N.M. v. J.N.M. ( 2021 )

J-A04021-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
N.M. AND M.M : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
J.N.M., J.W., AND R.M. :
:
:
APPEAL OF: J.W., FATHER : No. 1823 EDA 2020
Appeal from the Order Entered August 28, 2020
In the Court of Common Pleas of Carbon County
Civil Division at No(s): No. 14-1196
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED: FEBRUARY 19, 2021
Appellant, J.W. (“Father”), appeals from the order entered in the Carbon
County Court of Common Pleas, which denied his Petition to Modify Existing
Custody Order, as it relates to his minor child (“Child”) (born December 2008).
We affirm.
In its opinion, the trial court accurately set forth the relevant facts and
procedural history of this case as follows:
This case dates back to June 20, 2014, when the [p]laintiffs,
[N.M. and M.M. (collectively, “Grandparents”)], who at all
relevant times resided [in]…Summit Hill, Carbon County,
Pennsylvania, filed a custody complaint requesting that the
[c]ourt award them sole legal and physical custody of their
grandchild J.M, and his half-brother, [Child]. The
[d]efendant in this case is [(“Mother”)], who is the mother
of J.M. and…Child. Though [Grandparents] have no
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A04021-21
biological relation to…Child, both children have resided with
them for a majority of their lives.[1] The Grandparents
further disclosed that…Child’s father was not known to them
and that he had not been in…Child’s life to that point.
After proceedings had begun, but before the [c]ourt had
issued a final custody order concerning…Child and J.M.,
[Father] filed a Petition to Intervene. Father asserted his
belief that he was the biological father of…Child and sought
primary physical custody of…Child through his intervention
in this matter. At all times relevant, Father has resided [in]
Columbus, Ohio, with his wife, [L.T.], and step-child, [D.]
Father averred through his Petition to Intervene that Mother
had concealed herself and [C]hild from Father since…Child’s
birth and that he had been unable to locate Mother or…Child
until discovering a docket listing for this case. Father
therefore asserted that his petition should be granted so
that he could “finally enjoy his right as a parent to have a
relationship with his son, and be part of the child’s life[.]”
In the Grandparents’ pre-trial memorandum of September
29, 2014, they argued that they should be awarded primary
physical custody of…Child and J.M. because the children had
resided with Grandparents since September 2010. Mother
resided with Grandparents and the children from September
2010 to September 2013. However, Grandparents asserted
that they have been the primary caretakers of the children
since September 2010. …
On October 2, 2014, Father’s Petition to Intervene was
granted. Father was confirmed to be the biological father
of…Child on December 3, 2014.
Through his pre-trial memorandum, Father argued that
Mother had concealed…Child from him until 2014. However,
since locating…Child, Father had maintained constant phone
contact with him and had one visit with…Child in Ohio.
Father argued that the above actions had demonstrated “a
strong desire and dedication to be part of his son’s life[.]”
____________________________________________
1 Grandparents are the biological paternal grandparents of Child’s half-
brother.
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A custody hearing was held on March 13, 2015 before this
[c]ourt. On March 25, 2015, [the court] entered an order
awarding joint legal custody of…Child to Grandparents and
Father. However, Grandparents were awarded primary
physical custody, while Father was awarded partial physical
custody. Father’s periods of custody were set for the
summer recess [of the school year] and the Christmas
holiday in odd numbered years with the precise exchange
times to be mutually agreed upon by Grandparents and
Father. The [c]ourt further ordered that telephone contact
be permitted between…Child and the non-custodial party.
On January 29, 2018, Father filed a petition to modify the
custody order of March 25, 2015, in which he again
requested that the [c]ourt award him primary physical
custody of…Child. Through his petition, Father asserted that
he is “better-suited at this time to care for the emotional,
mental, physical and educational needs of the minor
child[.]”
In their pre-trial memorandum relative to Father’s petition
to modify the custody order, Grandparents argued that
primary physical custody of…Child should remain with them,
as “a transfer of custody would be particularly inappropriate
in light of the fact that, were Father to obtain custody, the
same would, necessarily, necessitate a relocation of the
minor child from the Commonwealth of Pennsylvania to the
State of Ohio[,] thus taking him away not only from the
home, extended family, friends, school, community, etc.
which he has known for the past ten (10) years, but, also,
from his sibling of whom the Grandparents continue to
maintain primary physical custody[.]”
Father filed a pre-trial memorandum on November 27,
2018, in which he asserted that Grandparents [had] failed
to encourage frequent and continuing contact
between…Child and Father. In support of that position,
Father alleged that he was often denied telephone contact
with…Child, and that Grandparents [had] cancelled or failed
to appear for reunification therapy sessions (Father
and…Child began participating in the sessions after the
initial custody order was entered) on several occasions[.]
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At the hearing on Father’s modification petition, …Child was
interviewed in camera. [C]hild expressed a desire to remain
with Grandparents, as he misses his half-brother while he is
in Ohio. Grandfather testified that…Child and J.M. “spend
almost every waking moment together.”
[The court] denied Father’s petition to modify the custody
order on January 11, 2019. “Based upon their role as
primary custodians and caregivers for the last eight and one
half (8½) years, [the court found] that Grandparents are
more likely to attend to the daily physical, emotional,
developmental and educational needs of…Child. While [the
court] believe[s] that Father is sincere in his desire to be
more actively involved in…Child’s life, the fact remains that
he has not fully exercised the partial physical custody rights
vested in him by this [c]ourt in our Order of March 25, 2015,
spending one (1) month with…Child in Ohio during the
summer of 2015 and two (2) months during the summer of
2018 rather than two and a half (2½) months each summer
and one (1) week between Christmas Eve and New Years
Eve in alternating years previously awarded by the
[c]ourt[.]”
On March 6, 2019, Father filed a petition for contempt
alleging that Grandparents had failed to produce…Child for
reunification therapy sessions as well as scheduled phone
calls. Further, Father alleged that Grandparents had failed
to allow…Child the privacy to speak openly with Father
during therapy and phone calls, and threatened to
send…Child to therapy wearing a concealed recording
device[.]
Pursuant to this [c]ourt’s order of April 24, 2019, Father’s
petition for contempt was denied following an evidentiary
hearing. However, by agreement of the parties, Father was
granted telephone contact with…Child every Monday,
Wednesday, and Friday, between 7:00 p.m. and 7:15 p.m.
On July 30, 2019, Father filed a petition for special relief
alleging that…Child had confided in him instances of sexual
abuse by members of Grandparents’ household, one of
whom continued to reside at Grandparents’ house. The two
individuals alleged to have been involved were [E.A.] and a
minor child (J.P.) who had only resided with Grandparents
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for two months, and [were] not currently residing with
Grandparents. Father requested through his petition that
he be awarded primary physical custody and that
Grandparents’ periods of custody be suspended pending the
outcome of the investigations[.]
The allegations raised by…Child were investigated by the
Carbon County Office of Children and Youth Services and
the Lehigh Valley Children’s Advocacy Center. [C]hild’s
report was validated and the allegations were referred to
the Summit Hill Police Department. Additionally, Father’s
period of custody was extended pending the results of the
investigation.
On September 9, 2019, Father filed a petition to modify the
custody order…in light of the sexual abuse investigation
concerning…Child[.] However, …Child later recanted the
allegations on October 9, 2019[.] After an interview
of…Child by Emily Greenwald of Carbon County Children and
Youth Services, …Child was deemed safe in Grandparents’
home[.]
After a hearing on Father’s petition for special relief, the
[c]ourt issued an order on September 13, 2019 allowing
Grandparents to resume primary physical custody on
September 14, 2019 provided that Grandparents
“immediately evict and exclude [E.A.] (one of the
perpetrators alleged by…Child) from their residence[.]
[Grandparents] shall ensure that [E.A.] has no contact with
[Child.]” Other than the aforementioned conditions, the
March 25, 2015 order was to remain in effect[.]
Thereafter, Grandparents filed a petition to modify the
custody order on December 18, 2019. Through their
petition, they claimed that…Child has recanted his
allegations against [E.A.], and that the restrictions
concerning [E.A.] should be removed[.]
On January 17, 2020, Father filed a petition for contempt
alleging that Grandparents had failed to produce…Child for
Father’s one-week period of custody during the Christmas
holiday, as directed by the March 25, 2015 order.
Additionally, Father alleged that Grandparents (and the rest
of their household) continue[d] to interfere with Father’s
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scheduled telephone calls with…Child[.]
Grandparents explained that they had attempted to comply
with the order to produce…Child for the visit with Father
over the Christmas holiday. However, …Child refused to go,
and had threatened to jump out of the car if Grandparents
forced him to go. Therefore, Grandparents made the
decision that…Child should not attend the visit with Father[.]
On February 5, 2020, Father filed a pre-trial memorandum
in support of his petition to modify the custody order. …
Hearings began on February 12, 2020 relative to the
outstanding petitions. Susan [Barradale2], who is the
reunification counselor for…Child and Father, testified that
she became involved in this case on March 24, 2018. [C]hild
had been having difficulty connecting with Father, and
Father wanted…Child’s next visit to be more comfortable.
Ms. [Barradale] testified that one of the issues disclosed to
her by…Child is that he “doesn’t like places with a lot of
people.” [C]hild has also maintained that he misses his
brother while he is away, even after he became more
comfortable in Father’s household.
On June 9, 2020, Grandparents filed a petition to modify
custody and for an expedited hearing asking that the [c]ourt
suspend Father’s period of custody during the summer
recess until after the completion of the hearing on all
outstanding petitions. In support of their position, they
alleged that…Child was unwilling to attend the summer 2020
visit with Father and was threatening to run away or take
other extreme measures if forced to attend[.]
Father filed an answer to Grandparents’ special relief
petition on June 22, 2020. Father asserted that he was
opposed to the suspension of his period of custody over the
summer, and asked the [c]ourt to order that…Child be
evaluated by a mental health provider if he was threatening
any form of self-harm[.]
____________________________________________
2 Ms. Barradale’s name is spelled several different ways in the trial court
opinion. We use the spelling of “Barradale” as set forth in the notes of
testimony. (N.T. Hearing, 2/12/20, at 2, 4).
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On that same day, Father filed an emergency petition for
special relief asking that the [c]ourt hold Grandparents in
contempt. Father alleged through his petition that
Grandparents failed to produce…Child for Father’s period of
custody beginning on June 12, 2020, [and] that
Grandparents [continued to act in contempt of the court’s
prior custody order].
A hearing was held before this [c]ourt on Grandparents’
petition to modify custody and for an expedited hearing and
Father’s emergency petition for special relief on July 17,
2020. [C]hild was interviewed in camera during the
hearing, where he expressed that he had no desire to see
Father at all. According to...Child, Father spends most of
his time with…Child disparaging Grandparents and has “an
attitude.” Additionally, …Child feared that if he was forced
to go back to Father’s house for the summer, he would not
be brought back to Pennsylvania.
[C]hild elaborated that Father has told him that
Grandparents don’t love him and that they are only keeping
him for money. Further, …Child mentioned an occasion
where Father took him to GameStop where he refused to
purchase a video game for…Child, saying[,] “They
[Grandparents] get enough money for you.” [C]hild also
brought up that Father’s wife had told him that [E.A.] would
shoot him if he returned to Pennsylvania during his visit in
the summer of 2019.
On that same day, [this court] found Grandfather in
contempt of [c]ourt, and ordered that he immediately
transfer custody of…Child to Father as well as comply with
other purge conditions as a result of the contempt[.]
This [c]ourt held a hearing on the remaining outstanding
petitions on August 13, 2020. Father, Grandfather, and
Grandmother testified at the hearing, and the [c]ourt
conducted an in camera interview of…Child.
[C]hild testified on August 13, 2020 that although he was
enjoying his time in Ohio with Father, he desired to continue
living in Carbon County with Grandparents. [C]hild
expressed that he misses his brother and Grandparents
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during periods of separation. He further expressed
displeasure with the tension between Grandparents
(particularly Grandfather) and Father. [C]hild found
Father’s comments about his grandparents “not really loving
him” or “only using him as a paycheck” to be particularly
upsetting.
[C]hild elaborated that even when in Ohio, he is not able to
spend much time with Father. He explained that Father is
often working and that most of his time this past summer
has been spent with his step-brother, [D.] [C]hild expressed
that he still does not know how to feel towards his father.
The best thing that…Child was able to say about Father is
that he is a good cook. In fact, when asked, …Child stated
that Father would be in last place on the list of things that
he liked about Ohio.
[C]hild stated that he was nervous about what was going to
happen (as a result of these proceedings). He elaborated
that he was reluctant to go to Ohio that summer because he
was afraid that he would not be returned to Carbon County.
In addition to stating his feelings on the custody matter,
…Child testified that he enjoys attending school in the
Panther Valley School District and has made numerous
friends through school. [C]hild performs well in school
despite his I.E.P. for a reading comprehension disability.
Grandfather testified about the issues that he has had in
communicating with Father. According to Grandfather,
Father has blocked his phone number. Additionally,
Grandfather testified that he will continue to send…Child to
reunification counseling if ordered by the [c]ourt, but that
he was under the impression that the counseling had
already served its purpose.
Grandfather further raised concerns about forcing…Child to
spend more time with Father when he clearly does not wish
to do so. Grandfather explained that…Child’s half-brother,
J.M., and everything that…Child knows are in Carbon
County. In addition to J.M., three of the Child’s cousins
reside at Grandparents’ house with…Child.
Grandmother testified that although…Child is not always
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available for the scheduled phone calls with Father, and he
does not always wish to speak with Father, she continues to
encourage him to do so. Additionally, she asserts that
neither she, nor anyone in her household, has ever
disparaged Father during the scheduled phone calls.
Grandmother admitted that she suffers from diabetes and
respiratory problems for which she sometimes uses “a
breathing machine.” However, Grandmother asserts that
she is still able to perform parental duties, such as
helping…Child with his school work.
Father testified that despite Grandparents’ claims
that…Child did not want to visit with Father, …Child calmed
down upon leaving Pennsylvania shortly after the July 17,
2020 hearing. Additionally, Father learned during the
summer 2020 visit that…Child has pre-diabetes and high
cholesterol levels and has since been monitoring…Child’s
food intake and medication.
Father also testified that he has had difficulty
reaching…Child for scheduled phone calls. He stated that
he has been referred to as a “sperm donor” by members of
Grandparents’ household during scheduled calls.
Father further testified that his household does everything
together as a family and that if awarded primary custody,
he could structure his work schedule to maximize time spent
with…Child. In addition to Father’s immediate family, Father
testified that…Child has extended family in Columbus, Ohio.
However, there was no testimony that…Child has met all of
the extended family members or established close familial
bonds with any of them.
Lastly, Father stated that he intended to enroll…Child in a
Catholic school should he gain custody of him during the
school year. However, Father did not testify as to the
reputation of the schools that he was considering, how those
schools would accommodate…Child’s I.E.P., or how they
compare with the educational program at Panther Valley.
[C]hild’s [c]ourt-appointed guardian ad litem [(“GAL”)]
argued at the hearing that the custody arrangement should
be modified, giving Father primary physical custody. As per
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his report, his recommendation is primarily based on the
presumption of custody in a child’s natural parent. [The
GAL] had previously testified that despite his
recommendation, he believed that Grandparents
loved…Child and that…Child loved Grandparents and his
half-brother as if they were his biological family[.] [The
GAL] also stressed the importance of stability in…Child’s
schooling considering his I.E.P., and recommended that the
[c]ourt be sure that an appropriate arrangement is made to
accommodate…Child in school should custody be transferred
to Father[.]
On August 28, 2020, [the court] denied Grandparents’
petition to modify custody and for [expedited] hearing
concerning [E.A.] This [c]ourt also held Grandfather in
contempt of [c]ourt as per the allegations made by Father
in his [January 2020 petition for civil contempt and June
2020 emergency petition for special relief]. [The court]
ordered additional periods of custody for Father as well as
other purge conditions as a result of Grandfather’s
contempt.
Lastly, on that same date, the [c]ourt denied Father’s
“Petition to Modify Existing Custody Order,” which is the
subject of this appeal. [The court] stated in the order that
the third-party Grandparents had met their burden of
overcoming the presumption that custody should be
awarded to a child’s natural parent by presenting clear and
convincing evidence that it is in…Child’s best interest to
remain with Grandparents[.]
(Trial Court Opinion, filed October 23, 2020, at 2-18) (internal citations to
record and footnotes omitted). On September 25, 2020, Father timely filed a
notice of appeal and a contemporaneous concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i).
Father raises the following issues for our review:
Whether the trial court abused its discretion by failing to
properly apply the presumption of custody in favor of
[Father] by failing to consider [Father’s] evidence in its
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opinion[?]
Whether the trial court erred and abused its discretion by
improperly relying on overturned legal doctrine in its
analysis[?]
Whether the trial court erred and abused its discretion by
misapplying the legal standard used when considering a
child’s preferences in cases involving a third party[?]
(Father’s Brief at 2).
Our standard and scope of review in this case are as follows:
In reviewing a custody order, our scope is of the broadest
type and our standard is abuse of discretion. We must
accept findings of the trial court that are supported by
competent evidence of record, as our role does not include
making independent factual determinations. In addition,
with regard to issues of credibility and weight of the
evidence, we must defer to the presiding trial judge who
viewed and assessed the witnesses first-hand. However, we
are not bound by the trial court’s deductions or inferences
from its factual findings. Ultimately, the test is whether the
trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the
trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial
court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (internal citation
omitted). This Court has consistently held:
[T]he discretion that a trial court employs in custody
matters should be accorded the utmost respect, given the
special nature of the proceeding and the lasting impact the
result will have on the lives of the parties concerned.
Indeed, the knowledge gained by a trial court in observing
witnesses in a custody proceeding cannot adequately be
imparted to an appellate court by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (internal citation
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omitted). In addition:
Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when
evaluating the court’s order. An abuse of discretion is not
merely an error of judgment, but if the court’s judgment is
manifestly unreasonable as shown by the evidence of
record, discretion is abused. An abuse of discretion is also
made out where it appears from a review of the record that
there is no evidence to support the court’s findings or that
there is a capricious disbelief of evidence.
M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa.Super. 2010) (en banc) (internal
citations omitted).
The paramount concern in any custody case under the Child Custody
Act is the best interests of the child. See 23 Pa.C.S.A. § 5328 (stating: “In
ordering any form of custody, the court shall determine the best interest of
the child by considering all relevant factors…”); 23 Pa.C.S.A. § 5338 (stating:
“Upon petition, a court may modify a custody order to serve the best interest
of the child”). Section 5328(a) sets forth the best interest factors that the
trial court must consider in awarding custody:
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the
court shall determine the best interest of the child by
considering all relevant factors, giving weighted
consideration to those factors which affect the safety of the
child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party
or member of the party’s household, whether there is a
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continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)(1)
and (2) (relating to consideration of child abuse and
involvement with protective services).
(3) The parental duties performed by each party on
behalf of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based
on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against
the other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or
ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
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(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a)(1)-(16).
In custody disputes between natural parents and a third party, “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). Accordingly:
[W]here the custody dispute is between a biological parent
and a third party, the burden of proof is not evenly balanced.
In such instances, 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.
V.B. v. J.E.B., 55 A.3d 1193, 1199 (Pa.Super. 2012) (quoting Charles v.
Stehlik, 560 Pa. 334, 340, 744 A.2d 1255, 1258 (2000)).
What the [trial court] must do, therefore, is first, 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.
McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa.Super. 2000)
(quoting Ellerbe v. Hooks, 490 Pa. 363, 367-68, 416 A.2d
512, 513-14 (1980)). In [Ellerbe,] our Supreme Court
noted that “these principles do not preclude an award of
custody to the non-parent. Rather they simply instruct the
hearing judge that the non-parent bears the burden of
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production and the burden of persuasion and that the non-
parent’s burden is heavy.” Essentially, the Supreme Court
determined, “where circumstances do not clearly indicate
the appropriateness of awarding custody to a non-parent,
we believe the less intrusive and hence the proper course is
to award custody to the parent or parents.” [Id. at 369,
416 A.2d at 514].
V.B., supra at 1199.
After a thorough review of the certified record, the parties’ briefs, and
the relevant law, we conclude that the record supports the trial court’s
determination. See C.R.F., supra. Consequently, we affirm the order
denying Father’s petition to modify custody for the reasons stated in the trial
court’s October 23, 2020 opinion.
Specifically, in evaluating the relevant custody factors, the trial court
noted that the first factor favored Father, as Grandfather had not permitted
contact with Child absent the court’s intervention. (See Trial Court Opinion
at 23-24). The court found that the second factor favored neither party, as
there was no current risk of abuse in Grandparents’ household and there had
been no allegations of abuse in Father’s household. (Id. at 24). Regarding
the third factor, the court indicated that both parties were able to perform
parental duties on behalf of Child, but emphasized that Grandparents have
been providing for Child’s daily needs for over ten years. (Id. at 25). The
court found that the fourth factor favored Grandparents as they have raised
Child with his half-brother since infancy, and Child has attended the same
school district his entire life where Child performs exceptionally well
academically. (Id.) The court found that the fifth factor favored neither party,
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as Child has family members in both Carbon County and the Columbus area.
(Id. at 26). The court found that the sixth factor favored Grandparents, as
Child and his half-brother are very close and have been raised together since
infancy. (Id.) The court found that the seventh factor favored Grandparents,
as Child’s preference was to remain with Grandparents in Pennsylvania. (Id.)
The court found that the eighth factor favored neither party, as both
parties had made disparaging comments about each other to Child. (Id.) The
court found that the ninth factor and tenth factors favored Grandparents as
Child had lived his whole life with them. (Id. at 26-27). The court found that
the eleventh factor favored neither party, and noted that the distance between
the parties rendered a standard custody schedule unworkable. (Id. at 27).
Similarly, the court found that the twelfth factor favored neither party, as both
parties could care for Child or make appropriate childcare arrangements. (Id.)
The court found that the thirteenth factor favored neither party, due to the
high level of animosity between both parties. (Id. at 28). The court found
that the fourteenth factor was not applicable. (Id.) The court noted that with
regard to the fifteenth factor, Grandmother has diabetes and respiratory
issues. (Id.)
Finally, as to the sixteenth factor, the court found that Child’s bonds
with members of Father’s household, Child’s physical and mental health, and
the GAL’s recommendation were additional relevant factors in this case. (Id.
at 29). The court noted that Child testified regarding his good relationship
with his stepmother and step-brother; that Child was recently diagnosed with
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pre-diabetes and that Father carefully monitors Child’s diet; that Grandfather
did not believe Child would benefit from further therapy, but would comply
with court orders directing participation; and that the GAL recommended
transferring primary custody to Father. (Id. at 29-30).
Further, in applying the law concerning third parties versus natural
parents in custody cases, the court acknowledged that Grandparents are not
Child’s biological grandparents. Nevertheless, the court emphasized that
Grandparents have raised Child and his half-brother together for the past ten
years, during which they have lived as an intact family unit that has been a
stabilizing force for Child after Mother abandoned him. (Id. at 30-31). Thus,
although the court acknowledged the statutory presumption in favor of Father,
it determined that clear and convincing evidence in this case rebutted that
presumption and it was in Child’s best interests to remain with Grandparents.
(Id.)
On appeal, Father essentially asks this Court to reweigh the Section
5328(a) factors in his favor. We have carefully reviewed the record in this
case, and because the record supports the trial court’s reasonable findings
and those findings were not the result of an error of law, we accept the trial
court’s findings and decline to reweigh the evidence. 3 See C.R.F., supra____________________________________________
3 We reject Father’s argument presented in his second issue regarding the
court’s alleged improper reliance on the primary caretaker doctrine in its
analysis of the third and fourth custody factors. (See Father’s Brief at 18-
19). This Court has observed:
- 17 -
J-A04021-21
(reiterating that where trial court’s conclusions are reasonable as shown by
record evidence and those conclusions are not result of error of law, appellate
court is bound by those conclusions). Accordingly, we affirm based on the
reasons stated in the trial court’s thorough October 23, 2020 opinion.
Order affirmed.
____________________________________________
The “primary caretaker doctrine,” as it has come to be known, had
its genesis in Commonwealth ex rel. Jordan v. Jordan, [448
A.2d 1113 (Pa.Super. 1982)]. In that case, this Court held that
in cases involving an award of primary custody “where two
natural parents are both fit, and the child is of tender years,
the trial court must give positive consideration to the parent who
has been the primary caretaker.” Id. at 1115 (emphasis
added)[.] … Thus, this doctrine was intended to be an additional
consideration that would tip the scales in favor of the primary
caretaker in a situation where the trial court deemed both parents
to be fit to act as a primary custodian.
M.J.M. v. M.L.G., 63 A.3d 331, 337-39 (Pa.Super. 2013), appeal denied, 620
Pa. 710, 68 A.3d 909 (2013). Initially, we note that the primary caretaker
doctrine is not directly applicable in this case because Grandparents are not
Child’s natural parents. In any event, following revisions to the Child Custody
Act, “[t]he considerations embraced by the primary caretaker doctrine have
been woven into the statutory factors, such that they have become part and
parcel of the mandatory inquiry.” Id. at 339. These factors are: “[t]he
parental duties performed by each party on behalf of the child,” and “[t]he
need for stability and continuity in the child’s education, family life and
community life.” 23 Pa.C.S. § 5328(a)(3), (4). Further, the court did not
invoke the primary caretaker doctrine; instead, the court appropriately
considered each custody factor. (See Trial Court Opinion at 23-31). The fact
that Grandparents have been the primary caretakers performing parental
duties and providing stability to Child throughout his life is a fact supported
by the record and not a misapplication of law. See C.R.F., supra.- 18 -
J-A04021-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/21
- 19 -
Circulated 02/11/2021 02:43 PM
IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Kgrn,
Plaintiffs
v- NO. 141.196
1,NeAT),
Defendant
and
5 33q 54
Intervenor
and
Indispensable Party :
Nicholas J. Masington, III, Esq. Counsel for Plaintiffs
-5, 13 (7 ry) Pro Se Defendant
Arley L. Kemmerer, Esquire Counsel for Intervenor
Pro Se Indispensable Party
Adam R. Weaver, Esquire Guardian Ad Litem for cillod
a minor
MEMORANDUM OPINION
Serfass, J. - October 23, 2020
Here before the Court is Intervenor ;.-5,VV,(dmcrd
Appeal of this Court's Order dated August 28, 2020. We file the
following Memorandum Opinion pursuant to Pa. R.A,P. 19.25(a) and
respectfully recommend that our Order of August 28, 2020 be
affirmed for the reasons set forth hereinafter.
FS -34-20,20
1
FACTUAL AND PROCEDURAL BACKGROUND
This case dates back to June 20, 2014, when the
Plaintiffs, Ninn-strna-M Cweirand$90"1410 at all relevant times
resided tn Summit Hill, Carbon County,
Pennsylvania, filed a custody complaint requesting that the
Court award them sole legal and physical custody of their
grandchild J.M. and his half-brother,
(hereinafter "the Child")'. The Defendant in this case is
n() (hereinafter "Mother"), who is the mother of
J.M. and the Child. Though the Plaintiffs (hereinafter
collectively referred to as "Grandparents" or "Grandmother" and
"Grandfather") have no biological relation to the Child, both
,children have resided with them for a majority of their lives.
The Grandparents further disclosed that the Child's father was
not known to them and that he had not been in the Child's life
to that point.'
After proceedings had begun, but before the Court had
issued a final custody order _concerning the Child and J.M.,
3T Y\7.(hereinafter "Father") filed a Petition to
Intervene. Father asserted his belief that he was the
biological father of the Child and sought primary physical
1 Though the original action in this case concerned both 3.M, and the Child,
only the Child is the subject of the order from which Intervenor appeals.
2 The Child was born in 2008, and was five years old at the time of the
initial custody action.
FS -34-2020
2
custody of the Child through his intervention in this matter.
At all times relevant, Father has resided n
Columbus, Ohio, with his wife, , and step -child,
-
t>0
Father averred through his Petition to Intervene that
Mother had concealed herself and the minor child from Father
since the Child's birth and that he had been unable to locate
Mother or the Child until discovering a docket listing for this
case. Father therefore asserted that his petition should be
granted so that he could "finally enjoy his right as a parent to
have a relationship with his son, and be part of the child's
life" (Father's Petition to Intervene, 9/18/14).
In the Grandparents' pre-trial memorandum of September 29,
2014, they argued that they should be awarded primary physical
custody of the Child and J.M. because the children had resided
with Grandparents since September 2010. Mother resided with
Grandparents and the children from September 2010 to September
2013. However, Grandparents asserted that they have been the
primary caretakers of the children since September 2010.
Grandparents further asserted that if granted primary physical
custody of the Child, they would continue to encourage frequent
and continuing contact between the Child and his Mother and
Father. Additionally, Grandparents believed that several of the
FS -34-2020
established custody factors were in their favor (Grandparents'
Pre -Trial Memorandum, 5/29/14).
On October 2, 2014, Father's Petition to Intervene was
granted. Father was confirmed to be the biological father of
the Child on December 3, 2014.
Through his pre-trial memorandum, Father argued that Mother
had concealed the Child from him until 2014. However, since
locating the Child, Father had maintained constant phone contact
with him and had one visit with the Child in Ohio. Father argued
that the above actions had demonstrated "a strong desire and
dedication to be part of his son's life" (Father's Pre -Trial
Memorandum, 1/7/15).
A custody hearing was held on March 13, 2015 before this
Court. On March 25, 2015, we entered an order awarding joint
legal custody of the Child to Grandparents and Father. However,
Grandparents were awarded primary physical custody, while Father
was awarded partial physical custody. Father's periods of
custody were set for the summer recess (commencing one (1) week
after the conclusion of the school year and ending two (2) weeks
prior to the start of the new school year) and the Christmas
holiday in odd numbered years with the precise exchange times to
be mutually agreed upon by Grandparents and Father. The Court
F5-34-2020
4
further ordered that telephone contact be permitted between the
Child and the non -custodial party.
On January 29, 2018, Father filed a petition to modify the
custody order of March 25, 2015, in which he again requested
that the Court award him primary physical custody of the Child.
Through his petition, Father asserted that he is "better -suited
at this time to care for the emotional, mental, physical and
educational needs of the minor child" (Father's Petition to
Modify Existing Custody Order, 1/29/18).
In their pre-trial memorandum relative to Father's petition
to modify the custody order, Grandparents argued that primary
physical custody of the Child should remain with them, as "a
transfer of custody would be particularly inappropriate in light
of the fact that, were Father to obtain custody, the same would,
necessarily, necessitate a relocation of the minor child from
the Commonwealth of Pennsylvania to the State of Ohio thus
taking him away not only from the home, extended family,
friends, school, community, etc. which he has known for the past
ten (10) years but, also, from his sibling of whom the
Grandparents continue to maintain primary physical custody"
(Grandparents' Pre -Trial Memorandum, 11/16/18).
Father filed a pre-trial memorandum on November 27, 2018,
in which he asserted that Grandparents have failed to encourage
FS -34-2020
5
frequent and continuing contact between the Child and Father.
In support of that position, Father alleged that he was often
denied telephone contact with the Child, and that Grandparents
have cancelled or failed to appear for reunification therapy
sessions (Father and the Child began participating in the
sessions after the initial custody order was entered) on several
occasions (Father's Pre -Trial Memorandum, 11/27/20).
At the hearing on Father's modification petition, the Child
was interviewed in camera. The Child expressed a desire to
remain with Grandparents, as he misses his half-brother while he
is in Ohio. Grandfather testified that the Child and J.M.
"spend almost every waking moment together."
We denied Father's petition to modify the custody order on
January 11, 2019. "Based upon their role as primary custodians
and caregivers for the last eight and one half (B %) years, we
find that Grandparents are more likely to attend to the daily
physical, emotional, developmental and educational needs of the
Child. While we believe that Father is sincere in his desire to
be more actively involved in the Child's life, the fact remains
that he has not fully exercised the partial physical custody
rights vested in him by this Court in our Order of March 25,
2015, spending one (1) month with the Child in Ohio during the
summer of 2015 and two (2) months during the summer of 2018
FS -34-2020
6
rather than two and a half (2 )4) months each summer and one (1)
week between Christmas Eve and New Years Eve in alternating
years previously awarded by the Court" {Court's Order of
1/11/19).
On March 6, 2019, Father filed a petition for contempt
alleging that Grandparents had failed to produce the Child for
reunification therapy sessions as well as scheduled phone calls.
Further, Father alleged that Grandparents had failed to allow
the Child the privacy to speak openly with Father during therapy
and phone calls, and threatened to send the Child to therapy
wearing a concealed recording device (Father's Petition for
Contempt, 3/6/19).
Pursuant to this Court's order of April 24, 2019, Father's
petition for contempt was denied following an evidentiary
hearing. However, by agreement of the parties, Father was
granted telephone contact with the Child every Monday,
Wednesday, and Friday, between 7:00 p.m. and 7:15 p.m.
On July 30, 2019, Father filed a petition for special
relief alleging that the Child had confided in him instances of
sexual abuse by members of Grandparents' household, one of whom
continued to reside at Grandparents' house. The two individuals
alleged to have been involved were ``G -P and a minor
child (am who had only resided with Grandparents for two
F5-34-2020
7
months, and was not currently residing with Grandparents.
Father requested through his petition that he be awarded primary
physical custody and that Grandparents' periods of custody be
suspended pending the outcome of the investigations (Father's
Petition for Special Relief, 7/30/19).
The allegations raised by the Child were investigated by
the Carbon County Office of Children and Youth Services and the
Lehigh Valley Children's Advocacy Center. The Child's report
was validated and the allegations were referred to the Summit
Hill Police Department. Additionally, Father's period of
physical custody was extended pending the results of the
investigation.
On September 9, 2019, Father filed a petition to modify
the custody order stating that "Petitioner believes it would be
in the child's best interest to grant Petitioner primary
physical custody because Petitioner is better -suited to care for
the emotional, mental, and physical needs of the child, and can
ensure the child's safety within his household" in light of the
sexual abuse investigation concerning the Child that was active
at the time (Father's Petition to Modify Custody Order, 9/9/19).
However, the Child later recanted the allegations on October 9,
2019 (N.T. 2/12/20, p. 58) After an interview of the Child by
Emily Greenawald of Carbon County Children and Youth Services,
FS -34-2020
8
the Child was deemed safe in Grandparents' home (N.T. 2/12/20 p.
65).
After a hearing on Father's petition for special relief,
the Court issued an order on September 13, 2019 allowing
Grandparents to resume primary physical custody on September 14,
2019 provided that Grandparents "immediately evict and exclude
qADN, (one of the perpetrators alleged by the Child)
from their residence... Plaintiffs shall ensure that,
has no contact with Criqa.' Other than the
aforementioned conditions, the March 25, 2015 order was to
remain in effect (Court's Order 9/13/19).
Thereafter, Grandparents filed a petition to modify the
custody order on December 18, 2019. Through their petition,
they claimed that the Child has recanted his allegations against
ti pc and that the restrictions concerning
Q, Pc should be removed (Grandparents' Petition to Modify
Custody Order).
On January 17, 2020, Father filed a petition for contempt
alleging that Grandparents had failed to produce the Child for
Father's one -week period of custody during the Christmas
holiday, as directed by the March 25, 2015 order. Additionally,
Father alleged that Grandparents (and the rest of their
household) continue to interfere with Father's scheduled
FS -34-2020
9
telephone calls with the Child (Father's Petition for Contempt,
1/17/20).
Grandparents explained that they had attempted to comply
with the order to produce the Child for the visit with Father
over the Christmas holiday. However, the Child refused to go,
and had threatened to jump out of the car if Grandparents forced
him to go. Therefore, Grandparents made the decision that the
Child should not attend the visit with Father (Grandparents Pre -
Trial Memorandum, 2/4/20).
On February S, 2020, Father filed a pre-trial memorandum in
support of his petition to modify the custody order. Father
alleged that "tilt would be in the best interest of the child to
award primary custody to Father, the child's only natural parent
present in his life, with visitations and telephone
communication to facilitate ongoing contact with GricaAldpartnts
and C4IAdkS half-brother" (Father's Pre -Trial Memorandum,
2/5/20).
Hearings began on February 12, 2020 relative to the
outstanding petitions. Susan Barrandale, who is the
reunification counselor for the Child and Father, testified that
she became involved in this case on March 24, 2018. The Child
had been having difficulty connecting with Father, and Father
wanted the Child's next visit to be more comfortable. Ms.
FS -34-2020
10
Sarrendale testified that one of the issues disclosed to her by
the Child is that he "doesn't like places with a lot of people."3
The Child has also maintained that he misses his brother while
he is away, even after he became more comfortable in Father's
household.
On June 9, 2020, Grandparents filed a petition to modify
custody and for an expedited hearing asking that the Court
suspend Father's period of custody during the summer recess
until after the completion of the hearing on all outstanding
petitions. In support of their position, they alleged that the
Child was unwilling to attend the summer 2020 visit with Father,
and was threatening to run away or take other extreme measures
if forced to attend (Grandparents' Petition for Special Relief,
6/9/20).
Father filed an answer to Grandparents' special relief
petition on June 22, 2020. Father asserted that he was opposed
to the suspension of his period of custody over the summer, and
asked the Court to order that the Child be evaluated by a mental
health provider if he was threatening any form of self -harm
(Father's Answer, 6/22/20).
I Father lives in Columbus, Ohio, a city with an estimated total population of 898,663
people compared to an estimated total population of 64,182 in all of Carbon County.
Pennsylvania. guidances: Carbon County, Pennsylvania, Columbus city, Ohio, U.S.
Census Bureau, July 1, 2019,
https://www.censue,gov/quickfacts/fact/table/carboncountypennsylvania,columbuscicyohio
/PST045219.
FS -34-2020
11
On that same day, Father filed an emergency petition for
special relief asking that the Court hold Grandparents in
contempt. Father alleged through his petition that Grandparents
failed to produce the Child for Father's period of custody
beginning on June 12, 2020, that Grandparents continue to
interfere with Father's phone contact with the Child, that
Grandparents continue to fail to produce the Child for
reunification therapy, and that Grandparents disparage Father in
the presence of the Child (Father's Petition for Special Relief,
6/22/20).
A hearing was held before this Court on Grandparents'
petition to modify custody and for an expediated hearing and
Father's emergency petition for special relief on July 17, 2020.
The Child was interviewed in camera during the hearing, where he
expressed that he had no desire to see Father at all. According
to the Child, Father spends most of his time with the Child
disparaging Grandparents and has an "attitude." Additionally,
the Child feared that if he was forced to go to Father's house
for the summer, he would not be brought back to Pennsylvania.
The Child elaborated that Father has told him that
Grandparents don't love him and that they are only keeping him
for money. Further, the Child mentioned an occasion where
Father took him to GameStop where he refused to purchase a video
FS -34-2020
12
game for the Child, saying "They (Grandparents) get enough money
for you." The Child also brought up that Father's wife had told
him that would shoot him if he returned to
Pennsylvania during his visit in the summer of 2019.
On that same day, we found Grandfather in contempt of
Court, and ordered that he immediately transfer custody of the
Child to Father as well as comply with other purge conditions as
a result of the contempt (Court Order of 7/17/20).
This Court held a hearing on the remaining outstanding
petitions on August 13, 2020. Father, Grandfather, and
Grandmother testified at the hearing, and the Court conducted an
in -camera interview of the Child.
The Child testified on August 13, 2020 that although he was
enjoying his time in Ohio with Father, he desired to continue
living in Carbon County with Grandparents. The Child expressed
that he misses his brother and Grandparents during periods of
separation. He further expressed displeasure with the tension
between Grandparents (particularly Grandfather) and Father. The
Child found Father's comments about his grandparents "not really
loving him" or "only using him as a paycheck" to be particularly
upsetting.
The Child elaborated that even when in Ohio, he is not able
to spend much time with Father. He explained that Father is
FS -34-2020
13
often working and that most of his time this past summer has
been spent with his step -brother, pc The Child expressed
that he still does not know how to feel towards his father. The
best thing that the Child was able to say about Father is that
he is a good cook. In fact, when asked, the Child stated that
Father would be in last place on the list of things that he
liked about Ohio.
The Child stated that he was nervous about what was going
to happen (as a result of these proceedings]. He elaborated
that he was reluctant to go to Ohio that summer because he was
afraid that he would not be returned to Carbon County.
In addition to stating his feelings on the custody matter,
the Child testified that he enjoys attending school in the
Panther Valley School District and has made numerous friends
through school. The Child performs well in school despite his
I.E.P. for a reading comprehension disability.
Grandfather testified about the issues that he has had in
communicating with Father. According to Grandfather, Father has
blocked his phone number. Additionally, Grandfather testified
that he will continue to send the Child to reunification
counseling if ordered by the Court, but that he was under the
impression that the counseling had already served its purpose.'
' Susan Barradale testified on February 12, 2020 that 41 think we have done as much as
we can at this point" (N.T. 2/2/20, p. 33).
FS -34-2020
14
Grandfather further raised concerns about forcing the Child
to spend more time with Father when he clearly does not wish to
do so. Grandfather explained that the Child's half-brother,
J.M., and everything that the Child knows are in Carbon County.
In addition to J.M., three of the Child's cousins reside at
Grandparents' house with the Child.
Grandmother testified that although the Child is not always
available for the scheduled phone calls with Father, and he does
not always wish to speak with Father, she continues to encourage
him to do so. Additionally, she asserts that neither she, nor
anyone in her household, has ever disparaged Father during the
scheduled phone calls.
Grandmother admitted that she suffers from diabetes and
respiratory problems for which she sometimes uses "a breathing
machine." However, Grandmother asserts that she is still able
to perform parental duties, such as helping the Child with his
school work.
Father testified that despite Grandparents' claims that the
Child did not want to visit with Father, the Child calmed down
upon leaving Pennsylvania shortly after the July 17, 2020
hearing. Additionally, Father learned during the summer 2020
visit that the Child has pre -diabetes and high cholesterol
FS -34-2020
15
levels and has since been monitoring the Child's food intake and
medication.
Father also testified that he has had difficulty reaching
the Child for scheduled phone calls. He stated that he has been
referred to as a "sperm donor" by members of Grandparents'
household during scheduled calls.
Father further testified that his household does everything
together as a family and that if awarded primary custody, he
could structure his work schedule to maximize time spent with
the Child. In addition to Father's immediate family, Father
testified that the Child has extended family in Columbus, Ohio.
However, there was no testimony that the Child has met all of
the extended family members or established close familial bonds
with any of them.
Lastly, Father stated that he intended to enroll the Child
in a Catholic school should he gain custody of him during the
school year. However, Father did not testify as to the
reputation of the schools that he was considering, how those
schools would accommodate the Child's I.E.P, or how they compare
with the educational program at Panther Valley.
The Child's Court -appointed guardian ad litem, Attorney
Adam Weaver, argued at the hearing that the custody arrangement
should be modified, giving Father primary physical custody. As
FS -34-2020
16
per his report, his recommendation is primarily based on the
presumption of custody in a child's natural parent. Attorney
Weaver had previously testified that despite his
recommendation,
he believed that Grandparents loved the Child and that the Child
loved Grandparents and his half-brother as if they were
biological family (N.T. 2/12/20, p. 72-79). Attorney Weaver
also stressed the importance of stability in the Child's
schooling considering his IEP, and recommended that the Court be
sure that an appropriate arrangement is made to accommodate the
Child in school should custody be transferred to Father (N.T.
2/12/20, p. 92).
On August 28, 2020, we denied Grandparents' petition to
modify custody and for expediated hearing concerning
This Court also held Grandfather in contempt of
Court as per the allegations made by Father in his January 17,
2020 "Petition for Civil Contempt for Willful Disobedience of a
Custody Order" and his June 22, 2020 "Emergency Petition for
Special Relief." We ordered additional periods of custody for
Father as well as other purge conditions as a result of
Grandfather's contempt.
Lastly, on that same date, the Court denied Father's
"Petition to Modify Existing Custody Order," which is the
subject of this appeal. We stated in the order that the third -
FS -34-2020
17
party Grandparents had met their burden of overcoming the
presumption that custody should be awarded to a child's natural
parent by presenting clear and convincing evidence that it is in
the Child's best interest to remain with Grandparents (Court
Order, Denying Petition to Modify Custody, 8/28/20).
On September 25, 2020, Father filed an Appeal to the
Superior Court of Pennsylvania requesting review and reversal of
this Court's August 28, 2020 Order which denied his "Petition to
Modify Existing Custody Order."
ISSUES
In his Concise Statement of Matters Complained of on
Appeal, Father raises the following issues:
1. The Trial Court erred by ruling that Plaintiff third -party
custodians should retain primary physical custody of the
subject minor child where the presumption of custody in
favor of Intervenor natural Father was not properly
considered and where the record fails to support the Trial
Court's determination, upon its analysis of several custody
factors as enumerated in Pa. C.S. § 5328, that the
Plaintiffs rebutted said presumption by clear and
convincing evidence in accordance with 23 Pa. C.S. §
5327(b).
DISCUSSION
FS -34-2020
18
"The paramount concern in child custody cases is the best
interests of the child." C.G. v. 47.14., 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). Factors to be considered include, but are not limited
to, those set forth in 23 Pa. C.S.A. § 5328(a). Id. Moreover,
"Mt is within the purview of the trial court, as the fact
finder, to determine which of the factors outlined in 23 Pa.
C.S.A. § 5328(a) is the most salient and critical in each
custody case." M.J.M, v. M.L.G., 63 A.3d 331, 339 (Pa. Super.
2013).
23 Pa. C.S.A. § 5328(a) provides as follows: "In ordering
any form of custody, the court shall determine the best interest
of the child by considering all relevant factors, giving
weighted consideration to those factors which affect the safety
of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or member
of the party's household, whether there is a continued
FS -34-2020
19
risk of harm to the child or an abused party and which
party can better provide adequate physical safeguards and
supervision of the child.
(3) The parental duties performed by each party on behalf of
the child.
(4) The need for stability and continuity in the child's
education, family life and community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well -reasoned preference of the child, based on the
child's maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child's emotional needs.
(10) which party is more likely to attend to the daily
physical, emotional, developmental, educational, and
special needs of the child.
(11) The proximity of the residences of the parties
ES -34-2020
20
(12) Each party's availability to care for the child or
ability to make appropriate childcare arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with
one another. A party's effort to protect a child from
abuse by another party is not evidence of unwillingness
or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member
of a party's household.
(15) The mental and physical condition of a party or member of
a party's household.
(16) Any other relevant factor.
23 Pa. C.S.A. § 5328.
In a custody dispute between two (2) biological parents,
"the burden of proof is shared equally by the contestants..."
Ellerbe v. Hawks, 416 A. 2d 512, 513 (Pa. 1980). However,
where- as here- the custody dispute is between a biological
parent and a third party, the burden of proof is not evenly
balanced. In such instances, "the parents have a 'prima facie
right to custody' which will be forfeited only if 'convincing
reasons' appear that the child's best interests will be served
by an award to the third party." V.B. v. J.E.B., 55 A.3d 1193,
1199 (Pa. Super. 2012). Section 5327 of the Custody Act
FS -34-2020
21
pertains to cases "concerning primary physical custody" and
provides that "in any action regarding the custody of a child
between a parent of the child and a non -parent, 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.A. § 5327(b). Clear and
convincing evidence has been defined by our Superior Court "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.S., 172 A. 3d 651, 660 (Pa. Super.
2017).
Therefore, "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. We recognize that the
trial court is required 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 non -parent. Id. We note, however,
that this principle does not preclude the award of custody to a
non -parent but simply instructs the trial court that the non -
parent bears the burden of production and the burden of
persuasion and that the non -parent's burden is heavy. Jones v.
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Jones, 8811 A.2d 915, 918 (Fa. Super. 2005). It is well settled
that "(w)hile the 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 v.
Stehlik, 744 A.2d 1255, 1259 (Pa. 2000). "Once it is
established that someone who 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 child to maintain that
relationship or be with that person." Jones, 884 A.2d at 917.
In the case at bar, the Court applied the 23 Pa. C.S.A. §
5328 factors as follows:
As to the first factor, Grandparents, particularly
Grandfather, have not encouraged frequent and continuing contact
between Father and Child. Rather, Grandfather has not permitted
such contact absent the Court's intervention. He failed to
transport the Child to Ohio for Father's limited custodial
periods during the 2019 Christmas holiday and the 2020 summer
recess which necessitated the initiation of contempt proceedings
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by Father in order to secure his court ordered periods of
partial custody with the Child.
As to the second factor, while the Child was in Father's
custody during the summer of 2019, he raised allegations of
having been sexually abused approximately five to six years ago
by f cpc, and a minor child, (J.P) both of whom were
residing in Grandparents' home at the time. Following an
investigation by the Carbon County Office of children and Youth
Services and the Lehigh Valley Children's Advocacy Center, the
Child's report was validated and the allegations were referred
to the Summit Hill Police Department. The Child later recanted
these allegations and no criminal charges were filed. Children
and Youth Services determined that there was no safety risk to
the Child as E.A. had no unsupervised contact with the Child and
the other alleged perpetrator, J.P., had resided at
Grandparents' home for a period of only two months approximately
five to six years ago. Following a hearing on this matter, the
Court issued an order dated September 13, 2019, directing, inter
alia, that E.A. be evicted and excluded from Grandparents' home
and that they ensure that he have no contact with the Child.
Accordingly, we find that there is currently no risk of harm to
the Child in Grandparents' home. With regard to Father's
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household, there are no instances of abuse, past or present, and
no risk of harm to the Child.
As to the third factor, while we find that both parties are
able to perform parental duties on behalf of the Child and that
Father has discharged those duties in a satisfactory manner
during the limited period he has exercised physical custody of
the Child, we recognize that Grandparents have been providing
for the Child's daily needs for over ten (10) years.
As to the fourth factor, the Child and his younger half-
brother, J.M., have been raised together by Grandparents since
infancy. They have provided the children with a loving and
stable home environment. The Child has been enrolled as a
student in the Panther Valley School District since
kindergarten. About to begin sixth grade at Panther Valley
Intermediate School, the Child has performed exceptionally well
academically and puts forth a "1501 effort" according to his
teachers. Other than Father's statement that all schools in
Columbus are virtual until October 27, 2020, there was no
testimony concerning the Columbus public school system, the
school that the Child would attend if enrolled there, the
general curriculum, or any specialized educational programs in
light of the Child's current I.E.P.
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As to the fifth factor, in addition to his half-brother,
the Child has three cousins who also live at Grandparents' home
in carbon County. The Child's paternal grandparents, aunts,
uncles, and cousins all reside in the Columbus area.
As to the sixth factor, although they are not full
siblings, the Child considers J.M. to be his brother as the boys
were raised together by Grandparents since infancy. As a
consequence, the two children are extremely close. The Child is
very protective of J.M. and misses him a great deal when they
are separated.
As to the seventh factor, the Child's preference is to live
primarily with Grandparents in Pennsylvania. We find that his
preference to remain in Carbon County is well -reasoned in that
his "Gram and Pap," his friends, his brother, his school, and
nearly everything he knows is here, providing him with a sense
of stability, security, and continuity.
As to the eighth factor, there was testimony indicating
that Grandfather has referred to Father as a "sperm donor" in
the Child's presence and that Father has repeatedly told the
Child that he is "just a paycheck" to Grandparents who do not
really love him. The latter comment is particularly upsetting to
the Child.
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As to the ninth factor, we find that Grandparents continue
to be in the best position to provide a loving, stable,
consistent, and nurturing relationship with the Child. The
Child has been in Grandparents' primary care and has resided
with them and his half-brother since he was fifteen months old.
He has attended the public schools of the Panther Valley School
District since kindergarten, has done well academically and
developed friendships with many of his fellow students.
As to the tenth factor, based upon their role as primary
custodians and caregivers for the last ten years, we find that
grandparents are more likely to attend to the daily physical,
emotional, developmental and educational needs of the Child.
As to the eleventh factor, Grandparents reside in Summit
Hill, Pennsylvania, and Father resides in Columbus, Ohio. Their
homes are approximately six hundred miles apart which equates to
a driving distance of approximately eight hours. Therefore, the
substantial distance between Grandparents' residence in
Pennsylvania and Father's residence in Ohio renders a standard
custody schedule unworkable.
As to the twelfth factor, we find that both parties are
able to provide child care personally or to make appropriate
child care arrangements.
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27
As to the thirteenth factor, there is a great deal of
animosity between Father and Grandfather. Father has been
described by grandfather, in the course of this case, as being
"a sorry piece of crap that doesn't care about his child" and
Father describes Grandparents as "bums" and "stupid
hillbillies." They do not cooperate, communicate or co -parent
effectively. Father believes that Grandparents are
intentionally interfering with his ability to parent his son and
Grandparents feel unappreciated for raising the Child with no
outside assistance. The parties' relationship has rapidly
deteriorated as a result of the sexual abuse allegations. As
noted by the guardian ad litem, both parties accuse the other of
coaching the child relative to his claims- Grandparents
concerning the initial report and Father concerning the
recantation of the abuse allegations.
As to the fourteenth factor, there is no history of drug or
alcohol abuse in Father's household and there was no testimony
concerning any drug or alcohol abuse by any current member of
Grandparents' household.
As to the fifteenth factor, Grandmother has diabetes and
suffers from respiratory problems for which she sometimes uses a
"breathing machine."
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As to the sixteenth factor, we find that the bonds formed
by the Child with members of Father's household, the Child's
physical and mental health, and the recommendation of the
Child's guardian ad litem to be relevant factors in this case.
As to the bonds that the Child has formed with members
Father's household, the Child testified that he has a good
relationship with his stepmother, L and a
similar relationship with her son, 7 with whom he enjoys
spending time and playing video games.
As to the Child's physical health, the Child was recently
diagnosed with pre -diabetes type 2 for which he takes
prescription medication. According to Father, the Child has
high cholesterol levels and he carefully monitors the boy's
diet, ensuring that he eats no sugars and only the recommended
daily servings of meat and starches.
As to the Child's mental health, Grandfather testified that
he does not believe the Child will benefit from further
therapy/counseling sessions, but will comply with any order of
this Court directing the Child's participation in such sessions.
Lastly, as to the recommendation of the Court -appointed
guardian ad litem, Attorney Adam Weaver, according to his
written report, pursuant to Pa. R.C.P. 1915.11-2, Attorney
Weaver recommends transferring primary physical custody to
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29
Father. We note that Attorney Weaver's recommendation is based
primarily on Father's role as the Child's natural parent.
In applying the law concerning third parties versus natural
parents in custody cases, we acknowledge that Gairldranytc are
not the Child's biological grandparents. However, they have
raised the Child and his half-brother, who is their biological
grandson, as siblings. The importance of raising siblings
together and maintaining a family unit should not be ignored.
See Johns v. Cioci, 865 A.2d 931, 942 (Pa. Super. 2004).
"Absent compelling reasons to separate siblings, they should be
reared in the same household to permit the 'continuity and
stability necessary for a young child's development." L.F.F. v.
P.R.F., 828 A.2d 1148, 1152 (Pa. Super. 2003) (absent compelling
reasons to the contrary, it is the policy of this Commonwealth
to raise siblings together whenever possible); Wiskoski v.
Wiskoski, 629 A.2d 996 (Pa. Super. 1993)(policy applies equally
to half -siblings); appeal denied, 639 A.2d 33 (Pa. 1994)
emphasis added.
The Child has established strong emotional bonds with his
half-brother and Grandparents who have provided him with care,
nurture, affection, and financial support for nearly his entire
life. For the past ten years, they have lived as an intact
family unit, with Grandparents having assumed sole parenting
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30
responsibility. Since the Child was abandoned by his mother,
Grandparents have consistently been a stabilizing force in his
life and ensured his well-being without parental assistance.
Moreover, we found that uprooting the Child from his home, his
school, his support network of family and friends, and
separating him from his half-brother, could prove detrimental to
his emotional well-being. Accordingly, while we recognize the
statutory presumption in favor of the Father, we find that the
clear and convincing evidence presented in this case rebuts that
presumption and that maintaining the current custody order is in
the Child's best interest at this time.
The Court's decision in this case is distinguishable from
the decision of the Pennsylvania Superior Court in V.B. v.
J.F.B.. The trial court in V.B. found that third -party
grandparents should be the primary custodians of the subject
children in that case over the biological mother and biological
father. V.B., SS A.3d at 1197. However, the trial court failed
to take into account the heightened standard of proof on the
third -party grandparents when deciding the case. Id. at 1200.
Additionally, the trial court in V.B. took into account various
impermissible factors, such as the sexual orientation and
lifestyle of the parties, the morality of the biological mother,
and a prior custody hearing involving the biological father's
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31
wife as a party. Id. at 1200-1203. In addition to considering
the trial court in V.B. failed to
impermissible factors,
factors that are relevant under 23 Pa. C.S.A. § 5328,
consider
such as mother's allegations that third -party grandparents'
inaction during periods of sexual abuse of her by a paternal
Id. at 1202. Therefore, the Superior Court of
uncle.
in
Pennsylvania found that the trial court abused its discretion
that the third -party grandparents in V.B. had met their
finding
burden of presenting clear and convincing evidence to overcome
presumption of custody remaining with a child's natural
the
parents. Id. at 1205.
The Court's decision in the case at bar is based upon our
in 23 Pa. C.S.A. 5328. The
analysis of the factors enumerated S
found that the Child's need for stability, his sibling
Court
and his well -reasoned preference to be
relationships,
to
particularly convincing in awarding primary physical custody
Grandparents in this case. Unlike the court in
third -party
V.B., the Court did not consider any impermissible factors.
Additionally, the Court has taken all allegations of abuse in
this case seriously, and has employed the necessary precautions
to ensure the safety of the Child, unlike the court in V.B.
In further support of our decision, the Pennsylvania
Jones found that a third -party, non -
Superior Court in Jones v.
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32
biological parent, who stood in loco parentis for the subject
children's entire lives had met the clear and convincing
evidence standard to be awarded primary physical custody based
on a number of the factors stated in 23 Pa. C.S.A. § 5328. More
specifically, the third -party demonstrated that the "children's
relationship with both parties would be better fostered if
custody were awarded to Jones." Jones, 884 A.2d at 918.
Additionally, the Superior Court in Jones found that the natural
parent's attempts to deprive the third -party of custody of the
children had disrupted the children's schooling and overall
stability. Id. at 919. The only other factor the court
considered in Jones was the third -party's testimony of alcohol
abuse and mental instability of the natural parent. However,
the trial court did not find the natural parent to be unfit.
Id. at 918-919.
Although there is animosity between both parties in this
case, the Jones case demonstrates that clear and convincing
evidence may be established by only a few custody factors that
fall strongly in the third -party's favor. In the case at bar,
the Child has been raised by Grandparents for over ten years
along with his half-brother, with whom he spends "almost every
waking moment." He has never spent more than three (3) months
with Father at a time. Though we acknowledge that Father is not
FS -34-2020
33
at fault for the circumstances in this case, the standard to be
interest. C.G. v. JAI., 193
applied is that of the child's best
2018). The Grandparents in this case have
A.3d 891, 909 (Pa.
clear and convincing evidence that the Child's best
proven by
in the
interests would be better served by maintaining stability
home that he has known for a majority of his life, which is with
them and the members of their household in Carbon County.
Supreme Court in Charles v.
Further, the Pennsylvania
Stehlick upheld the trial court's award of primary physical
the subject child to a third -party stepfather over
custody of
the biological father, where the child considered his stepfather
to be a parent. Charles, 744 A.3d at 1258. In making its
the trial court considered that the child's school,
decision,
and school friends were all located in the city in
stepsister,
lived. Id. at 1257. Additionally, the
which his stepfather
trial court in Charles considered the child's level of distress
in the current custody arrangement. The child's treating
that the child "felt a strong sense of
therapist testified
and
abandonment whenever he would visit Appellant in New Jersey,
he would not be brought back to
that he worried that
Pittsburgh." Id. at 1256-1257.
the child in Charles, the Child in the instant case
Like
to stay in the home in which he was
has a strong preference
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34
raised and currently resides, with Grandparents, who he calls
"Gram and Pap." This Court considered similar factors to the
court in Charles in reaching our decision to uphold primary
custody in favor of Grandparents. Additionally, the Child
during his in -camera interview that he has
similarly disclosed
had fears of not being able to return to Carbon County while
with Father or in anticipation of visiting Father.
Lastly, the Court must consider the preference of the child
when deciding any custody case. "A child's preference, though
not controlling, is a factor to be considered, so long as it is
based on good reasons." Hugo v. Hugo, 430 A.2d 1183, 1186 (Pa.
1981). In E.A.L. v. L.J,W., the Superior Court of
Super.
Pennsylvania reversed the trial court's grant of primary custody
to the natural mother over a set of grandparents partially based
on the trial court not taking the children's preference into
consideration. The Pennsylvania Superior Court explained that
children grow older, more weight must be given to the
"fa2s
preference of the child." E.A.L. v. L.J.W., 662 A.2d 1109, 1118
(Pa. Super. 1995) (citing Grieb v. Driban, 458 A.2d 1006The children in E.A.L. were ages ten (10) and twelve
(1983)),
(12). The court ruled that the children's preference to live
with their grandparents should have been factored into the
decision by the trial court.
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In this case, the Child is eleven years old. Throughout
the years of proceedings in this matter, he has continuously
expressed a clear preference to live with Grandparents. His
preference is based upon the close relationship and strong
emotional bond that he has formed with Grandparents and his
half-brother, J.M. Moreover, as previously mentioned,
everything that the Child knows is in Carbon County. Therefore,
we found his preference to be well reasoned.
CONCLUSION
For the foregoing reasons, this Court concludes that
an award of joint legal custody and primary physical custody to
the Grandparents as outlined in our Order of August 28, 2020 is
in the Child's best interest. Therefore, we respectfully
recommend that Father's appeal be denied and that our Order of
August 28, 2020 be affirmed accordingly.
BY THE COURT:
..C51;2-04e:
Steven R. Serfass, J.
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