Commonwealth ex rel. Patricia L. F. v. Malbert J. F.

HOFFMAN, Judge:

Appellant contends that the lower court erred in awarding custody of her two natural children to appellee. For the reasons which follow, we reverse and remand for further proceedings consistent with this opinion.

Appellant is the natural mother of M., born in March, 1972, and of P., born in May, 1973. Appellee is the stepfather of M. by virtue of his marriage to appellant,¹ and he is the natural father of P. In March, 1977, appellant and appellee separated. In July of that year, appellant petitioned the lower court to secure custody of the children, who were residing with appellee. After a hearing the lower court denied appellant’s petition and ordered that the children remain in appellee’s custody subject to “generous visitation privileges” in appellant. From that order, appellant now appeals.

Appellant first contends that the lower court erred in allocating the burden of proof with respect to M.’s custody as if the dispute were between two natural parents.² The court’s basic inquiry in child custody cases focuses upon the best interest of the child. Bedio v. Bedio, 268 Pa.Super. 231, 407 A.2d 1331 (1979). See also Kriss v. Kriss, 272 Pa.Super. 383, 416 A.2d 92 (1979); Kessler v. Gregory, 271 Pa.Super. 121, 412 A.2d 605 (1979). “In a contest between parents, each party bears the burden of proving that an award to that party would be in the best interests of the child. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977).” Lewis v. Lewis, 267 Pa.Super. 235, 240, 406 A.2d 781, 783 (1979). Where, however, a parent and a third party dispute the custody of a child, “the manner of inquiry is more complex.” In re Custody of Hernandez, supra, 249 Pa.Super. at 286, 376 A.2d at 654. Although the best interest of the child remains of paramount concern, the parent has “a ‘prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parent[’s] side.” Id. See also Commonwealth ex rel. Witherspoon v. Witherspoon, 252 Pa.Super. 589, 384 A.2d 936 (1978).

Prior cases have, without discussion, treated stepparents as unrelated third parties in custody disputes. See Auman v. Eash, 228 Pa.Super. 242, 323 A.2d 94 (1974); Commonwealth ex rel. Kraus v. Kraus, 185 Pa.Super. 167, 138 A.2d 225 (1958); Commonwealth ex rel. Grue v. Sanford, 183 Pa.Super. 32, 127 A.2d 800 (1956); Commonwealth ex rel. Gardner v. Eastman, 172 Pa.Super. 496, 94 A.2d 175 (1953). Auman, for example, involved a custody dispute which arose after the death of the natural mother between the natural father and the stepfather with whom the child had lived for almost two years. In affirming the lower court’s award of custody to the natural father, the majority stated that the right of a natural parent to custody “is so moving and cogent that as against a third party seeking custody it can be forfeited only by his conduct or other factors substantially affecting the child’s welfare.” 228 Pa.Super. at 245, 323 A.2d at 96. Similarly, Hernandez indicates that anyone other than a natural parent is to be considered a third party in a custody dispute. While we therein noted that “there are two distinct categories of ‘third parties’: relatives and nonrelatives,” we concluded that to draw a distinction between the burden of proof allocated to each would be “to indulge in over-refinement.” 249 Pa.Super. at 287, 376 A.2d at 654. This dictum has been adopted in several of our later custody cases which classify grandparents as third parties under the Hernandez standard. Commonwealth ex rel. Fetters v. Albright, 266 Pa.Super. 583, 405 A.2d 1260 (1979); Hooks v. Ellerbe, 257 Pa.Super. 219, 390 A.2d 791 (1978); Ramos v. Rios, 249 Pa.Super. 487, 378 A.2d 400 (1977). See also Commonwealth ex rel. Witherspoon v. Witherspoon, supra.

Acknowledging this precedent, appellee contends that he should not be treated as a third party under the Hernandez standard because he stood “in loco parentis” to M. “The phrase ‘in loco parentis’ refers to a person who puts himself in the situation of a lawful parent by assuming obligations incident to the parental relationship without going through the formality of a legal adoption.” Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968). Anyone can assume in loco parentis status: a putative father, a paramour, or a school. See, e. g., Guerrieri v. Tyson, 147 Pa.Super. 239, 24 A.2d 468 (1942) (school teachers stand in loco parentis to pupils). Surely we would not accord the aforementioned parties custody rights equal to those of a natural parent simply by virtue of their in loco parentis standing. Similarly, here, it would be unreasonable to treat appellee as a natural parent based solely on the fact that he stands in loco parentis to M.

Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977), cited by appellee in support of his contention, is inapposite because that case dealt with visitation rights rather than custody. In Spells we held that the lower court erred in perfunctorily denying a stepparent visitation without a full hearing. It is clear that “an order granting visitation is a far lesser intrusion, or assertion of control, than is an award of custody.” Commonwealth ex rel. Williams v. Miller, 254 Pa.Super. 227, 230, 385 A.2d 992, 994 (1978). Accordingly, in Miller, we established a standard for determining whether visitation privileges would be accorded to third parties which, although similar to the Hernandez standard, requires a less exacting showing by the third party. Id. Moreover, the considerations relevant to the determination of visitation privileges differ from those which are relevant to the determination of custody. See, e. g., Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978). Thus, rather than focusing solely on the best interests of the child, the court will not deny a parent visitation rights unless the “parent has been shown to suffer from severe mental or moral deficiencies” which pose “a grave threat to the child.” Id., 257 Pa.Super. at 472, 390 A.2d at 1333. The other case relied upon by appellee for his proposition that those in loco parentis should be treated as natural parents is equally inapposite. Commonwealth, Dept. of Transportation, Bureau of Traffic Safety v. Stuart, 2 Pa. 294, 276 A.2d 583 (1971) (consent of one in loco parentis to minor’s driver’s license).

We conclude that the lower court erred in treating appellee as if he were M.’s natural parent in awarding custody to him. The clear meaning of Hernandez and its progeny is that anyone not a natural parent must be treated as a third party in a custody dispute.³ Earlier cases do not mandate different treatment for those in loco parentis nor do we deem it advisable now to create such a rule. Accordingly, we reverse the order awarding custody of M. to appellee and remand to the lower court for proper application of the Hernandez standard, treating appellee as a third party. Moreover, reexamination of M.’s custody in the proper light will alter the considerations relevant to the determination of P.’s custody. In particular, the lower court must consider the interplay of the policy favoring maintaining siblings in the same household and the prima facie right of the natural parent to custody as it applies to this case. See Commonwealth ex rel. Fetters v. Albright, supra (policy of keeping siblings together was not a sufficiently convincing reason to deprive natural parent of custody). Accordingly, we remand the entire case for reevaluation in light of the principles of law set forth in this opinion.

Order reversed and case remanded for reconsideration in accordance with this opinion.

PRICE, J., files a dissenting opinion, in which HESTER and WICKERSHAM, JJ., join.

1 . Although M. uses appellee’s surname, appellee never sought to adopt him.

2 . Preliminarily, we note that the lower court relied in part upon an alleged stipulation between the parties that the children should remain together regardless of who was awarded custody. Both parties contest the existence of that stipulation, and indeed, no such stipulation appears on the record. Accordingly, the lower court erred in relying on a stipulation not of record. See Pa.R.Civ.P. 201. See also Commonwealth ex rel. Veihdeffer v. Veihdeffer, 235 Pa.Super. 447, 344 A.2d 613 (1975) (court not bound by contractual agreement between the parties relating to custody).

3 . We do not determine, however, whether adoptive parents are to be treated as natural parents in custody disputes.