As Mercer County Common Pleas Court Judge Michael J. Wherry gets ready to vacate the bench at the end of the year, he has vacated his own decision in a contentious custody case.

Wherry said he recently vacated his April custody ruling in the case of 3-year-old Caleb Wright of Pine Township to help "clear the field" before he retires.

In his order, Wherry said he "erred" in granting legal custody of the boy to his paternal grandparents, Dan and Carol Balcer of Butler County. According to the judge, the original custody filing cited a section of the state child custody law's so-called "Grandparents statute" that says nothing about legal custody.

Caleb's father, the Balcers' son, died in a kayaking accident. He and Bertha "Ellie" Wright were not married.

Wherry's April ruling granting the Balcers custody drove Caleb's mother to take the boy and flee rather than let the boy visit his grandparents. Ms. Wright has accused Dan Balcer of sexually abusing Caleb in 2002 and sought a protection from abuse order against him. Two investigations of those claims by Butler County Children and Youth Services have come back unfounded. Ms. Wright's attorney, Carol Kowall of Pittsburgh, noted that Caleb and his mother could not be interviewed for the second investigation.

"The legal effect of this, in my opinion, is to bring it back to before the PFA action and the Butler CYS filing. It's so the issue can be resolved," said Wherry, adding that now the case will be back to a "plain garden variety custody case."

The case has been anything but that. Custody cases rarely make the news, but Ms. Wright and Caleb's disappearance and Ms. Wright's family's vocal criticism of Wherry's rulings in the case -- which included ordering the boy into foster care if he is found -- made headlines statewide.

But Caleb's maternal grandmother, Deborah Wright of Pine Township, doesn't believe this decision will resolve anything. "Until my daughter knows he (Dan Balcer) will not be around her son, I don't see her coming back anytime soon," Mrs. Wright said.

Wherry said he wants to see some resolution to the case before he leaves the bench. "I've disposed of all the issues," he said, adding that the Balcers were still free to file for custody under another section of the "Grandparents statute."

"A grandparent has standing to bring a petition for physical and legal custody of a grandchild. If it is in the best interest of the child not to be in the custody of either parent and if it is in the best interest of the child to be in the custody of the grandparent, the court may award physical and legal custody to the grandparent," according to the statute.

Margaret Lucas, a Mercer lawyer who began representing the Balcers after the initial filing, said she filed an amended complaint last week to get shared legal custody and periods of partial custody of Caleb for her clients.

Mrs. Lucas said someone with legal custody "has the right to be involved in legal decisions that are made for the child."

"What we're really primarily looking for is the right to know what's going on, to have some knowledge of medical things and school issues, not to make the final be-all and end-all decisions," she said.

But if the Balcers are granted shared legal custody with Ms. Wright, Mrs. Lucas said any decisions Ms. Wright would make about Caleb concerning such things as schooling or health would have to be agreed to by the Balcers.

A hearing on the case is scheduled for mid-December.

Wherry said he was "terribly distressed about the effect this will have on the baby. We're all grown-ups, but the baby's not a grown-up."

Wherry also ruled against the Balcers' request to impound Caleb's Social Security payments, which are paid to Ms. Wright, stating he could find no legal authority to do so.

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