Higbee v. Curea

29 Pa. D. & C.5th 169
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedMarch 18, 2013
DocketNo. 11099 2012
StatusPublished

This text of 29 Pa. D. & C.5th 169 (Higbee v. Curea) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Higbee v. Curea, 29 Pa. D. & C.5th 169 (Pa. Super. Ct. 2013).

Opinion

PICCIONE, J.,

Before the court for disposition is a petition to intervene filed on behalf of the maternal grandparents, John and Cathy Curea (hereinafter, “maternal grandparents”). A brief factual and procedural summary of this case is as follows:

The plaintiff, Jonathan Higbee (hereinafter, “father”), and the defendant, Candace Curea (hereinafter, “mother”) are the natural parents of the minor child Jionni Curea, bom July 22,2012. Plaintiff initiated the within complaint for custody on September 19, 2012. Father was a minor child at the time this action was filed, and was therefore assisted by his mother, Colleen Higbee, in commencing this action. Shortly thereafter, on October 19, 2012, maternal grandparents filed a petition to intervene.

Following a custody conference before the custody officer on October 19, 2012, a temporary custody order was entered whereby mother was awarded primary physical custody, and father was awarded supervised partial custody rights every Sunday from 10:00 a.m. until 12:00 noon at mother’s residence. Father was awarded additional weekly supervised visitation with the minor children as agreed upon by the parties. Legal custody is shared between mother and father. The parties again appeared before the custody officer on January 4, 2013 for a review conference. Following the January 4, 2013 conference, father’s partial custody rights were expanded to provide father with increased visitation on the weekends, which would eventually result in father’s [171]*171custodial time being unsupervised.

On January 31, 2013, this court held a hearing on maternal grandparents’ petition to intervene. Following the hearing, this court issued a briefing schedule. Briefs have been filed on behalf of the respective parties, and the Petition to Intervene is now ripe for disposition.

It is well established that the court’s primary concern in any custody proceeding is the best interests of the child, based on a consideration of all factors “that legitimately affect the child’s physical, intellectual, moral and spiritual wellbeing.” Swope v. Swope, 689 A.2d 264, 265 (Pa. Super. 1997). This determination is to be made on a case by case basis. Myers v. DiDomenico, 657 A.2d 956, 957 (Pa. Super. 1995).

With regard to a custody challenge by a third party, the Pennsylvania courts have expressed a strong preference for the rights of biological parents. In Charles v. Stehlik, 744 A.2d 1255 (Pa. 2000), the Supreme Court of Pennsylvania stated:

In a custody contest between two biological parents, “the burden of proof is shared equally by the contestants....” Yet, where the custody dispute is between a biological parent and a third party, the burden of proof is not evenly balanced. In such instances, “the 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 evidentiary scale is tipped, and tipped hard, to the [172]*172[biological] parents’ side.”

Id. at 1258 (citations and quotations omitted); see also T.B. v. L.R.M., 753 A.2d 873 (Pa. Super.2000) (holding that biological parents have a prima facie right to custody over third persons) aff’d, 786 A.2d 913 (Pa. 2001).

A question of intervention, however, is a matter that is left up to the discretion of the trial court. Nemirovsky v. Nemirovsky, 776 A.2d 988, 991-992 (Pa. Super. 2001) (citing: Wilson v. State Farm Mutual Auto. Ins. Co., 517 A.2d 944, 947 (Pa. 1986). Because persons other than the natural parents are considered third parties in any custody proceeding, J.F. v. D.B., et al, 897 A.2d 1261 (Pa. Super. 2006), maternal grandparents must first establish that they have standing in this action in order to intervene and subsequently challenge the natural parents’ prima facie right to custody. McDonald v. Sohn, 762 A.2d 1101 (Pa. Super. 2000).

The Superior Court of Pennsylvania addressed the issue of intervention by grandparents in the case of K.B. II v. C.B.F., 833 A.2d 767 (Pa. Super. 2003). In C.B.F., the natural mother and natural father had one child during the course of their marriage. 833 A.2d at 769. The natural parents ultimately divorced. Id. Natural father had a history of drug and alcohol abuse, and natural mother was accused of abusing the minor child. Id. Paternal grandparents then petitioned to intervene in the ongoing custody dispute between the natural parents, which request was granted. Id. Following a custody trial, paternal grandparents were awarded primary physical custody of the minor child. Id. at 770. On appeal, natural mother challenged the trial court’s [173]*173decision to permit paternal grandparents to intervene in the proceedings. Id.

In C.B.F., the Superior Court ultimately determined that under 23 Pa.C.S.A. §53131 a grandparent has automatic standing to seek physical and legal custody of his or her grandchildren, regardless of whether there has been a prior determination of unfitness by the parent or dependency of the child. Id. at 775. In reaching its conclusion, the C.B.F. Court revisited a similar case recently issued by the Supreme Court of Pennsylvania: R.M. v. Baxter, 777 A.2d 446 (2000). Id.

In Baxter, the paternal grandmother filed a custody complaint after the minor child, T.M., was adjudicated dependent. Paternal grandmother based her claim for custody on the fact that she frequently visited and cared for T.M. at the request of T.M.’s natural parents. Paternal grandmother asserted that section 5313 of the Domestic Code clearly permitted grandparents to intervene in a custody proceeding. The Supreme Court agreed and determined that

The unqualified language of [23 Pa.C.S.A. §5313] states, “A grandparent has standing to bring a petition for physical and legal custody of a grandchild.” This clear and unambiguous pronouncement cannot be ignored or modified by the subsequent reference to whom the provision, as a whole, is intended to apply. It is well settled that words and phrases contained in a statute shall be construed according to rules of [174]*174grammar and according to their common and approved usage. Commonwealth v. Burnsworth, 669 A.2d 883 (Pa. 1995); 1 Pa.C.S. § 1903(a). When the words of a statute are clear and free from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. Id. at §1921(b).

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Related

Silfies v. Webster
713 A.2d 639 (Superior Court of Pennsylvania, 1998)
Gradwell v. Strausser
610 A.2d 999 (Superior Court of Pennsylvania, 1992)
Nemirovsky v. Nemirovsky
776 A.2d 988 (Superior Court of Pennsylvania, 2001)
Commonwealth v. Burnsworth
669 A.2d 883 (Supreme Court of Pennsylvania, 1995)
Wilson v. State Farm Mutual Automobile Insurance
517 A.2d 944 (Supreme Court of Pennsylvania, 1986)
McDonel v. Sohn
762 A.2d 1101 (Superior Court of Pennsylvania, 2000)
Charles v. Stehlik
744 A.2d 1255 (Supreme Court of Pennsylvania, 2000)
Swope v. Swope
689 A.2d 264 (Superior Court of Pennsylvania, 1997)
Spells v. Spells
378 A.2d 879 (Superior Court of Pennsylvania, 1977)
RM v. Baxter Ex Rel. TM
777 A.2d 446 (Supreme Court of Pennsylvania, 2001)
Myers v. DiDomenico
657 A.2d 956 (Superior Court of Pennsylvania, 1995)
J.A.L. v. E.P.H.
682 A.2d 1314 (Superior Court of Pennsylvania, 1996)
In re Adoption of W.C.K.
748 A.2d 223 (Superior Court of Pennsylvania, 2000)
T.B. v. L.R.M.
786 A.2d 913 (Supreme Court of Pennsylvania, 2001)
K.B. v. C.B.F.
833 A.2d 767 (Superior Court of Pennsylvania, 2003)
J.F. v. D.B.
897 A.2d 1261 (Superior Court of Pennsylvania, 2006)
Commonwealth ex rel. Morgan v. Smith
241 A.2d 531 (Supreme Court of Pennsylvania, 1968)

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Bluebook (online)
29 Pa. D. & C.5th 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higbee-v-curea-pactcompllawren-2013.