Clark v. Boal

38 Pa. D. & C.4th 197, 1997 Pa. Dist. & Cnty. Dec. LEXIS 145
CourtPennsylvania Court of Common Pleas, Clearfield County
DecidedJuly 18, 1997
Docketno. 95-862-C.D.
StatusPublished

This text of 38 Pa. D. & C.4th 197 (Clark v. Boal) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Clearfield County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Boal, 38 Pa. D. & C.4th 197, 1997 Pa. Dist. & Cnty. Dec. LEXIS 145 (Pa. Super. Ct. 1997).

Opinion

AMMERMAN, J.,

— The above-captioned matter came before this, court for hearing relative to issues pertaining to the custody of August Lynn Boal (d.o.b. 08/23/92). Hearings had previously been held on July 19, August 17, and September 26, 1995 regarding the issue of plaintiffs’ standing to seek primary custody. By opinion and order dated January 24, 1996, [198]*198this court determined that plaintiffs, who are third parties unrelated to the child, stood in loco parentis to August and did indeed have standing to proceed. Testimony regarding the issue of primary custody was taken on October 2 and October 4, 1996, as well as on February 19, February 20, February 26, and February 28, 1997, and thereafter the parties timely submitted briefs.1

Initially, this court’s decision in this case must involve consideration of the standard to be applied in deciding a custody dispute between third parties and a natural parent. In 1980, the Pennsylvania Supreme Court articulated the standard in favor of a natural parent’s prima facie right to custody in disputes between parents and third parties. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980). The court’s decision in Ellerbe was, in part, based upon the rule discussed in the Superior Court’s prior decision of In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977) which decision initially discussed the standard to be applied in custody disputes between parents and third parties. However, in 1995, the Pennsylvania Supreme Court departed from the presumption in favor of natural parents in the plurality decision of Rowles v. Rowles, 542 Pa. 443, 668 A.2d 126 (1995). In Rowles, the natural mother and father had two very young children and were living with the father’s parents. Two months after the birth of the second child, mother and father moved out of the grandparents’ home, leaving the children in the care of the grandparents. A year and a half later, pursuant to divorce proceedings, mother and father named the grandparents as guardians of the children and granted them primary physical custody; the two children con[199]*199tinued to live with, and were raised by, the grandparents. Six months later, the mother petitioned the lower court for the children to be returned to her and to be given custody. The lower court ruled in favor of the grandparents and on appeal the Superior Court affirmed the lower court’s decision. Three years after the original petition was filed by mother, the Pennsylvania Supreme Court reversed and awarded custody of the children to the mother. Adopting the rationale as set forth in the concurring opinion of Ellerbe, authored by Justice Flaherty, the Rowles court abandoned the presumption that a natural parent has a prima facie right to custody as against third parties, and instead followed the rule as stated in the concurring opinion of Ellerbe as follows:

“By clearly eliminating the presumption [in favor of a natural parent] per se, and mandating that custody be determined by a preponderance of evidence, weighing parenthood as a strong factor for consideration, custody proceedings would be disentangled from the burden of applying a presumption that merely beclouds the ultimate concern in these cases: determination of what affiliation will best serve the child’s interests, including physical, emotional, intellectual, moral, and spiritual well-being.” Id. at 373-74, 416 A.2d at 517. (emphasis in original)

The first reported appellate case to cite Rowles was Campbell v. Campbell, 448 Pa. Super. 640, 672 A.2d 835 (1996) filed March 11, 1996. This York County case involved the paternal grandparents and the mother of two children ages 9 and 7 who had been voluntarily placed by the mother in the custody of the grandparents on many occasions. Father is an alcoholic on disability who rarely saw the children. Eventually the grandparents obtained partial and then full custody. This appeal before the Superior Court involved the issue of standing of the grandparents rather than the proper standard to be [200]*200applied in deciding a custody dispute between parents and third parties. Standing was affirmed. In Campbell, by Justice Hester, supra at 643, 672 A.2d at 836, two of the panel members indicate that Rowles changed the standard of proof between parents and third parties. Justice Cavanaugh did not join in the reasoning but only concurred in the result.

The second reported appellate case to reference Rowles was Mollander v. Chiodo, 450 Pa. Super. 247, 675 A.2d 753 (1996) filed May 8, 1996. This McKean County case involved the prospective adoptive parents challenging. an award of primary custody of a child to the natural'mother following her revocation of consent to adopt. The mother, at the age of 17 years, had left her 3-month-old daughter with the adoptive parents for 11 months after which she filed a petition to dismiss adoption proceedings and regain custody. Twenty-two months later the trial court returned custody of the then 3-year-old child to the mother, and the Superior Court by a unanimous panel affirmed. The Superior Court determined, that while the prospective adoptive parents had standing as they had achieved “in loco parentis” status, the trial court’s award of custody to the mother would be affirmed. The trial court evidenced considerable concern about the now 20-year-old mother’s lack of maturity and lack of employment skills but found her to be motivated by love, care and concern for her child. The trial court also noted that mother had provided a clean and safe place for the child to live and that upon visits and observations by the social worker, the mother’s parenting seemed appropriate and the child seemed to be safe and comfortable in the mother’s care. The trial court also noted that there were support services available to assist the mother in her child care.

In Mollander, supra at 251 n.1, 675 A.2d at 755 n.1, the Superior Court panel opined that, while they were “not bound to follow the plurality decision in [201]*201Rowles,” even changing the applicable standard to that as set forth in Rowles would not change the result in the case. The Superior Court reaffirmed the viability of the principles contained in Ellerbe and In re Custody of Hernandez.

The third reported appellate case to cite Rowles was Gancas v. Schultz, 453 Pa. Super. 324, 683 A.2d 1207 (1996) filed August 20, 1996. This Allegheny County case involved the filing of a petition by former husband to prevent ex-spouse from relocating with their child to New Jersey. The trial court awarded custody to father, and mother appealed. The Superior Court reversed and remanded. This relocation case with a per curiam opinion merely cites Rowles for the proposition that “[a] custody determination requires a process of comparing and weighing the relevant facts of the competing custodial environments.” Gancas, supra at 337, 683 A.2d at 1213.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rowles v. Rowles
668 A.2d 126 (Supreme Court of Pennsylvania, 1995)
In Re Davis
465 A.2d 614 (Supreme Court of Pennsylvania, 1983)
Gancas v. Schultz
683 A.2d 1207 (Superior Court of Pennsylvania, 1996)
In Re Custody of Hernandez
376 A.2d 648 (Superior Court of Pennsylvania, 1977)
Stolarick v. Novak
584 A.2d 1034 (Superior Court of Pennsylvania, 1991)
Snarski v. Krincek
538 A.2d 1348 (Supreme Court of Pennsylvania, 1988)
Pilon v. Pilon
492 A.2d 59 (Supreme Court of Pennsylvania, 1985)
Ellerbe v. Hooks
416 A.2d 512 (Supreme Court of Pennsylvania, 1980)
Wiskoski v. Wiskoski
629 A.2d 996 (Superior Court of Pennsylvania, 1993)
Vicki N. v. Josephine N.
649 A.2d 709 (Superior Court of Pennsylvania, 1994)
Mollander v. Chiodo
675 A.2d 753 (Superior Court of Pennsylvania, 1996)
Albright v. Commonwealth Ex Rel. Fetters
421 A.2d 157 (Supreme Court of Pennsylvania, 1980)
Moore v. Moore
574 A.2d 105 (Supreme Court of Pennsylvania, 1990)
Cardamone v. Elshoff
659 A.2d 575 (Superior Court of Pennsylvania, 1995)
Campbell v. Campbell
672 A.2d 835 (Superior Court of Pennsylvania, 1996)
J.A.L. v. E.P.H.
682 A.2d 1314 (Superior Court of Pennsylvania, 1996)
J.A.L. v. E.P.H.
682 A.2d 1314 (Superior Court of Pennsylvania, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
38 Pa. D. & C.4th 197, 1997 Pa. Dist. & Cnty. Dec. LEXIS 145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-boal-pactcomplclearf-1997.