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Superior Court refuses to overturn custody

Aunt awarded child rather than father

The Pennsylvania Superior Court has refused to overturn a decision by a Blair County judge who issued a temporary order awarding custody of a child — whose mother died — to an aunt rather than the father.

The father appealed the order, contending Blair County Judge Jackie Bernard improperly awarded custody to the aunt, but a Superior Court panel that included judges Jacqueline O. Shogan, Anne Lazarus and Judith Olson, ruled the custody case was not yet ready for appeal because the Blair judge’s order was not final.

To appeal at this stage of the custody case, the higher court pointed out, the father must receive permission from Bernard or some other “extraordinary circumstance” must be involved with the case.

An example of an extraordinary circumstance, cited from a 2016 case, a father asked appeals court intervention because he was being deprived of custody rights due to a private adoption proceeding.

His custody rights would have been “irreparably lost” due to the adoption without appeals court intervention, the Superior Court stated.

In the Blair County case, the Superior Court panel ruled, “no such circumstances exist.”

Bernard, in the present case, issued a temporary order granting custody of the children to the aunt, pending a hearing “without prejudice” to the father’s rights.

In her temporary order, she granted the father periods of partial custody, according to the Superior Court.

The case came about because of the mother’s death more than a year ago to cancer.

At the time the mother and father had been separated for three years., but they had agreed to shared custody with the child living with the mother in Blair County and the father having visitation.

After the mother died, her sister filed a petition to intervene — requesting custody of the child in question.

The father indicated at that point he knew the mother wanted the child to be with the aunt and he agreed to the arrangement because he “wanted what was best” for the child.

However, in the mother’s last will and testament she appointed the father as the child’s guardian.

With respect to the will, the Superior Court stated, “We note with concern that maternal aunt was less than forthright with the court about her sister’s will. We presume that this matter will be fully explored and resolved in the custody hearing.”

The custody order as it stands now is only temporary and will be appealable only after trial court has completed its hearings on the merits of the case and the issuance of an order resolving pending custody claims between the parties.

The Superior Court opinion was written by Lazarus.

The child, the mother and father involved in the case were referred to in the Superior Court opinion only by their initials.

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