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HomeMy WebLinkAbout00-0601 civilDAVID L. RUPP and WANDA L. ' RUPP, Plaintiff ' VS. ERIC D. RUPP and DEANNA KIMMEL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA OO-O6O 1 CIVIL CIVIL ACTION - CUSTODY MEMORANDUM AND ORDER BEFORE HESS, J~.. AND NOW, this ORDER day of March, 2001, the petition of the plaintiffs for visitation is DENIED. Yvonne Husic, Esquire For the Plaintiffs BY THE COURT, eSS~( Carol Lindsay, Esquire For the Defendants :rim DAVID L. RUPP II, and WANDA L. RUPP, Plaintiffs VS. ERIC D. RUPP and DEANNA KIMMEL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-0601 CIVIL CIVIL ACTION - CUSTODY MEMORANDUM AND ORDER BEFORE HESS, J. David L. Rupp, II and Wanda L. Rupp, the plaintiffs, are the natural paternal grandparents of the two boys who are the subject of this proceeding, Quinton Rupp, born October 23, 1995, and Nevin Rupp, born September 5, 1996. The action was initially brought because the plaintiffs' son, Eric Rupp, would not allow his parents to have contact with the children during his periods of partial custody. A conciliation conference was held, initially, on March 22, 2000. The plaintiffs requested that the conference be rescheduled so that they could have the benefit of the attendance of legal counsel. A second conciliation conference was rescheduled and eventually held on July 18, 2000. At that time, the father of the boys, Eric D. Rupp, let it be known that he had signed consents to the adoption of the children by the mother's husband.~ Those adoption proceedings have since become final and the children are now, by all appearances, happily situated in a new home with a new father. On July 24, 1998, the mother married Ryan Kimmel. Mr. Kimmel adopted Quinton and Nevin in August of 2000. The boys' mother, Deanna Kimmel, has been a close friend of Mr. Kimmel's since high school. The boys' new father had considerable contact with them since ,, The natural parents had been separated for several years and were never married. 00-0601 CIVIL they were very young. In their new home, the children have essentially three sets of grandparents' Mr. Kimmel's father and mother, Mrs. Kimmel's mother and her husband, and Mrs. Kimmel's father and his wife. After Quinton was bom, Eric and Deanna began to live together. During the time Eric and Deanna were living together, the plaintiffs, David and Wanda Rupp, would visit with their grandchildren. After approximately a year and a half, in July of 1997, the couple separated and several months later Eric moved back with his parents. He lived with them until the beginning of 1998 before moving out to live with a new girlfriend. After the parents separated, the plaintiffs had regular contact with the boys every other weekend and on Wednesday nights when Eric had partial custody. In November of 1999, visitation with the grandparents ceased. Since then, as noted above, the boys have been adopted by Mr. Kimmel. They have had no contact, whatsoever, with the plaintiffs in this matter. The provision of the law governing the rights of grandparents in a situation like this one is set out in the Domestic Relations Code as follows: § 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 the application. 00-0601 CIVIL The only appellate case we have found which is at all like this one is Rigler v. Treen, 442 Pa. Super. 533,660 A.2d 111 (1995). There, as here, the parental rights of the natural father were ended. In that case, the court laid to rest the question of whether the grandparents had standing pursuant to Section 5312 where the natural parents of the subject child had not been married. The court found that there was standing, noting that the rights of grandparents are cut off only if the child is adopted by third parties who are not stepparents. Id. at 538, 660 A.2d at 113. In Rigler, the trial court had found that there was hostility between the child's mother and his paternal grandmother. An expert witness, whose testimony the lower court accepted, opined that this strained relationship would have an adverse effect on the child and therefore that visitation was not in the child's best interest and would interfere with the parent-child relationship. Id__:. at 536, 660 A.2d at 112. The situation in the matter sub judice is not as extreme as in Rigler.. Nonetheless, in this case it is not at all clear that a grant of visitation is in the best interest of the children. A little more than a year passed between the grandparents' last contact with the boys and our hearing. The children were ages three and four, respectively, when they last spent time with the petitioners. According to Ms. Kimmel, the boys do not ask about nor mention the petitioners at any time. N.T. 73. When the mother resided with Mr. Rupp, she was very concerned with the petitioner' s, Wanda Rupp' s, behavior which included severe mood swings. Following Ms. Kimmel's separation from Mr. Rupp, Ms. Wanda Rupp lodged an unfounded complaint with Children and Youth Services critical of the care that Ms. Kimmel was giving to the boys. For that reason, there is an understandable level of mistrust between the mother and paternal grandmother. 00-0601 CIVIL Ms. Kimmel views any visitation on the part of the petitioners, even limited, to be highly disruptive. She observes that she has been obliged to share custody of the children during their infancy. She now desires a normal family arrangement without interference. She observes that even without allowing for the petitioners, visiting all of the grandparents is a considerable undertaking. We are being asked to re-establish a grandparent-grandchildren relationship after more than a year hiatus. Were we to do so, this would occur just as the children are settling into a new life with a new paternal family. The Rupps claim to be estranged from their son. Notwithstanding, we believe that chances are at least even that, were his parents visiting his children, Eric would attempt to reinsert himself into their lives. We cannot believe that this would be a situation conducive to the welfare of these boys. The petitioners acknowledge that the only contact to which they might be entitled is minimal; i.e., a few hours every other month. We are not satisfied that such visits would constitute time of any quality. For the foregoing reasons, we will deny the pending petition for visitation. In doing so, we are not unmindful of the immense sense of loss which will be felt by the petitioners. That loss has occurred, moreover, by virtue of forces not of their making. This is a case, in short, which makes one aware of the limitations of even the best of legal systems. ORDER AND NOW, this iq' day of March, 2001, the petition of the plaintiffs for OO-O6O 1 CIVIL visitation is DENIED. BY THE COURT, Yvonne Husic, Esquire For the Plaintiffs Kev~?Hess, J. Carol Lindsay, Esquire For the Defendants :rim