Child Custody, Visitation & Relocation

Parent Is Entitled to Intestate Share of Child’s Estate After Establishing He Did Not Abandon Child

In the Pennsylvania Superior Court case of Estate of Cynthia Ann Fuller, PICS Case No. 14-0358 (PA. Super. March 3, 2014), the Honorable James J. Fitzgerald, III writing on behalf of the appellate court held where a parent incurred time and monetary expenses in an attempt to enforce visitation rights and reestablish contact with a minor child after more than a year without contact, said parent could not be found to have acted willfully and intentionally to abandon child and therefore forfeit his intestate share of the child’s estate.

Appellant Shirley Whitmore, mother of Cynthia Fuller, deceased, and the administrator of Cynthia’s estate, appealed from the order of the Orphan’s Court denying her petition to have the intestate share of decedent’s father, appellee Paul Fuller, invalidated on the basis that appellee had abandoned decedent over one year prior to her death, pursuant to 20 Pa.C.S.§2106(b). Specifically, appellant argued that the Orphans’ Court erred in considering whether appellee had acted willfully and intended to permanently abandon decedent.

Appellant pointed to the legislature’s removal of the word “willful” when it amended §2106(b) in 2000. However, the court noted that the definition of desertion involves intentional abandonment. Therefore, the court held that desertion in the context of §2106(b) involved the intentional and willful abandonment of minor child.

The court further noted that it would not look into the motivations of the Legislature or the intended impact of its revision of §2106(b) where the statutory language is plain to the court, unless appellant were to argue that the statutory language was ambiguous, which appellant’s instant argument did not do.

Accordingly, the court considered whether the Orphan’s Court abused its discretion in finding that appellee did not willfully abandon decedent. Deferring to the Orphan’s Court factual findings, the instant court noted that, although appellee had not had contact with the decedent in a year or more before her death, the lack of contact was attributable more to decedent’s refusal to see or speak with appellee and/or appellant’s refusal to grant contact between appellee and decedent, and that appellee made effort to enforce his visitation rights and inquire about decedent until counsel advise him that it would be difficult to force decedent to see him. The court further noted that the record established the lack of appellant’s credibility, that appellant’s evidence in fact established that appellant was an impediment to appellee’s relationship with decedent.

As a result, the instant court concurred with the Orphan’s Court’s finding that appellee did not willfully abandon decedent.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly (March 18, 2014)

Filed Under: Estate Litigation; Forfeit of Interest; Parental Abandonment of Minor Child, and Intestate Share.

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