Gwiszcz Appeal

213 A.2d 155, 206 Pa. Super. 397, 15 A.L.R. 3d 880, 1965 Pa. Super. LEXIS 816
CourtSuperior Court of Pennsylvania
DecidedSeptember 16, 1965
DocketAppeal, No. 91
StatusPublished
Cited by35 cases

This text of 213 A.2d 155 (Gwiszcz Appeal) 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
Gwiszcz Appeal, 213 A.2d 155, 206 Pa. Super. 397, 15 A.L.R. 3d 880, 1965 Pa. Super. LEXIS 816 (Pa. Ct. App. 1965).

Opinions

Opinion by

Hoffman, J.,

Frank J. Rozanski, appellee, filed a petition to obtain visitation rights with his illegitimate son, Bruce Gwiszcz. On October 19, 1964, Judge Stout of the [399]*399County Court of Philadelphia permitted such visits. From this order, the mother, Evelyn Gwiszcz, now appeals.

Two questions are set forth for our determination:

(1) May a putative father be awarded the privilege of visiting his illegitimate child who is in the custody of the mother?

(2) Should the putative father be permitted to visit his illegitimate son in the instant case?

I

Most recently, in Commonwealth ex rel. Golembewski v. Stanley, 205 Pa. Superior Ct. 101, 208 A. 2d 49 (1965), we decided, President Judge Ervin dissenting, that “ [A] s a matter of legal policy ... it is detrimental to the welfare of an illegitimate child in the mother’s custody to award visitation privileges to the putative father.” Accordingly, that case stands for the proposition that a putative father may never be granted the privilege of visiting his illegitimate child when it is in the mother’s custody. Since Golembewski was a case of first impression in the appellate courts of Pennsylvania, we have been asked to reconsider that decision. After further study, we conclude that our statement of law in Golembewski should be overruled. We now hold that it is proper for the courts, in the appropriate circumstances, to grant visitation privileges to a putative father.

At common law, the custody of an illegitimate child was given to the local parish. The rule was first modified by placing the exclusive right to custody in the mother. Subsequently, the right of custody was extended in many jurisdictions, including Pennsylvania,1 to include [400]*400the putative father under certain circumstances. The almost universal rule that the best interests of the legitimate child govern the award of custody has been similarly extended, in a majority of jurisdictions to include illegitimate children.2

Whether the putative father should be permitted to visit an illegitimate child in the custody of the mother lias' not been considered as extensively. Courts which have been confronted with this problem, however, have recognized that such privileges may be granted. See, e.g., Baker v. Baker, 81 N. J. Eq. 135, 85 A. 816 (1913); People ex rel. Mahoff v. Matsoui, 247 N.Y.S. 112 (1931) ; In re Anonymous, 172 N.Y.S. 2d 186 (1958) ; People ex rel. Francois v. Ivanova, 14 A.D. 2d 317, 221 N.Y.S. 2d 75 (1961) ; Strong v. Owens, 91 Cal. App. 2d 336, 205 P. 2d 48 (1949); Ex parte Hendrix, 186 Okla. 712, 100 P. 2d 444 (1940); In re G., 1 W.L.R. 911, 2 All E.R. 876 (C.A. 1956).3 In each of these cases, the primary concern of the court was not the illegitimacy of the child or the relationship of the parties; the ultimate decision was based on the child’s welfare.

We similarly recognize that in any case involving Visitation, neither the fact of illegitimacy nor the personal preferences or prejudices of the parents should control our decision. The governing criterion must always he the welfare and best interests of the child.

Illegitimacy, however, continues to strike a discordant and jarring note in our society. It is regarded as the fruit of a union of shame, irreverence and depravi[401]*401ty. We have not yet achieved that sophistication or. charity which would allow us to understand and deal with this problem without passion. Indeed, our wrath has most often been visited not upon those who have violated our ethical and moral codes, but, rather, upon the blameless child.

Unfortunately, no subterfuge, artifice or device can ever fully conceal this condition from the community’s prying eye. Exposed to this hostile environment, the child may develop symptoms of rejection and inferiority. Every supportive measure must be employed to protect such a child.

Courts in other states have recognized the benefits which may result from permitting a putative father to visit with his illegitimate child. In People ex rel. Mahoff v. Matsoui, supra, the court concluded that: “‘[Tjhe father must not be excluded from a full opportunity to have such possession of his child as will' enable him to impart to it what from the father enters into the child’s character, and to indulge the affection that a father feels and bestows, whereby the boy may grow up in knowledge and love of him.’ The same is true concerning the importance of preserving here the affection which manifestly exists between the respondent and the child, even if the respondent is only its putative father.”

In Baker v. Baker, supra, Vice-Chancellor Howell of the New Jersey Court of Chancery stated:

“I think it is much better for the child to have the father visit it at stated times, not only to learn of its continued welfare, but to infuse into it, at an early age, the natural love and. affection that it should have for. a parent-who is interested in its well-being.- In his later years, he will be able more lightly to bear the ignominy of his origin, if he has the consciousness that he is acknowledged to be on the same affectionate footing as the other child, notwithstanding the disparity [402]*402between their legal situations.”4

To state as a matter of law that the visits of a putative father are always detrimental to the illegitimate child’s best interests is to exalt rule over reality. This approach ignores the growing recognition in our courts, and in courts throughout the nation, of the need to determine the welfare of each child in light of his own particular needs and circumstances.

The putative father may, in many instances, instill in the child a sense of stability. He may develop qualities in the child which the mother is uninterested, unwilling or incapable of developing. To the extent that he can perform such a valuable service, his presence becomes exceedingly important.5 Certainly, to the illegitimate child, the father is never putative.'

We recognize that granting visitation privileges to the putative father may not always serve the child’s best interests. Visitation rights, however, are always a matter for the supervision of the courts. Should it appear, after visitation privileges have been granted, that the father’s presence has an adverse effect on the child’s welfare, the right to visit may be withdrawn.

In summary, every case must be decided on the basis of its own particular facts. The unique problems of [403]*403each child must receive individual attention and consideration. Any attempt by us to determine the best interests of every child by a single rule would be judicially, socially and morally unsound.

II

With the above principles in mind, we turn to the facts in the instant case. ' '

Frank J. Rozanski, a married man, and Evelyn Gwiszcz, a single girl, became the parents of a baby' boy, Bruce, on June 21,1961. The putative father paid the hospital bill incurred at the time of birth and secured an apartment for Miss Gwiszcz and Bruce. For approximately one year, until he lost his job, he gave them $40.00 to $50.00 a week.

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Bluebook (online)
213 A.2d 155, 206 Pa. Super. 397, 15 A.L.R. 3d 880, 1965 Pa. Super. LEXIS 816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gwiszcz-appeal-pasuperct-1965.