Heron v. Rosso

33 Pa. D. & C.4th 179, 1996 Pa. Dist. & Cnty. Dec. LEXIS 159
CourtPennsylvania Court of Common Pleas, Delaware County
DecidedJanuary 17, 1996
Docketno. 91-11461
StatusPublished

This text of 33 Pa. D. & C.4th 179 (Heron v. Rosso) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heron v. Rosso, 33 Pa. D. & C.4th 179, 1996 Pa. Dist. & Cnty. Dec. LEXIS 159 (Pa. Super. Ct. 1996).

Opinion

CRONIN, J.,

FACTUAL AND PROCEDURAL HISTORY

Joseph L. Heron, petitioner, and Susan J. Rosso, respondent, are the natural parents of one child, named Amy, who is 6 years of age. Pursuant to a complaint for custody filed by petitioner, a temporary order was entered by the Honorable Harry J. Bradley, of this court, which was later modified by the Honorable Joseph T. Labrum, also of this court. Judge Labrum’s order granted petitioner visitation with his daughter, Amy Heron, each Saturday from 6:30 a.m. to 7 p.m. Thereafter, pursuant to a petition for contempt filed by petitioner, the Honorable Patricia Jenkins also entered an order which stated in part, that petitioner shall be permitted to take Amy Heron to religious services of his faith during the periods of lawful custody. Subsequent to the order entered by Judges Labrum and Jenkins, respondent again refused petitioner to have visitation with the child on April 28, 1995, May 6, 1995 and every Saturday thereafter through September 16, 1995. As a result, petitioner filed another petition for contempt against respondent, which was heard on October 13, 1995.

[181]*181On October 13, 1995, this court entered a temporary order, reviewable in four weeks, granting petitioner overnight visitations from 6 p.m. Saturday evening to 7 p.m. Sunday evening and also ordering the parties to attend co-parenting classes. This court then held the petition in contempt in abeyance. On October 27,1995, petitioner filed a notice of appeal to the Superior Court. On October 30,1995, this court issued an order pursuant to Pa.R.A.P. 1925(b), directing petitioner to file a concise statement of matters complained of on appeal. On November 6, 1995, petitioner complied therewith and raised the following issues on appeal:

“(1) Plaintiff avers that this Honorable Court erred in the following particulars in changing his times for partial physical custody:

“(a) by sua sponte changing his visitation from Saturday morning, the court has prevented plaintiff from taking Amy to Seventh Day Adventist services while she was visiting with him. This is an abuse of the court’s discretion and violates plaintiff’s rights and the child’s rights under the Pennsylvania Constitution Article 1, Section 3, his constitutionally recognized fundamental right as a parent and his rights and the child’s rights under the Establishment and Freedom of Expression Clauses of the First Amendment of the United States Constitution; Zummo v. Zummo, 394 Pa. Super. 30, 574 A.2d 1130 (1990)

“(b) in requiring that plaintiff attend co-parenting classes in violation of his religious principles, this court abused its discretion and violated plaintiff’s rights under the Pennsylvania Constitution Article 1, Section 3, his constitutionally recognized fundamental right as a parent and his rights under the Establishment and Freedom of Expression Clauses of the First Amendment of the United States Constitution;

[182]*182(c) m suggesting that Amy’s attendance at Seventh Day Adventist church services with her father was not in her best interest, this court abused its discretion and violated his rights and the child’s rights under the Pennsylvania Constitution Article 1, Section 3, his constitutionally recognized fundamental right as a parent and his rights and the child’s rights under the Establishment and Freedom of Expression Clause of the First Amendment of the United States Constitution.”

LEGAL ANALYSIS

The essence of petitioner’s issues on appeal is that by changing the visitation from Saturday evening to Sunday evening, it effectively prevented petitioner from taking his daughter to church, thereby interfering with his freedom of expression rights contained in the First Amendment of the United States Constitution and the Pennsylvania Constitution, as well as otherwise interfering with his parental rights.

It is well settled that in all cases involving child custody, the paramount consideration is the best interests and welfare of the child. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984); Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977). All other considerations are deemed subordinate to the child’s physical, intellectual, moral and spiritual well-being. In re Davis, 502 Pa. 110, 465 A.2d 614 (1983); K.L.H. v. G.D.H., 318 Pa. Super. 330, 464 A.2d 1368 (1983); Hall v. Mason, 316 Pa. Super. 160, 462 A.2d 843 (1983). Pennsylvania courts have held that religion is an important matter and should be given some consideration in child custody cases, but it is not determinative. K.L.H. v. G.D.H., supra.

[183]*183In the instant case, petitioner’s partial custody consisted of one day per week with the child. During this period, petitioner’s time with his daughter was dominated by his religious pursuits. That is to say, the majority of the time spent with his daughter was consumed by attending church services or travelling to and from church services. (N.T. p. 38.) As a result, the child’s best interests were not being served and the child was deprived of the opportunity to build a relationship with petitioner. Thus, this court expanded said partial custody to include an overnight stay, but structured said custody at a time which would not be completely dominated by religious services. However, it did not prevent petitioner from instructing his child in his religious beliefs as Saturday was not the only day that this could occur, but was merely petitioner’s preferred day. (N.T. p. 44.) Petitioner was specifically instructed that he could attend whatever service he wanted. (N.T. p. 49.) At no time did this court pass any judgment as to the type of religion to which the child was exposed or otherwise favor either parent’s religion. Further, this court never placed any restrictions upon either parent taking the child to services or discussing religious beliefs. This court never interfered with petitioner’s right to expose his child to his religious faith. Instead, the custody schedule provided petitioner with an opportunity to build a broader relationship with his daughter that is not centered exclusively upon religious beliefs.

Moreover, there were indications that petitioner’s religious activities with his child were contrary to the child’s best interests. For example, petitioner took the child to New York City to pass out anti-Catholic literature during the Papal visit. (N.T. p. 9.) This type of conduct is not a religious concern, but a behavioral concern that could subject the child to harm. The child [184]*184is only 6 years old and should not be exposed to such activities. Additionally, petitioner travelled to the child’s school and had auditory hallucinations and prayed loudly. (N.T. p. 18.) Further, petitioner dresses the child in unusual clothing in such a manner that causes her embarrassment. (N.T. pp. 30, 31, 32.) As a result, the court indicated that it wanted objective professional advice to determine the impact, if any upon the child. (N.T. p. 55.)

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Related

Rinehimer v. Rinehimer
485 A.2d 1166 (Supreme Court of Pennsylvania, 1984)
In Re Davis
465 A.2d 614 (Supreme Court of Pennsylvania, 1983)
Egelkamp v. Egelkamp
524 A.2d 501 (Supreme Court of Pennsylvania, 1987)
Stolarick v. Novak
584 A.2d 1034 (Superior Court of Pennsylvania, 1991)
Commonwealth Ex Rel. Spriggs v. Carson
368 A.2d 635 (Supreme Court of Pennsylvania, 1977)
Zummo v. Zummo
574 A.2d 1130 (Supreme Court of Pennsylvania, 1990)
Commonwealth Ex Rel. Robinson v. Robinson
478 A.2d 800 (Supreme Court of Pennsylvania, 1984)
Hall v. Mason
462 A.2d 843 (Supreme Court of Pennsylvania, 1983)
K.L.H. v. G.D.H.
464 A.2d 1368 (Superior Court of Pennsylvania, 1983)

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Bluebook (online)
33 Pa. D. & C.4th 179, 1996 Pa. Dist. & Cnty. Dec. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heron-v-rosso-pactcompldelawa-1996.