Bottles v. Mullen

29 Pa. D. & C.4th 392, 1995 Pa. Dist. & Cnty. Dec. LEXIS 58
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedSeptember 6, 1995
Docketno. 10687 of 1994
StatusPublished

This text of 29 Pa. D. & C.4th 392 (Bottles v. Mullen) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bottles v. Mullen, 29 Pa. D. & C.4th 392, 1995 Pa. Dist. & Cnty. Dec. LEXIS 58 (Pa. Super. Ct. 1995).

Opinion

MOTTO, J,

Before the court for disposition is the complaint of the natural father, Richard A. Bottles Jr., filed against the maternal grandparents, James and Patricia Mullen, for custody of the minor child, Megan Marie Mullen.

A full hearing on the custody complaint was held on August 21, 1995, from which the court makes the findings hereafter set forth.

Mr. Bottles is employed as a fingerprint examiner with the Federal Bureau of Investigation. He resides in Shinston, West Virginia, in a two bedroom home with a one-half acre back yard. Mr. Bottles is engaged to be married in November of this year. The minor child, Megan, was bom August 6, 1992.

Mr. Bottles and Megan’s mother, Patricia Mullen, who was the daughter of the defendants James and Patricia Mullen, met in late 1990. Mr. Bottles and Megan’s mother cohabitated together for a relatively short period of time and discussed marriage. The cohabitation ended when Mr. Bottles left to take a position with the FBI in Washington, D.C. Before Mr. Bottles left for Washington, D.C., he and Patricia had discussed marrying and living in Washington, D.C. Megan was conceived before Mr. Bottles left. The parties never [394]*394resumed a relationship after Mr. Bottles left to take the Washington, D.C. employment.

Mr. Bottles made various efforts to establish a relationship with Patricia Mullen and Megan; however, his efforts were unsuccessful as Patricia resisted Mr. Bottles’ efforts.

Patricia Mullen became seriously ill in late 1993 and died on May 13, 1994.

After Patricia became seriously ill, Patricia and the minor child, Megan, took residence with her parents, the defendants herein, James and Patricia Mullen, in Ellwood City, Pennsylvania.

The maternal grandmother, Patricia Mullen, testified that she and her husband James have taken care of Megan and raised Megan since November of 1993, acting as though they were the child’s parents.

The maternal grandparents live in a two bedroom single story home in Ellwood City. Both Mr. & Mrs. Mullen are retired. There are other family members in the Ellwood City area with whom Megan enjoys regular contact.

The court generally finds that both Mr. Bottles and Mr. & Mrs. Mullen have adequate ability and facilities to properly care for Megan. Both parties involved in this case have adequate incomes, adequate facilities, and adequate concern and love for Megan to properly provide a home for her. Since September of 1994, Mr. Bottles has enjoyed partial custody of Megan on an alternating weekend basis. Megan is well-adjusted to spending her time both with Mr. Bottles as well as Mr. & Mrs. Mullen.

The applicable legal standard for adjudication of a custody dispute between a parent and a third party is that the parent has a prima facie right to custody which [395]*395will be forfeited only if convincing reasons appear that the child’s best interest will be served by an award of custody to the third party. Cardamone v. Elshoff, 442 Pa. Super. 263, 659 A.2d 575 (1995).1

In the case of In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977), the Superior Court held that the evidentiary scale is tipped, and tipped hard, to the parent’s side. The court further stated that the judge must hear all the evidence relevant to the child’s best interest, and then decide if the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side.

The non-parent bears the burden of production and the burden of persuasion and the non-parent’s burden is heavy. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980).

In this case, the court concludes that it would be in the best interest of Megan to be united with her father as her primary physical custodian as early in her young life as possible. It is of greater benefit to a child to be raised by her natural parent in a traditional family environment than to be raised by her grandparents acting in the same capacity as parents would, even if both parties have equivalent abilities to provide for the physical, intellectual, moral, and spiritual well-being of the child. The court recognizes that Mr. & Mrs. Mullen are to be commended for the care they have provided to Megan for at least the last one and one-half [396]*396years of her life. The court further recognizes that Megan views Mr. & Mrs. Mullen as her primary caretakers, however, there exists no evidence of record from which the court could conclude that Megan will not develop the same sense of stability and security with her father.

Whatever attachment Megan has to her maternal grandparents can be fostered by ensuring that Mr. & Mrs. Mullen are given adequate periods of partial custody with Megan. As time goes by, it will only become increasingly more difficult to effectuate the transfer of custody to the natural father.

For the reasons set forth in this opinion, the court enters the order of even date herewith granting primary physical custody and full legal custody to Mr. Bottles and providing for generous rights of partial custody in the maternal grandparents, James and Patricia Mullen.

ORDER

And now, September 6, 1995, a full hearing having been held on August 21, 1995, on the complaint for custody filed by the natural father, Richard A. Bottles Jr., the court hereby enters the following order:

(1) Primary physical custody and full legal custody of the minor child, Megan Marie Mullen, is awarded to the natural father, Richard A. Bottles Jr., subject however to the rights of partial custody in the maternal grandparents, James and Patricia Mullen, as follows:

(2) The maternal grandparents, James and Patricia Mullen, shall have partial custody on alternating weekends from Friday at 6 p.m. until Sunday at 7 p.m., commencing Friday October 6, 1995.

(3) In the event that the holidays of Easter, Father’s Day, Christmas Eve, and Christmas Day fall on a weekend on which the maternal grandparents are otherwise [397]*397scheduled to have partial custody, then in such event, the natural father shall retain custody for that weekend and the maternal grandparents shall have a make-up weekend of partial custody on the weekend that immediately falls or immediately precedes the day on which the aforesaid holiday occurs, whichever weekend is closer to the holiday.

(4) The maternal grandparents shall have partial custody of the minor child for four weeks in each calendar year, except that in the balance of the year 1995 the natural grandparents shall have partial custody for a one week period only. The maternal grandparents shall give at least 30 days notice each time they elect to exercise a period of one week partial custody. The maternal grandparents shall not be permitted to exercise the right of partial custody on consecutive weeks.

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Related

In Re Custody of Hernandez
376 A.2d 648 (Superior Court of Pennsylvania, 1977)
Gradwell v. Strausser
610 A.2d 999 (Superior Court of Pennsylvania, 1992)
Ellerbe v. Hooks
416 A.2d 512 (Supreme Court of Pennsylvania, 1980)
Cardamone v. Elshoff
659 A.2d 575 (Superior Court of Pennsylvania, 1995)

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Bluebook (online)
29 Pa. D. & C.4th 392, 1995 Pa. Dist. & Cnty. Dec. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bottles-v-mullen-pactcompllawren-1995.