Burston v. Dodson , 257 Pa. Super. 1 ( 1978 )

VAN der VOORT, Judge,

dissenting:

I respectfully dissent from the Opinion of the Majority for the reason that I do not agree that the appellant met the burden of rebutting the presumption of legitimacy. Consequently I would return the child to the custody of her grandmother, who is the appellant in this case.

On February 27, 1973, Carrie Mosley gave birth to Patasha Mosley following a full term pregnancy. At the time of Patasha’s birth, Carrie was married to Thomas Mosley although the two were not residing together. Approximately nine months after Patasha was born she found herself motherless due to the untimely death of Carrie. Patasha immediately went to live with her maternal grandmother, Louise Dodson, where she resided until the time of the initial hearing on the petition of Paul Burston, appellee, seeking custody of her.

Appellee filed a Petition for Writ of Habeas Corpus on April 19, 1974 alleging, inter alia, that he was the natural father of the child in question and the home of appellant was not suitable for the child’s development and well-being. The initial hearing was held on February 26, 1975 and two subsequent hearings were held on November 17, 1975 and December 15, 1975. On May 27, 1976, the court issued an order whereby it was determined that Paul Burston was the natural father of Patasha Mosley and that he be granted custody of her. From that order, Louise Dodson filed this appeal.

Appellant’s primary contention is that the evidence was insufficient to establish that Paul Burston was the natural father of Patasha Mosley. Undoubtedly, the law favors the legitimacy of children and consequently there is a very strong presumption that a child born of a married woman is the daughter of the husband. In Cairgle v. American Radiator and Standard Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951), the court stated on page 255, 77 A.2d on page 442:

The presumption of legitimacy is, however, still one of the strongest known to the law and can be overcome only by proof of facts establishing non-access or that the husband was impotent or had no sexual intercourse with his wife at any time when it was possible in the course of nature for the child to have been begotten: Dennison v. Page, 29 Pa. 420, 422, Dulsky v. Susquehanna Collieries Co., 116 Pa.Super. 520, 525, 177 A. 60; Jane’s Estate, 147 Pa. 527, 530, 23 A. 892. This is the modern rule.

Although the court in Cairgle eventually held that the presumption was overcome by the evidence, I do not find that the evidence in the present case was sufficient to overcome the presumption.

There can be no denying that appellee and Patasha’s mother were very close when she was living. He assisted her in buying a house and running her business. He was also involved with helping Patasha’s mother prior to birth and subsequently. There was evidence that appellant paid part of the funeral expenses incurred in the burial of Patasha’s mother. This all presented a picture of deep affection on the part of appellee for Carrie Mosley. However, the evidence that Thomas Mosley, the husband of Carrie at the time of Patasha’s birth, was the natural father was also convincing. Initially, the birth certificate of Patasha listed Thomas Mosley as the father and there was never any attempt on the part of Carrie Mosley to change it. Appellant attempted to establish that Thomas Mosley could not be the father because of lack of access. However, the testimony indicated that Thomas Mosley was incarcerated, but not until the middle of June; whereas the time of conception was determined to have occurred in late May or early June. Furthermore, Thomas Mosley took the witness stand and testified that he continued to see his wife even though they were no longer residing together. He stated that on a couple of occasions he had intimate relations with her at his mother’s home in June, just prior to his incarceration.

Although the presumption of legitimacy is very strong it is not absolute. The court stated in Cairgle, supra, 366 Pa. at page 256, 77 A.2d at page 442:

In order to successfully rebut the presumption of legitimacy, the evidence of non-access or lack of sexual intercourse or impotency must be clear, direct convincing and unanswerable (citation omitted) although it is not necessary that the possibility of access be completely excluded (citation omitted).

In the present case, we have a situation where the husband not only had access to his wife, but testified that he was intimate with her on two different occasions. Although the lower court elected to discredit this testimony entirely, I cannot do so. The very strong presumption of legitimacy coupled with the husband’s direct testimony clearly establishes Thomas Mosley’s paternity of Patasha.

The second issue raised by appellant concerns the custody . of Patasha. The well established rule in Pennsylvania regarding custody cases is that paramount concern must be given to what would be in the child’s best interest. Auman v. Eash, 228 Pa.Super. 242, 323 A.2d 94 (1974); Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972). In the present case, the Majority held that the child should be placed in the custody of appellee following a review of the advantages of the two homes and a determination that appellee had a greater right to custody since he was the natural father. However, since I cannot agree with the conclusion that appellee is the natural father, I find that the balance tips in favor of Patasha being placed in the custody of her grandmother. Of great concern to me is the fact that Patasha will be separated from her sisters if placed with appellee. She will be entering a home where she is a stranger. She will be raised by a surrogate mother who possibly could look at her as a constant reminder of her husband’s infidelity. The facts of the case clearly present a situation where Patasha should be raised by her grandmother in the home with her blood relatives. I would therefore reverse the order of the lower court and place Patasha with appellant.

JACOBS, President Judge, joins in this Dissenting Opinion.