McNamara v. Thomas

741 A.2d 778, 1999 Pa. Super. 276, 1999 Pa. Super. LEXIS 4032
CourtSuperior Court of Pennsylvania
DecidedNovember 17, 1999
StatusPublished
Cited by19 cases

This text of 741 A.2d 778 (McNamara v. Thomas) 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
McNamara v. Thomas, 741 A.2d 778, 1999 Pa. Super. 276, 1999 Pa. Super. LEXIS 4032 (Pa. Ct. App. 1999).

Opinions

[779]*779BECK, J.

¶ 1 This is an appeal from an order granting preliminary objections to a petition for visitation. The trial court determined that petitioner-appellant, Holly McNamara, failed to satisfy the standards for determining the standing of a third party to seek visitation/custody with a minor child established in Kellogg v. Kellogg, 435 Pa.Super. 581, 646 A.2d 1246 (1994). We affirm.

¶ 2 Appellant McNamara is the biological mother of an eleven year old daughter, S.P.T., born in 1988. She and the child’s biological father never married. In 1989, the biological parents jointly agreed to transfer custody of the child to Andrew M. Thomas II, the child’s paternal grandfather, but retained the right to visit her. McNamara exercised this right throughout the time the child was in her grandfather’s custody. McNamara would visit with the child every week during the summer and approximately once a month during the school year. She would also call the child several times a week and visited her on holidays.

¶ 3 In 1993 McNamara and the biological father voluntarily terminated their parental rights and consented to the adoption of the child by the child’s paternal grandfather. After the adoption, McNamara continued to visit with the child, with the permission of the adoptive parent, until mid-1996 when the adoptive parent died. He left a will appointing the child’s paternal aunt, appellee Kathleen M. Thomas, as the child’s guardian with legal and physical custody.1 The aunt never petitioned to adopt the child.

¶ 4 After the death of the adoptive father, the child lived with her aunt. McNamara’s visitation with the child immediately declined. She alleges that the aunt began to prevent her from visiting the child or contacting her by telephone. McNamara’s last visit with the child was at the end of March or early April 1997. It would appear that at that time McNamara had not seen the child since Christmas of 1996. McNamara concedes that she did “back off’ in her attempts to have contact with the child immediately after the adoptive father’s death and did not attempt to contact the child’s financial trustee or anyone else to determine how the child was faring. Ultimately, on December 23, 1997, McNamara filed a petition for visitation with the child.

¶ 5 The appellee aunt filed preliminary objections challenging McNamara’s standing to seek visitation on the ground that McNamara had relinquished all legal rights and responsibilities as to the child when McNamara agreed to the termination of her parental rights. After initially denying the preliminary objections the trial court granted reconsideration and scheduled a hearing and reargument. At the hearing, McNamara testified to the facts as set forth above. On September 30, 1998, the trial court sustained the preliminary objections. The court ruled that McNamara had not proven by clear and convincing evidence that she had shown a sincere, substantial and sustained interest in the welfare of the child. Therefore, the court ruled that McNamara had failed to demonstrate that she had standing to seek visitation with the child under the standards established by Pennsylvania law. See Kellogg v. Kellogg, supra.

¶ 6 We may reverse the trial court’s grant of preliminary objections on grounds of lack of standing only for an abuse of discretion or error of law. Id. at 1250.

¶ 7 McNamara contends that the trial court abused its discretion by finding that she failed to demonstrate her sincere, substantial and sustained interest in the welfare of the child. Appellee counters that the trial court did not abuse its discretion [780]*780because McNamara’s own testimony revealed that she had flagged in her efforts to maintain a relationship with the. child after the death of the adoptive parent and had not sustained a sufficient interest in the child’s welfare. Moreover, appellee argues that even if McNamara had shown a sufficient and sustained interest in the welfare of the child, she nevertheless lacks standing because she voluntarily relinquished all rights to the child years ago and should not be permitted to seek visitation with the child she allowed to be adopted.

¶ 8 We point out that the legal status of both appellee and appellant are as third parties with the appellee-aunt in the position of a third party with custody. The law of Pennsylvania governing the standing of third parties to obtain custody of or visitation with children who are in the custody of another third party has been settled. In Kellogg v. Kellogg, a panel of this court determined that anyone who is not the parent of a child (i.e., a third party) has standing to seek custody of the child as against another third party who has custody of the child only if the moving party produces clear and convincing evidence that he or she “has shown a sustained, substantial and sincere interest in the welfare of the child.” Id. at 1249. Following Kellogg, another panel of this court applied the same standard to a case which, like the instant case, involved a petition for visitation by a third party against a custodial third party. MacDonald v. Quaglia, 442 Pa.Super. 149, 658 A.2d 1343 (1995).

¶ 9 Both Kellogg and MacDonald recognized that the law differentiates between an attempt by a third party to seek custody/visitation against a person who has the legal status of a parent and an attempt by a third party to seek such rights against another third party who merely has custody of the child. In the former situation, the law requires a greater showing by the moving party to establish his or her standing to pursue the matter. See, e.g., Jackson v. Garland, 424 Pa.Super. 378, 622 A.2d 969 (1993)(third party seeking custody of child presently in physical custody of another third party but still in legal custody of natural parent did not have standing); Gradwell v. Strausser, 416 Pa.Super. 118, 610 A.2d 999 (1992) (third parties lack standing to seek custody against natural parents unless third party demonstrates he has stood in loco parentis to child); See also Bupp v. Bupp, 718 A.2d 1278 (Pa.Super.1998).

¶ 10 The law makes this differentiation for good reason. As the Jackson Court explained, “[t]he law protects the natural parent’s relationship with his or her child and will not interfere unnecessarily with that relationship.... Freedom of personal choice in matters of family life, and concomitant freedom from unwarranted governmental intrusions, is a fundamental liberty interest protected by the Fourteenth Amendment....” Jackson, 622 A.2d at 970-71. In contrast, cases that do not involve an attempted intrusion upon the rights of persons who have the legal standing of parents are governed by a different and less demanding standard. The Kellogg Court recognized this somewhat unusual aspect of the law of standing in custody/visitation cases when it stated:

In cases involving child custody the traditional principles of standing are modified. The standing analysis considers the relationship of the parties asserting standing.

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McNamara v. Thomas
741 A.2d 778 (Superior Court of Pennsylvania, 1999)

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Bluebook (online)
741 A.2d 778, 1999 Pa. Super. 276, 1999 Pa. Super. LEXIS 4032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnamara-v-thomas-pasuperct-1999.