Herron v. Seizak

GLADDEN, ]., Plaintiffs, Lá-veme D. Herron and Frances E. Herron, maternal grandparents of Patricia Mae Seizak, have filed this complaint for visitation against defendants, Patrick Seizak and Mona Seizak, asking the court to grant them visitation rights. Patricia Mae Seizak is the daughter of the defendants herein. Patrick and Mona Seizak are currently married and live with each other and their daughter at 1054 Shutterly Avenue, California, Washington County, Pa. Defendants filed preliminary objections to plaintiffs’ complaint in the nature of a demurrer assigning the following reasons: (a) The court lacked jurisdiction over the subject matter. (b) The complaint fails to state a claim against defendants. (c) The complaint fails to cite any contract or law which entitles the plaintiffs to visitation under existing circumstances. Preliminary objections should be sustained only in cases which are clear and free from doubt. Legman v. Scranton School District, 432 Pa. 342, 247 A.2d 566 (1968). To sustain preliminary objections in the nature of a demurrer, it must appear [245] with certainty that, upon the facts averred, the law will not permit recovery by plaintiff. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 282, 259 A.2d 443, 445 (1969). In the instant case, upon the facts averred, there is no legal remedy for plaintiffs, and, therefore, we sustain defendants’ preliminary objections. Both plaintiffs and defendants herein agree that the Custody and Grandparents Visitation Act, 23 P.S. 1001, et seq., Act of November 5, 1981, P.L. 322, no. 115, § § 1 to 15, does not apply to this dispute. As expressed in section 1002, the policy behind this act is “to assure a reasonable and continuing contact (for children) . . . with both parents after a separation or dissolution of marriage”. Sections 1012, 1013 and 1014 of the act set forth the rights of grandparents to seek visitation with their grandchildren under certain enumerated circumstances. The act says that visitation rights may be granted, with the unmarried child of a deceased parent, to the parents or grandparents of that deceased parent; that visitation rights may be granted, with an unmarried child, to the parent or grandparent of a party after the dissolution of marriage; and, finally, that visitation may be granted, with an unmarried child, to his grandparents or great-grandparents if the child has resided with his grandparent or great-grandparents for a period of 12 months or more and is subsequently removed from the home by the parents. These visitation rights may be granted only if they are found to be in the best interests of the child and do not interfere with the parent-child relationship. (Emphasis supplied.) Clearly, none of these enumerated circumstances apply here. The Herrons’ daughter, Mona Seizak, is married and living with her husband and their child, Patricia. The Herrons [246] seek visitation privileges over the objection of their daughter, the child’s natural mother. In their brief, plaintiffs argue that, beyond those rights given grandparents by the Custody and Grandparents Visitation Act, the court has common law authority to grant visitation to a child’s grandparents over the objections of the child’s natural parents when such visitation is in the best interest of the child. Cases cited by plaintiffs to support this assertion are not factually similar to the instant case, and thus their holdings are of little precedential value here. In Com. ex rel. Goodman v. Dratch, 192 Pa. Super. 1, 159 A.2d 70 (1960), maternal grandparents sought visitation with their deceased daughter’s (Emphasis supplied) child, over the objections of the child’s father. In Com. ex rel. Williams v. Miller, 254 Pa. Super. 227, 385 A. 2d 992 (1978), a natural grandmother, after the death of her divorced daughter (Emphasis supplied), sought to establish visitation rights with her granddaughter who had been in the custody of her daughter’s ex-husband. In Com. ex rel. Zaffarano v. Genaro, 286 Pa. Super. 440, 429 A.2d 17 (1981), maternal grandparents sought visitation rights with their granddaughter after the death of their daughter (Emphasis supplied) and again over the objections of the child’s father. In each of these cases, the court found it to be in the best interests of the child to permit visitation with the grandparents. However, in each instance the natural mother of the grandchild had died and was thus unable to permit or deny her parents’ privilege to visit with their grandchild. The court, therefore, was called upon to act in her behalf and to thus insure a continuing relationship with the deceased mother’s family. Our research of the case law has failed to establish an enforceable right of visitation in grandpar [247] ents when a living, married parent of the grandchild has interposed an objection to the visitation with his or her own parents. The custody and Grandparents Visitation Act is a restatement and expansion of the case law, and we are governed thereby. The case law most nearly on point is found in Com. ex rel. Dogole v. Cherry, 196 Pa. Super. 46, 173 A.2d 650 (1961). There, the mother of a deceased adoptive mother sought visitation with the adoptive grandchild over the objections of the new adoptive mother and her daughter’s former husband, the adoptive father. In this case visitation privileges were denied, and the court explained: “It is our opinion that adoptive or natural parents should have the right to select the persons with whom their child will associate as long as they properly perform their duties to the child. To take this right away from proper parents would not be for the best interest of the child.” at 173 A.2d 651. We can do no more than apply this law to the facts that have been pled in plaintiffs’ complaint. Plaintiffs’ own daughter objects to her parents seeing their grandchild. Her husband joins in the objection. The court should not be asked to drive a wedge into an intimate family circle, even though we would hope that in this case that circle could expand someday to include the grandparents. The natural father and mother must be recognized as the two people responsible for the development of their child. We will not second guess them absent a clear showing that what they have done is not in the best interest and welfare of their child. ORDER And now, this October 22, 1982, after argument, the court sustains the preliminary objections filed November 22, 1982 by defendants to plaintiffs’ complaint and dismisses the action. All parties to bear their own costs.