Hampton Minors

31 Pa. D. & C.2d 378, 1963 Pa. Dist. & Cnty. Dec. LEXIS 348
CourtPennsylvania Court of Common Pleas, Franklin County
DecidedAugust 10, 1963
Docketmisc. docket vol. U
StatusPublished

This text of 31 Pa. D. & C.2d 378 (Hampton Minors) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Franklin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hampton Minors, 31 Pa. D. & C.2d 378, 1963 Pa. Dist. & Cnty. Dec. LEXIS 348 (Pa. Super. Ct. 1963).

Opinion

DePuy, P. J.,

On March 7, 1963, Clair E. Hampton, father of the above-mentioned minor children, filed his petition alleging that he and his former wife were divorced, that their two children were then living at the home of maternal grandparents, Mr. 'and Mrs. Vernon C. Buterbaugh, in this county, that petitioner had been providing support for the children, that the maternal grandparents had on a number of occasions denied petitioner temporary custody of his children, that petitioner remarried on May 30, 1959, and has established a home in the general neighborhood where the said grandparents reside, which is suitable for the children, and that petitioner is entitled to have their primary custody.

The maternal grandparents, Buterbaughs, filed an answer in which they admitted that the father has been paying $7.50 a week for support of each child but asserting that the actual cost of raising the children is much greater and much of it has been supplied by the said grandparents and by the children’s mother, that the father’s support, as contributed, amounts to less [380]*380than one-half the actual cost of rearing the said children, and that until about February 12, 1963, petitioner had displayed little interest in having custody of the children except for occasional visits. Respondents (Buterbaughs) demanded proof of petitioner’s other averments and asserted that the best interest of the children would be served by their continuing to remain in the primary custody of their maternal grandparents.

Hearings were held in the matter on April 1, 1963, and May 6, 1963. The children were interrogated at chambers in the presence of the respective counsel on June 12,1963.

Summary of Findings of Fact

Petitioner married in 1950 and lived with his wife, the mother of the children, until she left him in 1957. The children, born in 1952 and 1954, and aged 8 and 10 years at the time of the hearing, have from birth spent a great deal of time with their grandparents, and from 1957 have resided with them.

Petitioner remarried in 1959 after his divorce, and resides with his wife in a home purchased by them. Petitioner has visited the children from time to time, and since 1957 has paid $15 per week for their rent and support as well as medical and dental expenses.

Petitioner made no demand for the custody of his children from 1959 to 1963 for the stated reason that finances needed to remodel and furnish their home and the costs of an automobile did not permit it. Petitioner and his wife are both employed, and she expects to continue her employment, apart from her plan to be furloughed from her employment during the summer months if the children are placed in her home.

Discussion

The prime rule by which all child custody cases must be determined is the best interest of the child. The accumulated cases contain other rules, subordinate to [381]*381this, that a court should apply when appropriate. In the application of them lies the great problem.

It is said that where a parent is a contestant, prima facie the best interest of the child is served by having the child with its own parent. This rule is based logically upon the experience of mankind that blood is thicker than water and that a natural parent will normally expend greater effort and sacrifice on behalf of a child than will a third party, especially when the going gets rough in times of economic, medical or other difficulty.

But the presumptive right of the natural parent can and should yield in the face of enough substantial evidence pointing in a different direction. There are cases where the facts show that the mere ties of blood have not produced the most assiduous kind of child rearing, and where, during a parental lapse for a substantial period of time, other persons, whether relatives or not, have demonstrated conclusively their own deep interest in and determination to provide in all respects for the welfare and development of the particular child, and where the child has developed profound emotional ties to the parent substitutes which it would be excessively traumatic and damaging to break.

As pointed out in the briefs of counsel, we are dealing with a different situation here from that in the law of bailment of inanimate objects. When one places a child in a certain environment, the actual and legal incidents created are different from those when one stores furniture in a warehouse, for example. In the latter case, the owner may return years later for his goods and, if heat, cold and moisture have not taken their toll, and if mice have been kept away, the furniture may easily be restored to him in about the same condition as when the bailment occurred.

In the case of a child, we have an emotional reaching out, the imperceptible formation of attachments which [382]*382become ever deeper with the passage of time, projected from both the child and the foster parents. The child’s relation with its own parent or parents will become increasingly attenuated and distant if this is permitted to happen. A court must give recognition to these known, even though intangible, facts if it is to decide properly a case of child custody. Application of the law of bailment is not enough, whether one looks at the terms whereby the child was originally placed in the foster home situation, or at the relationship with its variety of incidents that has developed over the years.

Obviously, the law does not recognize anything resembling a contract by adults over the custody of a child that would be binding on a court in later review of the problem.

A good many cases can be found in the books where a single parent or both parents have, after a lapse of time away from the child, brought suit to recover custody of a child. The parent is entitled to the presumption in favor of natural parents. But there is a critical facet of the problem which we think has not always received careful attention when the presumptive right of the natural parent was under consideration. This facet is presented when the contest is not between natural parents on the one hand and foster parents or grandparents on the other, but where the contest is between one natural parent (who has taken a new spouse) on the one hand, and the people who for a comparatively long time, have performed with energy and love the task of actually rearing the child.

Alongside the presumptive “right” of the one natural parent, a court should give ample attention to the other side of the coin represented by the new stepparent who is to be thrust upon the child willynilly as a new father or mother. History, literature and common experience record the fact that many children, both in the situation where the stepparent exerts every reasonable effort to [383]*383ingratiate himself carefully upon the personality and emotional life of the child, and, on the contrary, where the stepparent has not had either the inclination or the skill to step gracefully into the shoes of the absent natural mother or father, suffer grave personality distortions that have affected permanently their mental health, personality, character and career.

Ought not a court, when confronting this kind of problem, one implicit in the set of facts before us, have regard for fairness to the children and, considering the question in its full orbit, give attention not only to the presumptive natural right of the natural parent (in this case the father), but also give attention to the child’s

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

Related

Commonwealth Ex Rel. Doberstein v. Doberstein
192 A.2d 154 (Superior Court of Pennsylvania, 1963)
Commonwealth Ex Rel. Kuntz v. Stackhouse
108 A.2d 73 (Superior Court of Pennsylvania, 1954)
Commonwealth Ex Rel. McNamee v. Jackson
132 A.2d 396 (Superior Court of Pennsylvania, 1957)
Commonwealth Ex Rel. Graham v. Graham
80 A.2d 829 (Supreme Court of Pennsylvania, 1951)
Commonwealth Ex Rel. Dinsmore v. Dinsmore
182 A.2d 66 (Superior Court of Pennsylvania, 1962)
Commonwealth Ex Rel. Children's Aid Society v. Gard
66 A.2d 300 (Supreme Court of Pennsylvania, 1949)
Commonwealth Ex Rel. v. Edberg Et Ux.
31 A.2d 84 (Supreme Court of Pennsylvania, 1943)
Com. Ex Rel. Stevens v. Shannon
164 A. 352 (Superior Court of Pennsylvania, 1932)
Commonwealth Ex Rel. Oliver v. Oliver
69 A.2d 445 (Superior Court of Pennsylvania, 1949)
Commonwealth ex rel. Bendrick v. White
169 A.2d 69 (Supreme Court of Pennsylvania, 1961)
Commonwealth ex rel. Shamenek v. Allen
116 A.2d 336 (Superior Court of Pennsylvania, 1955)
Commonwealth ex rel. Kraus v. Kraus
138 A.2d 225 (Superior Court of Pennsylvania, 1958)
Commonwealth ex rel. Bradley v. Bradley
146 A.2d 147 (Superior Court of Pennsylvania, 1958)
Commonwealth ex rel. Bailey v. Sumner
163 A.2d 677 (Superior Court of Pennsylvania, 1960)
Commonwealth ex rel. Benson v. Wayne County Child Welfare Service
181 A.2d 850 (Superior Court of Pennsylvania, 1962)
Chapsky v. Wood
26 Kan. 650 (Supreme Court of Kansas, 1881)

Cite This Page — Counsel Stack

Bluebook (online)
31 Pa. D. & C.2d 378, 1963 Pa. Dist. & Cnty. Dec. LEXIS 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hampton-minors-pactcomplfrankl-1963.