IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN
DISTRICT
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RANDALL A. CHARLES, Appellee v. RICHARD STEHLIK, Appellant |
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No. 11 W. D. Appeal Docket 1999 Appeal from the Order of the Superior Court entered on March 13, 1998 at 501PGH97 affirming the Order entered on February 26, 1997 in the Court of Common Pleas of Allegheny County, Family Division at No. FD95-10556 ARGUED: September 14, 1999 |
DISSENTING
OPINION
MR. JUSTICE NIGRO DECIDED: JANUARY 19, 2000
I respectfully dissent, as I believe that the standard set by the cases from our sister jurisdictions is the one we should follow. The supreme courts of North Carolina, Iowa, Arkansas, Alabama and Wisconsin have all upheld a presumption in favor of granting custody to a natural parent as against a third party which shall only be overcome by showing that the natural parent is unfit or unable to assume parental responsibilities.[1]
When two natural parents each seek custody of their child pursuant to a separation or divorce, the courts are forced to choose and therefore “best interests of the child” is the proper standard. Thus, absent true joint custody, one parent will prevail over the other -- even if by the slimmest of margins. In a highly mobile society, additionally fraught with the vagaries of modern relationships, those initial custody decisions may have a long-term effect of severing the child/non-custodial-parent ties equivalent to terminating that parent’s parental rights. “The day to day contact between the child and one having custody can create a relationship that may leave the birth parent almost an intruder. All of the day to day interactions between a parent and child are bound to be diminished if not eliminated where the parent comes on the scene as a court permitted ‘visitor’.” Barstad v. Frazier, 348 N.W.2d 479, 483 (Wis. 1984).
I believe, as does the Supreme Court of Alabama, that
[t]he prima facie right of a natural parent to the custody of his or her child, as against the right of custody of a nonparent, is grounded in the common law concept that the primary parental right of custody is in the best interest and welfare of the child as a matter of law. So strong is this presumption, absent a showing of voluntary forfeiture of that right, that it can be overcome only by a finding, supported by competent evidence, that the parent seeking custody is guilty of such misconduct or neglect to a degree which renders that parent an unfit and improper person to be entrusted with the care and upbringing of the child in question.
Terry v. Sweat, 494 So.2d 628 (Ala. 1986) (quoting Hanlon v. Mooney, 407 So.2d 559 (Ala. 1981)) (emphasis added).
Furthermore, I believe that natural parents have a constitutionally protected paramount right to custody, care and control of their child whenever there is no evidence that the parents were unfit or neglected the child’s welfare. While the United States Supreme Court has not specifically addressed the question of what the Constitution requires in a custody dispute between a parent and a nonparent third party, in other cases in the parental rights arena it has said
[t]he rights to conceive and to raise one’s children have been deemed “essential,” Myers v. Nebraska, 262 U.S. 390, 399 [43 S. Ct. 625, 626] (1923), “basic civil rights of man,” Skinner v. Oklahoma, 316 U.S. 535, 541 [62 S. Ct. 1110, 1113 (1942) and “[r]ights far more precious . . . than property rights,” May v. Anderson, 345 U.S. 528, 533 [73 S. Ct. 840, 843] (1953). “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158, 116 [64 S. Ct. 438, 442] (1944).
Petersen v. Rogers, 445 S.E.2d 901, 903 (N.C. 1994).
As the natural parent’s rights in this regard are so fundamental, I would abrogate them only rarely and only in the most extraordinary circumstances, as where there is a judicial finding of persistent neglect of parental responsibilities. Therefore, similar to this Court’s majority opinion, I would find that as between a natural parent and a third party the presumption of custody is tipped hard in the natural parent’s favor. I differ from the majority, however, in that I would find that the presumption can only be overcome by placing on the nonparent third party the considerable burden of establishing the extraordinary circumstance that the natural parent has violated his parental responsibilities or has been determined to be judicially unfit.
In the instant matter, as the third party nonparent failed to establish that the natural father violated his parental responsibilities or was unfit, I would award primary custody to the natural father.
[1] See Petersen v. Rogers, 445 S.E.2d 901 (N.C. 1994); In re Marriage of Halvorsen, 521 N.W.2d 725 (Iowa 1994); Schuh v. Roberson, 788 S.W.2d 740 (Ark. 1990); Terry v. Terry, 494 So.2d (Ala. 1986); Barstad v. Frazier, 348 N.W.2d 479 (Wis. 1984).