After his ex-wife's death, father finds himself battling child's cousin for custody

Sunday, September 07, 2003

By Joe Smydo, Post-Gazette Staff Writer

When his ex-wife died in March, Bruce Barbour assumed he would take custody of their 9-year-old daughter. Instead, he's in the unusual position of fighting the child's cousin for custody.

A custody officer is scheduled to hold a hearing Wednesday on the tug-of-war between Barbour and Briana Smith, the late Barbara Barbour's niece. For now, the Washington residents share custody of Barbour's daughter under an interim order issued June 4 by Common Pleas Judge Paul Pozonsky.

Cousins rarely figure in custody disputes; grandparents are the "third parties" -- persons other than parents -- most frequently involved in such cases. The Barbour case also breaks ground by exploring the issue of whether a third party, after establishing a parent-style relationship with a child, maintains that bond during an extended separation.

Bruce and Barbara Barbour married in March 1994 and divorced in September 1999, according to court records. She died March 3 of natural causes -- brain cancer, Bruce Barbour said.

No court-ordered custody plan existed at the time of Barbara Barbour's death, but the child lived with her mother in Washington, according to court filings. Smith sued for custody March 12, arguing she developed a special bond with the child and performed parental duties while living with the girl and her mother from mid-1999 to mid-2000.

In legal wrangling that set the stage for this week's hearing, Barbour had asked Pozonsky to dismiss the case, saying Smith was an outside party with no right to custody. But the judge accepted Smith's argument that she stood "in loco parentis" to the child -- that is, that she had acted in the place of a parent, giving her standing to seek custody.

Barbour, 43, on medical leave from his truck driver's job with DDI Transportation Inc. of Ashland, Va., said he's astounded a cousin could trump a father's right to a child.

But a biological parent's right to custody, while strong, isn't ironclad in Pennsylvania.

"Although the presumption that a parent has a prima facie right to custody as against third parties has not been formally abandoned, it is inconsistent with the goal of a presumption-free approach to custody disputes that focuses directly upon the best interests of the child," Pittsburgh lawyer Joanne Ross Wilder wrote in her book, "Pennsylvania Family Law Practice and Procedure."

The third party's relationship to a child -- uncle, aunt, cousin -- isn't relevant; rather, what's important is the kind of role that person has had in the child's life, said Harry Gruener, professor of family law at University of Pittsburgh School of Law.

Barbour claims Smith never lived with his daughter and ex-wife. Even if she had lived with them, he said, Smith could not have acted as a parent or maintained a bond with the girl after Smith moved out of the house in 2000.

"There is not one single Pennsylvania case that grants in loco parentis custody standing to an individual that had not immediately beforehand lived with the child," lawyer Avram Rosen said in court papers for Barbour.

Rosen since has withdrawn from the case, citing nonpayment of fees by Barbour and a difference of opinion the two had about how to handle the case. Barbour, who said he wished Rosen had been more aggressive, plans to represent himself.

Smith's lawyer, Betsy McKnight, has argued that Smith helped to care for the child while living with the girl and her mother. In a brief provided by Barbour but not part of the case file in the county prothonotary's office, McKnight said the girl's mother encouraged the relationship.

McKnight said Smith left the household first for Carnegie, Allegheny County, then New Jersey, and "maintained her parent-like relationship" through phone calls and frequent visits. "Pennsylvania case law relating to 'in loco parentis' lacks set standards for time together, time apart, extent of authority, level of participation, etc.," McKnight said.

McKnight said Barbara Barbour, on her deathbed, brought Smith back to her home. Bruce Barbour said Smith, her husband and the child still live in the home.

In court papers, McKnight said Smith is best suited to care for the child and would encourage a "productive relationship" with her father. In an interview, McKnight declined to say why Smith would be a better caretaker than Barbour.

Barbour said there is no reason to deny him custody.

He said he has paid child support and maintained an active role in his daughter's life. He said he has no criminal record, though his ex-wife obtained a protection-from-abuse order against him in 1999 after she said they pushed and slapped each other during an argument about the title to a car.

Barbour is remarried, and he his wife, Laura, live with three of her children from a previous relationship. Laura Barbour said she pleaded guilty to theft charges about 15 years ago.

While some states won't consider third parties for custody unless the parents are unfit, Pennsylvania has a broader standard, Gruener said. He said the issue likely will hinge on such issues as the child's closeness to Barbour and Smith, the parties' economic circumstances and the child's preferences.

Bruce and Laura Barbour said they wouldn't kick Smith or other maternal relatives out of the girl's life. "We want her to be raised in our home as our child with them as extended family," Laura Barbour said.

Joe Smydo can be reached by at jsmydo@post-gazette.com or 724-746-8812.

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