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HomeMy WebLinkAbout2002-2962 Civil LUIS FIGUEROA, Plaintiff/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW 02-2962 CIVIL MARIA RODRIGUEZ, DefendantIPetitioner CUSTODY IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT BEFORE HESS, 1. OPINION AND ORDER Before the court are the preliminary objections of the defendant raising the issue of whether the plaintiff, Luis Figueroa, has standing in this custody case. The extremely thorough brief, filed on behalf of the defendant, Maria Rodriguez, sets forth detailed findings of fact which the court finds to be supported by the record. We will summarize them. The child, Luis Figueroa, was born at York Hospital, York, Pennsylvania, on October 19, 2000. At no time did the plaintiff live with Maria Rodriguez or with Maria Rodriguez and the child as a family unit. He did not attend doctors' visits when Ms. Rodriguez was pregnant nor was he present at the child's birth. Following his birth, Luis resided with his mother at the home of the maternal grandmother on North Third Street in Harrisburg. For some months after the birth, Ms. Rodriguez continued to have a relationship with Mr. Figueroa. Mr. Figueroa was living with his mother in Mechanicsburg. During this time period, Mr. Figueroa had very little to do with the child who bore his name. During the entire first year of Luis's life, Mr. Figueroa saw the child only occasionally. He did not pay support nor did he provide food or clothing. In fact, it was not until Mother's Day of 2002 that the plaintiff indicated that he wished to see more of Luis. Around that time, Ms. Rodriguez asked the plaintiff to submit to a blood test to determine paternity, there being a question all along as to whether Mr. Figueroa was Luis's NO. 02-2962 CIVIL father. He refused to take the test. Since that time and, specifically, since April of2004, it has become apparent through DNA testing that one Mannix Martinez is the biological father of the child. Luis accepts and understands that Mr. Martinez is his "daddy" and has begun to call Mr. Figueroa by his first name. Were this the full extent of the background of this case, we would agree entirely with the analysis advanced by counsel for the mother. We agree, for example, that Mr. Figueroa would not have acted in loco parentis. Nor, could the plaintiff establish that he should be considered a parent by estoppel. There is more, however, to the history of this matter. As noted in the factual findings proposed by the defendant, the plaintiff filed a complaint in custody on June 20, 2002, in which he averred, among other things, that he was the natural father of the child. He and Ms. Rodriguez attended a conciliation session in July of2002. Ms. Rodriguez had not retained nor was she represented by counsel at the conciliation. On August 9, 2002, as a result of an understanding reached at conciliation, an order was entered granting the parties, Luis Figueroa and Maria Rodriguez, virtually 50/50 shared physical and legal custody of the child, Luis. On September 16, 2003, the plaintiff filed a petition to modify custody. On March 6, 2004, a hearing was held and the court granted the plaintiff primary physical custody with partial custody in the defendant every other weekend. In May and June of2004, apparently after the parties learned of blood test results confirming the paternity ofMr. Martinez, both filed cross-petitions for special relief. Notwithstanding, the March 6, 2004 order was eventually reaffirmed by the court and the case was referred to conciliation. No agreement was reached at conciliation and cross-motions for custody have come before the court. Rather than proceeding to a hearing on the merits, the defendant has interposed preliminary obj ections raising the question of standing. The defendant's otherwise correct 2 NO. 02-2962 CIVIL analysis of the law in this area virtually ignores the fact that Mr. Figueroa has spent at least equal time with the child, Luis, for two and a half years. The defendant observes, almost in passing, that it "simply does not follow that because plaintiff was able to prosecute a custody case virtually unopposed for two years that Maria Rodriguez acquiesced to plaintiffs parental status." Would her position be the same if it had been three years? Or five years? Or ten years? The defendant properly relies upon the case of Campbell v. Campbell, 672 A.2d 835 (Pa. Super. 1996). In that case, grandparents, concerned about the care being received by their grandchildren, filed a petition for visitation or partial custody against the mother. In March of 1994, pursuant to a negotiated agreement between the mother and the grandparents, the Common Pleas Court ordered the parties to share legal custody. The mother was awarded primary physical custody and the grandparents were given partial physical custody every third weekend, one-half of the summer vacation, and various other school vacations. The mother did not appeal. The grandparents eventually sought physical custody of the children. In January of 1995, the Common Pleas Court awarded primary physical custody to the grandparents and partial physical custody to the mother. On appeal, the mother raised the issue of standing. The Superior Court rejected her argument. Clearly, there is no issue of standing in this case. Grandparents were granted joint legal custody of these children with Mother's agreement in March, 1994. Mother never appealed that order of custody. Having joint legal custody of the children and partial physical custody, Grandparents clearly had standing to seek primary physical custody. See Tracey L. v. Mattye F., _Pa. Super. ---' ---' 666 A.2d 734 (1995) (third party, who not only acted in loco parentis but previously was awarded custody, clearly had standing to challenge custody order); Walkenstein v. Walkenstein, supra (Grandmother established her standing since she 3 NO. 02-2962 CIVIL was granted custody of child by court order, and order never was appealed). Id at 837. In this case, also, there was a custody order from which there was no appeal. It is no doubt true that Ms. Rodriguez's position in this litigation would have been advanced sooner and more effectively had she been represented by counsel earlier. On the other hand, her suggestion that Mr. Figueroa now figures prominently in the life of Luis because she was somehow overwhelmed by the legal system is belied by her prior actions in this case. It may well be, at the end of the day, that Ms. Rodriguez should become this child's primary custodian. We will not prejudge this issue but observe that there are now many factors which have come together to complicate the question of what is in Luis's best interest. It is now apparent that Mr. Figueroa is not Luis's natural father. His real father, Mannix Martinez, has recently been released from jail. While Mr. Martinez has told others that he has an interest in acting as a father to Luis, no hearing has been held in which the depth of his newfound affection could be plumbed. In fact, the court has never laid eyes on Mr. Martinez. We are, instead, asked to extinguish a child's relationship with the only father figure he has ever known on the basis that that father figure has no standing in court. This we decline to do. The defendant's brief cites to (but agrees that Pennsylvania has not adopted) the American Law Institute Principles of the Law of Family Dissolution: Analysis and Recommendations (American Law Institute, 2002). To the extent that they mirror Pennsylvania law, the Principles may provide us some guidance in this case. 1 Even the Principles cannot be applied in a case where the facts have yet to be determined. In the meantime, we prefer to take the risk that Luis will have two fathers rather than no father at all. 1 See particularly Section 2.18 Allocations of Responsibility to Individuals Other Than Legal Parents. 4 NO. 02-2962 CIVIL ORDER AND NOW, this day of March, 2005, the preliminary objections of the defendant raising issues of standing are DENIED. Either party may submit a motion and proposed order setting this matter for hearing. BY THE COURT, Kevin A. Hess, 1. Jeanne Costopoulos, Esquire F or the Plaintiff/Respondent Grace D' Alo, Esquire For the DefendantIPetitioner :rlm 5 LUIS FIGUEROA, Plaintiff/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW 02-2962 CIVIL MARIA RODRIGUEZ, DefendantIPetitioner CUSTODY IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT BEFORE HESS, 1. ORDER AND NOW, this day of March, 2005, the preliminary objections of the defendant raising issues of standing are DENIED. Either party may submit a motion and proposed order setting this matter for hearing. BY THE COURT, Kevin A. Hess, 1. Jeanne Costopoulos, Esquire F or the Plaintiff/Respondent Grace D' Alo, Esquire For the DefendantIPetitioner :rlm