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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DEBORAH K. BONNANI,
Plaintiff
CIVIL ACTION -LAW
IN CUSTODY
v.
VENESSA BURKETT and
ANTHONY BAUSERMAN,
Defendants
NO. 94- ~ 5"~ 9 ~ /-l-Y.....
ORDER OF COURT
AND NOW, this ~<;~l~ day of November, 1994, upon
consideration of the attached Complaint, it is hereby directed
that the parties and their respective counsel shall appear before
---I:bJ,e--rt- y... b: lra,/ [6<" , the conciliator, at
L\ t~ f I (,)v( C \.A IV\ j,. ((). ( U,.o....tl., lMSr- on the
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q th day of I-(!>br.......( '/ , 1993 at 1:,9:;11 .m., for a Pre-
Hearing custody Conference. At such conference, an effort will
be made to resolve the issues in dispute; or if this cannot be
accomplished, to define and narrow the issues to be heard by the
Court, and to enter into a Temporary Order. All children age
five or older~.~1l also be present at the Conference. Failure
to appear at the Conference may provide grounds for entry of a
temporary or permanent Order.
FOR THE COURT,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
OFFICE OF THE COURT ADMINISTRATOR
COURTHOUSE, 4TH FLOOR
CarliSle, PA 17013
(717) 240-6200
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DEBORAH K. BONN ANI, CIVIL ACTION -LAW
Plaintiff
IN CUSTODY
v.
VENESSA BURKETT and NO. 94-
ANTHONY BAUSERMAN,
Defendants
NOTICE
You have been sued in court. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by
attorney and filing in writing with the court your defenses or
objections to the claims set forth against you. You are warned
that if you fail to do so the case may proceed without you and a
jUdgment may be entered against you by the court without further
notice for any money claimed in the complaint or for any other
claim or relief requested by the plaintiff. You may lose money
or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
(717) 240-6200
NOTICIA
Le han demandado a usted en la corte. si usted quiere
defenderse de estas demandas expuestas en las paginas siguientes,
usted tiene viente (20) dias de plazo al partir de la fecha de la
demanda y la notificacion. Usted de be presentar una apariencia
escrita 0 en persona 0 por abogado y archivar en la corte en
forma escrita sus defensas 0 sus objeciones alas demandas en
contra de su persona. Sea avisado que si usted no se defiende,
la corte tomara medidas y puede entrar una orden contra usted sin
previo aviso 0 notificacion y por cualguier queja 0 alivio que es
pedido en la peticion de demanda. Usted puede perder dinero 0
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DEBORAH K. BONNANI,
Plaintiff
CIVIL ACTION -LAW
IN CUSTODY
v.
VENESSA BURKETT and
ANTHONY BAUSERMAN,
Defendants
NO. 94-
COMPLAINT FOR VISITATION
'IL
AND NOW, this JCl:day of November, 1994, comes Plaintiff,
Deborah K. Bonanni, by and through her attorney, William C. Vohs,
Esquire, and files the following Complaint for visitation and in
support thereof avers as follows:
1. The Plaintiff is Deborah K. Bonnani, an adult individual
residing at 229 High Street, Shippensburg, Cumberland County,
Pennsylvania.
2. The Defendants are Venessa Burkett and Anthony
Bauserman, adult individuals residing at 300 Walnut Dale Road,
Shippenburg, Cumberland County, Pennsylvania.
3. Plaintiff seeks visitation of the follwing child:
~ Present Address
Austin D. Bauserman 300 Walnut Dale Road
Shippensburg, PA
The child was born out of wedlock.
~
8 months
The child is presently in the custody of Venessa Burkett and
Anthony Bauserman, who reside at 300 Walnut Dale Road,
Shippenburg, Pennsylvania.
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since birth, the child as resided with the following persons
and at the following addresses:
Persons
Address
Dates
Venessa Burkett 300 Walnut Dale Road
and Anthony Bauserman Shippensburg, PA
Birth-
Present
The mother of the child is Venessa Burkett, currently
residing at 300 Walnut Dale Road, Shippensburg, Pennsylvania.
She is single.
The father of the child is Anthony Bauserman, currently
residing at 300 Walnut Dale Road, Shippensburg, Pennsylvania.
He is single.
4. The relationship of Plaintiff to the child is that of
grandmother. The Plaintiff currently resides with her husband
and her daughter.
s. The relationship of the Defendants to the child is that
of mother and father. The Defendants currently resides with the
child.
6. Plaintiff has not participated as a party or witness, or
in any other capacity. in other litigation concerning the custody
of the child in this or another court.
The Plaintiff has no information of a custody proceeding
concerning the custody of the child in this or any other court.
The Plaintiff does not know of a person not a party to the
proceedings who has physical custody of the child or claims to
have custody or visitation rights with respect to the child.
7. The best interests and permanent welfare of the child
will be served best by granting the relief requested because:
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a) The Plaintiff cared for the child regularly until the
Defendants recently stopped all contact between the Plaintiff and
child;
b) The Plaintiff provides the child with a home with
adequate moral, emotional and physical surroundings as required
to meet the child's needs;
c) The Plaintiff is, and has always been, willing to accept
visitation of the child; and
d) The Plaintiff, as the child's grandparent, provides the
child with love, affection, and care.
8. Each parent whose parental rights to the child have not
been terminated and the person who has physical custody of the
child have been named as parties to this action. There are no
other persons who are known to have or claim a right to custody
or visitation of the child.
WHEREFORE, Plaintiff respectfully requests Your Honorable
Court grant Plaintiff the visitation of the child, Austin D.
Bauserman.
R spectfully submitted,
a C. Vohs, Esqu re
Attorney ID No. 65208
11 W. Pomfret street, suite 2
Carlisle, PA 17013
(717) 249-5373
Attorney for Plaintiff
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Verification
I verify that the statenlents made in the foregoing complaint
for Primary custody and Visitation are true and correct to the
best of my knowledge, information and belief. This Verification
is made only as to the factual averments contained herein, and
not to legal conclusions and averments authored by counsel in his
capacity as attorney for the party or parties hereto. I
understand that false statements herein are made subject to the
penalties of 18 Pa. C. S. section 4904, relating to unsworn
falsification to authorities.
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DEBORAH K. BONNANI,
Plaintiff
CIVIL ACTION - LAW
IN CUSTODY
v.
VENESSA BURKETT and
ANTHONY BAUSERMAN,
Defendants.
NO. 94-6569
PRBLIMIRARY OBJBCTION
ADD MOTION TO DISMISS
COMBS RON the Defendants, Venessa Burkett and Anthony
Bauserman, Defendants, by and thru their attorney, Patrick J.
Redding, Esq., and set forth the following Preliminary Objections.
I. Lack of Standing
The Defendants contend that the Plaintiff lacks specific
standing to sue for visitation under 23 PA C.S.A ~ 5311-5314 in
that the Plaintiff does not meet the standards as set forth by the
above cited statutes.
KHBRBFORB, Defendants, Venessa Burkett and Anthony Bauserman,
by and thru their attorney, Patrick J. Redding, Esq., respectfully
request the Court to dismiss the Plaintiff's action.
Respectfully SUbmitted,
-'-?Yf/), /Z, 9 --C?
Patrick J. Redding, Esquir~'
Attorney for Defendants,
Venessa Burkett and
Anthony Bauserman
.
PATRICK J. REDDING LAW OFFICE
19 North Main Street
Chambersburg, PA 17201
(717) 267-1440
CERTIFICATE OF SERVICE
I, Patrick J. Redding, Esq., hereby certify that a true and
correct copy of the Preliminary Objection and Motion to Dismiss was
duly served upon Counsel for the Plaintiff, William C. Vohs, Esq.,
at the law offices of Michael J. Hanft, 11 West Pomfret Street,
Suite 2, Carlisle, PA 17013 on this ';''' 'I, day of ;: .,1," (,', \ '
1995. \
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/:;t /9 ,,{<--~Q, n
Patrick J. Redding, Esquire ~
FE-n "/ ') \99:1 I-
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DEBORAH K. BONANNI,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUHBERLAND COUNTY, PENNSYLVANIA
.
,
v
:NO, 6569 - CIVIL - 1994
:
:
VENBSSA BURKETT AND
ANTHONY BAUSERMAN,
Defendant
.
,
:CIVIL ACTION - CUSTODY
COURT 0.RDIl:R
AND NOW, this '2..1 day of ~~' 1995, upon consideration
of the attached Custody Conciliation port, it is directed that
legal counsel for the parties file wit the undersigned Judge a
Brief addressing the issue of the Preliminary Objections filed by
the parents in this matter whereby the standing of the Maternal
Grandmother to bring this Custody Petition is contested, The Brief
shall be filed by February 24, 1995, with copies directed to the
undersigned Judge and to opposing counsel.
Upon the filing of the Briefs, the Court reserves the right to
request oral argument on this case in chambers or to issue a
Decision based upon the arguments set forth~n the Briefs,
'1ft
BJ::;~' ,1
Judge Edga;~leY
cc: William C. Vohs, Esquire
Patrick Redding, Esquire
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fED Ztl 2 31 PH 195
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Of rdL 11(~,rttON'JTArIY
CUW;:::ii .IHI) G( U~ IV
Plll,i~fl VAHI4
v
: IN THE COURT OF COMMON PLEAS OF
:CUHBERLAND COUNTY, PENNSYLVANIA
:
:NO. 6569 - CIVIL - 1994
DEBORAH K, BONANNI,
Plaintiff
.
.
VENESSA BURKETT AND
ANTHONY BAUSERMAN,
Defendants
:
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:CIVIL ACTION - CUSTODY
PRIOR JUDGE: JUDGE EDGAR B, BAYLEY
CONCILIATION CONFERENCE SUMMARY REPORT
IN ACCORDANCE WITH CUMBERLAND COUNTY CIVIL RULE OF CIVIL 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:
Austin D. Bauserman, born March 14, 1994.
2, A Conciliation Conference was held on February 9, 1995, with
the following individuals in attendance:
The Natural Parents, Venessa Burkett and Anthony Bauserman,
with their counsel, Patrick J. Redding, Esquire, and the
Maternal Grandmother, Deborah K. Bonanni, with her counsel,
William C. Vohs, Esquire.
3. The Plaintiff in this case is the Maternal Grandmother. The
natural parents are residing together with the child, The
parents have filed Preliminary Objections raising the standing
issue pursuant to 23 Pa. C.S.A, S5311-53l4 and suggesting that
that Maternal Grandmother does not meet the standing
requirements of the applicable statutes.
4. The parties are prepared to stipulate to a number of pertinent
facts and submit those facts to the Court along with
memorandums after which the Court could issue a ruling on the
Preliminary Objections. If there is a ruling that the
Maternal Grandmother does have standing to proceed in this
custody action, the case would then be referred back to the
Custody Conciliator.
5, The parties are in agreement with the following:
A. The Mother of the minor child is Venessa Burkett and
the Father is Anthony Bauserman,
B. The minor child, Austin D. Bauserman, was born March 14,
1994.
C. The Mother and Father of the minor child are not
married, but have plans to be married in August of
1995. The Mother and Father were never married to each
other.
D, The Mother and Father have resided with each other since
the birth of the minor child in March of 1994.
E, The minor child has had a primary residence with the
natural parents since the minor child was born.
F. It is the position of the Maternal Grandmother that the
minor child has stayed overnight at her house on
at least two occasions since the ohild was born, and it
is also the Maternal Grandmother's position that she was
the oaretaker for the minor child during the day from
April through the beginning of June 1994.
G. It is the Natural Parents' position that the minor ohild
neV<3r stayed overnight at the Maternal Grandmother's home,
and the parents suggest that the Maternal Grandmother
took oare of the minor ohild no more than five times in
May and June of 1994.
H. Except for a two hour visit, the Maternal Grandmother has
not seen the minor child since approximately June of 1994.
6. The Conoiliator notes that there is a dispute outlined above
with respeot to the amount of contact that the Maternal
Grandmother has had with the child. Although there is a
dispute on this contact, the Conciliator does not feel it is
necessary to take testimony on this issue because there is no
allegation by the Maternal Grandmother that the minor child
resided with her for a period of twelve months which would give
her standing pursuant to 23 Pa. C.B.A. S5313. The Maternal
Grandmother bases her allegation of standing on 23 Pa. C.B.A,
S5312.
7. The Conciliator recommends an Order in the form as attached.
;}!13/rr
. DATE
re
STATEMBRT 0.. CASS
Defendants are the natural, biological parents of a minor
child, Austin D. Bauserman, born March 14, 1994. Plaintiff is the
maternal grandmother of said child and filed a Complaint for
visitation on November 29, 1994, in The Cumberland County Court of
Common Pleas. Said Complaint was accompanied with an Order of
Court signed by Custody Conciliator, Hubert x. Gilroy, Esquire,
setting a date of February 9, 1995, for a Prehearing Custody
Conference. On February 7, 1995, Patrick J. Redding, Esquire,
Attorney for the Defendants, filed in the Cumberland County Court
of Common Pleas, a Preliminary Objection and Motion to Dismiss
based upon the Plaintiff lacking standing under the Statutory
Requirements as set forth in 23 Pa. C.S.A. 5311-5314 concerning
grandparent visitation. All parties were present at the February
9, 1995, Prehearing Conference and at that time an Order for the
filing of Briefs on the issue of standing was requested by the
Custody Conciliator. Said Briefs were to be submitted by February
24, 1995.
At the Prehearing Conference a list of Stipulations were
agreed upon including the relationship of the parties to each other
and the age of the child. There is some conflict as to how much
time the child spent with the maternal grandmother during the first
three months of the child's life.
ISSUE
QUBSTIO..
Does the Plaintiff, the maternal grandmother, have standing to
sue for visitation under the statutory standards set forth in
23 Pa. C.S.A. 5311-53141
USlfBR.
No.
DISCUSSIOR OP PACTS ARD APPLICABLB LAN
Austin D. Bauserman was born on March 14, 1994, to the
Defendants, Venessa Burkett and Anthony Bauserman. The Defendants
were living together at the time of the minor child's birth and
have done so with the minor child up to the present time. The
Defennftnt.A hftVA mftne definite plans to marry in August of 1995.
Although there is some dispute on the point, it appears that
from the time of the child's birth until Mayor June of 1994, the
Plaintiff, maternal grandmother of the minor child, had the child
in her care for approximately three (3) days during the daylight
hours and only once for a period into the nighttime of 12:00
midnight.
Apparently a major dispute arose between the Defendant,
Venessa Burkett and her mother, the Plaintiff, Deborah K. Bonanni
and at that time all contact with the minor child ceased. The
minor child was about three (3) months old at the time.
Plaintiff would have this Honorable Court grant her visitation
rights based upon those provisions provided under 23 Pa. C.S.A.
5311-5314. A through reading of these statute sections would make
Section 5311 invalid in that neither natural parent is deceased.
Section 5313 would not apply as the minor child has had very
minimal contact with the Plaintiff. Section 5314 fails to qualify
as no adoption is involved.
A detailed reading of Section 5312 would also seem to indicate
that the Plaintiff has no standing with regards to visitation of
the minor child. It is stipulated by both parties that no Divorce
proceedings are under way between the Defendants nor have they
separated for a period of six (6) months or more. Quite the
contrary, these people have never separated and are contemplating
an August 1995 marriage.
The Court, in HerrOD VB. Seizak, 468 A. 2nd 803, 321 Pa.
Super. 466, 1983, was very specific in its reading of the statute
when it ruled that grandparents have no right to visit the child,
when neither parent is deceased, parents marriage was not dissolved
and child has not resided with the grandparents for a period of
twelve (12) montha or more.
Plaintiff, however, would base her standing to sue for
visitation on the Lancaster County Common Pleas Court Case of HeiBB
VB. Eckert, 12 D and C 4th, 6 (1991). In Heiss, Judge Stengel
appears to expand the rights of a grandparent over and beyond
anything ever contemplated by the Legislature.
A careful reading of Heiss suggests that the Court confuses
the issue of standing and best interest of the minor child. This
confusion of the issues seems to open the door for any third party
to sue for Custody or Visitation simply if they can show it is in
the best interest of the minor child. The rational in Heiss would
eliminate any need to show standing and thus allow any and all
interested parties or disinterested parties to bring a Custody
Action based upon the best interest issue.
The Court in Heiss would also have us believe that
grandparents gain more rights under section 5312 because the
natural mother and father are an unmarried couple. Of course the
Court in Heiss fails to support this proposition with any
applicable case law. It is interesting to note as well, that
under Heiss, a stable, unmarried couple present the grandparent
with a greater right to sue for Custody than an unstable, married
couple who are separated but not for a period of six (6) months or
more.
Tragically, the Heiss Court fails to comprehend the language
"when parents have been separated for six (6) months or more" by
realizing that the statute clearly fails to make a distinction
between married or unmarried couples. Therefore, the Plaintiff
could only acquire standing to sue for visitation under this
statute if the Defendants have separated for a period of six (6)
months or more. Again, a point sorely missed by the Heiss
rational.
Lastly, although more of an issue if standing is granted by
this Honorable Court, is the issue of the Plaintiff's interference
with the Defendants raising of their child and the tremendous
animosity that is evident between these parties. The relationship
of the Plaintiff and the Defendants is at an all time low. It
would appear that the Plaintiff is not pleased with the Defendant,
her daughter, Venessa Burkett's choice of a father or of the
Defendants abilities to raise the minor child. Furthermore, it
would be useless for the Plaintiff to argue that the Plaintiff and
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DEBORAH K. BONANNI, CIVIL ACTION -LAW
Plaintiff
IN CUSTODY
v.
VENESSA BURKETT and NO. 94-6569
ANTHONY BAUSERMAN,
Defendants
BRIEF IN SUPPORT OF STANDING
AND NOW, comes the Plaintiff, Deborah K. Bonanni, by and
through her attorneys, The Law Offices of Michael J. Hanft,
pursuant to the Conciliation Conference held February 9, 1995,
submits this Brief in opposition to Defendants' Preliminary
Objections.
FACTS
Plaintiff, Deborah K. Bonanni, is the maternal grandmother
of the infant child Austin D. Bauserman (DOB 3/13/94).
Defendants are the natural parents of the infant child. The
parents are not married, and have never been married, although
they reside together.
From Austin's birth until June, 1994, the grandmother had
consistent contact with her grandson. She even cared for him at
home, during the day, while the parents were at work. In June,
1994, Defendant Anthony Bauserman completely stopped all contact
between the grandmother and her grandson.
Unable to resolve this matter without court intervention,
the grandmother filed a complaint for visitation to insure that
the best interests of Austin were achieved. Defondants filed a
preliminary objection raising the lack of Plaintiff's capacity to
sue. The matter was unable to be resolved during the
conciliation process.
This brief is filed in support of rlaintiff's position that
as a grandparent of a minor child whose parents are not married,
she has standing to seek partial physical custody or visitation.
ISSUE
WHETHER A FACTUAL HEARING IS NECESSARY TO RESOLVE THE
QUESTION OF WHETHER A GRANDPARENT OF A MINOR CHILD, WHOSE
PARENTS ARE NOT MARRIED AND HAVE NEVER BEEN MARRIED, HAS
STANDING PURSUANT TO 23 PA. C.S.A. S 5312, TO SEEK PARTIAL
PHYSICAL CUSTODY OR VISITATION?
Proposed Answer: Yes
ARGUMENT
Defendants' preliminary objection based on lack of standing
to sue is a proper objection under Pennsylvania Rule of civil
Procedure 1028(a) (5), raising Plaintiff's lack of capacity to
sue. However, the standard the Court must use to determine
whether Plaintiff has the capacity to sue dictates that the
preliminary objection be denied.
^s with any preliminary objection, all the well-pleaded
facts and reasonable inferences that can be drawn from those
facts are deemed admitted. Thus, Defendants admit that the minor
child, Austin D. Bauserman (DOB 3/13/94) was born out of wedlock;
Austin's parents are not married; the Plaintiff is Austin's
('IWCVoCtJFmT.lIOH.Volll'.lIkJUPlII
2
grandmother; the Plaintiff grandmother regularly cared for Austin
until the Defendants stopped all contact between Austin and his
grandmother; and the Plaintiff grandmother provides Austin with
love, affection, and care. Complaint,s 3,4 and 7.
To support their position that Plaintiff lacks capacity to
sue, Defendants rely solely on 23 Pa. C.S.A. 55 5311-5314,
formerly known as the Grandparent Custody and visitation Act.
Section 5311 only applies when a parent is deceased; section 5312
applies when the parents' marriage is dissolved or the parents
are separated; Section 5313 applies when a child has resided with
a grandparent for twelve months and is then removed by the
parents; and section 5314 involves adopted children.
This matter will be resolved on this Courts interpretation
of Section 5312. That statute states:
5 5312. When parents marriage is dissolved or parents are
separated.
In all proceedings for dissolution, subsequent to the
commencement of the proceeding and continuing thereafter or
when parents have been separated for six months or more, the
court may, upon application of the parent or grandparent of
a party, grant reasonable partial custody or visitation
rights, or both, to the unmarried child if it finds that
visitation rights or partial custody, or both, would be in
the best interest of the child and would not interfere with
the parent-child relationship. The court shall consider the
amount of personal contact between the parents or
grandparents of the party and the child prior to
application.
23 Pa. C.S.A. S 5312 (Purdons 1991).
There is only one case in Pennsylvania directly on point.
In Heiss v. Eckert, 12 D. & c. 4th 6 (Lanc. 1991), a grandmother
was seeking partial custody of two infants. The parents resided
CI'MlW'UI.>I'n"lHAA'M.IJJIl'''.
3
together, but were not married. The children had lived with the
parents all their lives. The parents filed preliminary
objections raising the standing issue, referring to the specific
statutes that the Defendants rely on in the case sub judice. The
trial court, after an extensive review of the Custody and
Grandparent visitation Act, held that grandparents have standing
to seek partial custody or visitation when the parents still live
together but not "in the context of a formal marriage." l.l1. at
9.
The learned trial court its analysis stated:
This section [23 Pa. C.S.A. S 5312] of the act permits
grandparent visitation or partial custody after a divorce
proceeding begins or after the parents have been separated
for six months or more. Can this section be applied in a
situation where the parents are unmarried, but residing
together? Does this section suggest a policy in favor of
grandparent visitation in those cases where the parties have
initiated a divorce action or have been separated for more
than six months? Clearly, the answer to the second question
would appear to be 'yes.' Section 5312 contemplates a
reauest for arandparent visitation after the divorce
complaint is filed but imposes no reauirement that there be
a separation while the divorce is pendina. It is not clear
whether this section applies directly to this case but it
certainly suggests that grandparent visitation ought to be
considered, if not strongly encouraged, where the parents of
the child are separated or their marriage is ending. While
the court does not mean to suggest that the natural parents
of the children are less committed to the child or each
other because they are unmarried, there does appear to be a
heiahtened preference toward arandparental visitation wh~re
the natural parents of the child do not live toaether in the
context of a formal marriaae.
l.l1. at 9 (emphasis added).
As with any custody matter, the "courts have consistently
held that the guiding pOlestar...remains the best interest of the
child." ~. at 10 (citations omitted). Children should have an
l' .."'.....UXltNINAI.;Nt..U.,.."
4
opportunity to spend time with their grandparents; to get to know
them and to learn from them. As in Heiss, "the best interests of
the child are almost certainly served by grandparent visitation."
I.Q. at 11-
Reviewing tha well-pleaded facts and the reasonable
inferenc~s that can be drawn from those facts, Plaintiff
grandmother does have standing to seek partial custody or
visitation of her grandson. The court is not required to grant
Plaintiff visitation and that visitation may not be in Austin's
best interest.
However, a determination of whether grandparent visitation
is in Austin's best interests can only be made after a
consideration of the facts. IS. At this stage, Defendants'
preliminary objections must be denied, and a factual hearing be
conducted to determine the best interest of the child.
In the interests of judicial economy and to reduce the
negative effects of litigation on all the parties, Plaintiff
suggests that this factual hearing also address the frequency and
duration of Plaintiff's partial physical custody of her grandson.
CONCLUSION
The appellate courts of Pennsylvania have not decided this
important issue. The only case directly on point is at the
common pleas level. In the case, the trial court denied the
preliminary objection based its analysis of section 5312 of the
custody and Visitation Act. For the same reasons, this Court
C"WI"\'\l1Jl:)(ly.....AHNl'a.JUI'u.
5
should deny Defendants' preliminary objection and schedule a
factual hearing to resolve what is in the child's best interest.
Respectfully submitted,
HANFT
Dated: t/z'3/1S
W 11 am C. Vohs, Esqu re
Attorney ID No. 65208
11 West Pomfret street, suite 2
Carlisle, PA 17013
(717) 249-5373
C \~'lJI':HttN"AHHf"IJ' I'l"
6
CERTIrICATE or SERVICE
AND NOW, this 23rd day of February, 1995, I, William c.
Vohs, Esquire, hereby certify that I have this day served the
following person with a copy of the foregoing document, by
depositing same in the United states Mail, First Class, Postage
Prepaid, addressed as follows:
Patrick J. Redding, Esquire
19 North Main street
Chambersburg, PA 17201
suite 2
CIWl:W.1J>>nYaONAHhTaatUP<1I
7
HAR III
I 32 f'fl '95
q.~ II;!
c~ ,I,.; r,J.j:'~~y
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1 i i I i I ... " ~, ,
DEBRA K, BONANNI,
PLAINTIFF
V.
VENESSA BURKETT, and
ANTHONY BAUSERMAN,
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
94-6569 CIVIL TERM
OPINION AND ORDER OF COURT
BAYLEY, J., March 14, 1995:-
Plaintiff, Debra K, Bonanni, Is the maternal grandmother of Austin D,
Bauserman, born March 14, 1994, Austin's mother is defendant Venessa Burkett. His
father Is defendant Anthony Bauserman, Plaintiff filed a complaint seeking visitation
with her grandson. Defendants have flied a preliminary objection alleging that plaintiff
lacks capacity to sue because she has no standing,' The facts are as follows.
Austin's mother and father have never married, although they plan to marry In August
of 1995, They live together and have done so since Austin was born, Except for a
two hour visit, plaintiff has not seen her grandson since June, 1994. It Is the position
of plaintiff that Austin has stayed overnight at her house on at least two occasions
since he was born, and that she took care of him during the day between April and
June, 1994, It Is the position of defendants that Austin never stayed overnight at his
grandmother's home and that she took care of him less than five times In May and
June of 1994,
1. See, H. Vance W. v. Sueann 5., 43 Cumberland L.J, 9 (1993).
94-6569 CIVIL TERM
The Legislature has prescribed the situations whereby a court may consider
partial custody or visitation for grandparents: (1) when a parent of an unmarried child
Is deceased, 23 Pa,C,S, Section 5311; (2) In all proceedings for dissolution of
marriage subsequent to the commencement of the proceeding and continuing
thereafter or when parents have been separated for six months or more, 23 Pa,C,S,
Section 5312; and (3) when an unmarried child has resided with a grandparent for a
period of 12 months or more and Is subsequentiy removed from the home by his or
her parents, 23 Pa,C,S. Section 5323, In each of these situations the court, lD1m:~,
must determine that any partial custody or visitation will "not Interfere with the parent-
child relationship." In Herron v. Selzak, 321 Pa, Super. 466 (1983), the Superior
Court of Pennsylvania held that If none of these statutory prerequisites exist, ''the
statute therefore does not provide a cause of action for [a grandparent],"
Relying on a decision of the Court of Common Pleas of Lancaster County In
HeIss v. Eckert, 12 D, & C, 4th 6 (1991), plaintiff maintains that Section 5312 applies
to this case, The facts In HeIss are similar to those In the present case, A
grandmother sought partial custody of two grandchildren who lived with their parents.
The parents were not married but had lived together since the birth of the
grandchildren, Noting that courts are required to consider the best Interest of a child
In any matter affecting custody, the HeIss court stated:
Section 5312 contemplates a request for grandparent visitation after the
divorce complaint Is filed but Imposes no requirement that there be a
separation while the divorce Is pending, It Is not clear whether this
section applies dlrectiy to this case but It certainly suggests that
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94-6569 CIVIL TERM
grandparent visitation ought to be considered, If not strongly
encouraged, where the parents of the child are separated or their
marriage Is ending, While the court does not mean to suggest that the
natural parents of the children are less committed to the child or to each
other because they are unmarried, there does aooear to be a
belghtened orefersnc:e toward arandoarental visitation where the natural
oarents of the child do not live tooether In the context of a formal
mamaoe. (Emphasis added),
The Legislature at 23 Pa,C,S. Section 5301 has set forth a Declaration of Policy
with respect to the custody of children,
The General Assembly declares that It Is the public polley of this
Commonwealth, when In the best Interest of the child, to assure a
reasonable and continuing contact of the child with both parents after a
separation or dissolution of the marriage and the Sharing of the rights
and responsibilities of child rearing by both parents and contlnulna
contact of the child or children with orandoarents when a oarent Is
deceased, divorced or seoarated. (Emphasis added).
The Statutory Construction Act of 1972 at 1 Pa,C.S, Section 1924 provides:
The title and preamble of a statute may be considered In the
construction thereof. Provisos shall be construed to limit rather than to
extend the operation of the clauses to which they refer. Exceptions
expressed In a statute shall be construed to exclude all others. The
headings prefixed to titles, parts, articles, chapters, sections and other
divisions of a statute shall not be consldsred to control but may be used
to aid In the construction thereof,
Section 1903(a) provides that, "Words and phrases shall be construed according to...
their common and approved usage." Section 1921 (a) provides that, "The object of all
Interpretation In construction of statutes Is to ascertain and effectuate the Intention of
the General Assembly,"
Defendant's family unit has been In existence since Austin was born on March
14, 1994. Certainly, If the Legislature Intended to allow grandparents to seek partial
-3.
94-6569 CIVIL TERM
custody or visitation simply on the basis of a grandchild living with parents who are
not married, It could easily have done so, There Is no distinction In the statute
between married and unmarried parents, Contrary to the decision In Helee, we view
the Legislative scheme In Section 5312 as allowing grandparents to Intervene and
seek partial custody or visitation only as stated: "In all proceedings for dissolution of
marriage subsequent to the commencement of the proceeding and continuing
thereafter or when parents have been separated for six months or more,' Both of
those situations Involve unstable relationships, There Is no Instability In the
relationship of defendants; In fact, they plan to marry this year. We disagree with the
conclusion In Helee that there "does appear to be a heightened preference toward
grandparent visitation where the natural parents of the child do not live together In the
context of a formal marriage," Section 5312 applies to unmarried parents, but only If
they "have been separated for six months or more," Plaintiff does not have standing
to seek visitation with Austin merely because his parents are not married,
ORDER OF COURT
AND NOW, this ~ day of March, 1995, plaintiff's complaint, IS
DISMISSED.
.. )'
By the court,>;! .'
\~iJ\wJ'
Edgar B, Bayley, J. I
/."
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