Burnett v. Verstreate

742 A.2d 700, 1999 Pa. Super. 295, 1999 Pa. Super. LEXIS 4068
CourtSuperior Court of Pennsylvania
DecidedDecember 3, 1999
StatusPublished
Cited by5 cases

This text of 742 A.2d 700 (Burnett v. Verstreate) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burnett v. Verstreate, 742 A.2d 700, 1999 Pa. Super. 295, 1999 Pa. Super. LEXIS 4068 (Pa. Ct. App. 1999).

Opinion

TAMILIA, J.:

If 1 Appellants/paternal grandparents, Jerry and Judy Burnett, appeal from the May 18, 1998 Order granting appel-lee/mother, Ruby Verstreate, legal and primary physical custody of her daughter, Kassandra, and the July 7, 1998 Order (as corrected by the Order of July 22, 1998) awarding appellants partial custody. 1

¶ 2 The minor child, Kassandra, was born on April 5, 1989 to appellee and appellants’ son, Thomas Burnett, who lived together until early 1992. After the couple separated, the child remained in the physical custody of her father. On May 14, 1996, Thomas Burnett was awarded legal and primary physical custody and appellee was awarded partial custody. Due to Thomas Burnett’s work schedule and, later, physical disability, however, appellants acted as temporary caretakers of the child until November 1996 when, after a dispute with appellants, Thomas Burnett resumed his role as primary caretaker. Shortly thereafter, in December 1996, appellee commenced her suit for custody of the child and appellants petitioned for grandparent visitation. The court denied appellants’ petition and set a date for a preliminary custody conference. In April 1997, while Thomas Burnett recuperated from an operation, the child was placed in appellants’ custody and, thereafter, on January 5, 1998, appellants filed a complaint for custody against appellee and Thomas Burnett. A hearing was conducted on March 17, 1998, wherein the court found appellants had standing to seek legal and physical custody of the child. On May 6, 1998, appellee was awarded legal and physical custody of the child and on July 7, 1998 appellants were awarded partial custody. This timely appeal followed.

¶ 3 Appellants raise three questions for our review:

I. Did the lower court err in its application of the law regarding custody disputes between a parent and a grandparent?
II. Did the lower court err in awarding custody of the minor child to the Appellee?
III. Did the lower court err in its order granting visitation [partial custody] to the Appellants?

¶4 Recently, this Court, in Cardamone v. Elshoff, 442 Pa.Super. 263, 659 A.2d 575 (1995), set forth the appropriate standard *702 of review in a custody dispute involving a parent and a third party.

The scope of review of an appellate court reviewing a child custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that had no competent evidence to support it.... However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination.... Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.

Id. at 578-79 (citations omitted).

¶ 5 Appellants contend the trial court failed to apply the correct law regarding a custody dispute between a natural parent and grandparents, relying on the Supreme Court’s decision in Rowles v. Rowles, 542 Pa. 443, 668 A.2d 126 (1995), for the proposition that the Supreme Court has “explicitly abandoned the presumption that a parent has a prima facie right to custody of their child as against third parties.” Appellants’ Brief at 11. In Rowles, the Supreme Court was divided three-three on reconsideration of the presumption of parents’ prima facie right to custody. Justice Flaherty, joined by Justices Nix and Cas-tille would have replaced the prima facie presumption with a rule that custody be determined by a preponderance of evidence, weighing parenthood as a strong factor for consideration. Id. at 444, 668 A.2d at 128 (emphasis in original). The Concurring Opinion by Justice Montemur-ro, joined by Justices Zappala and Cappy, however, found “no particular advantage in dispensing with the ‘presumption’ ” and found “no reason to alter a process which already takes into proper account both the ideal and the reality of parental behavior.” Id. at 452, 668 A.2d at 130-31.

¶ 6 In Mollander v. Chiodo, 450 Pa.Super. 247, 675 A.2d 753 (1996), this Court recognized the possible trend toward the elimination of a natural parent’s presumptive right to custody but held this Court is not bound by the plurality decision in Rowles. This Court reiterated the standard of Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980):

[T]he parents have ‘a prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the eviden-tiary scale is tipped, and tipped hard, to the parents’ side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, and then, decide whether 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.

Mollander, 675 A.2d at 754 (citations omitted).

¶ 7 The trial court did not err by applying the prima facie presumption to this custody matter and did not fail to properly assess the evidence presented. The court recognized the appropriate standard set forth in Ellerbe, supra, and properly evaluated three days of testimony regarding the parties’ lifestyles, home environments, personal relationships and contact with the child. While we do not wish to diminish appellants’ substantial, positive influence on the child, we find no indication that the trial court’s custody Order was unsupported by the record.

¶ 8 The court in this case has been the sole arbiter of the custody litigation involving Kassandra. The initial custody action in 1996 pitted the parents against each other for the custody of the child. Under the facts of the case, as they existed at that time, the best interest of the child appeared to favor custody with the father. *703 While the court avoided characterizing the mother as unfit, the court found that the most stable relationship for Kassandra would be achieved with the father as primary custodian. In actuality, while the father had a live-in partner, Ms. Mingos, to aid in this performance, between the award of custody to the father in May 1996 (and before) and the change in that award in July 1998, the de facto caretakers were Jerry and Judy Burnett, the paternal grandparents. Their care of the child was all that could be wished, however, that alone cannot be the determining factor in this case.

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Bluebook (online)
742 A.2d 700, 1999 Pa. Super. 295, 1999 Pa. Super. LEXIS 4068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnett-v-verstreate-pasuperct-1999.