R.L. v. M.A. ( 2019 )


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  • J-A07030-19
    
    2019 Pa. Super. 145
    R.L.                                      :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                          :
    :
    :
    M.A.,                                     :
    :
    Appellant             :   No. 2740 EDA 2018
    Appeal from the Order Entered August 28, 2018
    In the Court of Common Pleas of Lehigh County Civil Division at No(s):
    2018-FC-0597
    BEFORE:      OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
    OPINION BY DUBOW, J.:                                    FILED MAY 03, 2019
    Appellant, M.A., who is the biological mother of V.L. (“Child”), appeals
    from the August 28, 2018 Order, which awarded shared legal and physical
    custody of Child to Appellant and R.L., Child’s non-biological mother and
    Appellant’s former paramour. Upon careful review, we affirm.
    The relevant factual and procedural history is as follows. Appellant and
    R.L. were involved in a committed romantic relationship in 2012 when they
    made a decision together to conceive Child by impregnating Appellant via
    artificial insemination using sperm from R.L.’s brother. The couple planned
    and prepared for Child’s birth together, including decorating a nursery and
    shopping for baby supplies.       R.L. was present at Child’s birth, R.L. chose
    Child’s first name, and the couple decided together to give Child R.L.’s
    surname. Soon after Child’s birth, the couple broke up.
    ____________________________________
    * Former Justice specially assigned to the Superior Court.
    J-A07030-19
    Under an informal agreement, Child lived with Appellant and spent every
    other weekend with R.L. until June 2014, when Appellant and R.L. agreed to
    share 50/50 custody of Child. Child spent alternating weeks with Appellant
    and R.L. until an incident in February 2018, when R.L. called the daycare
    where Appellant worked and Child attended. R.L. complained that Appellant
    was having too much contact with Child, including taking Child off the
    premises during the day. As a result of the phone call, Appellant stopped the
    weekly custody rotation.
    On May 10, 2018, R.L. filed a Complaint for Custody of then-5-year-old
    Child. On June 29, 2018, after a hearing, the trial court granted R.L. “in loco
    parentis” status, and therefore standing, to pursue any form of physical or
    legal custody of Child pursuant to 23 Pa.C.S. § 5324(2).1 On August 23, 2018,
    after a pre-trial conference, the trial court held a custody hearing.
    ____________________________________________
    1 “The term in loco parentis literally means in the place of a parent.” M.L.S.
    v. T.H.-S., 
    195 A.3d 265
    , 267 (Pa. Super. 2018) (citation and quotation
    omitted). Section 5324, inter alia, grants standing to file an action for any
    form of custody to “[a] parent of the child” or “[a] person who stands in loco
    parentis to the child[.]” 23 Pa.C.S. §§ 5324(1), (2). We acknowledge that
    the trial court’s June 29, 2018 Order did not grant R.L. standing to pursue
    custody as a parent pursuant to Section 5324(1) despite the Custody
    Complaint averring: 1) R.L. and Appellant planned to conceive Child together
    and they were involved in an intimate relationship prior to, during, and after
    Child’s birth; 2) Child has been living with R.L. every other week for most of
    his life; 3) Child calls R.L. Mother and they have a parent/child bond; and 4)
    R.L. has acted as a parent to Child for Child’s entire life. See Order, 6/29/18;
    Custody Complaint, 5/10/18, at ¶¶ 4, 5. Rather, the Order only granted R.L
    standing to pursue custody in loco parentis pursuant to Section 5324(2). R.L.
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    On August 28, 2018, the trial court awarded Appellant and R.L. shared
    legal and physical custody of Child, and, inter alia, ordered Child to spend
    alternating weeks with Appellant and R.L. On the same day, the trial court
    issued a Memorandum of Factors, which reviewed and made findings
    regarding the 23 Pa.C.S. § 5328 Custody Factors.           This timely appeal
    followed.2
    ____________________________________________
    failed to challenge this Order. Accordingly, we are constrained to review this
    case pursuant to R.L.’s in loco parentis, or third party, status.
    We recognize that our Supreme Court has recently declined to expand the
    definition of the term “parent” under Section 5324(1) in a case where a
    biological mother’s same-sex unmarried former partner sought standing as a
    “parent,” when the former partner did not jointly participate in the child’s
    conception and hold the child out as her own. See C.G. v. J.H., 
    193 A.3d 891
    , 906 (Pa. 2018). The Court recognized that Section 5324 does not define
    the term parent and acknowledged, “the reality of the evolving concept of
    what comprises a family cannot be overlooked.” 
    Id. at 900.
    However, bound
    by the trial court’s findings that the former partner did not intend to conceive
    the Child, the Court concluded, “this case does not provide this Court with a
    factual basis on which to further expand the definition of the term parent
    under Section 5324(1).” 
    Id. at 906.
    Here, R.L. did intend to conceive Child and did hold Child out as her own.
    Nevertheless, even though this case might provide a factual basis on which to
    expand the definition of the term “parent” under Section 5324(1), that issue
    is not before us and, as stated above, we are constrained to review this case
    treating R.L. as a third party rather than a parent. We, however, agree with
    the Supreme Court that the evolving nature of family relationships requires
    the appellate courts to re-examine the definition of “parent” under Section
    5324(1).
    2 The instant appeal is a children’s fast track case. When Appellant filed a
    Notice of Appeal, she failed to file a concise statement of errors complained of
    on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and Pa.R.A.P. 905(a)(2) or
    provide notice of the appeal to the trial court judge pursuant to Pa.R.A.P.
    906(a)(2). When the trial court learned of the appeal on October 2, 2018, the
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    Appellant raises the following issues on appeal:
    [1.]   Has the [nonparent] litigant met her burden of proof
    under [23 Pa.C.S. § 5327(b)] by presenting clear and
    convincing evidence that [nonparent] should have the
    same amount of physical custodial time as a parent in a
    case where the parent seeks primary physical custody of
    the child?
    [2.]   Did the Court err as a matter of law when it awarded
    equal physical custodial time to a parent and [nonparent]
    after weighing all relevant factors evenly between the
    parties in its Memorandum and Opinion?
    Appellant’s Brief at 3.
    The Child Custody Act, 23 Pa.C.S. §§ 5321-5340, governs all custody
    proceedings commenced after January 24, 2011. E.D. v. M.P., 
    33 A.3d 73
    ,
    ____________________________________________
    court ordered Appellant to file a Concise Statement of Matters Complained of
    on Appeal within seven days. On October 10, 2018, Appellant filed a Concise
    Statement of Matters Complained of on Appeal. On October 22, 2018, the
    trial court filed a Pa.R.A.P. 1925(a) Opinion. Because Appellant failed to
    comply with Pa.R.A.P 1925(a)(2)(i) and Pa.R.A.P. 905(a)(2), Appellant’s
    Notice of Appeal is defective. See In re K.T.E.L., 983 A.d 745, 747 (Pa.
    Super. 2009) (holding that the failure of an appellant in a children's fast track
    case to file contemporaneously a concise statement with the notice of appeal
    pursuant to rules 905(a)(2) and 1925(a)(2), will result in a defective notice of
    appeal and the disposition of the defective notice of appeal will then be decided
    on a case by case basis). However, as Appellant’s procedural misstep has not
    prejudiced the other party and does not impede our review of the matter, we
    decline to quash or dismiss this appeal for noncompliance. See 
    id. See also
    Coffman v. Kline, 
    167 A.3d 772
    , 776 (Pa. Super. 2017), appeal
    denied, 
    182 A.3d 433
    (Pa. 2018) (observing that when an appellant fails to
    serve the notice of appeal on the trial court judge per Rule 906(a)(2), this
    Court has discretion to take any appropriate action).
    -4-
    J-A07030-19
    77 (Pa. Super. 2011). The Custody Act requires a trial court to consider all of
    the Section 5328(a) best interests factors when “ordering any form of
    custody.” 23 Pa.C.S. § 5328(a). A trial court must “delineate the reasons for
    its decision when making an award of custody either on the record or in a
    written opinion.” S.W.D. v. S.A.R., 
    96 A.3d 396
    , 401 (Pa. Super. 2014). See
    also 23 Pa.C.S. § 5323(a) and (d). However, “there is no required amount
    of detail for the trial court’s explanation; all that is required is that the
    enumerated factors are considered and that the custody decision is based on
    those considerations.” M.J.M. v. M.L.G., 
    63 A.3d 331
    , 336 (Pa. Super. 2013).
    “The paramount concern in child custody cases is the best interests of
    the child.” C.G. v. J.H., 
    193 A.3d 891
    , 909 (Pa. 2018). “The best-interests
    standard, decided on a case-by-case basis, considers all factors which
    legitimately have an effect upon the child's physical, intellectual, moral and
    spiritual well-being.” M.J.N. v. J.K., 
    169 A.3d 108
    , 112 (Pa. Super. 2017).
    This Court reviews a custody determination for an abuse of discretion.
    In re K.D., 
    144 A.3d 145
    , 151 (Pa. Super. 2016). We will not find an abuse
    of discretion “merely because a reviewing court would have reached a different
    conclusion.” 
    Id. (citation omitted).
    Rather, “[a]ppellate courts will find a trial
    court abuses its discretion if, in reaching a conclusion, it overrides or
    misapplies the law, or the record shows that the trial court's judgment was
    either manifestly unreasonable or the product of partiality, prejudice, bias or
    ill will.” 
    Id. -5- J-A07030-19
    Further, when this Court reviews a trial court’s “best interests” analysis
    in custody matters, our scope of review is broad, but we are “bound by
    findings supported in the record, and may reject conclusions drawn by the
    trial court only if they involve an error of law, or are unreasonable in light of
    the sustainable findings of the trial court.” Saintz v. Rinker, 
    902 A.2d 509
    ,
    512 (Pa. Super. 2006) (quotation and citation omitted). Importantly, “[o]n
    issues of credibility and weight of the evidence, we defer to the findings of
    the trial judge who has had the opportunity to observe the proceedings and
    demeanor of the witnesses.” K.T. v. L.S., 
    118 A.3d 1136
    , 1159 (Pa. Super.
    2015) (citation omitted). We can only interfere where the “custody order is
    manifestly unreasonable as shown by the evidence of record.” 
    Saintz, 902 A.2d at 512
    (citation omitted).
    In her first issue, Appellant avers that R.L., the non-biological mother,
    did not present clear and convincing evidence that she should have equal
    custodial time as Appellant, the biological mother. Appellant’s Brief at 6-7.
    Appellant argues that 23 Pa.C.S. § 5327 requires a trial court to apply a
    presumption in favor of a “biological parent” as opposed to a “nonparent
    litigant” and that R.L. did not meet her burden of proof to overcome the
    presumption in favor of Appellant. 
    Id. at 7.
    Appellant argues that the “scale
    was already tipped hard” to Appellant before the trial and that it was R.L.’s
    burden as a nonparent litigant to “tip the scale in favor of [R.L.]” rather than
    “tip the scale only to equal” in order to obtain shared physical custody with
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    J-A07030-19
    equal custodial time. 
    Id. Finally, Appellant
    asserts that the trial court erred
    when it considered the previous informal custody arrangement between
    Appellant and R.L as dispositive evidence in determining whether R.L. met her
    burden of proof. 
    Id. For the
    following reasons, Appellant is not entitled to
    relief.
    The parent has a prima facie right to custody, “which will be forfeited
    only if convincing reasons appear that the child’s best interest will be served
    by an award to the third party.” V.B. v. J.E.B., 
    55 A.3d 1193
    , 1199 (Pa.
    Super. 2012) (quoting Charles v. Stehlik, 
    744 A.2d 1255
    , 1258 (Pa. 2000)).
    Section 5327 of the Custody Act pertains to cases “concerning primary
    physical custody” and provides that, “[i]n any action regarding the custody of
    the child between a parent of the child and a nonparent, there shall be a
    presumption that custody shall be awarded to the parent. The presumption
    in favor of the parent may be rebutted by clear and convincing evidence.” 23
    Pa.C.S. § 5327(b). This Court has defined clear and convincing evidence “as
    presenting evidence that is so clear, direct, weighty, and convincing so as to
    enable the trier of fact to come to a clear conviction, without hesitation, of the
    truth of the precise facts in issue.” M.J.S. v. B.B. v. B.B., 
    172 A.3d 651
    , 660
    (Pa. Super. 2017) (citations and internal quotation marks omitted).
    Accordingly, “even before the proceedings start, the evidentiary scale is
    tipped, and tipped hard, to the biological parents’ side.” 
    V.B., 55 A.3d at 1199
    (quoting 
    Charles, 744 A.2d at 1258
    ).           When making a decision to award
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    J-A07030-19
    primary physical custody to a nonparent, the trial court must “hear all
    evidence relevant to the child's best interest, and then, decide whether the
    evidence on behalf of the third party is weighty enough to bring the scale up
    to even, and down on the third party’s side.” 
    Id. (quoting McDonel
    v. Sohn,
    
    762 A.2d 1101
    , 1107 (Pa. Super. 2000)).
    These principles do not preclude an award of custody to the nonparent
    but simply instruct the trial court that the nonparent bears the burden of
    production and the burden of persuasion and that the nonparent’s burden is
    heavy. Jones v. Jones, 
    884 A.2d 915
    , 918 (Pa. Super. 2005). It is well
    settled, “[w]hile this Commonwealth places great importance on biological
    ties, it does not do so to the extent that the biological parent’s right to custody
    will trump the best interests of the child. In all custody matters, our primary
    concern is, and must continue to be, the well-being of the most fragile human
    participant—that of the minor child.” 
    Charles, 744 A.2d at 1259
    . “Once it is
    established that someone who is not the biological parent is in loco
    parentis, that person does not need to establish that the biological
    parent is unfit, but instead must establish by clear and convincing evidence
    that it is in the best interests of the children to maintain that relationship or
    be with that person.” 
    Jones, 884 A.2d at 917
    (emphasis in original).
    The crux of Appellant’s first argument is that R.L. failed to present clear
    and convincing evidence to rebut the statutory presumption in favor of
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    J-A07030-19
    awarding primary physical custody to Appellant as opposed to R.L. Appellant’s
    Brief at 7-8.
    Instantly, R.L. filed a Custody Complaint seeking shared physical and
    legal custody, to memorialize the informal custody agreement that had been
    in place between her and Appellant for several years. In response, Appellant
    stated on the record that she was seeking primary physical custody. N.T.
    Custody Hearing, 10/16/18, at 100-01. The trial court recognized a statutory
    presumption in favor of Appellant but made a finding that “R.L. rebutted that
    presumption by evidence that was so clear and convincing based upon the
    undisputed decisions regarding custody that the parties had made together
    both prior to and following their separation.” See Trial Court Opinion, filed
    10/22/10, at 6.   The trial court found R.L.’s testimony to be credible that
    Appellant and R.L. had an informal agreement to share physical custody of
    Child on a weekly rotation from June 2014 until February 2018. 
    Id. at 7.
    The
    trial court made a finding that Child had been thriving in this 50-50 custody
    arrangement for 70% of his life, and that the only reason Appellant
    discontinued the week-to-week arrangement was because Appellant was
    upset when R.L. contacted Appellant’s place of employment.        
    Id. at 7-8.
    Accordingly, the trial court found that the “evidence and testimony was clear,
    direct, weighty, and convincing” that “the scale was tipped to even between
    R.L. and [Appellant]” and Child’s “best interest had been served for the
    majority of his life by implementing the week-to-week physical custody.” 
    Id. -9- J-A07030-19
    at 7, 11. Based on these findings, which are supported in the record, the trial
    court awarded shared physical and legal custody of Child to R.L. and Appellant.
    Appellant argues that the court applied the incorrect burden when it only
    required R.L. to present clear and convincing evidence to “tip the scale only
    to equal” rather than “tip the scale in favor of [R.L.]” prior to awarding shared
    physical custody. 
    Id. at 10.
    The trial court opined:
    The parents have a prima facie right to custody, which will be
    forfeited only if convincing reasons appear that the child’s best
    interest will be served by an award to the third party. Thus, even
    before the proceedings start, the evidentiary scale is tipped, and
    tipped hard, to the biological parents’ side. In a case of shared
    physical custody, this [c]ourt views the scale analogy as placing
    the burden on the non-biological parent to tip that scale to equal.
    It is not believed that the burden was for the non-biological parent
    to tip the scare down farther than equal, as that may we result in
    an award of primary physical custody to the non-biological
    parent[.]
    Trial Court Opinion, filed 10/22/18, at 5-6. We agree.
    Indeed, this Court has long required a trial court to “decide whether the
    evidence on behalf of the third party is weighty enough to bring the scale up
    to even, and down on the third party’s side” prior to awarding primary
    physical custody to a nonparent.     See 
    V.B., 55 A.3d at 1199
    .       See also
    Charles, 
    744 A.2d 1255
    (upholding award of primary physical custody to
    stepfather instead of father following mother’s death); 
    McDonel, 762 A.2d at 1107
    (upholding award of primary physical custody to maternal aunt and uncle
    instead of father following mother’s death); 
    Jones, 884 A.2d at 918
    (upholding award of primary physical custody to non-biological mother of
    - 10 -
    J-A07030-19
    children born to same-sex partners by artificial insemination).        However,
    Appellant has failed to cite any legal authority that requires a third party to
    tip the scale in their favor prior to awarding shared physical custody. Our
    precedent merely requires the scale to tip to the third party’s side prior to
    awarding primary physical custody to the third party and, thus, we find no
    error in the trial court’s finding that, in this case, when the scale was “tipped
    to even,” an award of shared legal custody was in Child’s best interest.
    Finally, Appellant argues that the “previous informal arrangement
    between the parties should not be dispositive in determining whether [R.L.]
    met her burden” and challenges the weight that the trial court placed on this
    evidence. Appellant’s Brief at 11. The trial court engaged in an analysis of
    the Section 5328 custody factors and the record supports the trial court’s
    findings. As stated above, on issues of credibility and weight of the evidence,
    we defer to the findings of the trial judge.    See 
    K.T., 118 A.3d at 1159
    .
    Accordingly, we find no error.
    The trial court applied the statutory presumption in favor of Appellant,
    found that clear and convincing evidence rebutted that presumption, found
    that shared physical and legal custody was in Child’s best interest, and
    awarded shared physical and legal custody to Appellant and R.L. The record
    supports the trial court’s findings. Accordingly, Appellant is not entitled to
    relief on her first issue.
    - 11 -
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    In her second issue, Appellant avers that the trial court erred in
    awarding shared physical custody when the trial court determined that all of
    the Section 5328 factors weighed evenly between the parties because the
    court is required to apply a presumption in favor of Appellant. Appellant’s
    Brief at 12-17. Appellant further argues that the record is devoid of evidence
    that she is unable to care for Child. 
    Id. at 16.
    Appellant fails to cite any authority to support her bald assertion that,
    because of the statutory presumption in favor of a parent, if all of the Section
    5328 factors are equal, then a parent should automatically get primary
    physical custody of a child instead of a third party.     On the contrary, in a
    custody dispute, the best-interests standard is decided on a case-by-case
    basis and “considers all factors which legitimately have an effect upon the
    child's physical, intellectual, moral and spiritual well-being.” 
    M.J.N., 169 A.3d at 112
    .
    Once the trial court granted R.L. in loco parentis status, R.L. did not
    need to establish that Appellant was “unfit” or deficient in any of the Section
    5328 custody factors; R.L. merely needed to establish that it was in Child’s
    best interest to maintain a relationship with her. See Jones, 
    884 A.2d 917
    .
    Accordingly, Appellant’s second issue lacks merit.
    The trial court engaged in an analysis of the Section 5328 custody
    factors, applied the statutory presumption in favor of Appellant, found that
    clear and convincing evidence rebutted that presumption, found that shared
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    physical and legal custody was in Child’s best interest, and awarded shared
    physical and legal custody to Appellant and R.L. The record supports the trial
    court’s findings. Accordingly, we find no error.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/3/19
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Document Info

Docket Number: 2740 EDA 2018

Filed Date: 5/3/2019

Precedential Status: Precedential

Modified Date: 4/17/2021