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Courts giving grandparents a big say on visitation, custody issues

Sunday, June 22, 2003

By Barbara White Stack, Post-Gazette Staff Writer

Amy and Lee Ulery needed to compress celebration of a birthday, Thanksgiving, Christmas and Easter into one weekend with their son, the first they'd spent alone with him in the nine months since his maternal grandparents took custody of him.

Even calls had been sparse. The grandparents, Ronald and Dianne Waugaman of Greensburg, didn't have their grandson, Jordan, phone his mother on Mother's Day.

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The Waugamans obtained custody from a Westmoreland County judge by using a state law that gives grandparents power to intervene in grandchildren's lives -- even when parents oppose the grandparents' demands.

If one parent dies, if parents divorce or if a grandchild lives with grandparents for a year or more, the law gives grandparents the right to ask a judge for visitation times.

In addition, the law says grandparents may seek full custody of a grandchild who has been abused or neglected by his parents and a grandchild for whom the grandparent served as a parent for a year or more.

In a number of cases, Common Pleas Court judges have gone beyond that, however, and a state Supreme Court decision has given all grandparents, whether there's abuse or not, the right to seek full custody.

In one recent case, for example, a Westmoreland County judge issued a temporary order forbidding a young mother from moving to another state while her late husband's parents sought court-ordered visits.

The law clearly states that judges may impose visits in such a situation, but there's no provision giving them power to prevent parents from relocating. The Westmoreland judge eventually lifted the travel ban.

In Armstrong County, Judge Kenneth Valasek took a boy from a divorced -- but in Valasek's own words "adequate" -- Allegheny County mother and gave him to grandparents the judge deemed better-suited to raise him. Now the mother's the one who's restricted to visits.

In Mercer County, Judge Michael J. Wherry took the unusual step of awarding joint custody to the paternal grandparents of a child whose father had died. In essence, the court gave the grandparents the same rights as the boy's father would have had.

That case is under appeal. In arguing the appeal, the grandparents' lawyer, Margaret T. Lewis, of Mercer, told the court that "grandparents' rights have been steadily increased by the courts over the past decade."

The other side of that, of course, is that parents' rights have been decreased.

George Evans, a spokesman for the Coalition for Restoration of Parental Rights, says his organization routinely receives complaints from parents who believe grandparents are, with the help of courts, interfering with parents' constitutional right to raise their children as they see fit. The complaints come from across the country, he said, but the largest number are from Pennsylvania.

"Pennsylvania," he said, "is the worst by far."

Amy and Lee Ulery didn't have a clue that they could lose custody of their son when they asked Amy's parents to care for him temporarily.

That was shortly after Amy and Lee had moved from Westmoreland to Montgomery county. Both had started new jobs. In addition to Jordan, they had a newborn. It was a stressful, contentious time in their marriage.

To spare Jordan the conflict, the Ulerys asked Amy's parents to care for him for a while. Jordan and his grandparents were close because he and his mother had lived there for several years after he was born. Amy and Jordan moved out after Amy married Lee and he adopted Jordan.

The Waugamans agreed to take Jordan, and he moved in with them just after Christmas in 2001. He remained there for eight months with his parents' permission. Then Amy began making arrangements for Jordan to return to Montgomery County to start the 2002 school year.

That's when the Waugamans filed for custody, without giving their daughter notice.

"We filed the custody action here because we knew [Amy] would try to take the child," the Waugamans' attorney, Lawrence Burns, said.

Without hearing the Ulerys' side of the story, Westmoreland County Judge John J. Driscoll signed an order permitting the Waugamans to keep Jordan.

And, until last month, the court repeatedly denied the Ulerys' requests for visits. The Waugamans also refused to permit the Ulerys to see Jordan unless they did it in the Waugaman household, under the Waugamans' supervision.

The Ulerys, furious that custody had been taken from them, were unwilling to accept those terms. They missed their child's birthday in October and every holiday since.

At the outset, in September, the Ulerys' lawyer contended that the Waugamans had no right under Pennsylvania law to ask for full custody of their grandchild.

The law, he argued, clearly states which grandparents may win visits or custody. The Waugamans had not served as parents to Jordan for a year, and, the lawyer said, Jordan was not abused or neglected.

Driscoll decided, however, that the Waugamans could at least argue for custody because the Supreme Court decided two years ago that all grandparents may seek custody of grandchildren.

The Ulerys were looking for a new attorney when the court agreed to a demand from the Waugamans for child support. The Ulerys would have to pay $366 a month. At that point, Amy Ulery says, they could no longer afford an attorney.

She says she never dreamed she would find herself in this position -- paying her parents who were keeping her child from her against her will: "We did this in good faith that they would give him back."

Linda Johnson, director of the Pennsylvania Chapter of the Coalition for Restoration of Parental Rights, said the Ulery story should be a cautionary tale to parents. Because of the special powers granted grandparents by legislatures and judges, Johnson said, parents should be wary about asking grandparents to care for children.

Weighing both sides

Driscoll scheduled the custody trial in the Ulery case for March, three months after it was requested. Then the Ulerys sought a postponement while they searched for a lawyer they could afford.

That put the trial in April.

For two days in court, the Waugamans argued to retain custody. Because Jordan hadn't lived with them for 12 months before they went to court, they had to show that the Ulerys were unfit in some way to have the right to full custody.

The Waugamans contended the Ulerys were abusive because they said Jordan had asked his grandparents, "Why don't you beat me like my parents do?" And they argued that Lee Ulery once said he gets so angry with Jordan that he could "snap his neck."

Amy Ulery responded, however, that nothing done to the child was more than a spanking.

In May, before completing the custody trial, Driscoll issued several orders. He denied the Ulerys' request that Jordan be immediately returned to them for lack of evidence of abuse, but at the same time he gave the Ulerys unsupervised, overnight visits with the boy twice a month.

On Father's Day weekend, the Ulerys got the first of those visits.

Just before that, on June 6, Driscoll conducted a brief hearing on a request from the Waugamans to take Jordan out of the country for a vacation. The judge commented several times during that session that Amy Ulery was insisting on enforcement of her constitutional rights to raise her child, while Driscoll was concerned with looking out for Jordan's best interests.

Amy Ulery strongly objected to that, contending that the law does not allow a judge to consider best interests in a custody case between grandparents and parents when abuse or parental unfitness had not been established.

Otherwise, she said later, any richer or smarter grandparents, or those with more time on their hands, could argue that it would be in the best interest of grandchildren to be raised by the grandparent. In fact, she said, parents are supposed to enter court with an automatic advantage over other people seeking custody of children.

Driscoll denied the Waugamans' vacation request and scheduled resumption of the custody trial for July 7, long past the 45 days in which court rules recommend completion of such trials.

Carol Kowall, the attorney representing the mother in the Mercer case, noted that grandparents' authority to seek custody is referred to as "grandparents' rights," but, really, the focus should be on the child.

"The act was intended to protect the children, give them some contact with extended family when it is not otherwise provided. But grandparents must prove that it is in the child's best interest and does not interfere with the parent-child relationship. It can't be about the grandparents' needs. It must be about the child's needs."

After representing both parents and grandparents, Kowall says, "I wouldn't want to be the judge in any of these cases. I also would not want to be the child."

Barbara White Stack can be reached at bwhitestack@post-gazette.com or 412-263-1878.

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