Kuntz v. Allen

48 Pa. D. & C.3d 105, 1987 Pa. Dist. & Cnty. Dec. LEXIS 77
CourtPennsylvania Court of Common Pleas, Carbon County
DecidedDecember 9, 1987
Docketno. 85-1269
StatusPublished

This text of 48 Pa. D. & C.3d 105 (Kuntz v. Allen) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Carbon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kuntz v. Allen, 48 Pa. D. & C.3d 105, 1987 Pa. Dist. & Cnty. Dec. LEXIS 77 (Pa. Super. Ct. 1987).

Opinion

LAVELLE, P.J.,

This is a child custody case.. The issue we are called upon to decide is whether a long absent father is entitled to visitation with his 13 yéar old daughter'who is openly hostile to him and does not want to see him.

PROCEDURAL HISTORY

This case originated in Northampton County in 1976. While the child was in the custody of plaintiff, William Allen, the mother initiated a custody proceeding and the Honorable Michael V. Franciosa awarded custody to Connie Allen who was still a minor under the supervision of her mother, Alice Diehl. The father was given broad visitation rights. Judge Franciosa’s decision was based on application of the tender years doctrine which was the prevailing law in Pennsylvania at that time.

In July, 1985, the father filed a petition for contempt in Northampton County alleging he had been denied access in visitation with his daughter.

On August 9, 1985, Judge Franciosa entered an interim order for supervised visitation and ordered [106]*106the case transferred to Carbon County because the child had moved to Lehighton, Pa. with her mother.

On October 17, 1985, plaintiff filed a complaint for custody/visitation with this court and also filed a motion for special relief to continue the interim visitation. We entered an order granting plaintiff limited supervised visitation with his daughter at the Office of Children and Youth Services in Jim Thorpe, Pa. and scheduled a hearing on plaintiff’s complaint for February 18, 1986.

On November 8, 1985, the mother filed a petition to terminate plaintiff’s parental rights to his daughter. At the hearing on the termination petition, after testimony from the mother that she did riot intend to marry or live with the proposed adoptive father, Robert Borgey, we deferred further hearing on the termination petition pending a hearing on plaintiff’s custody/visitation complaint. ■

On February 18, 1986, the parties appeared for a hearing. Before the hearing began, the parties entered into an agreement for expanded supervised visitatiori between plaintiff and his daughter. The visitation was to last for approximately five months after which it would be reviewed. This agreement was never signed by the mother and an order was never entered.

After consideration of the testimony taken at the hearing on October 8, 1986 and the evidence admitted by stipulation of counsel on July 1, 1987, and reviewing the proposed findings of fact and conclusions of law submitted by counsel, we make the following findings of fact in narrative form.

FINDINGS OF FACT

(1) Shannon Marie Allen, a minor, was born on August 5, 1974, and is presently 13 years of age.

[107]*107(2) Plaintiff, William M. Allen III, is the natural father of Shannon Allen.

(3) Plaintiff currently resides at 3546 Linden Street, Allentown, Pa. with his wife, Elizabeth Allen, and two minor children, James, age 4 and Jessica, age two and a half. Plaintiff and his wife have been married since August of 1982.

(4) Connie Allen is the natural mother of the minor child, Shannon Allen. She has been the custodial parent of said child since December 14, 1986, pursuant to an order of court entered in Northampton County, Pennsylvania. The order also granted visitation rights to plaintiff and provided that Connie Allen was to continue to reside with her mother in Lehighton, Pa.

(5) Connie Allen presently resides at 148 Bankway Street, Lehighton, Pa., with the minor child, Shannon Allen, and another minor child, Eumir Aaron.

(6) Connie Allen is presently unmarried and exhibits a deep seated and seething animosity toward, plaintiff.

(7) Plaintiff resides in a single family home consisting of a living room, dining room and kitchen on the first floor and three bedrooms and a bath on the second floor. The home has been recently remodeled by plaintiff.

(8) Plaintiff has been employed at Bethlehem Steel Corporation in Bethlehem, Pa., for 14 years as a general laborer. His current work day is from 6:30 A.M. to 2:30 P.M.

(9) Plaintiff is a recovering drug and alcohol abuser and has been drug and alcohol free for at least seven years. He continues to attend meetings of Narcotics Anonymous and is the regional service representative for this area for this organization.

[108]*108(10) The home environment of plaintiff is stable and there is no evidence that plaintiff suffers from mental or moral deficiencies at the present time.

(11) Shannon is openly hostile to plaintiff and does not want him in her life.

DISCUSSION

The paramount concern of the court in any case involving the custody or visitation of children is the welfare and best interest of the child. Niadna v. Niadna, 343 Pa. Super. 298, 494 A.2d 856 (1985); Commonwealth ex rel. Shee v. Holewski, 316 Pa. Super. 509, 463 A.2d 480 (1983); In re Struck, 291 Pa.Super. 61, 435 A.2d 219 (1981); Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977). All other considerations, including the rights of parents, are secondary and subordinate to a child’s physical, intellectual, moral, spiritual and emotional well-being. Constant A. v. Paul C.A., 344 Pa.Super. 49, 496 A.2d 1 (1985); Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d 152 (1983).

However, to the extent that it is consistent with the child’s well-being, the court must also respect and preserve the right of the non-custodial parent to develop or continue a relationship with his or her child. Auman v. Eash, 228 Pa.Super. 242, 323 A.2d 94 (1974). Under normal circumstances, the courts of this commonwealth “do not sanction the estrangement of a child from either parent”. Niadna v. Niadna, supra, 343 Pa.Super. at 302, 494 A.2d at 858; citing Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 247, 447 A.2d 630, 634 (1982).

The cases in which visitation has been permanently denied have been those in which severe moral' or mental deficiencies of the parent have constituted a real and grave threat to the welfare of the [109]*109child. Niadna v. Niadna, supra; Somers v. Somers, 326 Pa.Super. 556, 474 A.2d 630 (1983); Commonwealth ex rel. Peterson v. Hayes, 252 Pa.Super. 487, 381 A.2d 1311 (1977). In the present case, although the father has a history of drug and alcohol abuse, the evidence presented to us indicates that he is recovering and has been drug and alcohol free for seven years. Therefore, we find that the father presently suffers from no mental or moral deficiencies as would result in a denial of his right to establish a relationship with Shannon.

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Related

In Re Stuck
435 A.2d 219 (Superior Court of Pennsylvania, 1981)
Friedman v. Friedman
307 A.2d 292 (Superior Court of Pennsylvania, 1973)
Constant A. v. Paul C.A.
496 A.2d 1 (Supreme Court of Pennsylvania, 1985)
Brooks v. Brooks
466 A.2d 152 (Supreme Court of Pennsylvania, 1983)
COM. Ex Rel. LOTZ v. Lotz
152 A.2d 663 (Supreme Court of Pennsylvania, 1959)
Auman v. Eash
323 A.2d 94 (Superior Court of Pennsylvania, 1974)
Commonwealth Ex Rel. Newcomer v. King
447 A.2d 630 (Supreme Court of Pennsylvania, 1982)
Hoffer v. Hoffer
447 A.2d 972 (Supreme Court of Pennsylvania, 1982)
Somers v. Somers
474 A.2d 630 (Supreme Court of Pennsylvania, 1984)
Commonwealth Ex Rel. Peterson v. Hayes
381 A.2d 1311 (Superior Court of Pennsylvania, 1977)
Spells v. Spells
378 A.2d 879 (Superior Court of Pennsylvania, 1977)
Commonwealth Ex Rel. Shee v. Holewski
463 A.2d 480 (Supreme Court of Pennsylvania, 1983)
Nancy E.M. v. Kenneth D.M.
462 A.2d 1386 (Supreme Court of Pennsylvania, 1983)
Niadna v. Niadna
494 A.2d 856 (Supreme Court of Pennsylvania, 1985)
Commonwealth Ex Rel. Lotz v. Lotz
146 A.2d 362 (Superior Court of Pennsylvania, 1958)
Guiseppi Appeal
146 A.2d 365 (Superior Court of Pennsylvania, 1958)

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Bluebook (online)
48 Pa. D. & C.3d 105, 1987 Pa. Dist. & Cnty. Dec. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuntz-v-allen-pactcomplcarbon-1987.