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HomeMy WebLinkAbout00-2183 civilW A. L and J L , Plaintiffs VS. A K. L and R P. B , Defendams IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW CIVIL IN CUSTODY IN RE: OPINION PURSUANT TO RULE 1925 This is a custody case between parties, none of whom is a parent of the child involved. The case concerns L E L born January 2, 1991. Her father, D L , died on April 2, 1999. When L was a baby, she was taken from her mother on an allegation of neglect. She was placed in foster care. At the age of three and a half she went to the custody of her father, D , who was partially paralyzed because of a brain injury. She resided with her father in Quakertown, Pennsylvania, which is also the home of the plaintiffs, W and J L , who are L 's grandparents. The plaintiffs provided considerable assistance in the raising of L including providing transportation for school and for dancing classes. The grandparents took L to Sunday School, bought her clothes and took her on vacations. When D passed away, L went to live with her grandparents. She had her own bedroom and all of her belongings were at her grandparents' home. From the time L was placed in foster care, she also spent considerable time with her paternal aunt, A L , one of the defendants in this case. A was involved in L 's care on weekends, among other times, while her grandmother was working. In fact, 00-2183 CIVIL she took L for at least one weekend a month. This continued over an approximate five-year period. On June 15, 1999, during a dependency proceeding in Bucks County, Pennsylvania, L was found dependent and placed in the custody and care of the defendants who, at that point, had been married for almost a year. L 's placement with her aunt was supported by her grandparents, who told the court that they felt that they were too old to take on the full-time care of a child. After the hearing in June, L spent time with both her grandparents and her aunt. Her belongings were finally removed from her grandparents' home on August 22, 1999, when she came to live at the home of the defendants in New Cumberland, Cumberland County, on a permanent basis. When L first came to live with her aunt and uncle, she experienced considerable difficulty. She had tantrums and cried easily and this behavior often lasted for long periods of time. She had health problems and difficulties with personal hygiene. She was unable to sleep in her own room and was terrified about people breaking into the house at nighttime. The defendants contend that L 's problems are exacerbated by the interference of the plaintiffs. L 's grandparents and aunt have now come to disagree over certain important issues. These involve, among other things, L 's medical care and her access to money. It is clear that L is torn between her aunt and her grandparents. She is reported to be upset following the end of her visitation with her grandparents and, at one point, even expressed the desire to live with them permanently rather than remaining in the home of her aunt. However, once she was able to express these sentiments and speak openly about her situation, things appeared to have gotten better. 00-2183 CIVIL The defendants in this case have filed an action to adopt L . Our understanding of the posture of that case, as of this writing, is that a proceeding is pending before the Honorable Edward E. Guido of this court for the termination of the natural rights of L 's mother. L 's mother, P S N , is currently in the Bucks County Women's Correctional Institution where she has been for some period of time. As of the date of our hearing, a home study had been conducted in the adoption matter. In the meantime, defendants have approached this case involving a request by the grandparents for visitation as if they, the defendants, were L 's parents.~ We know of no legal authority for this approach and instead have treated both the plaintiffs and defendants in this case as third parties vis-h-vis this child. It is well established that the ultimate consideration of the court in any custody case is the question of what is in the best interests of the child. Burnett v. Verstreate, 742 A.2d 700 (Pa. Super. 1999). We are unable to discern any appellate guidance with regard to the facts of this particular case. Nonetheless, we are satisfied that the grandparents here have the burden to prove that it is in the best interests of the child to have "some time with them." See Bucci v.- Bucci, 351 Pa. Super. 457, 506 A.2d 438 (1986). By the same token, their burden of proof is lower than it would be in a custody or partial custody situation since the amount of time that the child would be away from the primary custodian is less. Reigler v. Treen, 442 Pa. Super. 533, 660 A.2d 111, 115 (1995) citing Bishop v. Piller, 399 Pa. Super. 52, at 56, 581 A.2d 670 at 672 (1990). (A case involving a dispute between the paternal grandmother and the mother of a child born out of wedlock.) ~ Both 23 Pa.C.S.A. 5311, dealing with the death of a parent, and 23 Pa.C.S.A. 5312, dealing with the separation of parents, provide for visitation when it would "be in the best interest of the child and would not interfere with the parent-child relationship. this situation, e is no "par ch d onship" with which to interfere. 00-2183 CIVIL At the hearing in this case, we were satisfied that L enjoyed her visits with her grandparents. In addition, this contact would serve to keep her connected with the people who have raised her since infancy. Rightly or wrongly, we have given little weight to the effect of this visitation on the relationship between the child and the defendants who are, after all, not 's parents. In the event that L is adopted, this situation may change, perhaps even dramatically. In addition, it has now been contended that, following visits with the grandparents, the situation has gotten worse rather than better and defendants have filed a petition for a supersedeas with respect to the grandparents' visits while this matter is on appeal. A hearing has been set on that request for January 12, 2001. December/4~ , 2000 Thomas Diehl, Esquire For the Plaintiffs Hess, J. Diane Rupich, Esquire For the Defendants :rlm