Superior Court Affirms Bio Parents’ Constitutional Advantage over Grandparents in Custody Cases

September 22, 2012 | Child Custody, Legal Perspective

Icon for author Brian Vertz Brian Vertz

A new Superior Court decision arising from Northampton County affirms the constitutional advantage that biological parents have in custody proceedings against grandparents and other third parties. In V.B. and C.B. v. J.E.B. and C.C. (2012 PA Super 200, 9/21/12), the Court reversed a decision in which the trial court awarded primary custody to the grandparents. The Court held that the presumption in favor of parents was not overcome by evidence of a CYF intervention in the parents’ household, the parents’ polyamorous lifestyle and sexual proclivities, or the children’s positive development while residing in the exclusive care of the grandparents for more than a year during the CYF investigation.  In a footnote, the Superior Court noted that the presumption in favor of parents was not overcome merely because the grandparents were “more capable parents,” or that their assistance to the parents was a key to their success as parents.

In Charles [v. Stehlik, 744 A.2d 1255 (Pa. 2000)], our Supreme Court reasoned,

where the custody dispute is between a biological parent and a third party, the burden of proof is not evenly balanced. In such instances, 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 biological parents’ side.

Id. at 1258 (internal quotations and brackets omitted). Our legislature recently codified this principle in 23 Pa.C.S § 5327(b), which states in pertinent part, “In any action regarding the custody of the child between a parent of the child and a nonparent, there shall be a presumption that custody shall be awarded to the parent. The presumption in favor of the parent may be rebutted by clear and convincing evidence.” 23 Pa.C.S. § 5327(b). We have explained, “The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing so as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue.” In re B.C., 36 A.3d 601, 605-606 (Pa.Super. 2012).

The Superior Court cited case law for the proposition that a parent’s prior sexual conduct is not a relevant consideration unless it has an adverse effect on the child. The Court admonished the trial court for failing to adequately investigate allegations of misconduct within the grandparent’s home, where an uncle of the children had previously assaulted the mother. The Court also held that the trial court had not given adequate weight to evidence that father could provide stability and continuity in the children’s lives. The Court was critical of the trial court’s decision to award legal custody to the grandparents in order to minimize conflict between the parents and grandparents, and pointed out that their actions were just as responsible for the conflict as the parents’ behaviors. The Court scolded the grandparents for continually usurping the parents’ authority over the children.

In custody cases, it is not uncommon for the Superior Court to vacate and remand a trial court’s decision, giving the trial court another opportunity to conduct additional hearings, revise its rationale, and issue a new decision. In this case, the Superior Court took the unusual step of reversing the trial court’s decision, holding that there was sufficient evidence to award primary legal and physical custody to Father. The case was remanded merely for the purpose of determining the partial custody and visitation schedules of the grandparents. The Superior Court ordered the grandparents to participate in compulsory counseling with father to alleviate the hostilities between them. One of the judges on the panel filed a concurring and dissenting opinion, stating that he would have vacated and remanded instead.

As a side note, the Court agreed with Father that the trial court should not have taken judicial notice of the custody proceedings involving father’s new wife and her child. Father was not afforded an opportunity to testify or participate in those proceedings, so judicial notice of the evidence and findings in that case was inappropriate.

(Note: It was tempting to entitle this post “Hippies have Constitutional Rights to Kids,” but I resisted.)

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