Rowles v. Rowles

668 A.2d 126, 542 Pa. 443, 1995 Pa. LEXIS 1215
CourtSupreme Court of Pennsylvania
DecidedNovember 29, 1995
StatusPublished
Cited by47 cases

This text of 668 A.2d 126 (Rowles v. Rowles) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rowles v. Rowles, 668 A.2d 126, 542 Pa. 443, 1995 Pa. LEXIS 1215 (Pa. 1995).

Opinions

OPINION

FLAHERTY, Justice.

This appeal involves our reconsideration of the standard to be applied in deciding a custody dispute between parents and third parties. The children are Royce Edward Rowles, born March 17, 1988, and Kaitlyn Louise Rowles, born May 2,1990, of Michelle A. Rowles, appellant, and David E. Rowles. In December, 1989, the parents, David and Michelle, together with their only child, Royce, moved into the home of David’s [445]*445parents, Blair and Julia Rowles, and sister, Donna Jean Rowles, appellees. In July, 1990, two months after Kaitlyn was born, in order to resolve marital problems without affecting the children adversely, the parents moved out of the grandparents’ home, leaving the children in the physical custody of the grandparents.

A year and a half later, in February, 1992, in pursuance of divorce proceedings, the parties executed a guardianship agreement in which the parents named appellees guardians of the children and granted appellees physical custody. In May, 1992, the guardianship agreement was incorporated into a divorce decree terminating the parents’ marriage.

Six months later, on November 3, 1992, the mother petitioned for the physical custody of her children. Following hearings, the trial court ordered that primary physical custody be retained by the grandparents. The Superior Court affirmed. We granted allocatur both to review the legal standard governing a custody dispute between parents and third parties and to review its application in this case.

Thus the first issue is to determine the proper standard which controls custody disputes between parents and third parties. The trial court acknowledged that the rule of Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980), applied in this case, giving parents a prima facie right to custody of their children, though the presumption in favor of parents as against third parties is not conclusive. The Superior Court likewise identified the case of Ellerbe as setting forth the rule governing custody cases between parents and third parties, but cited several additional cases in which custody was denied parents despite the presumption in their favor: e.g., Albright v. Com. ex rel. Fetters, 491 Pa. 320, 327, 421 A.2d 157, 160 (1980) and Snarski v. Krincek, 372 Pa.Super. 58, 538 A.2d 1348 (1988).

In Ellerbe, this court was confronted with a custody contest between a parent and a third party. A majority of the court adopted the rule of In re Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977), and articulated its new standard as follows:

[446]*446[P]arents have a “prima facie right to custody,” which “may be forfeited if convincing reasons appear that the best interests of the child will be served by awarding custody to someone else.” ... [T]he Superior Court, through Judge Spaeth, articulated the following approach:
“When the judge is hearing a dispute between the parents, or a parent, and a third party, ... [t]he question still is, what is in the child’s best interest? However, the parties do not start out even; 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 parents’ side----
We agree that this approach is appropriate. Clearly these principles do not preclude an award of custody to the non-parent. Rather they simply instruct the hearing judge that the non-parent bears the burden of production and the burden of persuasion and that the non-parent’s burden is heavy.
Thus where circumstances do not clearly indicate the appropriateness of awarding custody to a non-parent, we believe the less intrusive and hence the proper course is to award custody to the parent or parents.”

Ellerbe v. Hooks, 490 Pa. at 367-69, 416 A.2d at 513-14 (citations omitted).

A concurring opinion by this author, joined by Mr. Justice, now Chief Justice, Nix, questioned the legitimacy of recognizing “a prima facie presumption that parents have a right to custody of their children as against third parties.” Id. at 371-72, 416 A.2d at 516 (emphasis in original) (Flaherty, J., concurring). The opinion explained the vulnerability of the presumption as follows:

In Commonwealth ex rel. Spriggs v. Carson, [470 Pa. 290, 368 A.2d 635] [ (1977) ], where we overruled the “tender years” presumption that custody should be awarded to [447]*447mothers rather than fathers, we stated: “Courts should be wary of deciding matters as sensitive as questions of custody by the invocation of ‘presumptions’. Instead, we believe that our courts should inquire into the circumstances and relationships of all the parties involved and reach a determination based solely upon the facts of the case before the Court.” The same reasoning should apply where the custody dispute is between parents and third parties.
... [T]he underlying tenor of the “presumption” reflects an archaic concept that children are proprietary assets of parents. Serious question may be posed with respect to the soundness of the apriorism that mere biological relationship assures solicitude, care, devotion, and love for one’s offspring... .|1| [WJhere a third party better fulfills these needs, or where other circumstances indicate third party custody to be preferable, the courts, when exercising judgment as to a child’s welfare, should not be restrained solely by a presumption.
[The majority’s] approach should be replaced with a rule which would simplify and clarify application of the best interest standard. By clearly eliminating the presumption per se, and mandating that custody be determined by a preponderance of evidence, weighing parenthood as a strong factor for consideration, custody proceedings would be disentangled from the burden of applying a presumption that merely beclouds the ultimate concern in these cases: the determination of what affiliation will best serve the child’s interests, including physical, emotional, intellectual, moral, and spiritual well-being.

Id., 490 Pa. at 372-74, 416 A.2d at 516-17 (citation omitted, emphasis in original) (Flaherty, J., concurring). For the reasons stated in the concurring opinion, we now abandon the presumption that a parent has a prima facie right to custody [448]*448as against third parties, and follow the rule enunciated in the last paragraph of the above quotation.

Thus there is no single overriding factor; rather, courts should consider every fact relevant to the physical, emotional, intellectual, moral, and spiritual well-being of a child. Parenthood, though not paramount, will always be a factor of significant weight. In Ellerbe,

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Bluebook (online)
668 A.2d 126, 542 Pa. 443, 1995 Pa. LEXIS 1215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rowles-v-rowles-pa-1995.