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HomeMy WebLinkAbout2003-5814 Civil HOWARD MOODY AND : IN THE COURT OF COMMON PLEAS OF FRANCINE B. MOODY, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : LISA MARIE SHEAFFER AND : RALPH SHEAFFER, : DEFENDANTS : 03-5814 CIVIL TERM IN RE: CUSTODY OPINION AND ORDER OF COURT Bayley, J., February 13, 2006:-- Lisa Marie Sheaffer, age 31, and Ralph Sheaffer, age 35, are the parents of Matthew Sheaffer, age 12, born November 22, 1993, and Alicia Sheaffer, age 7, born October 23, 1998. They live at 133 Porter Avenue, Carlisle. Matthew is in the sixth grade, and Alicia is in the first grade. The maternal grandparents are Howard G. Moody, age 64, and Francine Moody, age 60, who live at 131 East Hill Crest Drive, Carlisle. The grandmother works part-time and the grandfather is retired. Since the births of Matthew and Alicia, the grandparents have had them for almost every other weekend and at least one weekday evening. The grandparents moved to Carlisle twenty-three years ago. Since then they have attended the First Church of the Brethren, where they are now both Deacons. They have always taken Matthew and Alicia to that church when they have them. The parents were married on January 15, 1993. Shortly after Matthew was born, the father went to prison on a drug charge in Indiana for three years. Upon his release, he lived with the mother, but there were many separations 03-5814 CIVIL TERM leading to a divorce in 1998. In 2001, the father assaulted the mother. He thereafter went to prison for two years. In 2003, the mother filed for bankruptcy. She was having significant medical problems. She asked her parents if the children could live with them for six months. The grandparents agreed and the children lived with them from November 1, 2003 until May 1, 2004. They then went back with their mother, and the father resumed living with them when he was released from prison in November, 2004. The parents have not remarried. The father works in the foodservice department of the Carlisle Country Club. The mother is a homemaker. After the father and mother reunited, they started decreasing the time that Matthew and Alicia were spending with their grandparents. They eliminated all weekdays, and reduced the number of weekends. The grandparents filed a complaint for primary physical custody of Matthew and Alicia. On March 2, 2005, an order was entered by agreement, granting the mother and father legal and physical custody. The grandparents were granted temporary physical custody on alternating weekends from Friday at 5:00 p.m. until Sunday at 6:00 p.m., and on the Wednesday following the weekend with the parents, from after school until 6:00 p.m. The order allowed the grandparents reasonable telephone contact with Matthew and Alicia. The parents now seek to terminate all court ordered temporary physical custody and phone calls with the grandparents, or in the alternative, reduce both and prohibit the grandparents from taking Matthew and Alicia to church. A -2- 03-5814 CIVIL TERM hearing was conducted on February 6, 2006. Both parents agree that Matthew and Alicia have a close, loving relationship with their grandparents and enjoy being with them. The parents testified that they do not want to cutoff all contact between their children with their grandparents, but they want to determine when that contact will take place, and to ensure that the children will not be taken to church. The mother testified that she would voluntarily allow the children to spend one weekend a month with the grandparents. The grandparents object to their court ordered periods of temporary physical custody being vacated, and seek to increase their time with the children by adding a period from after school to 6:00 p.m. on the Monday following the weekend they are with their parents. They oppose any restriction on their taking the children to church when they have them. The mother testified that, although she grew up in the First Church of the Brethren, she now opposes any religion that involves practicing in a church building. She testified that attending a church in a building “is not a necessity for doing the right thing.” She and the father want to build tradition with their children as a family. They maintain that a custody order for the grandparents interferes with their family life and undermines their parental authority. The children are intelligent and have adapted to the current schedule. The grandparents believe that their involvement with the children has and will continue to provide them necessary stability. They acknowledge that the mother and father are trying harder and doing better together than they have in the past. -3- 03-5814 CIVIL TERM The parents initially maintain that the grandparents do not have standing to have partial physical custody of Matthew and Alicia, therefore, their petition to terminate the order of March 2, 2005 must be granted. The grandparents maintain, (1) that the parents waived any issue of standing when they consented K.B., II to the entry of the order of March 2, 2005, and (2) they have standing. In v. C.B.F., 833 A.2d 767 (Pa. Super. 2003), a mother, in June 2000, was granted primary physical custody of a child, and the father was granted partial custody. In February, 2001 in an order that superceded the father’s partial custody, the paternal grandparents were granted partial custody. The father subsequently filed a petition to modify, and the grandparents intervened. Neither the mother nor the father challenged the grandparents’ standing. The trial court awarded the grandparents primary physical custody. On appeal, the mother maintained that the grandparents did not have standing to seek custody of the child. The grandparents argued that based on the order of February 1, 2001, where their standing was not challenged, the issue was waived. The Superior Court of Pennsylvania stated that: . . . the issue of standing in this context is not waivable. Generally, in the context of statutory causes of action, “[w]hen our legislature has designated who may bring an action under a particular statute, a court does not have jurisdiction over the action unless the party bringing the action has standing.” In re Adoption of W.C.K., 748 A.2d 223, 228 (Pa.Super.2000). As we stated in Grom v. Burgoon, 448 Pa.Super. 616, 672 A.2d 823 (1996): [W]hen a statute creates a cause of action and designates who may sue, the issue of standing becomes interwoven Standing then with that of subject matter jurisdiction. becomes a jurisdictional prerequisite to an action.It is well-settled that the question of subject matter jurisdiction may be raised at any time, by any party, or by the court sua sponte. (Emphasis added.) -4- 03-5814 CIVIL TERM Accordingly, in the present case, an issue of standing of the grandparents has not been waived. Notwithstanding, the grandparents maintain that they have automatic standing to seek periods of temporary physical custody with Matthew and Alicia under 23 Pa.C.S. Section 5313(b). Section 5313 provides in its entirety: When grandparents may petition (a) Partial custody and visitation.—If an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more and is subsequently removed from the home by his parents,the grandparents or great- grandparents may petition the court for an order granting them reasonable partial custody or visitation rights, or both, to the child. The court shall grant the petition if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship. (b) Physical and legal custody.—A grandparent has standing to bring a petition for physical and legal custody of a grandchild.If it is in the best interest of the child not to be in the custody of either parent and if it is in the best interest of the child to be in the custody of the grandparent, the court may award physical and legal custody to the grandparent. This subsection applies to a grandparent: (1) who has genuine care and concern for the child; (2) whose relationship with the child began with the consent of a parent of the child or pursuant to an order of court; and (3) who for 12 months has assumed the role and responsibilities of the child’s parent, providing for the physical, emotional and social needs of the child, or who assumes the responsibility for a child who has been determined to be a dependent child pursuant to 42 Pa.C.S. Ch. 63 (relating to juvenile matters) or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness. The court may issue a temporary order pursuant to this section. (Emphasis added.) -5- 03-5814 CIVIL TERM R.M. v. Baxter, ex rel. T.M., In 777 A.2d 446 (Pa. 2001), T.M.’s paternal grandmother filed a complaint for custody or partial custody and/or visitation with her grandchild. The complaint was dismissed by a trial court on the basis that she lacked standing. The Supreme Court of Pennsylvania stated: Initially, we note that prior to the 1996 enactment of Section 5313(b), a grandparent had no right to seek visitation or partial custody of a grandchild unless a parent was deceased, 23 Pa.C.S. § 5311, the parents’ marriage was dissolved or the parents separated, id. at § 5312, or the child had resided with the grandparent for 12 months or more and was subsequently removed from the home by his parents, id. at § 5313. See also Herron v. Seizak, 321 Pa.Super. 466, 468 A.2d 803 (1983) (grandparents have no right to visit child where neither parent was deceased, parents’ marriage was not dissolved, and child had not resided with grandparent for 123 months or more). The 1996 amendment changed the heading title of Section 5313 (from “When child has resided with grandparents” to “When grandparents may petition”), designated the former text as The subsection (a) and added the text set forth in subsection (b). new subsection (b) recognized a grandparent’s claim for “physical and legal custody” of a grandchild, rather than the previous reference to “partial custody and visitation.” Thus, the 1996 legislation expanded grandparents’ rights and specifically addressed the issue of grandparent standing in a custody matter. (Emphasis added.) The Court affirmed an order of the Superior Court of Pennsylvania reversing the order of the trial court, and remanded to the trial court, stating: “A The unqualified language of the statute states, grandparent has standing to bring a petition for physical and legal custody of a grandchild.” This clear and unambiguous pronouncement cannot be ignored or modified by the subsequent reference to whom the provision, as a whole, is intended to apply. It is well settled that words and phrases contained in a statute shall be construed according to rules of grammar and according to their -6- 03-5814 CIVIL TERM common and approved usage. Commonwealth v. Burnsworth, 543 Pa. 18, 669 A.2d 883 (1995); 1 Pa.C.S. § 1903(a). When the words of a statute are clear and free from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. Id. at § 1921(b). The language providing that, “This subsection applies to a grandparent who . . .,” refers to the requirements a grandparent must establish to prevail on the merits of the custody claim. This is evidenced by the fact that “this subsection” is entitled, “Physical and legal custody,” rather than “Standing.” (Emphasis added.) Thus, when a grandparent seeks primary physical custody of a child there is See also,K.B., II v. C.B.F., supra. automatic standing under Section 5313(b). O’Brien v. O’Brien, In 03-3569 Civil (slip opinion filed November 4, 2003), where grandparents sought physical and legal custody of their grandchild, this R.M. v. Baxter ex rel. T.M., supra K.B., II v. C.B.F., court concluded under and supra, they had automatic standing under Section 5313(b). In dicta, we stated that “[t]here is no automatic standing where grandparents seek only partial custody or visitation of a grandchild under Section 5313(a).” Our opinion has not changed. Section 5513(a) provides standing where the relief sought is partial sub judice, custody or visitation. In the case Matthew and Alicia have never resided with their grandparents for a period of twelve months or more, and then been subsequently removed from the home by their parents. Thus, the grandparents do not have standing under Section 5313(a). There are two other statutory provisions for standing for grandparents seeking partial custody or visitation. One is 23 Pa.C.S. Section 5311, -7- 03-5814 CIVIL TERM 1 when a parent is deceased. That is not applicable here. Section 5312 provides: 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. Malone v. Stonebrook, In 843 A.2d 1278 (Pa. Super. 2004), a mother and father, who were not married, were the parents of a son. They separated. The son then resided in the primary physical custody of his mother. The father, who had no further relationship with the mother, had periods of partial physical Douglas v. Wright, In 801 A.2d 586 (Pa. Super. 2002), the trial court awarded 1 physical custody of children to a father, with partial custody to the maternal grandparents of the deceased mother. The Superior Court concluded that the grandparents had standing under 23 Pa.C.S. Section 5311, noting: We recognize the relatively recent decision of the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and find it readily distinguishable. In Troxel, the 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, 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 interests of the children and will not interfere with the parent-child relationship. -8- 03-5814 CIVIL TERM custody. The paternal grandmother sought partial physical custody and visitation with the child, claiming standing under 23 Pa.C.S. Section 5312. Preliminary objections to her complaint were granted. On appeal, the Superior Court of Pennsylvania reversed, stating: The language of section 5312 clearly and unambiguously provides that the grandparents of a child whose parents are divorced, involved in dissolution proceedings or have been separated for six months or more may maintain an action for visitation or partial custody. See Hill v. Divecchio, 425 Pa.Super. 355, 625 A.2d 642, 647 (1993) . . . . Hill v. Divecchio, supra, In the Superior Court noted that: [T]he statutory rights created under section[s] 5311-5313 provide a means for grandparents or great-grandparents on the non-custodial side to guard against potential estrangement … that might occur after one parent dies, or after the parents separate or divorce and custody of the child is with one parent. In the present case, although the parents were divorced in 1998 and have not remarried, they have lived together continuously with Matthew and Alicia since November, 2004. The grandparents do not have standing under 23 2 Pa.C.S. Section 5312. In conclusion, automatic standing under Section 5313(b) allows grandparents to seek primary physical custody which can be granted only if it is 3 in the best interest of a child not to be in the custody of a parent. For grandparents to have partial physical custody, standing is limited by Sections 5311, 5312 and 5313(a). If there is no standing under any of these sections, They lacked standing when the order of partial custody with Matthew and Alicia 2 was entered by agreement on March 2, 2005. The burden of proof requires that convincing reasons appear that the child’s 3 K.B., II v. C.B.F., supra. best interest will be served by an award to a third party. -9- 03-5814 CIVIL TERM grandparents cannot obtain an order of partial physical custody even if the children would benefit from it as they have in the present case. For the foregoing 4 reasons, the following order is entered. ORDER OF COURT IT IS ORDERED AND NOW, this day of February, 2006, that the petition of Lisa Marie Sheaffer and Ralph Sheaffer to terminate the partial physical custody of Howard Moody and Francine B. Moody with Matthew IS GRANTED. ARE Sheaffer and Alicia Sheaffer, All prior custody orders, VACATED. By the Court, Edgar B. Bayley, J. Dirk Berry, Esquire For Plaintiffs Marcus A. McKnight, III, Esquire For Defendants :sal This resolution makes it unnecessary to address any merits issues. As to the 4 Douglas v. Wright, supra. church issue, see -10- HOWARD MOODY AND : IN THE COURT OF COMMON PLEAS OF FRANCINE B. MOODY, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : LISA MARIE SHEAFFER AND : RALPH SHEAFFER, : DEFENDANTS : 03-5814 CIVIL TERM IN RE: CUSTODY ORDER OF COURT IT IS ORDERED AND NOW, this day of February, 2006, that the petition of Lisa Marie Sheaffer and Ralph Sheaffer to terminate the partial physical custody of Howard Moody and Francine B. Moody with Matthew IS GRANTED. ARE Sheaffer and Alicia Sheaffer, All prior custody orders, VACATED. By the Court, Edgar B. Bayley, J. Dirk Berry, Esquire For Plaintiffs Marcus A. McKnight, III, Esquire For Defendants :sal