HomeMy WebLinkAbout2006-1743 Civil
LINDA I. PEIFER, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION – LAW
:
TIMOTHY PEIFER and :
TARA FINKBONER, :
Defendants : NO. 06-1743 CIVIL TERM
* * * *
TARA PEIFER, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION – LAW
:
TIMOTHY PEIFER, :
Defendant : NO. 04-191 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., September 14, 2006.
In this custody case, a mother has appealed to the Superior Court from an order
which granted partial physical custody of a four-year-old child to the child’s paternal
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grandmother for nine hours every two weeks. The child’s parents separated in February
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of 2004, and in October of 2005 the mother terminated all contact between the child and
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the father and his family.
The child’s paternal grandmother filed a Petition for Partial Custody and
4
Visitation with respect to her grandchild. Following an interesting hearing at which the
1
Notice of Appeal, filed August 8, 2006.
2
N.T. 50, Hearing, July 21, 2006 (hereinafter N.T. __).
3
N.T. 6.
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Petition for Partial Custody and Visitation, filed March 24, 2006.
grandmother, father, and mother all appeared pro se, the court entered the following
order:
AND NOW, this 24th day of July, 2006, upon consideration of
the Petition for Partial Custody and Visitation filed by Linda I. Peifer
with respect to her granddaughter, Lillian Peifer (d.o.b. April 2,
2002), and following a hearing on July 21, 2006, at which Petitioner,
the child’s mother, Tara Finkboner, and the child’s father, Timothy
Peifer, represented themselves, it is ordered and directed as follows:
1. The mother shall have legal custody and primary
physical custody of the child;
2. The father shall have such periods of temporary
or partial physical custody of the child as the parties
agree; and
3. Petitioner shall have temporary or partial physical
custody of the child on alternating Sundays from 10:00
a.m. until 7:00 p.m.
4. Nothing herein is intended to preclude the parties
from deviating from the custodial terms of this order by
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mutual agreement.
From this order, the child’s mother filed a counseled appeal to the Pennsylvania
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Superior Court on August 8, 2006. The issues raised on appeal have been expressed in a
statement of matters complained of on appeal as follows:
I. Whether the trial court abused its discretion in granting partial physical
custody to Plaintiff as such right is not in the best interest of the Child.
II. Whether the conclusions of the Trial Court were unreasonable in light of
the sustainable findings at trial, and the lack of proffered evidence on behalf of the
Plaintiff relating to the best interest of the child.
III. Whether the Custody Order is manifestly unreasonable as shown by the
evidence of record since it grants Plaintiff partial custody without establishing the
best interest of the child.
IV. Whether each finding of fact is supported by competent evidence.
V. The provisions of 23 PA.C.S.A. §5312 are unconstitutional in that they
violate the Equal Protection Clause of the Fourteenth Amendment of the United
States Constitution by creating a legislative classification regarding a fundamental
5
Order of Court, July 24, 2006.
6
Notice of Appeal, filed August 8, 2006.
2
right without a compelling governmental interest that justifies this intervention and
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classification.
This opinion in support of the order appealed from is written pursuant to
Pennsylvania Rule of Civil Procedure 1925(a).
STATEMENT OF FACTS
Plaintiff is Linda I. Peifer, a resident of Lemoyne, Cumberland County,
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Pennsylvania. Defendants are Timothy Peifer, who resides in Harrisburg, Dauphin
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County, Pennsylvania, and Tara Finkboner, who resides in Camp Hill, Cumberland
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County, Pennsylvania. Plaintiff is the paternal grandmother of the subject of this
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custody proceeding, Lillian Peifer (d.o.b. April 1, 2002), and Defendants are the parents
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of the child.
In February, 2004, when the child was about two years old, the parents
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separated. A custody order was entered in that month providing for shared legal
custody between the parents, primary physical custody in the mother and partial physical
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custody in the father on a regular basis at specified times. Initially the father and the
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paternal grandmother were able to maintain contact with the child, and the relationship
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between the paternal grandmother and the child was beneficial to both.
7
Defendant Tara Finkboner’s Concise Statement of Matters Complained of on the Appeal, filed August
24, 2006.
8
N.T. 26.
9
N.T. 16.
10
N.T. 43-44.
11
See Custody Conciliation Summary Report, filed May 19, 2006; N.T. 3.
12
Decree of Divorce, October 5, 2004, No. 01-191 Civil Term (Cumberland County); see Custody
Conciliation Summary Report, filed May 19, 2006.
13
N.T. 50.
14
Order of Court, February 18, 2004, No. 01-191 Civil Term (Cumberland County). The divorce case in
which this order was entered has been consolidated with the more recent custody case at No. 06-1743
Civil Term (Cumberland County). See Order of Court, July 21, 2006.
15
N.T. 26.
16
N.T. 32.
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17
The father was less than diligent in exercising his custodial rights, and on
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September 23, 2004, the mother succeeded in obtaining an order by default giving her
“sole legal and sole physical custody” of the child, with the father to “have periods of
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partial physical custody as the parties agree.” The following month the parties were
2021
divorced, and within two months of the divorce, the mother had remarried. In October
of 2005, the mother abruptly terminated all contact between the child and the father and
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his family.
Attempts by Plaintiff, the paternal grandmother, to have contact with the child
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were ignored or rebuffed by the mother. The mother’s motivation in this regard was her
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desire to have the child adopted by her new husband. The mother’s attitude and
conduct are described in this excerpt from Plaintiff’s testimony:
THIS WITNESS: I’m here on behalf of my granddaughter,
Lillian. I miss her very much. The last time I saw [the child] was the end of
October of 2005, and for whatever reasons, her mom has decided that I—or
anybody in my family, for that matter—when up to that point we’ve all had a very
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loving, happy relationship.
* * * *
. . . I just was told after I tried calling [the mother]—well, the last time I
brought Lilly home I even said to her, you know, everything’s good. I was going
for surgery. I said, I’ll get in touch with you, and I tried and tried repeatedly
afterwards, and she wouldn’t answer the phone. Nobody would answer.
Finally I got in touch with—I think it was [the mother’s] grandmother that
answered the phone because we had missed Christmas. We had Christmas
presents. And I was told by her grandmother, don’t bother them during the
17
N.T. 16-17, 19.
18
The father did not attend a custody conciliation conference on the mother’s petition to modify the
custody order. N.T. 21; Order of Court, September 23, 2004, No. 01-191 Civil Term (Cumberland
County).
19
Order of Court, September 23, 2004, No. 01-191 Civil Term (Cumberland County).
20
Decree of Divorce, October 5, 2004, No. 01-191 Civil Term (Cumberland County).
21
N.T. 6, 10, 20, 26.
22
N.T. 17.
23
N.T. 27.
24
N.T. 28, 29.
25
N.T. 26.
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holidays, just leave them alone, and I didn’t understand that, but I thought, okay,
I’ll give that a chance.
So I waited, and still didn’t get any response until I used a different telephone,
and I guess they were caller ID’ing my number, and I spoke with Tara’s [the
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mother’s] husband [in January, 2006].
. . . And I spoke with Brett, Tara’s husband, and he said, you’ve been calling
for weeks, and I said, Brett, I’ve been calling for months. I don’t understand
what’s—what’s wrong, you know. And he said, Lilly has a new family now. This
is almost word for word because I can recall because I was shocked.
Lilly has a new family now. You’re not a part of it anymore. You can’t see
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her or talk to her anymore. Get on with your life. And he hung up on me.
Ultimately, Plaintiff filed the petition for partial custody of her granddaughter
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which is the subject of this opinion. The father of the child is supportive of Plaintiff’s
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attempt regain contact with the child. At the hearing on Plaintiff’s petition, the mother
explained her opposition to it as follows:
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[In anticipation of a voluntary termination of the father’s parental rights,] we
made a decision that it would be much less confusing for her to separate [from the
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father and his family] . . . .
* * * *
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. . . My husband is the only father that she knows . . . .
* * * *
. . . I think it’s a bad situation for her to be in, to start going to all of these
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holiday things, to be put around a person that she doesn’t even know.
26
N.T. 27.
27
N.T. 27-28.
28
Plaintiff’s Petition for Partial Custody and Visitation, filed March 24, 2006. The court sua sponte
consolidated this action, at No. 06-1743 Civil Term (Cumberland County), with the prior action between
the mother and father, at No. 2004-191 Civil Term (Cumberland County). See Order of Court, July 21,
2006.
29
N.T. 58.
30
It appears that at one point the father had indicated his intent to acquiesce in the mother’s request that
he give up his parental rights with respect to the child. N.T. 46. However, he changed his mind. N.T.18-
19.
31
N.T. 46.
32
N.T. 47.
33
N.T. 47.
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The mother also indicated that she felt that the father had a drinking problem and that an
environment in which he might be present and intoxicated would not be conducive to the
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child’s well-being.
Plaintiff did not accept the mother’s contention that the child did not know the
father, pointing out that she had known him when they spoke on the child’s birthday in
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2005. While conceding that the father had “made mistakes,” Plaintiff said that “he
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has changed, and I admire him for what he’s doing.”
The evidence at the hearing indicated that Plaintiff was 63 years old, worked part-
38
time, had graduated from high school, and had completed one year of nursing school.
She owned and lived in a four-bedroom house, with her husband, one of their sons, and
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the son’s fiancé. The father testified that he strongly supported his mother’s desire to
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maintain her relationship with the child.
By the conclusion of the hearing, the court was satisfied that the child’s well-being
in an emotional, physical and spiritual sense was not only not being enhanced by the
mother’s refusal to permit any contact between the child and the paternal side of her
family, but was in particular being deleteriously affected by the deprivation of available
love and affection from her grandmother. It also appeared clear that modest periods of
partial custody in the grandmother would in no way adversely affect the parent-child
relationship of either parent.
In these proceedings, no issue was raised by any party as to the constitutionality of
Section 5312 of the Domestic Relations Code, relating to certain rights of grandparents to
34
N.T. 42.
35
N.T. 53.
36
N.T. 53.
37
N.T. 53.
38
N.T. 54.
39
N.T. 55.
40
N.T. 18.
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partial custody and visitation. Nor does the record contain any indication that the
Pennsylvania Attorney General was notified of such a challenge as required by
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Pennsylvania Rule of Civil Procedure 235.
Following the hearing on Plaintiff’s petition for partial custody, the court took the
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matter under advisement, for the purpose of reviewing the state of the law with respect
to the rights of grandparents in the area of custody. The order from which the mother has
appealed, permitting Plaintiff to have physical custody of her granddaughter for a period
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of nine hours on Sunday every two weeks, was issued on July 24, 2006.
Petitions for a supersedeas pending disposition of the appeal were filed by the
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mother in this court and in the Superior Court. Both were denied. Notwithstanding
the foregoing, the mother refused to comply with the order, and she has already been
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adjudicated in contempt of it.
DISCUSSION
Statement of law. Under Section 5312 of the Domestic Relations Code, it is
provided as follows:
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
41
See Act of October 30, 1985, P.L. 264, 23 Pa. C.S. §5312.
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“In any proceeding in a court subject to these rules in which an Act of Assembly is alleged to be
unconstitutional . . . and the Commonwealth is not a party, the party raising the question of
constitutionality . . . shall promptly give notice thereof by registered mail to the Attorney General of
Pennsylvania together with a copy of the pleading or other portion of the record raising the issue and shall
file proof of the giving of the notice.” Pa. R.C.P. 235 (emphasis added).
43
Order of Court, July 21, 2006.
44
Order of Court, July 24, 2006.
45
Application for Supersedeas, filed August 3, 2006.
46
See Order of Court, Superior Court, at No. 1319 MDA 2006, dated August 15, 2006.
47
Order of Court, August 8, 2006, No. 06-1743 Civil Term (Cumberland County); Order of Court,
Superior Court, at No. 1319 MDA 2006, dated August 15, 2006.
48
Order of Court, September 13, 2006 (consent order).
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court shall consider the amount of personal contact between the parents or
grandparents of the party and the child prior to the application.
Act of October 30, 1985, P.L. 264, §1, 23 Pa. C.S. §5312.
“[T]he paramount concern in both custody and visitation cases, including those in
which grandparents are seeking rights, is the best interests of the child.” Douglas v.
Wright, 2002 PA Super. 181, ¶7, 801 A.2d 586, 591 (citations omitted). Factors to
consider in determining the best interests of the child include the child’s physical,
intellectual, emotional and spiritual well-being. Id.
A challenge to the constitutionality of Section 5312 of the Domestic Relations
Code on the ground that the legislation constituted an unreasonable infringement upon
parental rights was rejected by the Pennsylvania Superior Court in Malone v. Stonerook,
2004 PA Super. 48, ¶7 n.2, 843 A.2d 1278, 1281 n.2:
In Troxel [v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49
(2000),] the [United States] Supreme Court found the application of a Washington
state statute permitting “any person” to petition for visitation impermissibly broad
and found that, under the facts of that case, it unconstitutionally infringed on the
fundamental right of the parent to make decisions concerning her child. However,
the Troxel Court cited with approval statutes comparable to 23 Pa.C.S. § 5311
(“When parent deceased”), which do not contain the broad, sweeping language like
that in the Washington statute. Moreover, the Troxel Court determined the trial
court erred by placing the burden on the parent to disprove that the best interests of
the child would be served by granting visitation with grandparents. Here, we
emphasize it is the grandparents’ burden to demonstrate partial custody or
visitation is in the best interest of the children and will not interfere with the
parent-child relationship.
Id. at ¶7, n.2, 843 A.2d at 1281 n.2.
Furthermore, a challenge to the constitutionality of a statute is waived when it is
not presented in the first instance to the trial court. See, e.g., Commonwealth v. Warren,
475 Pa. 31, 379 A.2d 561 (1977). In addition, such a challenge is also waived where
there has been a failure to notify the Attorney General of the challenge pursuant to
Pennsylvania Rule of Civil Procedure 235. Butler v. Rolling Hill Hospital, 382 Pa.
Super. 330, 555 A.2d 205 (1989).
Application of law to facts. In the present case, the mother of the child in question
has attempted, in a custody context, to effect an involuntary termination of parental rights
without benefit of an adjudication to that effect. In the process, she has peremptorily
8
deprived the child of available love and affection from Plaintiff, her paternal
grandmother, among others. Based upon the findings indicated above that modest
periods of partial custody in the grandmother would be in the child’s best interest and that
these periods would not adversely affect the parent-child relationship of either parent, and
pursuant to the authority provided in Section 5312 of the Domestic Relations Code for
relief under the domestic circumstances of this case, it is believed that the order from
which the mother has appealed to the Superior Court was warranted.
The constitutional challenge raised by the mother on appeal to Section 5312 of the
Domestic Relations Code was waived by virtue of the failure to raise it in this court and
by the failure to notify the Pennsylvania Attorney General of an intent to raise it. On the
merits, it is clear that the rights of parenthood are not constitutionally unlimited where a
child’s family is no longer intact and the statute in question is narrowly circumscribed in
terms of standing and applicability. The rationality of the purportedly unconstitutional
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intervention and classification provided for in Section 5312 of the Domestic Relations
Code is demonstrated, in the court’s view, by the facts of the present case.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
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The objectionable “classification” being referred to in Plaintiff’s statement of matters complained of on
appeal would appear to be grandparents of children of parents who have been separated for at least six
months.
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Mark K. Emery, Esq.
410 North Second Street
Harrisburg, PA 17101
Attorney for Plaintiff
Linda I. Peifer
Joseph D. Caraciolo, Esq.
Foreman & Foreman, P.C.
112 Market Street
th
6 Floor
Harrisburg, PA 17101-2015
Attorney for Defendant
Tara Finkboner
Timothy S. Peifer
335 Market Street
Apartment 3A
Harrisburg, PA 17101
Defendant, pro Se
:rc
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