In Interest of Tremayne Quame Idress R.

429 A.2d 40, 286 Pa. Super. 480, 1981 Pa. Super. LEXIS 2573
CourtSuperior Court of Pennsylvania
DecidedApril 10, 1981
Docket764
StatusPublished
Cited by34 cases

This text of 429 A.2d 40 (In Interest of Tremayne Quame Idress R.) 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
In Interest of Tremayne Quame Idress R., 429 A.2d 40, 286 Pa. Super. 480, 1981 Pa. Super. LEXIS 2573 (Pa. Ct. App. 1981).

Opinion

SPAETH, Judge:

This is an appeal from an order granting custody of a minor child to his foster-mother instead of to his maternal grandmother. We have concluded that the order was within the lower court’s discretion and should be affirmed, except in one respect. The lower court made no provision for any visitation by the child with his grandmother. We have concluded that this was error, and we shall remand the case with instructions to enter an order providing for extensive visitation by the child with his grandmother, for it is in the child’s best interest that he develop and enjoy a continuing relationship with both his foster-mother and his grandmother.

Tremayne Quame Idress R., the child with whose custody we are concerned, was born on June 15, 1977. Shortly after his birth, Renee R., his natural mother, herself placed him with Mrs. Irene C. Tremayne continued to live with Mrs. C. until June 1978, when his mother took him back to be with *484 her. Tremayne was with his mother, however, for only a few weeks. In early August the police found Tremayne unattended in his mother’s apartment, and on August 9 the Allegheny County Child Welfare Services filed a petition alleging that Tremayne was a dependent child under the Juvenile Act. 1 Tremayne was placed in a shelter, and then in a temporary foster-home under the supervision of Child Welfare Services. After a hearing on August 16, 1978, the lower court ordered that Tremayne remain in the foster-home. On September 27, after the dependency hearing, the court found Tremayne to be a dependent child and ordered him placed with Mrs. C. as his foster-mother. On April 4, 1979, the lower court held a review hearing, after which it ordered that Tremayne remain with Mrs. C. The court also set a date six months later for a second review hearing. However, on April 18, 1979, Tremayne’s mother was found dead in her apartment. Mrs. C. and Mrs. Cordelia R., Tremayne’s maternal grandmother, then each asked the court for custody of Tremayne. A brief hearing was held on May 23, 1979, and a full hearing on July 16. On July 26, 1979, the court filed a memorandum opinion and an order granting custody of Tremayne to Mrs. C. The order made no provision for visitation by Tremayne with Mrs. R., or for any sort of relationship between Tremayne and his grandmother. The case comes before us on Mrs. R.’s appeal, and we shall hereafter generally refer to Mrs. R. as “appellant,” and to Mrs. C. as “appellee.”

-1-

The lower court’s responsibility was to determine what was in Tremayne’s best interest:

“It is fundamental that in all custody disputes, the best interests of the child must prevail; all other considerations are deemed subordinate to the child’s physical, intellectual, moral and spiritual well being. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972).” Garrity v. Garrity, 268 *485 Pa. Super. 217, 221, 407 A.2d 1323, 1325 (1979). “Among the factors to be considered in determining the best interests of the child are the character and fitness of the parties seeking custody, their respective homes, their ability to adequately care for the child, and their ability to financially provide for the child. Shoemaker Appeal, 396 Pa. 378, 381, 152 A.2d 666, 668 (1959).” Kessler v. Gregory, 271 Pa.Super. 121, 124, 412 A.2d 605, 607 (1979). Commonwealth ex rel. Leighann A. v. Leon A., 280 Pa.Super. 249, 252, 421 A.2d 706, 708 (1980).

In making this determination, the lower court allocated the burden of proof equally between the two parties. The first issue we must consider is whether this allocation was correct. We have concluded that it was.

This court’s analysis of how the burden of proof should be allocated in custody cases, in In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977), has recently been approved by our Supreme Court. Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980); Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980). In Hernandez, we identified three sorts of cases: When the dispute is between the parents, or a parent, and the state, in which case the state has a very heavy burden of proof; when the dispute is between parents, in which case the parents share the burden of proof equally; and when the dispute is between the parents, or a parent, and a third party, in which case the third party must show “convincing reasons” why the child’s best interest will be served by an award to the third party. How should the burden of proof be allocated in cases such as the present one, in which the dispute is between two “third parties?” Should it make any difference if one of the third parties is a relative and one is not?

In Hernandez we refused to draw any distinction between relative and non-relative third parties who are disputing a parent’s custody:

It is, of course, true that there are two distinct categories of “third parties”: relatives, and non-relatives. How *486 ever, to draw a distinction in the burden of proof allocated to one category as compared with that allocated to the other would be to indulge in over-refinement, which would distract the inquiry from the essential concern of the case—the child’s best interest. 6 In this regard, it may be noted that formerly grandparents might be held responsible for the support of their grandchildren, but the statute was amended to eliminate this responsibility. The Act of June 24, 1937, P.L. 2045, § 3; as amended by the act of May 23, 1945, P.L. 864, § 1, 62 P.S. § 1973. With this loss of responsibility went the loss of a superior right to custody of grandchildren. See Commonwealth ex rel. Bradley v. Bradley, 188 Pa.Super. 108, 146 A.2d 147 (1958). This is not to discount the fact of blood relationship altogether; it may undoubtedly create a bond between the adult and child. However, except when the relationship is that of parent and child, how close a bond is a question better left to the hearing judge. Suppose that the third party who seeks custody in preference to the child’s mother is a relative who has never had any contact with the child. Next suppose that the third party is a non-relative with whom the child has been living for several years, and that a strong and wholesome relationship has developed between the third party and the child. Comparison of these cases will show that the mere fact of relatedness is not a sufficient reason to impose a lesser burden on the third party relative than on the third party non-relative.

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Bluebook (online)
429 A.2d 40, 286 Pa. Super. 480, 1981 Pa. Super. LEXIS 2573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-interest-of-tremayne-quame-idress-r-pasuperct-1981.