961
ticular scropulousness because they serve a allows the party to maintain an action to seek
dual purpose: not only to protect the interest vindication of his or her claimed rights. A
of the court system by ""suring that actions finding of a prima facle right sumelent to
are litigated by appropriate parties, but also establL<h standing does not arrect that party's
to prevent Intrusion Into the protected do. e\identiary burden: in order to be granted
main or the family by those who are merely full or partial custody, he or she must still
strangers, howcver well-meaning. See Jack- estahlhlh that such would be in the best
80lt v. Garland, 42~ l'a.Super. 378, 62:! A.2d interest of the child under the standards
9li~ (I!J<J:ll; Commonwealth ex rei. Ebl'i v. applicable to third parties.
Killg. 162 l'a.Super. 5a:I, 58 A.2d ~8~ (l9~8).
Thus In custody cases it has been held that
an action may be brought only by a person
having a "prima facie right to custody."
E,g., Van COlltren 11. IVell... 430 l'a.Super.
212, 63a A.2d 1214 (l9~a); Hel,,'1 1', 1/",;r
Count11 Childr'f!11 ami Youth S"r1';rf'IJ. 3,)9
I'a.~uper. 487, 51~ A.2d 45li (986).
standing, an ele-
undamental one in
ter will be a<\judi.
it is brought by a
or her rights have
y the matter com-
Purking Garage,
. 41J.1 I'a. 168, 346
.gel. 287 l'a.Super.
. The purpose of
cases are present.
ing 3 genuine, nnd
terest in the mat.
cst for standing Is
cUon must have a
nediate interest in
am Penn Parking
Pitts burgi, 8UPro.
hildren and Youth
&10 I'a. 258, 656
in Support of Re-
It is not enough
share In the com-
In ensuring obedi-
i:isues of standing
"the basically sim.
)r not petitioner's
circumstances de.
.. K.C. Dil\;s, Ad-
t 714. quoted in 10
4~9 A.2d at 1UJ.1.
[8J Biological parents have a prima facie
right to custody, but blolob~cal parenthood is
not the only source of such a right. Cogniza.
ble rights to seck full or partial custody may
also arise under statutes such as Chapter 53
of the Domestic Relations Code, 2;1 l'a.C.S.
~~ 5.11\ et seq. (pemitting grandparenL. and
greatgrandparents to seek visitation or par-
tial custody or their grandchildren or great
grandchildren), or by virtue of the parties'
conduct, as in cases where a third party who
has stood in loco parentis has been recog-
nized as possessing a prima faele right suffi.
elent to grant standIng to litigate questions
of custody of the child for whom he or she
has cared. See. e.g., R08ado 11. Di,,",. 425
l'a.Super. 155, 624 A.2d l~:l (I~~;l); KaMler
. 1'. MeMa},OI~ 433 l'a.Super. 290, 640 A.2d
926 (\994).
i;1! ctl~tody, princi-
I applied \\;th par-
[9,IOJ It is important to recognize that in
this context, the tem "prima facie right to
custody" means only that the party has a
colorable claim to custody of the child. The
existence of such a colorable claim to clIstody
grants standing only. In other words, It
2. We nale that In RoU'l~s \', Ru\\1t!s. S42 Pa. 4-13,
668 A.2d 126 (1995), the Penm)hania Supreme
Coun reexamined the appropriate standard of
proof In custody disputes bet.....een a parcnt and a
non-parent. The Opinion Announcing the Judg.
ment of the Court sought 10 abandon the pre.
sumptlon In favor of the parent In such C3SClrI,
Instead treating parcOIhood as a signlfkanl. al.
though not paramount, factor In dClt'nnining
.-.._---_..~---~... --'--." .-....
I'a. 1319
[1\] Thus the use or the tom "prima
faele right to custody" in a standing inquiry
must be distinguished from the Use of that
tem In the context of detemlnlng custody
rights as between a parent and a non.parent.
In this latter conte.,t, the natural parent's
prima faele right to custody has the effect of
increasing the e\;dentiary burden on the
non-pa,'ent seeking custody. Ellerbe v.
/looks. 490 Po. 3lj;J, 416 A.2d 512 (\980); III
re Hm.allde:. 2~9 l'a,Super. 274, 376 A.2d
6.t8 (1977). S,'e CUll/pbell v. Campbel~ 448
l'a.Super. 640, lj72 A.2d B:l5 (\996) (natural
mother confused principles of standing with
standard to be applied in deciding custody
dispute); IVolkcllsteill 11. IValken8tei... 4~3
l'a.Super. 6B:l, 61);1 A.2d 178 (1995) (same).
Appropriate deference to the parent's right
to custody thus does not require that all
third parties be denied standing, or even that
standing roles he applied in an overly strin.
gent manner; the Increased burden of proof
required of third parties seeking custody
rights provides an additional layer of protec-
tion for the parent. Sec Kelloqq v. Kellogg,
435 l'a.Super. 581, 531Hl8, IJ.Ilj A.2d 12~lj,
1249 (\994); (third parties who establish
standing by virtue of in loeo parelltis are not
elevated to status of natw'a! parent in deter-
mining merits of custody dispute); Comma".
weal/h ex reI. Patrieia LP. v. Malbert J.F.,
278 l'a,Super. a.l:!, 420 A.2d 572 (1980)
(same).'
'j
l
[12J The in loco parentis basis for stand.
ing recognizes that the need to guard the
custody. /J. al 4~b-48, 668 A.2d at 128. ThaI
view. howc\'t:r. failed to commJnd a majority of
the court, and as a rcsuh, EUtrbt. supra, which
recognized the presumption. remains the law of
this Commonwealth. Ste MolllJudtr II. Olinda.
450 Pa.Supcr. 247. - n, I, 675 A.ld 753. 755
n. I (1996). Diclum by this coun in Camp/Jell,
l/lpra, suggesting thai Ran'h's changed the ,Ian.
1320 Pa.
6S2 ATLANTIC ItEI'OltTElt, 2d liEltlES
family from Inlnlsions by third putties audlo wilh the child, have often bl'l'n llSStlllWfl with.
protect the rights of the natural parent must out discusliiun to h:wl! 8tanllillK tu Heck u
be tempered by the paramount need W pro- continued relalion,hip \\;th the child ulxm
tectthe child's best Intcre,t. Thus, while it the tt'mlinalion o( Ule relalionship between
Is presumed that a child's best interest is the .tep-parents. S", e.g., COII/II/ol/It'eoltl,
served by maintaining the (amily's privacy fr roL Patricia i..F. I'. Mil/bot J.F., SUPI'O
and autonomy, that presumption must give (considering. but denying on the merit." step.
way where the child has established strong par"nl'iclalm ror custody); AUII/al/ I'. Ea.l~
psychological bonds \\;th a person who. 01. . 22R Pa:!>up"r: 2.12, 323 A.2d D~ (lD:~) (sanfu).
though not a biological parent, hus lived \\;th Where the issue of a step-parent's 8laniJiiig
the child and provided cure, nurture, ami has been direclly addressed by this court,
afTection, ..sumlng In the child', eye a stat- standing ha., been (ound to exi,t because the
ure like that of a parent. Where such a step-parent.' stood In loco purentls to the
relationshJp Is shown, our courts recognize child or child:~~ _I~ que~~I~~. _ K;:"lfr v.
that the child's best Interest requires thut the !\/~I1!!./~ol~ supro; Spells v. Spells, 250
third party be granwd standing so .. to huve Pa.S~p'e~._HiB,.~~8_~~~8!D~I_~~~.u_ ___.
the opportunity to Iitlgute (ully the Issue of
wheUler that relationship should be main.
lalned even Over a natural parent's objee.
tions.
I:
113] Although the requirement of in loco
parentis slatus (or third parties seeking child
custody rights is orten slated as though it
wer)'. a .rigid rule,.i! I~. i!l1pOl:lunt.lo view the
slandard in light of the pl1l'JxlRe or st.,nd!ng
principles generally: to ensure that aclions
are brought only by those \\;th a genuine,
subslantial Inwrest. When so viewed, It Is
apparent that the sho,ving necessary to es.
labllsh In loco parentis slatus must In ract be
Oexible and dependent upon the particular
facts of the case. Thus, while unrelated
dhird parties are 'only rarely found to stand
In loco parentis, step.parents, who by 11\'lng
in a ramily setting \\ith the child or a spouse
have developed a parent.llke relationship
dllrd or proor In such cases Is nul binding upon
this CaU" or the trial (auns. Morcovt'f, c,'cn if
the position espoused by the lead opinion in
Rowl.:s becomes law. the more: nc,iblc :!itandanJ
cmplo)cd In Ih;)l case would sliIl groml soml.!
special protection to Ihe parent in custody dis.
pules wilh non. parents.
3. See gelleral/y, Katherine T. Dal1lell. Rt'r/llu!lIIJ.:
P~rc,u/IOOd cJj 411 EtcllUil'e Stat.u: Tilt' Need (lJr
!..Igal AlttmQt'\'tt U1/t'11 "'t' fwPIll,: of ,IIl' Nllell"
or FaIP/'t.v lias Failed. 70 Va.LRcv. 879 098.-);
Nancy O. polikorr. TI.is elu/d Does lIa\'e Tim
Mot/lln: Redl!(hrillg PartntlwoJ lu .\It'l" ,,,.:
Nttdl of CI.i/tlrtn III U.fblan-.\lm/lt!f Qud Otllt',
NfJMlrtJdllimra( Famllie.s, 78 Gro,lJ. 459 (191)0);
Elizabeth A. Delaney. Statuto')' Pmtt'Ctlrm of tllr~
In addition, we ha\'e suggested that where
a petitlon"r who Is not biolOgically reluted to
the child but hus e,tablished a parent.like
relationship \\ith the child seeks not to sup.
plant the natural parent, hut only to maintain
his relallonship \\ith the child Ulrough rea-
sonable visitation or partial custody, his bur.
den to eSlablish standing Is eusier to meet.
Sf'f Cmml1mlll'rnltlt ex fr". Patririu L.F. l'.
}tn/bat JP.. 8/11'1'0 al34f>-~4R. 4~iTiE'lfiit-
674.
[14J In today's sodety, where increased / r.
mobility, changes In social mores and in. l.,.y
creased Indhidual rreedom have created a /
\\ide spectmm or arrangement.. filling the "
role or the traditional nucleul' ramily, Oexiblli-
ty In the.appll~allo.n.or.~tnnding principles Is
. required in order to adapt those principles to
the Interest., or each partlculac child.' We
do not suggest abandonment or the mle that
Olher Mo/Ile'r: f....gLllly Rl'W/:,.,:.ItIJ: ti,e! RdoJlIIm.
slup Dc:tU't'ttl t'le! Mmhiologif.:'ll U\/J1ll1I PII'-C/lt
and IItr Cllild. 4] Ha...linlslJ. 177 (1991).
COllns In SCleral of our sisler Slates \\hich
ha\ c addrc...scd thc issue of Ihc standing of nOll.
biological p."rcnl.s h..ne conduded Ihal proler.:lion
of Ihe be"'l InlcreSI uf Ihe child rna~ require Ihal
lradillonal .slalldin~ cnm:cpl... be .,dapll'd 10 HI
modem social pallcms. Sc'e e,g" A.c. t'. C.D.,
IIJ N..\1. 581, 829 P.2d 660 (CI.App.ICJ921 Hor.
mer lesbian partner.... ht) hold rnlen'd Inlo oral
cOIHlrcmins algfremenl had colorable claim In
jolnl Il.'gal cWHody und lime. sharing of panner's
biulugicOlI child); /" fC till.' e,utod\" of II.S./I._I;.:
1I"lt:.moJ1t \/. Knott. Ill} Wis,2J 649, 533 N.\\'.2d
419 (1995) Call hough fonner Ie...bian panner d~s
not 1111.'1.'1 rcquiremenl5 of vhilalion 5lalutc, wurt
'-
a Jl~tititJll
Iy reluted
/ that a J
forged II..
er, We hlJ
lived with
a rarnily ,
or a nantl
tlonship \
partlcip:il'
parent 101
mining wi
Additional
rights are
Inlnlsion
considcrl'f
been mac!t
As the
noted, app
Ing. if at :
stood In
However.
that stand
thus ahlHil'
swnding II
tody.
liS] Tli
clearly Ind
lived togel
friends, bu
many year
E.P.H.'s 0\
may dr.-Ief
bc~i Intcn'
lionship Oil
ing 51ale
biological
Reagan. 2::
(1990) (un,
biologkall
~Ianding t.
binlugkall
spite co.pa'
4, DUlh p.Jl
conddert'd
"s('wnd p.
In Penn!i~ h
adopliuns l
ril!hlS ur I!
Sc'1.' gmtra/.
uf ClulJ b\
119~5). Th
that where
y related to
parent. like
not to 6Up-
to maintain
hrough rea-
dy. his bur-
ier to meet.
ricin L.F. t'.
4iilA.2d at
re increased 7 ",1;-
Ires nnd In- ~ ":.
'e created n (
filling the \
mlly, nexibill- \
p.inclples Is
principles to
C child.' ..We
the rule that
r ~t;lles which
tanding or non.
that protection
l:JY require thai
.dapted to fil
., A.C v. CB.
.App.1992) ([or-
olered Into oral
arabIc claim 10
nil of pa.rtner's
dv ol//.S.//.-1:.:
~9. 5ll N.W.ld
ian partner does
on slatule, court
J"\.L. v. E.I'.II.
CIl. AI ,1.1 ".ld 1114 (r..SUINf. 19'161
1'0. 1321
,
a petitioner for cu,tody who ill not bloh)b~,al-
Iy related to the chilli in 'l\H'lilinn must pro\'e
,/ Utat a parent-like relation, hip has been
forged thMogh the pnrUes' condoct. 1I0wev-
er, we hold th.t the fact that the petltlo",'r
lived with the child and the natural pnrent in
a family .etting, whether a traditlon.l family
or a nontraditional one, and developed a rela-
tionship with the child as a result of the
pnrUclpatlon and aC9uleRCencc Qf the natural
parent must be iin Important ractor In deter-
mining whether the petitioner has 6tanding.
Additionally, where only limited custody
right.. nre 60ught, the limited nature of the
Inlntslon into the blologic:d family must be
considered in deciding whether 6tanding has
been made out.
As the trial court In this cuse properly
noted, appeliant J.A.L. can be granted stand-
Ing, If at all, only as a third party who has
.tood in loco parentis to E.P.II.'. child.
1I0wever, the trial court erred in appl)ing
that .tandnrd to the fact.. of this cuse and
thus abused it.. discretion In denying J.A.L.
.tanding to pursue her claim for partial cus-
tody.
1I51 The raclll as found by the trial court
clearly indicate that E.P.II. and J.A.L. had
lived together not merely 3S roommates or
friends, but ... a nontraditional family, ror
many years before the birth of the child.
E.P.II.'s own testimony establishes that 01-
may determine whether visitation Is In child's
best interest ir petitioner pro\'es parent.like rela-
tionship and signifil.:ant trigllcring e\'cnt juslHy.
Ing state Inteo'ention in relalionshlp between
biological parent Bnd child). Dut Sit ('miatt v.
R,ara... III CaLApp.3d 1597. l71 CaLRplr. 510
(1990) (under slatutory definilion of parent, non-
biological parent in same.se' relationship had no
standing to seek cU!!ilodylvlsilation of panner's
biological child conceived during relationship de-
spite co-parenting agreement).
4. BOlh panics testlOed that adoption was nnt
considered because the legal validity of sOI:h
"!tecuml parent" ado pi ions had not been tested
in Pennsyh:ania and many states hold that such
adoptions cannot So rorward unless the parental
rights of the biological mother are tenninated.
Set gtJltratl.\'. Sonja Larsen. ..'nnotatlon. Adoption
of C/utJ b.... Sl1.ltIt-St.t Pl1.rtlltrs. 27 A.L.R. Slh 54
(1995). The panics tcstiried that such adoplions
though slw hat! lung wbhet! to ha\'l! u child,
she dill nul dn HI) unUI J.A.L. Ub'Tectl, unll
thereaner the parties acted together to make
arrangement.' for the artlflciallnsemlnations.
The Inc.capable conclusion to be dra\lll from
this evidence I. that in both E.P.II.'. and
J.A.L.'. mind., the child wa. to be a member
of their nontraditional family, the child of
both of them and not merely the offspring of
E.P.H. as a .Ingle parent. This Intention I.
borne out by the documen\., executed by the
parties berore the child'. birth and by
E.P.H.'s conduct in giving the child J.A.L.'s
surname a. a middle name on the birth cer-
tincate. Clearly, the parties contemplated
that J.A.L. would be in a parent-like relation-
ship \lith the child and took some pains to
fonnalize that relationship to the extent le-
gally possible.'
The parties' conduct aner the child's birth
and before their separation further estab-
lishes their efrorts to create a parent-like
relationship between J.A.L. and the child.
J.A.L. participated In caring for the child to
the same extent as the primary bread,vinner
In many traditional families. The fact that
E.P.H. w... the chlld's primary caregiver, or
that other friends also helped out \lith the
new baby, does not diminish the fact that
J.A.L. lived \lith the child for the fll'St ten
months of IIll life, acting as a parenting part.
-ner to the child's mother and creating the
are not now uncommon In Philadelphia. We
note, however, lh.atthe appellate couns or the
commonwealth still have not 'po ken on their
validity. We do not find the failure to pursue
this option as detracting in any way from the
e\'ldencc of the panics' dfom to fonnalize the
relatiunship between J.A.L. and the child.
Similarly. we do not find J.A.L:, refusal to
c:\ccute the drah co.parenling agreement a sum-
cient basis upon whh:h to ddcat her claim or
slanding to seek panlal custody. J.A.L. was ad.
vhed that the agreement would not be cnroree.
able. and her Slated reason ror rdusing to sign
the agreement was lhal It was wonhlcss. Noth.
Ing In her conduct at the lime the drah was
presented to her or thercahcr Indicated thaI she
declined to sign the agreement becawe she did
not wish to cnh:r Into a parent-child relationship
with E.P .H.', child,
1322 Pa.
6H2 ATLANTIC IlEPOltTEIl. 2d SEIlIES
opportunity ror bonding to occor.' This ear.
Iy contact was reinforced hy vi.ilJl after the
parties' separation, ViHitS which occurred
\lith a rrequency and regularity similsr to
that or post.separatlon villit.. hy many non.
custodial natural parents and thus must be
eonsldered adequate to maintaln any bond
previously created. The .-idence at trial
clearly established that J.A.L. has shown a
constant, sincere Interest In the child, and
that the child recognizes J.A.L. an a signifi.
cant person In her life.
(16] We have no difficulty in concluding
that these racts sufficiently estahllsh a par.
ent.llke relationship between J.A.L. and the
child to grant J .A.L. standing to pursue the
partial custody rights she seeks. The trial
court placed great emphasis on E.P.H.'s suh.
jectlve thought processes, noting that E.P.H.
had douhts as to whether J.A.L. really want.
ed the child and that upon the parties' sepa.
ration, E.P.H. Intended to raise the child as a
single parent, \lith J.A.L. assuming a status
of "special friend." E.P.H.'s douhts and
post-separation intentions, however, are ir-
relevant to the question of whether the par.
ties by their conduct created a parent.lIke
relationship between J.A.L. and the child
which Is sufficient to give J.A.L. standing to
seek continued contact ,vith her. E.P.H.'s
rights as the biological parent do not extcnd
to erasing a relationship between her partner
and her child which she voluntarily created
and actively rostered simply hecause nJ1.er
5. The suggestion by E,P.H. that the (act that
J.A.L. lived with the child Cor only ten months
precludes her from having in loco parentis slatus
Is meritless. The ten months that J.A.L. 1i..,ccJ in
a (amily setting with E.P.H. and the child consti.
tuted the child's entire life to that point. S~t
\Vi/SOIl t'. \\IU.san, 400 Pa.Super. 473. 476-78,
594 A.2d 717, 719 (1991) (fosler parents were
not barred from establishing in loco parentb
status despite short period of lime {under two
ycars} of child's placement with them where
child had been in tJJC for less than two years).
6. The trial court aho opined thai J.A.L.'s dfort to
establish In loco parenlis stalUs must fail because
E.P.H. did not wish her to have a parent.like
status. The trial court correctlv noted that a
third party cannot place himself in loco parentis
status In defiance of the parcnt's wishes and the
parent/child relationship, Grad\\'dl ~'. SlraUHer.
the pllrlit!S' 8l'IJUration silt! rt'b'Tetted ha\'ing
done MO,'
We hold that the evidence or record in this
matter, particularly the e,idence that J.A.L.
and the child were co.memhers or. nontradl.
tional family, Is sufficient to establish that
J .A.L. stood in loco parentis to the child and
therefore has standing to seek partial custo.
dy. Accordingly, we remand for a full custo.
dy hearing to determine whether partial cus.
tody by J.A.L. Is in the child's hest Interest.'
Order reversed. Case remanded ror fur.
ther proceedings consistent \lith this Opin.
Ion. Jurisdiction ill relinquished.
isml wi
u near '.
med I'
Comm,
lti9, JI
motion
firmed
school
wealth
Senior
author
in an
lrial Ct
on the
discret
peal U\
limit.
A
1. Int,
C
where
liccnsl
Ing wi
suppo:
whelh
error
2. Ad
R
ter\'er
ated l'
Pa.C.:
3. Ad
.
o tIUIlll"!lnml'"
ntck SNYDEIl~IAN and the School
District of Philadelphia
".
The PE:o.'XSYLVA.'iIA LIQUOR
CONTIlOL BOARD and World
Beat Restaurants, Inc.
The School District or Philadelphia,
Appellant.
Commonwealth Court of Pennsylvania.
Suhmltted on Briers June 21, ID96.
Decided Aug. 30, IDD6.
The Pennsyll'ania Liquor Control Board
approved transfer of a liquor license to premo
41b Pa.Super, 118.610 A.2d 999 (19921. Huw.
ever, the record In this case clearly establishes
that, at the lime of the child's birth, E.P.H.
wished JAL. to alisume a parertal stalus, and
facilitated the development of a parent.child
bond bet.....een J.A.L. and the baby, The only
c\idence of E.P.H:s wish to prevent J.A.L. from
funher de\"Cloping this bond relates to the periud
following the parties' separalion. Thus J.A.L.'s
relationship with the t,;hild was not created In
ddiant,;c of the biolugkal parent's rights or
wishes.
lion n
only'
peals
~. AC
7. We emphasizc ont.e again Ihat our determlna.
lion today docs not change the standard IIpplica-
ble to J.A.L.'s claim for pania! custody as against
the child's bioloij:ical p;m~nl. J.A.L., ahhough in
loco parcntis (or standing purposes. remains a
Ihird party for purposes of evaluallng her claim
(or partial cu~tody. Kdlogg v. KdluJ:J.:, Jllpr/.l.
In
cess
Cont:
discr
b. Larry V. Hockenberry: Will also testify regarding extensive involvement in
child's life.
c. Jennifer L. Soto: Will testify regarding the extended amounts of time the
minor child spent with the petitioners.
d. Barbara Scott: Will testifY regarding the consistent times she has witnessed
the petitioner, Ella I. Hockenberry, pick up the minor child from the
respondent's home.
e. Clarence Baum: Will testify about the amount of time the respondent spent
with the minor child verses the amount of time the petitioners spent with
the child.
III. THE LAW:
The petitioners, by and through their attorney, Rebecca R. Hughes, Esquire, acknowledge
their burden of proof to establish in loco parentis in order to proceed with both the Petition for
Special Relief and the Petition for Custody. The petitioners are third panies to this action,
although a distant familial relationship exists. The petitioners will be presenting substantial
testimony to establish their status in loco parentis with the minor child at issue, and are hopeful
that this Memorandum of Law will assist the Coun in its decision.
The law is clear that in order for a third pany to proceed in a custody action, the pany
needs a colorable claim to custody of the child. JAL. v. E.P.H., _ Pa. Super _' 682 A.2d
1314 (1996). In situations where an individual, or individuals, have been so greatly
2
could be more cruel than the forcible separation of a child from either its
real or foster parents by whom it has been lovingly caree! for and to whom
it is bound by strong ties of affection. Commonwealth ex reI. Kraus v.
Kraus. 185 Pa. Super 167,138 A.2d 225 (1958).
This law is being presented to this Honorable Court in an effort to claritY the purpose of
much of the testimony which will be presented on March 3, 1997. It is the position of the
petitioners that, based upon their past involvement with the minor child, testimony of which will
be presented at the hearing, status in loco parentis has been established between the petitioners
and the minor child.
IV. POSITION OF PETITIONERS
The petitioners, Ella and Larry Hockenberry, have acted in loco parentis to the minor child
since the child was less than one year old. The minor child is 4Y:z years old, and her date of birth is
August II, 1992. The petitioners have been the primary caregivers of the child since June, 1994,
by having physical custody of her almost everyday since that date.
The respondent, Denise Baum, has been unable to provide any stability to the minor child
literally since birth. Now at age 4Y:z, the respondent has suddenly changed the primary caregiver
and taken away the stability the child previously enjoyed.
The petitioners feel that until a full hearing on the merits, or until Illrther Order of Court,
the previous custody schedule should be ordered. The previous schedule gllvc primllry physical
4
LARRY V. HOCKENBERRY nnd
ELLA I. HOCKENBERRY,
Petitioners
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNlY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
DENISE BAUM,
97-016 CIVIL TERM
Respondent
IN CUSTODY
PRE-HEARING MEMORANDUM
I. PROCEDURAL HISTORY:
This case is coming before this Court on the petitioners' Petition for Special Relief and
Petition for Custody. Currently, a hearing on the Petition for Special Relief is set for MondllY,
March 3, 1997 at 9:00 a.m. The factual issues which shall be presented by the petitioners to the
Court include the following:
a. Whether the petitioners have acted in loco parentis to the minor child who is
the subject of the petition; and
b. Whether the previous custody arrangement between the parties should be
reinstituted until further Order of Court.
II. WITNESSES:
a. Ella I. Hockenberry: Will testify in detail regarding the amount of time she
and her husband spent with the minor child.
involved in a minor child's life, the Court may find that this third party has established in loco
parentis, and therefore, has a colorable claim to custody of the child.
The phrase 'in loco parentis' refers to a person who puts himselflherself in
the situation of assuming the obligation incident to the parental relationship
without going through the fonnality of a legal adoption. The status of ' in
loco parentis' embodies these two ideas: first, the assumption of a parental
status, and second, the discharge of parental duties.
Rosado v. Diaz. 425 Pa. Super at 161,624 A.2d at 196 (1993), Citing Commonwealth ex reI.
Morgan v. Smith. 429 Pa. 561,241 A.2d 531,533 (1968).
"The right; and obligations arising out of the in loco parentis relationship are exactly the
same as those arising between parent and child." Kamer v. McMahon. 433 Pa. Super 290, 640
A.2d 926 (1994). In J.A.L. v. E.P.H.. 682 A.2d 1314 (1996), the Court noted that in today's
changing social mores, various arrangements are made to fill the role of the traditional family.
Because of this, the standing principles must be adjusted to adapt to these changing principles.
Therefore, the development of a relationship between a child and a third party pursuant to the
"participation and acquiescence of the natural parent must be an important factor in detennining
whether the petitioner has standing." Id. at 1321. The Superior Court in Rosado v. Diaz. 425 Pa.
Super at 161, 624 A.2d at 196 (1993), was particularly careful to note the following:
In retrospect [the child] resembles a young tree whose roots have not yet
taken deep hold in the nourishing earth, but when a child is much beyond
the age of two (2) years, it becomes strongly attached to those who stand
in parental relationship to it and who have tenderly cared for it. Its bonds
of affection have become so strong that to sunder them suddenly may result
in not only the child's unhappiness but also in its physical injury. Nothing
3
could be more cruel than the forcible separation of a child from either its
real or foster parents by whom it has been lovingly cared for and to whom
it is bound by strong ties of affection. Commonwealth ex reI. Kraus v.
Kraus. 185 Pa. Super 167,138 A.2d 225 (1958).
This law is being presented to this Honorable Court in an effort to clarity the purpose of
much of the testimony which will be presented on March 3, 1997. It is the position of the
petitioners that, based upon their past involvement with the minor child, testimony of which will
be presented at the hearing, status in loco parentis has been established between the petitioners
and the minor child.
IV. POSITION OF PETITIONERS
The petitioners, Ella and Larry Hockenberry, have acted in loco parentis to the minor child
since the child was less than one year old. The minor child is 4V, years old, and her date of birth is
August II, 1992. The petitioners have been the primary caregivers of the child since June, 1994,
by having physical custody of her almost everyday since that date.
The respondent, Denise Baum, has been unable to provide any stability to the minor child
literally since birth. Now at age 4\1" the respondent has suddenly changed the primary caregiver
and taken away the stability the child previously enjoyed.
The petitioners feel that until a full hearing on the merits, or until further Order of Court,
the previous custody schedule should be ordered. The previous schedule gave prinwy physical
4
custody to the petitioners with periods of panial physical custody approximately one night every
two weeks. If the respondent desires more time with the minor child, the petitioners are asking
that the time be increased gradually and consistently to allow adjustment for the minor child.
Respectfully submitted,
IRWIN, McKNIGHT & HUGHES
By:
Rebecca R. Hug les, Esqui
60 West Pomfret Street
Carlisle. PA 17013
717-249-2353
Supreme Coun I. D. No: 67212
Attorney for the Petitioners,
Larry V. Hockenberry and
Ella I. Hockenberry
5
I
t
,
~ERTJFICATE OF SERVICE
I, Rebecca R. Hughes, Esquire, do hereby certify that J have served a true and correct
copy of the foregoing Memorandum of Law upon counsel for the respondent by placing it in the
United States Mail, first class postage prepaid in Carlisle, Pennsylvania 17013 upon the following:
Michael A. Scherer, Esquire
O'BRIEN, BARIC & SCHERER
17 West South Street
Carlisle, Pennsylvania 170 I 3
By: tL
ebecca R. Hughes, Esquir
Attorney for Petitioners
Date: 02./,1 9
,
,1997
I
LARRY V. HOCKENBERRY and
ELLA I. HOCKENBERRY,
Petitioners
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
DENISE BAUM,
97-016 CIVIL TERM
Respondent
IN CUSTODY
PRE-HEARING MEMORANDUM
This case is coming before this Court on the petitioners' Petition for Special Relief and
Petition for Custody. Currently, a hearing on the Petition for Special Relief is set for Monday,
March 3, 1997 at 9:00 a.m. The factual issues which shall be presented by the petitioners to the
Court include the following:
a. Whether the petitioners have acted in loco parentis to the minor child who is
the subject of the petition; and
b. Whether the previous custody arrangement between the parties should be
reinstituted until further Order of Court.
I. PROCEDURAL HISTORY:
II. WITNESSES:
a. Ella I. Hockenberry: Will testifY in detail regarding the amount of time she
and her husband spent with the minor child.
b. Larry V. Hockenberry: Will also testilY regarding extensive involvement in
child's life.
c. Jennifer L. Soto: Will testilY regarding the extended amounts of time the
minor child spent with the petitioners.
d. Barbara Scott: Will testify regarding the consistent times she has witnessed
the petitioner, Ella I. Hockenberry, pick up the minor child from the
respondent's home.
e. Clarence Baum: Will testify about the amount of time the respondent spent
with the minor child verses the amount of time the petitioners spent with
the child.
lli. THE LAW:
The petitioners, by and through their attorney, Rebecca R. Hughes, Esquire, acknowledge
their burden of proof to establish in loco parentis in order to proceed with both the Petition for
Special Relief and the Petition for Custody. The petitioners are third parties to this action,
although a distant familial relationship exists. The petitioners will be presenting substantial
testimony to establish their status in loco parentis with the minor child at issue, and are hopeful
that this Memorandum of Law will assist the Court in its decision.
The law is clear that in order for a third party to proceed in a custody action, the party
needs a colorable claim to custody of the child. J.A.L. v. E.P H., _ Pa. Super -,682 A.2d
1314 (1996). In situations where an individual, or individuals, have been so greatly
2
involved in a minor child's life, the Court may find that this third party has established in loco
parentis, and therefore, has a colorable claim to custody of the child.
The phrase 'in loco parentis' refers to a person who puts himselfYherself in
the situation of assuming the obligation incident to the parental relationship
without going through the fonnaJity of a legal adoption. The status of ' in
loco parentis' embodies these two ideas: first, the assumption of a parental
statu~, and second, the discharge of parental duties.
Rosado v. Diaz. 425 Pa. Super at 161,624 A.2d at 196 (1993), Citina Commonwealth ex reI.
Morgan v, Smith. 429 Pa, 561, 241 A.2d 531, 533 (1968),
"The rights and obligations arising out of the in loco parentis relationship are exactly the
same as those arising between parent and child." Kamer v, McMahon. 433 Pa. Super 290, 640
A.2d 926 (1994). In J.A.L. v. E.P.H.. 682 A.2d 1314 (1996), the Court noted that in today's
changing social mores, various arrangements are made to fill the role of the traditional family.
Because of this, the standing principles must be adjusted to adapt to these changing principles.
Therefore, the development of a relationship between a child and a third party pursuant to the
"participation and acquiescence of the natural parent must be an important factor in detennining
whether the petitioner has standing." rd. at 1321. The Superior Court in Rosado v, Diaz. 425 Pa.
Super at 161, 624 A.2d at 196 (1993), was particularly careful to note the following:
In retrospect [the child] resembles a young tree whose roots have not yet
taken deep hold in the nourishing earth, but when a child is much beyond
the age of two (2) years, it becomes strongly attached to those who stand
in parental relationship to it and who have tenderly cared for it. Its bonds
of affection have become so strong that to sunder them suddenly may result
in not only the child's unhappiness but also in its physical injury. Nothing
3
could be more cruel than the forcible separation of a child from either its
real or foster parents by whom it has been lovingly cared for and to whom
it is bound by strong ties of affection. Commonwealth ex reI. Kraus v.
Kraus. 185 Pa. Super 167, 138 A.2d 225 (1958).
This law is being presented to this Honorable Court in an effort to clarifY the purpose of
much of the testimony which will be presented on March 3, 1997. It is the position of the
petitioners that, based upon their past involvement with the minor child, testimony of which will
be presented at the hearing, status in loco parentis has been established between the petitioners
and the minor child.
IV. POSITION OF PETITIONERS
The petitioners, Ella and Larry Hockenberry, have acted in loco parentis to the minor child
since the child was less than one year old. The minor child is 4'.1, years old, and her date of birth is
August II, 1992. The petitioners have been the primary caregivers of the child since June, 1994,
by having physical custody of her almost everyday since that date.
The respondent, Denise Baum, has been unable to provide any stability to the minor child
literally since birth. Now at age 4'/', the respondent has suddenly changed the primary caregiver
and taken away the stability the child previously enjoyed.
The petitioners feel that until a full hearing on the merits, or until further Order of Court,
the previous custody schedule should be ordered. The previous schedule gave primary physical
4
LARRY V. HOCKENBERRY and
ELLA J. HOCKENBERRY.
Petitioners
: IN TilE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY. PENNSYLVANIA
CIVIL ACTION - LAW
v.
DENISE BAUM,
97-016 CIVIL TERM
Respondent
IN CUSTODY
PRE-HEARING MEMORANDUM
I. PROCEDURAL HISTORY:
This case is coming before this Court on the petitioners' Petition for Special Relief and
Petition for Custody. Currently, a hearing on the Petition for Special Relief is set for Monday,
March 3. 1997 at 9:00 a.m. The factual issues which shall be presented by the petitioners to the
Court include the following:
a. Whether the petitioners have acted in loco parentis to the minor child who is
the subject of the petition; and
b. Whether the previous custody arrangement between the parties should be
reinstituted until further Order of Court.
II. WITNESSES:
a. Ella 1. Hockenberry: Will testify in detail regarding the amount oftime she
and her husband spent with the minor child.
custody to the petitioners with periods of panial physical custody approximately one night every
two weeks. If the respondent desires more time with the minor child, the petitioners are asking
that the time be increased gradually and consistently to allow adjustment for the minor child.
Respectfully submitted,
IRWIN, McKNIGHT & HUGHES
By:
fj? ila~(j? rII.. j)-
Rebecca R. Hughes, E~
60 West Pomfret Street
Carlisle, P A 17013
717-249-2353
Supreme Coun I. D. No: 67212
Attorney for the Petitioners,
Larry V. Hockenberry and
Ella I. Hockenberry
5
1
.
(
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10.
During the time that the minor child lived with the petitioners, the respondent saw the
minor child for approximately one-half hour during the week days. The respondent generally did
not see the child on weekends.
11.
At the end of 1993, the petitioners noticed that the minor child was not developing certain
verbal skills, and had the minor child tested medically.
12.
It was discovered, then, that the minor child is legally deaf, and now utilizes two hearing
aides.
13.
The petitioners followed through with the minor child's medical needs and took the minor
child to Polyclinic on a regular basis, approximately once a month.
14.
The petitioners have acted in loco parentis for the minor child since June, 1994, and have
taken care of all her needs since that date.
15.
The respondent, as the minor child's mother, receives Social Security Disability for the
minor child, however, has not contributed financially to the child's maintenance since June, 1994.
j
,
16.
On or about December 16, 1996, the respondent left the petitioners a note indicating that
she wanted to keep the minor child at her residence. Attached as Exhibit "A" is a copy of said
note.
17.
Also on December 16. 1996, the respondent kicked the petitioners out of her apartment,
and told the petitioners that they were not welcome.
18.
Children and Youth indicated to the petitioners that they would do a thorough
investigation and take the minor child from the respondent's home, but, to this date, have done
nothing to the petitioners' knowledge.
19.
There have been several incidents since December 16, 1996 which, again, clearly indicates
the respondent's inability to care for the child, including but not limited to the following:
a. On Christmas Day, a friend stopped to see the child, and
the door to the respondent's apartment was unlocked, and the
respondent and her 75-year-old grandmother (who lives with
her) were both sleeping. The minor child was, therefore,
unsupervised and unprotected;
b. Also, on Christmas Day, the respondent took the minor child to
the emergency room because she was sick, and, later that day,
the petitioners' daughter and son-in-law visited the minor child
and found her lying on the couch with nothing to drink or eat.
The doctor's instructions were to force fluids. The petitioners'
daughter and son-in-law gave her water and ice cream, which
the child drank and ate.
c. On December 26, 1996, the petitioners' daughter and son-in-law
stopped to check on the minor child, and the minor child came
out of the apartment and began running across the street to
greet them and the petitioners' son-in-law had to stop her from
going into the street.
d. The respondent continues to fail to feed and bath the child
properly while she is in her care, claiming that the child will
not eat for her, and also claiming that a bath is not necessary.
20.
The petitioners have been unable to see the minor child since December 16, 1996, and
Children and Youth have not provided any reports or any indication that the child will be removed
from the respondent's home.
21.
The petitioners are the parents of two (2) children, James R. Hockenberry, date of birth,
March 4, 1973 (23 years of age) and Jennifer L. Soto, date of birth, June 27, 1977 (19 years of
age). The petitioners' son is currently studying for his masters in engineering at MIT with
intentions to receive his doctorate, and the petitioners' daughter is currently in the School of
Environmental Science and Forestry studying landscape architecture.
22.
The petitioners are very capable of caring for the minor child, and are most familiar with
her handicap and her current needs.
23.
The respondent is unable to care for the minor child's basic needs, and has evidenced this
on several occasions, including but not limited to the following:
a. Inability to feed and change diapers appropriately, as an infant;
b. Inability to supervise the child, particularly given the child's handicap;
c. Allowing the child to run out into the street on North Pitt Street,
and not keeping the door to her residence locked;
d. Failure to follow through with medication for the minor child;
e. Inability to follow through with the child's developmental needs,
such as reading and learning sign language;
f Inability to follow instructions from the minor child's teacher at
school; and
g. On several occasions, the respondent has disappeared for a number
of days.
24.
The respondent has often chosen to be with individuals who may be dangerous to the
child, including leaving the child with strangers.
I
t
25.
Because of the high involvement of the petitioners in the life of the minor child, they have
acted in loco parentis for approximately three (3) years, and are therefore requesting that standing
be granted to them for custody rights of the minor child.
WHEREFORE, the petitioners respectfully request that custody of the minor child be
granted to them, with periods of supervised visitation to the respondent.
Respectfully submitted,
I
,
L
IRWIN, McKNIGHT & HUGHES
Rebecca R. Hughes, Esqui~
Attorney for the Petitioners
60 West Pomfret Street
Carlisle, Pennsylvania 17013
717-249-2353
Supreme Court I.D. No. 67212
Date: January 2, 1997
I
I Svd..
,
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LARRY V. HOCKENBERRY amI
ELLA I. HOCKENBERRY.
Petitioners
IN TilE COURT OF COMMON PLEAS OF
CUMBERI.AND COUNTY. PENNSYLVANIA
vs.
97.0016 CIVIl.
DENISE BAUM.
Respondent
CIVIL ACTION. LAW
MEMORANDUM Ol'lNlON AND ORDER
This is a custody action involving a lillle girl named Lillie Baum, horn on August II.
1992. The petitioners seck. at the least, the relationship which they enjoyed with the child prior
to Decemher 16, 191)6, which was tantamount to primary physical custody. The respondent. the
natural mother of the child. is Mrs. Ilockenherry's niece. This mailer is helilre the court on a
petition for special relief. A conciliation conference has heen scheduled I<lr the near fUlure,
The facts arc essentially undisputed. Ms. Baum had some difficulty raising Lillie as a
hahy. She was not particularly skilled in the areas of infant nutrition and hygiene. Mrs.
Hockenherry. with Ms. Baum's acquiescence, stepped in to fill the void. Over the ensuing
months and years. Lillie came to he more and more the Hoekenherrys' child. By the middle of
1996 the child was living with the Hoekenherrys and saw her mother only hrielly after school and
occasionally on the weekends.
In the middle of Deeemher 1996, Ms. Baum, frustrated with this state of affairs, hegan to
retain custody of her child. She has permilled Lillie to visit with the Hoekenherrys. however, for
each of the past nine weekends. Ms. Baum expresses satisfaction with this arrangement.
According to the Hoekenherrys. Lillie expresses some reluctance 10 he returned to her mother at
the end of the weekend. Both Ms. Baum and Lillie have mental and/or physical challenges, the
discussion of which is more germane to the underlying custody action and will not he discussed in
detail here.
-
'17-0016 CIVIL TERM
The Iloekenhnrys have filed a petition I<'r l'ml'rgl'nl)' rdief in whidl tlll'Y relluestthat.
pending conciliation, their custody of Lillie Ill' restored to the status quo amll'. Ms. Ilaulll
counters that the plaintiffs do not have standing in this case heeause they arc ml're third parties.
In Rowles v. Rowles. No. 41)1)2 Civil 1)5 (Pa. N,lV, 21), 11)1)5) wnw members of an evcnly
divided Supreme Court would have held that natural parents no longer have the upper hand in
custody battles with third parties, This case notwithstanding, we bdieve the instant dispute to be
governed by the principles set out in J.AI.. v. E.P.H., _ Pa.Super._. 6H2 A2d 1314 (11)1)4),
That case dealt with the standing in a custody case of the mother's former female domestic
partner. Therein, Judge Beck was careful to draw the distinction hetween the evidentiary hurden
on the non-parent seeking eustodv and the question of whether a non-parent has standinj!, In
the former context, the natural parent's prima facie right to custody has the effect of increasing
the evidentiary hurden on the non-parent seeking custody. Id, at 1311). Standing requires only
that there he a "eolorahle claim" to custody of the child. This could occur where a third party
has stood in loco parentis. hl As Judge Beck goes on to say:
Appropriate deference to the parent's right to
custody thus docs not require that all third parties
he denied standing, or even that standing rules he
applied in an overly stringent manner; the increased
hurden of proof required of third parties seeking
custody rights provides an additional layer of
protection for the parent....
The in loco parentis basis !ilr standing recognizes
that the need to guard the family from intrusions hy
third parties and to protect the rights of the natural
parent must he tempered hy the paramount need to
protect a child's best interest. Thus while it is
presumed that a child's hest interest is served by
maintaining the family's prival)' and autonomy, that
presumption must give way where the child has
established strong psychological bonds with a person
2
')7-0016 CIVIL TERM
who, although not a hiologkal parent, has liVl'd with
the child and provided l'all', nurture, and affection,
assuming in the child's eYl' a slature like thai of a
parent, Where such a relationship is shown, our
courts recognize that thl' ehild's hl'st interl'st
requires that the third party he granll'd standing so
as to have thl' opportunily 10 Ii ligate fully Ihl' issue
of whether that relalionship should he mainlained
eVl'n over a nalural parl'nt's ohjeetions,
In the case suh judice, there is no <Juestion that thl' 1I0ekenherrys' relationship with Lillie is in
loco parentis. They have provided her with food, clothing and shelter, overseen her day care and
subsequent education, and have nurtured her social and emotional development. The holding in
J.A.L. v, E.P.H., id" thus requires that they he gran led slanding in this case.
The grant of standing, however, docs not pretend upon the ultimate lluestion of whether
they should he granted custody or even partial custody. This will he determined in the eonlext of
addressing what is in Lillie's hest interest keeping in mind Ihat great deference will he given to
the natural mother, In the meantime, we do not helieve that an emergenl)' siluation has heen
created hy the mother's insistence on a greater role in the life of the child nor do we see a
compelling reason to disturh the current weekend visilation arrangements as this matter proceeds
to conciliation.
ORDER
AND NOW, this
7' day of March, 19')7, the petitioners arc granted leave to
continue this custody action. Their petition for special relief, however, is DENIED.
BY THE COURT,
.A)
3
(l~
LARRY V. HOCKENBERRY
and ELLA I. HOCKENBERRY,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
.
v
:CIVIL ACTION - LAW
.
.
DENISE BAUM,
Defendant
:NO: 97 - 016 CIVIL TERM
:IN CUSTODY
COURT ORDER
AND NOW, this z,r- day of March, 1997, upon consideration of the
attached Custody Conciliation Report, it is ordered and directed as
follows:
1. The natural Mother, Denise Baum, and the Maternal Great Aunt
and Uncle, Larry V. Hockenberry and Ella I. Hockenberry, shall
enjoy shared physical custody of Lillie M. Baum born August
11, 1992.
2. Physical custody shall be handled as follows:
A. On a two week alternating basis, the Hockenberrys shall
enjoy custody in the first week from Saturday at 1 :00
P.M. until Sunday at 7:00 P.M., on Tuesday from 4:00 P.M.
until Wednesday morning, on Thursday from 4:00 P.M. until
Friday morning and from Friday at 4:00 P.M. until Monday
at 7:00 P.M. On the second week, the Hockenberrys shall
enjoy physical custody from Thursday at 4:00 P.M. until
Friday morning and from Saturday at 1 :00 P.M. until
Sunday at 7:00 P.M.
B. The Mother, Denise Baum, shall enjoy physical custody of
the minor child at all times that the Hockenberrys do not
have custody as set forth in subparagraph A above.
C. The parties shall alternate major holidays to include New
Years Day, Easter, Memorial Day, July 4 and Labor Day.
D. The Mother shall always have custody on Christmas Day and
Christmas Eve, with the Hockenberrys to enjoy a Christmas
visit with the child when their family gets together and
at a time to be arranged between the parties.
E. The Hockenberrys shall always have custody of the minor
child on Good Friday.
F. Thanksgiving shall be split between the parties. If the
parties can't agree on a time frame, the time frame shall
be from 9:00 A.M. until 3:00 P.M. and 3:00 P.M. until
9:00 P.M., with the parties alternating that schedule.
G. The parties may modify this schedule as they may agree.
H. This Order is entered pursuant to an agreement reached by
the parties at a Custody Conciliation Conference. In the
event either party desires to modify this Order, that
party may petition to the Court to have the case again
scheduled with the Custody Conciliator for a conference.
BY THE COURT,
cc:
Rebecca R. Hughes, Esquire
Michael A. Scherer, Esquire
J.
- e~..; ",,^,.h.c
J/:I't/n
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LARRY V. HOCKENBERRY
and ELLA I. HOCKENBERRY,
Plaintiffs
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
.
V
:CIVIL ACTION - LAW
.
.
DENISE BAUM,
Defendant
:NO: 97 - 016 CIVIL TERM
: 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:
;
I
f
I
Lillie M. Baum, born August 11, 1992.
2. A Conciliation Conference was held on March 11, 1997, with the
following individuals in attendance:
The Mother, Denise Baum, with her counsel, Michael A. Scherer,
Esquire; and the Maternal Great Aunt and Uncle, Larry V.
Hockenberry and Ella I. Hockenberry, along with their counsel,
Rebecca R. Hughes, Esquire.
3. The parties agreed to the entry of an order in the form as
attached.
~/I g! f!7
D TE
~'
LARRY V. HOCKENBERRY and
ELLA I. HOCKENBERRY,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
: 97-016 CIVIL TERM
DENISE BAUM,
Defendant
: IN CUSTODY
STIPULATION AND AGREEMENT
-
THIS STIPULATION AND AGREEMENT entered into this
~
;;) I day of
...nV\ll ,~ ~y
, 19~, by and between LARRY V. HOCKENBERRY and ELLA I.
HOCKENBERRY (hereinafter referred to as "Custodians") and DENISE BAUM (hereinafter
referred to as "Mother").
NOW THIS AGREEMENT WITNESSETH THA T:
WHEREAS, the Mother is the natural parent of LILLIE M. BAUM, date of birth
August 11, 1992; and
WHEREAS, on or about March 21, 1997, the parties entered into an Agreement for
Custody whereby the natural mother and the custodians would enjoy shared physical custody of
the minor child.
WHEREAS, since the date of the Agreement and Order of Court allached hereto as
Exhibit U AU, the custodians have had custody of the minor child primarily, and the mother has
visited with the minor child sporadically, and not very onen; and
WHEREAS, the parties wish to confirm the current arrangement and execute an
Agreement and Stipulation to effect the same.
NOW, THEREFORE, in consideration of the mutual covenants, promises and agreement5
as hereafter set forth and intending to be legally bound, the parties hereto agree as follows:
1.
The Custodians and mother shall have joint legal custody of the minor child.
2.
The Custodians shall have primary physical custody of the minor child with periods of
partial physical custody to the mother at times and places agreeable between the parties.
3.
The parties will keep each other advised immediately relative to any emergencies
concerning the child and shall further take any necessary steps to ensure that the health, welfare
and well being of the child is protected.
4.
Both parties shall have reasonable telephone contact with the child during periods when
the other parent is exercising physical custody.
s.
Any modifkation or waiver of any of the provisions of this agreement shall be effective
only if made in writing and only if executed with the same formality of this agreement.
6.
The parties agree that in making this agreement there has been no fraud, concealment,
overreaching, coercion or other unfair dealing on the part of the other, and all parties understand
the terms of this agreement.
7.
The parties desire that this agreement be made an order of Court through the Court of
Common Pleas of Cumberland County, and further acknowledge that the Court of Common Pleas
of Cumberland County has jurisdiction over the issue of custody of the minor child and shall retain
such jurisdiction should circumstances change and either party desire further or require further
modification of said Order.
8.
The Custodians are represented by Rebecca R. Hughes, Esquire of Irwin, McKnight &
Hughes, and the Mother is represented by Michael Scherer of O'Brien, Baric and Scherer.
9.
Both parties agree to keep the other informed of any and all changes of residences, and
shall immediately provide the other party with the address and telephone number of said new
residence if a change occurs.
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