Child Custody, Visitation & Relocation

Grandmother Failed to Overcome Child Shall Be Raised By a Parent Presumption

In the child custody family law litigation case of K.L. vs. K.K. PICS Case No.14-0600, (PA Super. April 14,2014), the Honorable John Bender writing on behalf of the Pennsylvania Superior Court held father was properly granted primary physical custody of his minor child where grandmother failed to overcome the presumption that a child should be raised by a parent instead of another person and the record was replete with evidence the grandmother had overindulged the child.

Mother and father are the natural parents of a child, N.K., who was born in 2001. Here, the child’s maternal grandmother appealed form a trial court order awarding father both legal and primary physical custody. The Superior Court determined that the trial court did not commit an error of law or abuse of discretion.

The trial court’s lengthy opinion explained that mother and father had an intimate encounter in early 2001. Mother gave birth to N.K. in December 2001, but she did not identify father. Father did not learn that N.K. was his son until 2005. When N.K. was born, mother was either unwilling or unable to provide him with the care he needed.

N.K.’s maternal grandmother stepped up and provided N.K. with care. In 2005, mother filed a custody action against grandmother. At that time, grandmother sought out father and informed him that N.K. was his son. A blood test confirmed father’s paternity. At that point, custody was awarded to mother. Father was introduced to N.K. and began to develop a relationship with him.

Mother’s lifestyle was “dysfunctional.” Thus, in late 2006, mother filed her own petition for custody, and a guardian ad litem was appointed.

After an initial custody trial, the trial court issued an opinion wherein the court retained grandmother as N.K.’s primary physical custodian. However, the court expressed concern about grandmother’s conduct with N.K., describing her as overprotective, overbearing and overindulgent. The court conducted a review hearing in September 2013.

At that time, N.K. lived with his grandmother in Palmyra, Pennsylvania, mother lived in Huntington, Pennsylvania and father lived with his wife in Charlestown, West Virginia. The court considered all of the relevant custody factors set forth in 23 Pa.C.S. 5328, as well as the child relocation factors ser forth in 23 Pa.C.S. 5337.

The matter was complicated by the fact that it involved a dispute between natural parents and a non-parent. Mother was not a viable candidate for primary custody, but she asked the court to remove N.K. from grandmother and place him in father’s custody. Under Pennsylvania law a presumption exists that a child should be raised by a parent instead of another person.

The presumption in favor of a natural parent may be rebutted, but only by clear and convincing evidence. Grandmother failed to overcome the presumption in this matter, even though she had been caring for the child since birth and father had very limited experience parenting N.K. The court considered the 5328 and 5337 factors together.

Grandmother’s unwillingness to be an accommodating parent while dealing with mother and father contributed to the court’s decision. In fact, the court found that grandmother had done everything in her power to promote estrangement between N.K. and his parents and she attempted to manipulate the child against his parents.

Significantly, the court also considered grandmother’s troubling tendency to overindulge the child, as both custody factor 16 and relocation factor 10 allowed the court to consider any other determinant circumstances that could impact N.K.’s long-term best interest. Both mother and father had expressed concern about grandmother’s tendency to spoil N.K.

While over protectiveness and indulgence are not specifically listed as custody factors, they fall within the umbrella of the parental duties factor, including the need to afford children with guided growth, and the nurturing requirements of parenting. The court was concerned with the fact that there was no parental counterbalance to grandmother’s tendency to overindulge the child and the fact that N.K. had demonstrated a lack of ability to fend for himself, and grandmother controlled his behavior.

Grandmother was well-meaning and deserved respect for all her efforts; however, it was not in the child’s best interest to remain indefinitely with his grandmother, as she was unable to establish firm limits with the child. The court reiterated that children should be raised by their parents.

As such, the court granted father primary physical custody, but only after the child completed the current school year to minimize the trauma of the transfer. The Superior Court found that the trial court’s through opinion properly disposed of the issues presented by grandmother on appeal and, therefore, affirmed.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly (April 29, 2014)

Filed Under: Family Litigation, Child Custody; Best Interest of Child; Parental Rebuttal; Grandparent Seeking Custody

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