Herron v. Seizak

DISSENTING OPINION

SWEET, P. J,.

I agree with the majority that the Custody and Grandparents Visitation Act, 23 P.S. §1001, et seq., Act of November 5, 1981, P.L. 322, no. 115, Sections 1 to 15, does not apply to this dispute. I do think, however, that it is expressive of a public policy more favorable to grandparents than the majority opinion would allow for. The case of Com. ex. rel. Zaffarano v. Genaro, 286 Pa. Super 436, 429 A.2d 17, (1981) cited in the defendant’s brief seems to me to allow us to grant this visitation. It is true that Zaffarano, supra, is not on all fours because the wife/parent is dead. However, the Superior Court said quoting itself in an earlier case*:

“In a visitation case, the third party need only convince the court that it is in the child’s best interest to give some time to the third party. ”

Judge Brosky went on to say:

“The question presented for our determination, therefore, is not whether the Zaffaranos, as Shannon’s grandparents, have a right to visit with her or to have partial custody; it is whether or not it would be in Shannon’s best interest to grant the Zaffaranos some time with her.”

Judge Brosky also said:

“We hold that appellants have shown that it would be in their grandchild’s best interests to allow them partial custody of her.”

*249Quoting themselves in Miller, supra, again the Superior Court said:

“Except under unusual circumstances, no child should be cut off entirely from one side of its family.”

They concluded this:

“Based on the record, we conclude that awarding partial custody to the grandparents would add measurably to Shannon’s happiness, well-being and development.”

In this rather long opinion, Judge Brosky supported his position with citations from Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380; In re Snellgrose, 432, Pa. 158, 247 A.2d 596 (1968); Commonwealth ex rel. Fetters v. Albright, 266 Pa.Super. 583, 405 A.2d 1260 (1979) and Commonwealth ex rel. Goodman v. Dratch, 192 Pa.Super. 1, 159 A.2d 70 (1959). This last case by a seven man unanimous Superior Court said:

“Unless there be some compelling reason, we do not believe that a grandchild should be denied visitation to his grandparents.”

In the Miller, supra, case which has been cited twice in the Zaffarano, supra, case herein before, there is an opinion by Judge Spaeth for a six to one majority. Head note one, three and five seem material.

“1. When seeking visitation, a third party must show reasons to overcome the parent’s prima facie right to uninterrupted custody; however, reasons need not be so convincing as in a custody case; in a visitation case third party need only convince court that it is in the child’s best interest to give some time to the third party, and as the amount of time requested moves the visit further from a visit and closer to custody, reasons offered in support of request must become correspondingly more convincing.”

*250“3. A custodial parent’s suspicion or animosity towards another parent or a third party seeking child visitation should not alone warrant denial of visitation.”

“5. Except under unusual circumstances, no child should be cut off entirely from one side of its family.”

Assuming the validity of these cases, it is incorrect to say that the court lacks jurisdiction over the subject matter or that the complaint fails to state a claim. It very well may be that Láveme D. Herron, et ux can not show sufficiently convincing reasons, but they have not had an opportunity to do so. This case was decided by sustaining preliminary objections. In short, our majority has held that we will not listen to grandparents qua grandparents. They say: “We will not second-guess parents who object to grandparents having contact with the child and will not afford them an opportunity” to show cause.

Domestic relations’ law should fit the realities of the society from which it springs and which it seeks to govern. A grandparent who has some contact with the child is more likely to include the child in his testimonial bounty and he or she is more likely to help in higher education or when disasterous illness strikes. If one thinks of the family, not as the soap opera father, mother and two-children nucleas family, but as a fine of people stretching from the time of the Norman conquest or wherever on into the future, he can not possibly believe that it is sound social policy to snip this, as Atropos cut a thread.

The majority’s arbitrary assumption that the parents are always the closest disregards a social reality often present in the black community. Many, many black children are raised by grandmothers. Today’s holding insures that a grandmother can raise a child *251for ten, 12 or 14 years and then if the mother returns somewhat more matured and ready to settle down, and takes the child away from the grandmother she may never see him again.

I am aware that I am possibly opening Pandora’s box a little and that we may be beset with claims not only from aunts and uncles but kooks, weirdos and tortious intermeddlers. The case law has already provided for this.

Judge Spaeth in Miller, supra, put it this way:

“This test should not be understood as inviting visitation suits by well-meaning strangers. Almost by definition, a stranger to a child would have an extraordinarily heavy burden of proof to sustain in order to overcome the parent’s right to uninterrupted custody. This point might be phrased differently: Except in extraordinary circumstances, the reasons that a stranger can offer are unlikely to be convincing. For example, the ability to provide some luxuries, or some creature comforts, would not be enough, just as it is not enough in custody cases.”

Judge Spaeth ended the Miller, supra, opinion by saying:

“[vfisits with a grandparent are often a precious part of a child’s experience and there are benefits which devolve upon the grandchild from the relationship with his grandparents which he cannot derive from any other relationship.”

It is part of our received culture to “Honor your Father and Mother”; I would let this apply to defendants here also.

Commonwealth ex rel. Williams v. Miller, 254 Pa. Super. 227, 385 A.2d 992 (1978).