Roberts v. Nafus

31 Pa. D. & C.5th 334
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedJune 6, 2013
DocketNo. 6851 CIVIL 2012
StatusPublished

This text of 31 Pa. D. & C.5th 334 (Roberts v. Nafus) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roberts v. Nafus, 31 Pa. D. & C.5th 334 (Pa. Super. Ct. 2013).

Opinion

HIGGINS,./.,

This matter comes before the court on plaintiff Daniel Roberts’ (hereinafter referred to as “father”) complaint for custody. On August 14,2012, father filed a complaint for custody concerning Novaleigh Roberts (hereinafter referred to as “Novaleigh”), age 5, date of birth 6/6/2007. Novaleigh’s mother is defendant Teresa M. Nafus (hereinafter referred at as “mother”). Mother seeks take Novaleigh with her to Michigan where she relocated in October 2011. Mother and father were never married and although father is listed as “father” on Novaleigh’s birth certificate, he is not the biological father of Novaleigh.

Our first inquiry, therefore, is whether father has standing to pursue custody of Novaleigh. 23 Pa. C.S.A. §5324, states in pertinent part:

The following individuals may file an action under this chapter for any form of physical custody or legal custody:
(1) A parent of the child.
(2) A person who stands in loco parentis to the child.

23 Pa. C.S.A. §5324(1),(2).

Mother testified at our initial hearing on January 11, [337]*3372013 (hereinafter referred to as “N.T. 1/11/13) that she became pregnant while she was living in North Carolina. [N.T., 1/11/13] Mother was dating Jason Matthews, Novaleigh’s biological father and during her pregnancy she considered giving Novaleigh up for adoption. [N.T., 1/11/13] During cross examination, mother stated that Mr. Matthews asked mother to abort the pregnancy as he was unable to raise a child. [N.T., 1/11/13] Mother also stated that Mr. Matthews has never met Novaleigh. [N.T., 1/11/13]

Father testified at our subsequent hearing on February 20, 2013 (hereinafter referred to as “N.T. 2/20/13) that he had known mother since high school. [N.T.2/20/13] Father reconnected with mother in March 2007 through the website Myspace.com. [N.T. 2/20/13] Mother was experiencing depression so father traveled to North Carolina to help mother move back to this area. [N.T.2/20/13] Mother and father began dating and living together. [N.T.2/20/13] Father told mother that he would “step in” as dad and he is listed as father on Novaleigh’s birth certificate. [N.T.2/20/13] Father and mother signed an acknowledgement that father was Novaleigh’s father. [N.T. 2/20/13] Novaleigh has father’s last name as her surname. [N.T.2/20/13]

In September 2007, mother and Novaleigh started living with father. [N.T., 1/11/13] Novaleigh was 3 months old when she began living with father. [N.T., 1/11/13] Father has been the only “father” in Novaleigh’s life. [N.T. 2/20/13] Since Novaleigh was bom she has had no contact with the biological father and no other person has asserted paternity. [N.T., 2/20/13] Mother refers to [338]*338father as a loving man, however, in September 2011, mother and father ended their relationship. [N.T. 1/11/13] Nevertheless, Novaleigh has continued to live with father. [N.T., 1/11/13] In October 2011, mother permitted Novaleigh to remain with father1 when she moved to Kalamazoo Michigan. [N.T., 1/11/13]

Standing to pursue any form of physical custody is granted to any person who is a parent of the child. Under the facts set forth above, we have no doubt that father is Novaleigh’s parent. Father is listed as father onNovaleigh’s birth certificate and he has been her father since her birth. Father provided support, cares for and loves Novaleigh. Father testified that he has changed Novaleigh’s diapers, fed, clothed, played and generally taken care of all her needs. Novaleigh calls father “daddy.” Furthermore, our Superior Court has stated that [standing will be found where the child has established a strong psychological bonds with a person who, although not a biological parent, has lived with the child and provided care, nurture, and affection, assuming in the child’s eye a stature like that of a parent.” S.A. v. C.G.R., 856 A.2d 1248 (Pa. Super. 2004) (citation omitted). Therefore, we believe that even if mother could successfully challenge father’s status as Novaleigh’s father, father has standing to pursue custody pursuant to 23 Pa. C.S.A.§5324(2). We will now address the merits of father’s request for custody.

[339]*339In a child custody case, our ultimate purpose is to determine what is in the best interest of the child. Clapper v. Harvey, 716 A.2d 1271, 1273 (Pa. Super 1998) (citation omitted). In determining the best interest of the child, we must proceed on a case-by-case basis and we must consider all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being. Fuehrer v Fuehrer, 906 A.2d 1198, 1200 (Pa. Super. 2006) (citations omitted).

Pennsylvania state legislature has defined elements, which are to be considered in custody cases. The statute, in relevant part, is as follows:

(a) Factors. — In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child’s [340]*340education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

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Related

Sawko v. Sawko
625 A.2d 692 (Superior Court of Pennsylvania, 1993)
Clapper v. Harvey
716 A.2d 1271 (Superior Court of Pennsylvania, 1998)
Gruber v. Gruber
583 A.2d 434 (Supreme Court of Pennsylvania, 1990)
Klos v. Klos
934 A.2d 724 (Superior Court of Pennsylvania, 2007)
S.M. v. J.M.
811 A.2d 621 (Superior Court of Pennsylvania, 2002)
S.A. v. C.G.R.
856 A.2d 1248 (Superior Court of Pennsylvania, 2004)
Fuehrer v. Fuehrer
906 A.2d 1198 (Superior Court of Pennsylvania, 2006)

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Bluebook (online)
31 Pa. D. & C.5th 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-nafus-pactcomplmonroe-2013.