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HomeMy WebLinkAbout2005-4979 Civil MIKE CROUSE, : IN THE COURT OF COMMON PLEAS OF Plaintiff/Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – CUSTODY : NO. 05-4979 CIVIL HELEN L. CROUSE, a/k/a KELLY : CROUSE, : Defendant/Respondent : IN RE: OPINION PURSUANT TO RULE 1925 BEFORE HESS, J. In this custody case, we have denied a request on the part of the biological father to intervene. He has taken an appeal in this case. This memorandum is written in support of our order denying intervention. Mick Crouse, the child who is the subject of these proceedings, was born on August 14, 2002, to the defendant Helen L. Crouse, a then unmarried woman. The child’s birth certificate names the plaintiff, Mike Crouse, as the father. One day after the birth of the child, Mike Crouse filed an acknowledgment of paternity. Mike and Helen Crouse were married on April 8, 2003. They separated in August of 2005 and mother relocated from the marital residence in May of 2006. This action was initiated by complaint filed on or about September 22, 2005. Following a conciliation conference in November of 2005, the plaintiff was granted primary physical custody of the child subject to the mother’s rights of physical custody every weekend depending upon her work schedule. In March of 2006, the plaintiff filed a petition to modify custody seeking weekend time. The mother having since disclosed that Mr. Crouse might not be the father of the child, the parties agreed to subject themselves to genetic testing. NO. 05-4979 CIVIL In June of 2006, Helen Crouse (the mother) began residing with Brian L. Martin (the natural father and proposed intervenor). In August of 2006, the parties received the results of genetic testing establishing that Mr. Crouse was not the biological father of the child. In September of 2006, a privately obtained paternity test revealed that Mr. Martin was, in fact, the natural father. On October 3, 2006, we issued an order scheduling a hearing for December 27, 2006, to hear testimony on the plaintiff’s petition to modify custody and also on the petition of Mr. Martin to intervene. On February 8, 2007, Mr. Martin’s petition to intervene was denied. A decision on Mr. Crouse’s petition to modify is pending. Up until recently, Mick has grown up believing that Mr. Crouse is his father. Since separation, the plaintiff has been the primary caregiver of the child and has been a stable parental figure. In our order denying Mr. Martin’s petition to intervene, we stated that he was estopped from asserting paternity, relying on two Superior Court cases in particular: Moyer v. Gresh, 904 A.2d 958 (Pa.Super. 2006) and Gulla v. Fitzpatrick, 596 A.2d 851 (Pa.Super. 1991). The facts in Moyer v. Gresh, supra, are similar in important respects to the matter sub judice. In that case, the child, M.M., grew up knowing Mr. Moyer as his father for the first nine years of his life. Mr. Moyer and the natural mother were separated in 1999 and subsequently divorced in 1999. The mother, Vicky Gresh, retained primary physical custody and Mr. Moyer retained rights of partial custody. Eventually, the mother married Gary A. Gresh, M.M.’s natural father. At the time of the hearing, M.M., who was by then sixteen years old, expressed a strong preference to live with Mr. Moyer. The Greshes filed a motion to dismiss Mr. Moyer’s complaint for lack of standing stating that he could not stand in loco parentis to M.M. inasmuch 2 NO. 05-4979 CIVIL as M.M.’s biological father, Gary Gresh, had assumed all parental rights and responsibilities. The trial court denied this motion and remanded the case to a custody master to schedule a custody conciliation. There, as here, the court dismissed the natural father, Gary Gresh, as a party to the action. Noting that the trial court found Mr. Moyer’s testimony to be credible, the Superior Court engaged in the following analysis: The trial court found that Appellee supported M.M. emotionally, psychologically, and financially for the majority of M.M.’s life and continued to support M.M. even after he learned that Appellant Gary Gresh is M.M.’s biological father. In contrast, Appellant Gary Gresh voluntarily relinquished his parental rights and duties to Appellee during the first nine years of M.M.’s life, and allowed Appellee to continue supporting M.M. when M.M. was living with Appellants. Given these findings it was reasonable to conclude that Appellant Gary Gresh accepted Appellee as M.M.’s father and should thus be estopped from challenging his paternity. See Bahl, supra at 539. The results of the DNA parentage tests are therefore irrelevant, as is the acknowledgment of Appellant Gary Gresh’s biological paternity by all parties involved. See T.L.F., supra. Without a paternity claim, Appellant Gary Gresh’s interests are adequately represented by Appellant Vicky Gresh, thus he is not an indispensable party. The application of paternity by estoppel here is in accord with the decision in J.C. v. J.S., 826 A.2d 1 (Pa.Super. 2003), appeal denied, 576 Pa. 724, 841 A.2d 531 (2003), in which this Court applied the doctrine to the mother’s former husband even though he was not the child’s biological father. As in the instant case, for many years the mother led her former husband to believe that he was the child’s father. Id. at 3. However, since the former husband continued to act as the child’s father and continued to support the child even after learning 3 NO. 05-4979 CIVIL that he was not the child’s biological father, paternity by estoppel was operative. Id. at 5. Finally, this result is also in accord with M.M.’s best interest. See Bahl, supra at 539. M.M. and Appellee have a close relationship and Appellee has supported M.M. since his conception. M.M. wishes to live primarily with him. Since the facts show that Appellee is willing to care for M.M. and capable of doing so, a finding of paternity by estoppel is in M.M.’s best interests. Accordingly the trial court was correct in dismissing Appellant Gary Gresh as a party to the custody action. Id. at 962-963. There are, of course, facts here which are different from those in Moyer. In this case, the 1 plaintiff has been the father to the child for four years and not for nine. Mick is four and a half years old and not sixteen. It would appear, though, that Mick is bonded to Mr. Crouse who has acted as his father for his entire life. The application of paternity by estoppel is appropriate here where Mr. Crouse has assumed the duties of a father and his willingness and ability to continue to act in that capacity appear to be in Mick’s best interest. Assuming that Mr. Martin maintains his relationship with Ms. Crouse, Mick will have regular, ongoing contact with his natural father. Whether, in future years, the current arrangement will continue to be the best for Mick remains to be seen. Regrettably, we have no crystal ball nor does the current state of the law with regard to paternity by estoppel give us any guidance in the exercise of this sort of judicial clairvoyance. May 1, 2007 ______________________________ Kevin A. Hess, J. 1 In Gulla v. Fitzpatrick, supra, the court held that there was paternity by estoppel even though the child was less than four years of age. In that case, however, the natural father had not come forward to assert any custody rights. 4 NO. 05-4979 CIVIL Galen Waltz, Esquire For the Plaintiff Timothy S. Gordon, Esquire For the Defendant Nathan Wolf, Esquire For Brian L. Martin :rlm 5