D.B. and D.B. v. J.W., T.C.

J-A27026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.B. AND D.B., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
J.W., T.C.,
Appellees No. 569 WDA 2015
Appeal from the Order entered March 11, 2015,
in the Court of Common Pleas of Fayette County,
Civil Division, at No(s): 982 of 2014 GD
BEFORE: BOWES, OLSON, and STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 17, 2015
Appellants, D.B. (“Maternal Grandmother”), and D.B. (Step-
Grandfather) (collectively, “Appellants” or “Plaintiffs”), the maternal
grandmother and step-grandfather of two minor children, L.C. (born in July
of 2006), and J.B. (born in November of 2009) (the “Children”), appeal from
the order dated March 9, 2015, and entered on March 11, 2015, awarding
J.W. (“Mother”) legal and primary physical custody of the Children, and
granting Mother’s petition to relocate the Children from Fayette County,
Pennsylvania, to Matthews, North Carolina, where Mother resides with her
current husband, I.W. (“Stepfather”), with specific restrictions relative to her
relocation.1 The order further dismissed Maternal Step-Grandfather as a
1
Matthews, North Carolina, is approximately fifteen minutes away from
Charlotte, North Carolina. N.T., 11/10/14, at 8, 13.
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party to the action, and awarded Maternal Grandmother partial physical
custody of the Children. The trial court found that Plaintiffs did not stand in
loco parentis to the Children, and that Maternal Grandmother had standing
to seek only partial custody and/or visitation. After careful consideration, we
affirm.
In its Opinion entered on March 11, 2015, the trial court set forth the
factual background and procedural history of this appeal, which we
incorporate herein and adopt as this Court’s own. See Trial Court Opinion,
3/11/15, at 1-7.2 We set forth only the factual background and procedural
history necessary to an understanding of the issues raised in this appeal.
1. Defendant [Mother] is the biological mother of the minor
children, [L.C.], born July [ ], 2006, who is eight years of age,
and [J.B.], born November [ ], 2009, who is [five] 5 years of
age.
2. Plaintiff [D.B.] is the maternal grandmother of the minor
children; and [D.B.] is the maternal step-grandfather of the
minor children. [Because the Plaintiffs share the same initials,
we shall refer to them individually by their familial relationships
with the Children.]
3. The parties stipulated that grandmother [D.B.] has standing
under 23 Pa.C.S.A. § 5325.
4. The biological father of [L.C.] is [T.C.], and he has not
asserted any right to custody in the course of this trial, [sic] and
he currently has no contact with [L.C.], [sic] and he hasn’t seen
[L.C.] since June 2014.
2
We note that T.C. (biological father of L.C.) was initially named in the case
as a party, but the court commented that it should change the caption to
reflect that T.C. was no longer a party in the trial court. See N.T., 1/28/15,
at 4.
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5. The biological father of [J.B.] is unknown; however, [J.B.] has
viewed [M.B.] as a father figure, and she refers to [M.B.] as her
dad. [J.B.] presently sees [M.B.] when [M.B.] takes [J.B.] to
church on weekends.
6. Mother was in a relationship with [M.B.], and she testified that
she lived with [M.B.] when [J.B.] was born, [sic] and she lived
with him in Normalville for a year during 2011-2012, and from
2012 to January 2014 in Mill Run.
7. Mother married [T.C.] in June 2005, and she lived with him
from 2005 to 2006, and from 2007-2008, [sic] and they were
divorced in 2009 or 2010.
8. Mother first met her current husband [I.W., Stepfather,] 10
years ago when she worked at the Fairfield Inn in New Stanton.
The two were out of contact until the end of January 2014, when
they began a “phone relationship”. [Stepfather] visited Mother
in Fayette County in March 2014, and[,] during the same
month[,] Mother and the [ ] [C]hildren went to North Carolina to
visit [I.W.] for a week.
9. [Mother] married [Stepfather] on April 21, 2014[. In August
of 2014, Mother and Stepfather began residing together in
Matthews, North Carolina, where they currently live.] This is a
first marriage for [Stepfather], who is 33 years old, and a second
marriage for Mother, who is 29 years of age.
10. [Mother] decided to relocate to North Carolina in August
2014, before the issue of relocation was heard by [the trial
c]ourt, and she agreed that the [C]hildren would remain in
Fayette County in the primary custody of her mother and step-
father [sic].
11. This [c]ourt finds no reason why [Mother] would not have
remained in Fayette County with the [ ] [C]hildren, until such
time as the [c]ourt approved or disapproved her relocation.
Th[e] [c]ourt [found] that Mother did not promote the
[C]hildren’s best interest when she relocated to North Carolina
without the [C]hildren.
12. [Stepfather] is presently enrolled as a law student at
Charlotte School of Law, where he intends to complete his
studies for a juris doctor degree in 2016. He took a leave of
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absence from law school for one year, due to a seizure disorder
resulting from a motor vehicle accident in 2006 [,] in which he
sustained a head injury.
13. A transcript was offered to show that [Stepfather] withdrew
from classes at Charlotte School of Law for the Fall 2013
semester and the Fall 2014 semester. It is unknown whether
this transcript would include classes for which final grades and
credits have not been received, such as those classes included in
the current semester.
14. Although a class schedule of [I.W.] was presented, this
computer-generated class schedule is not sufficient evidence to
prove that [Stepfather] is currently actually attending the
classes for which he was registered.
15. Mother testified on November 10, 2014 that she was enrolled
in Central Piedmont Community College to obtain a degree in
accounting; however, when Mother testified in January [of
2015,] she was not enrolled in class[es] due to the pendency of
this case.
16. Mother’s employment during the past two years included
cashier work at Speedy Meedy’s, which is a convenience store.
17. In North Carolina, Mother is currently employed as a sales
associate for Old Navy, where she is a part-time employee,
without predictable work hours, and her hourly rate is $9.00,
which is the same rate of pay she received at Speedy Meedy’s,
where she worked for nearly three years. [Stepfather] has not
been employed for several years, and he currently receives
disability income in the amount of $677.00 every month.
18. Plaintiff [D.B.] is the mother of Defendant [Mother];
however, [Mother] testified that she has [had] a nonexistent
relationship with her mother since May 2014, and [Mother] does
not even refer to Plaintiff [D.B.] as “mom”, but rather
consistently through her testimony, she referred to “D. . .”.
19. Prior to March 2014, the parties enjoyed a close family
relationship, and the Plaintiffs were significantly involved in the
lives of the [ ] [C]hildren.
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20. [L.C.] is a third grade student at Springfield Elementary
School in the Connellsville School District.
21. [The C]hildren have a very close relationship with their
maternal grandparents, the Plaintiffs, and the Plaintiffs have
been a stable, reliable part of the [C]hildren’s lives.
22. [L.C.] is upset by the contentious relationship between the
parties.
23. [Stepfather] has a history of alcohol abuse, and he was
charged with DUI in 2006 and again in 2007. Although he
acknowledges himself to be an alcoholic, Mother is in denial of
his alcoholism, having testified that she doesn’t believe
[Stepfather] has a drinking problem. She also said she has no
concerns about [Stepfather’s alcoholism], because he goes
everyday [sic] to Alcoholics Anonymous [AA]; although when he
came to Pennsylvania in March 2014, he was not attending
meetings or working [with] the AA program.
24. After [Stepfather’s] second DUI, he went into an inpatient
rehabilitation facility, where he spent 28 days. He relapsed
eleven months after he left inpatient treatment the first time,
and when he relapsed in March 2008, he returned to the same
facility for fourteen days. [Stepfather] admits that he relapsed
in July, 2014, and he claims that he hasn’t had alcohol since July
2014, [sic] and he remains active in the AA program.
25. This [c]ourt finds, through the credible testimony of Plaintiff
[Maternal Step-Grandfather], that [Stepfather] was drinking in
March 2014, when he was in Pennsylvania with [Mother] and the
[C]hildren.
26. Mother believes the [C]hildren will thrive in North Carolina,
although she was not specific; and she believes that “people are
brought up better ‘down there’”, and “people are friendlier
there”, and “there’s not a lot of negativity down there”.
Although Mother testified that there are many more
opportunities for the [C]hildren in North Carolina to go to
gymnastics academy, and to swim, she did not offer information
to show there are any opportunities in North Carolina which are
not available to the [C]hildren here, and she offered only
minimal testimony as to how relocation would enhance the
quality of life for the [C]hildren, or for herself.
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27. When Mother relocated to North Carolina, she was unable to
maintain health insurance for the [C]hildren, since they were
insured through a Pennsylvania state program.
28. During this current school year, Mother has not had any
involvement whatsoever with [L.C.’s] school.
29. During the last school year, when [L.C.] was in second
grade, he missed 24 days of school, and Mother testified that
she doesn’t know why he missed so many days of school, and he
shouldn’t miss school.
30. Neither Mother nor her current husband has any family in
North Carolina. Mother’s family is in Fayette County, and
[Stepfather’s] extended family is in Cumberland, Maryland.
31. Although Mother has lived in nine different residences over
the last eight years, she has consistently maintained the address
of the Plaintiffs as [L.C.’s] address for all school purposes.
32. The testimony was undisputed that [L.C.] has always been
picked up and dropped off from the school bus at the address of
[Maternal Grandmother and Step-Grandfather].
33. It is undisputed that [Mother] and [Maternal Grandmother]
no longer speak to one another, and neither assumes
responsibility for the breakdown of their relationship, [sic] and
both insist that it is the other one who won’t speak.
34. There is an obvious hostile relationship between the Plaintiffs
and [Stepfather], and[,] during an incident in August 2014,
when the parties were exchanging custody of the [ ] [C]hildren,
[Stepfather] was cited with summary trespass and disorderly
conduct.
35. Prior to her relocation to North Carolina, Mother informed the
Plaintiffs and Children and Youth Services that she was going to
go to “sign over” the “kids” to the Plaintiffs. Mother informed
[Maternal Step-Grandfather] that she wants [sic] to move to
North Carolina, and the [C]hildren will continue to live with the
Plaintiffs.
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36. The distance between Mother’s residence in North Carolina
and the residence of the Plaintiffs is seven to seven and
[one-half] hours.
37. Plaintiffs have been married for 15 years, and they have
resided in their current residence for 16 years. Plaintiff
[Maternal Grandmother] is a self-employed hairdresser, and
Plaintiff [Maternal Step-Grandfather] has been employed by
West Penn Power for 26 years.
38. Although [Mother] moved to many locations over the past
several years, this [c]ourt finds that she routinely returned to
the home of the Plaintiffs, [sic] with the [ ] [C]hildren; and she
continued to receive mail at the Plaintiff’s home, [sic] and she
always used the Plaintiff’s address for all school-related
purposes, as if [L.C.] lived with the Plaintiffs.
39. This [c]ourt finds that [Mother] and the [ ] [C]hildren
regarded the Plaintiffs’ home somewhat as a “second home”, and
the [C]hildren each have a room and their own wardrobe at the
Plaintiffs’ home. The [C]hildren stayed overnight in the Plaintiff’s
home, regardless of whether Mother was working.
40. The [C]hildren are accustomed to seeing the Plaintiffs on a
daily basis.
41. Despite their frequent visits and overnight stays at the home
of the Plaintiffs, the children have not resided with the Plaintiffs
for a period of twelve consecutive months.
42. In March 2014, when [Stepfather] came to Pennsylvania and
began to see [Mother], the relationship with the Plaintiffs
drastically deteriorated, and [Mother] refused to permit the
Plaintiffs to have any periods of custody with the [C]hildren.
43. Plaintiff [Maternal Grandmother] has recently addressed the
[C]hildren’s medical needs. Specifically, [J.B.] received three
immunizations after Mother relocated to North Carolina, and
[L.C.] was treated at the dentist for a few cavities.
44. The Plaintiffs express valid reasons for their opposition to the
relocation of the [C]hildren. Specifically, Plaintiffs fear that the
[C]hildren will not be properly taken care of, they will not have
any family and friends known to them in North Carolina, they will
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be taken away from the close family they have in Fayette
County, and [sic] [Mother] has always relied on family to help
with the [C]hildren, and she won’t have such extended family in
North Carolina. In addition, Plaintiff [Maternal Grandmother] is
concerned that [Mother] will not take the [C]hildren to the
doctor when they are sick with a sore throat, sore ears, [sic]
fever, and if they are vomiting. She also noted that [Mother]
“jumps around a lot”, and the [C]hildren would be losing the
stability of the Plaintiffs’ significant involvement in their life.
Plaintiff [Maternal Step-Grandfather] is concerned that a
relocation would promote instability. His concern extends to the
instability caused by [Stepfather’s] alcoholism, [sic] the fact that
Mother gets settled somewhere with the [C]hildren and then
“uproots” them, and he believes the [C]hildren are far more
stable in the Plaintiffs’ home.
45. Although Plaintiff [Maternal Grandmother] testified that she
believes it is “important for [Mother] to know everything about
her children”, after [Mother] relocated to North Carolina,
[Maternal Grandmother] has failed to make any attempts
whatsoever to provide information to Mother about the
[C]hildren.
46. Mother refused to permit the Plaintiffs to have any contact
with the [ ] [C]hildren for two months, from April to June in
2014.
47. Plaintiff [Maternal Step-Grandfather] serves as a liaison
between Mother and Maternal Grandmother, and he has been
the facilitator of custody exchanges since June 2014.
Trial Court Opinion, 3/11/15, at 1-7.
On May 19, 2014, Maternal Grandmother and Maternal Step-
Grandfather filed a complaint for custody, seeking primary physical custody
of the Children, and alleging that they had stood in loco parentis to the
Children for extended periods of time and that they had standing pursuant to
section 5324 of the Child Custody Act, 23 Pa.C.S.A. § 5324. Appellants also
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alleged that they had standing pursuant to section 5325 of the Child Custody
Act. On June 24, 2015, Mother filed an answer to the complaint.
On June 27, 2014, the trial court entered a temporary consent order
upon the agreement of the parties. The order provided that the parties
stipulated that Maternal Grandmother had standing pursuant to section
5325. The order further stated that the issue of the standing of Maternal
Grandmother under section 5324, and the standing of Maternal Step-
Grandfather under sections 5324 and 5325, was deferred. Finally, the order
provided that Mother had legal custody of the Children pending further order
of court.
On September 17, 2014, Mother filed a notice of proposed relocation
with the Children to Matthews, North Carolina. On September 25, 2014,
Appellants filed a counter-affidavit regarding relocation.
The trial court held hearings on the custody complaint on November
10, 2014, January 28, 2015, and January 29, 2015. At the hearing on
November 10, 2015, Mother testified on her own behalf. At the hearing on
January 28, 2015, Mother testified on re-direct examination and re-cross
examination. Stepfather also testified on behalf of Mother, and Maternal
Grandmother testified on her own behalf. At the hearing on January 29,
2015, Maternal Grandmother and Maternal Step-Grandfather testified on
their own behalf. Maternal Grandmother and Maternal Step-Grandfather
also presented a number of other witnesses on their behalf.
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On January 30, 2015, the trial court entered an order directing that,
until a final custody order would be entered, Appellants would continue to
have the authority to make any and all necessary medical and/or
educational decisions while the Children are in their physical custody. The
order further provided that, as long as Mother continued to reside in North
Carolina, the Children would remain in the physical custody of the
Appellants, and Mother would have the right to exercise partial physical
custody one weekend each month in Fayette County. The order also made
a provision in the event that Mother would relocate or temporarily stay in
Fayette County prior to the entry of a final custody order.
On February 3, 2015, Appellants filed a petition for special relief
seeking to reopen the record to admit exhibits relating to the actual status of
the enrollment of Stepfather in law school in North Carolina, and his law
school grade record transcript. On February 9, 2015, the trial court entered
an order re-opening the record of the custody trial for the limited purpose of
admitting Plaintiff’s Exhibit F, and Defendant’s Exhibit 3, relating to
Stepfather’s law school enrollment and grade record transcript.
On March 11, 2015, the trial court entered the order that awarded
Mother legal and primary physical custody of the Children, and granted
Mother’s petition to relocate the Children to North Carolina, with specific
restrictions relative to her relocation. The order further removed Maternal
Step-Grandfather as a party to the action, and awarded Maternal
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Grandmother partial physical custody of the Children. The trial court found
that Plaintiffs did not stand in loco parentis to the Children, and that
Maternal Grandmother had standing to seek only partial custody and/or
visitation. On April 7, 2015, Appellants timely filed their notice of appeal
from the March 11, 2015 order, along with a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Appellants raise the following issues:
1. Whether the Trial Court erred and/or abused its discretion in
finding that Maternal Grandmother and Maternal Step-
Grandfather, lacked standing to file for physical and legal
custody under 23 Pa.C.S.A. § 5324?
a. Whether the Trial Court erred/abused its discretion in
finding that the Maternal Grandmother and Maternal
Step-Grandfather lacked ‘in loco parentis’ standing of the
minor children, when they had solely acted as the
primary caregivers for the children since August 22,
2014?
b. Whether the Trial Court erred and/or abused its
discretion in looking at the date of filing the custody
action, as opposed to the date of the hearings on the
action, for purposes of determining the standing of the
Maternal Grandmother and Maternal Step-Grandfather?
c. Whether the Trial Court erred and/or abused its
discretion in failing to find that the Maternal Grandmother
and Maternal Step-Grandfather had standing under 23
Pa.C.S.A. § 5324(3)?
2. Whether the Trial Court erred and/or abused its discretion in
dismissing the Maternal Step-Grandfather from the custody
action for lack of standing, when he has played a significant role
in the raising of these children, [sic] since birth and has been in
loco parentis since before Mother filed her Petition for
Relocation?
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3. Whether the Trial Court erred and/or abused its discretion in
granting Mother’s Petition for Relocation and award of primary
custody to Mother where:
a. the testimony supports a finding that Mother lacked
any involvement in the children’s lives after she relocated
and failed to attend to the children’s medical needs?
b. Mother has historically failed to provide a stable home
and environment for the minor children?
c. the testimony allowed that there is no extended family
available for the children if the relocation were granted?
d. the testimony demonstrated Mother’s lack of concern
for the emotional well-being of the minor children, by
relocating prior to obtaining Court permission, and failing
to maintain any sort of regular contact with the children
after she relocated?
e. the testimony demonstrated that Mother has neglected
the educational and medical needs of the minor children?
f. the testimony demonstrated a concern for Mother’s
ability to make appropriate child care arrangements for
the children?
g. the testimony demonstrated a history of alcohol abuse
by the [m]other’s husband, who will be residing in the
home with the minor children?
h. the testimony failed to demonstrate evidence that it
will enhance the quality of life of the [m]other or minor
children?
i. the testimony failed to demonstrate sufficient reason or
motivation for the relocation?
4. Whether the Trial Court erred and/or abused its discretion in
finding that the [r]elocation of the children would be in the minor
children’s best interest, considering all of the relevant factors?
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Appellant’s Brief, at 4-6.3
In their brief on appeal, Appellants state that, while they have raised a
number of issues on appeal, their primary issue on appeal is whether the
trial court erred as a matter of law and/or abused its discretion when it
found that they lacked standing under section 5324 of the Child Custody Act.
Appellants assert that they had acted as the sole care providers for the
Children since August 22, 2014, by the consent of the parents of the
Children. Further, Appellants allege that Mother left the Children without
proper care and supervision, requiring Appellants to adopt the role of parent
for the Children. Appellants also contend that the trial court erred as a
matter of law and/or abused its discretion in dismissing Maternal Step-
Grandfather from the action for lack of standing. Appellants assert that
Maternal Step-Grandfather clearly acted in a parental role for the Children
for an extended period of time. Appellants further claim that Maternal
Step-Grandfather undisputedly had acted as a parent to the Children after
August 22, 2014, when Mother relocated to North Carolina without the
Children. Appellants request this Court to enter an order finding that they
had standing under section 5324, and to remand the matter to the trial
court, reinstating Maternal Step-Grandfather as a party.
3
We observe that Appellants stated their issues somewhat differently in
their Concise Statement of Errors Complained of on Appeal. We,
nevertheless, find the issues preserved for our review.
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Further, Appellants assert that the trial court erred as a matter of law
and/or abused its discretion in granting Mother’s petition for relocation.
They claim that the award of primary physical custody to Mother is not in the
best interest of the Children, and that the numerous relocation
considerations indicate that relocation is not in the Children’s best interest.
The Appellants, therefore, request this Court to reverse the grant of Mother’s
petition for relocation.
A trial court’s determination regarding standing will not be disturbed
absent an abuse of discretion. Butler v. Illes, 747 A.2d 943, 944 (Pa.
Super. 2000).
In custody cases, our standard of review is 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) (citation omitted).
This Court has stated: “[a]n abuse of discretion is not merely an error
of judgment; if, in reaching a conclusion, the court overrides or misapplies
the law, or the judgment exercised is shown by the record to be either
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manifestly unreasonable or the product of partiality, prejudice, bias or ill will,
discretion has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 111
(Pa. Super. 2007) (quotation omitted).
Section 5324 of the Child Custody Act provides as follows:
§ 5324. Standing for any form of physical custody or legal
custody
The following individuals may file an action under this chapter for
any form of physical custody or legal custody:
(1) A parent of the child.
(2) A person who stands in loco parentis to the child.
(3) A grandparent of the child who is not in loco parentis
to the child:
(i) whose relationship with the child began either
with the consent of a parent of the child or under a
court order;
(ii) who assumes or is willing to assume
responsibility for the child; and
(iii) when one of the following conditions is met:
(A) the child has been determined to be a
dependent child under 42 Pa.C.S. Ch. 63
(relating to juvenile matters);
(B) the child is substantially at risk due to
parental abuse, neglect, drug or alcohol
abuse or incapacity; or
(C) the child has, for a period of at least 12
consecutive months, resided with the
grandparent, excluding brief temporary
absences of the child from the home, and is
removed from the home by the parents, in
which case the action must be filed within six
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months after the removal of the child from
the home.
42 Pa.C.S.A. § 5324.
Section 5325 of the Child Custody Act provides as follows:
§ 5325. Standing for partial physical custody and
supervised physical custody
In addition to situations set forth in section 5324 (relating
to standing in any form of physical custody or legal custody),
grandparents and great-grandparents may file an action under
this chapter for partial physical custody or supervised physical
custody in the following situations:
(1) where the parent of the child is deceased, a parent or
grandparent of the deceased parent may file an action
under this section;
(2) where the parents of the child have been separated
for a period of at least six months or have commenced
and continued a proceeding to dissolve their marriage; or
(3) when the child has, for a period of at least 12
consecutive months, resided with the grandparent or
great-grandparent, excluding brief temporary absences of
the child from the home, and is removed from the home
by the parents, an action must be filed within six months
after the removal of the child from the home.
42 Pa.C.S.A. § 5325.
Pursuant to section 5324 of the Act, “A person who stands in loco
parentis to the child” may file an action for any form of physical or legal
custody. In Peters v. Costello, 891 A.2d 705 (Pa. 2005), our Supreme
Court outlined the relevant principles as follows:
The term in loco parentis literally means “in the place of a
parent.” Black's Law Dictionary (7th Ed. 1991), 791.
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The phrase “in loco parentis” refers to a person who puts
oneself [sic] in the situation of a lawful parent by
assuming the obligations incident to the parental
relationship without going through the formality of a legal
adoption. The status of in loco parentis embodies two
ideas; first, the assumption of a parental status, and,
second, the discharge of parental duties. . . . The rights
and liabilities arising out of an in loco parentis
relationship are, as the words imply, exactly the same as
between parent and child.
Peters, 891 A.2d at 710 (citation and footnote omitted).
This Court has stated that a third party cannot place himself or herself
in loco parentis status in defiance of the parents’ wishes, and the
parent/child relationship. Gradwell v. Strausser, 610 A.2d 999, 1003 (Pa.
Super. 1992).4 See E.W. v. T.S., 916 A.2d 1197, 1205 (Pa. Super. 2007)
(stating, “the law provides that in loco parentis status cannot be achieved
without the consent and knowledge of, and in disregard of the wishes of a
parent”). The frequency of a caretaker’s services does not confer in loco
parentis status. Argenio v. Fenton, 703 A.2d 1042, 1044 (Pa. Super.
1997) (holding that grandmother’s serving as child’s frequent caretaker was
insufficient to confer on grandmother standing to file custody dispute against
child’s birth father).
In its Opinion and Order, the trial court provided the following
analysis:
After reviewing the facts of this case and the applicable
case law, this [c]ourt cannot confer standing upon the Plaintiffs
4
Persons other than parents are “third parties” for purposes of custody
disputes. See Gradwell, 610 A.2d at 1001.
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pursuant to § 5324(2) through “in loco parentis” status. Our
Supreme Court explained in loco parentis status in T.B. v.
L.R.M., 786 A.2d 913 (Pa. 2001), and the Superior Court
refused to recognize in loco parentis status in D.G. v. D.B., 91
A.3d 706 (Pa. Super.2014). In D.G., maternal grandmother
sought primary [physical] custody and argued that she stood in
loco parentis to her grandchild. Despite [the fact] that the child
resided for periods of time with grandmother, and she took the
child to medical appointments, cooked for the child, financially
supported the child, did laundry for the child, and cared for the
child, she was not in loco parentis. The [c]ourt reasoned that
the grandmother’s efforts were more consistent with
grandmother assisting the mother and the child, but
grandmother did not show an intent to assume all of the rights
and responsibilities of parenthood.
Similar to the grandmother in D.G., the Plaintiffs in the
instant case have played a significant role in the lives of the [ ]
[C]hildren. Plaintiffs have certainly provided financially for the
[C]hildren, and they have opened their home to the [C]hildren,
with each child having his/her own room, clothes, and toys at
the Plaintiff’s home. Even though there were periods of co-
residency between the Plaintiffs, the [C]hildren, and [Mother],
these periods of co-residency are consistent with the Plaintiffs
providing assistance to Mother during times when Mother was in-
between relationships, or for other reasons moved in and out
with Plaintiffs. Despite [the fact] that [L.C.,] and[,] at times[,]
[J.B.,] spent two to four nights each week with the Plaintiffs, this
[c]ourt cannot find that the [ ] [C]hildren were living with the
Plaintiffs. [L.C.] himself stated that he “lived” with “mom and
[Stepfather]”, and he “stayed” at “grandma’s”. The assistance
and involvement of the Plaintiffs have been substantial and
commendable, but this [c]ourt does not find that the Plaintiffs’
involvement with the [C]hildren over the years is consistent with
an intent to assume all rights and responsibilities of parenthood,
but[,] rather[,] their role has been one of loving grandparents
who have made themselves consistently available to assist with
their grandchildren. For these reasons, this [c]ourt finds that
the Plaintiffs did not have in loco parentis status to the [ ]
[C]hildren at the time this action was filed.
Trial Court Opinion, 3/11/15, at 8-10.
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In their brief on appeal, Appellants cite T.B. v. L.R.M., 786 A.2d 913(Pa. 2001), for the proposition that the phrase in loco parentis refers to a
person who puts oneself in the situation of a lawful parent by assuming the
obligations incident to the parental relationship without going through the
formality of a legal adoption. Appellants’ Brief at 15. Appellants argue that,
from at least the time that Mother relocated to North Carolina in August of
2014, through the dates of the custody relocation trial on November 10,
2014, January 28, 2014, and January 29, 2014, they acted as the lawful
parents of the Children. Id. Appellants assert that the evidence showed
that Mother failed to be involved with the Children’s education, medical
concerns, and physical well-being during this time, and left the parenting
duties exclusively to Appellants. Appellants also assert that Mother visited
the Children only twice during the time after Mother’s relocation to North
Carolina. The first visit was at the custody trial and the second during the
Christmas holiday. Appellants contend that the trial court failed to consider
that they were acting in loco parentis at the time that was relevant to the
petition for relocation, and instead found that they lacked standing based on
their status at the time that the Appellants filed the custody action. Id. at
15-16.
Additionally, Appellants cite D.G. v. D.B., 91 A.3d 706 (Pa. Super.
2014). In D.G., the child’s maternal grandmother and step-grandfather filed
a custody action in 2009, seeking partial physical custody of the child. The
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parties entered into an agreement in January of 2010. In 2013, the
grandmother and step-grandfather filed a modification petition, seeking
primary physical custody and joint legal custody of the child based on the
allegations that the mother was neglecting the child. At the time that the
matter came before the trial court in 2013, the child had not lived with the
grandmother for four years. The trial court found that the grandmother had
in loco parentis standing, and awarded her primary physical custody of child.
On appeal by the mother, this Court vacated the trial court’s order and
remanded the matter, finding that the grandmother’s actions were more
consistent with assisting the mother and the child in a time of need than
with serving as the child’s parent. D.G., 91 A.3d at 711.
Here, Appellants assert that, in D.G., this Court held that the maternal
grandmother’s in loco parentis standing was properly examined with regard
to the custody trial in 2013, and not at the time when the custody action
was initially commenced on 2009. Appellants allege that, as in D.G., this
Court should examine their in loco parentis standing at the time that Mother
filed the custody relocation petition in August of 2014 and the court held the
relocation hearings in 2014 and 2015, and not at the time that they filed the
initial custody action in May of 2014. See Appellants’ Brief at 16.
In its Statement in Lieu of Opinion, the trial court provided the
following explanation for rejecting the argument of Maternal Grandmother
and Maternal Step-Grandfather that they had in loco parentis standing
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because they had solely acted as the primary caregivers for the Children
since August 22, 2014.
The Superior Court has explained that “The rights and
liabilities arising out of an in loco parentis relationship are, as the
words imply, exactly the same as between parent and child.”
Morgan v. Weiser, 923 A.2d 1183, 1187 (Pa. Super. 2007).
“The third party in this type of relationship, however, cannot
place himself in loco parentis in defiance of the parents’ wishes
and the parent/child relationship.” Id.The Complaint for Custody in this matter was filed by the
[P]laintiffs on May 19, 2014, and when [Mother] filed her Answer
on June 24, 2014, she denied that the [P]laintiffs have stood in
loco parentis to the [ ] [C]hildren. In fact, when the parties
attended a custody conference and entered into a Temporary
Custody Consent Order dated June 27, 2014, the following
provisions were included:
“That the issue as to the standing of the Plaintiff
Maternal Grandmother, [D.B.], under Section 5324 and
the standing of the Plaintiff Maternal Step-Grandfather,
[D.B.], under Section 5324, [sic] 5325, are deferred; and
that it is stipulated that the Maternal Grandmother,
[D.B.,] has standing under Section 5325.”
“The Mother and the Grandparents have entered into this
temporary arrangement in order to stabilize custody and
to afford the parties an opportunity to attempt an
amicable long-term resolution. This temporary
arrangement shall not create a status quo. Neither party
waives a claim to primary custody or to equally (shared)
custody.
“It is understood that Mother is married to a law
student who resides in North Carolina, and in the event
that the Mother decides to relocate as a consequence of
her husband’s studies or eventual employment, she must
first give advance notice to all other parties and must
work out a mutual substitute physical custody
arrangement with the Maternal Grandparents. The
Defendant, [T.C.], does not at this time waive the
relocation procedures provided by law.”
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After the parties’ custody conference, [Mother] did give
proper notice of relocation, and [P]laintiffs objected to said
relocation. [Mother] testified that she believed that[,] if she
moved to Matthews and removed the [ ] [C]hildren from
Pennsylvania, then she would be in contempt of [c]ourt.
Therefore, according to her testimony, [Mother] moved to North
Carolina in order to establish her residency there, and she
waited for a court proceeding before taking the [ ] [C]hildren.
(See Custody Trial Proceedings, Volume 1 of 3, page 77).
Accordingly, when [Mother] left the [ ] [C]hildren in
Pennsylvania in the care of the Plaintiffs, believing that it [would
be] in contravention of a [c]ourt order [if she were] to remove
the [C]hildren, this [c]ourt cannot find that she acquiesced with
the idea that her mother and stepfather would become in loco
parentis. [Mother] had clearly objected to the standing of the
Plaintiffs when this action was first initiated, and both parties[,]
by their Consent Order of June 27, 2014, acknowledged that
their temporary arrangement would not create a status quo.
This [c]ourt believes that to allow [P]laintiffs to benefit from the
custody arrangement that was temporarily in place pending a
determination by this [c]ourt after a custody trial would be
unjustifiable.
See Trial Court Opinion, 5/29/15, at 2-4.
We find no error of law or abuse of discretion on the part of the trial
court in concluding that Appellants lacked in loco parentis standing to pursue
primary physical custody in this matter.5 Butler, 747 A.2d at 944.
Next, Appellants contend that, if this Court concludes that they lack in
loco parentis standing, they have standing under section 5324(3) to assert a
5
Appellants urge that the order entered in October of 2014 in the Fayette
County dependency court, granting them temporary legal and physical
custody of the Children, is evidence of their in loco parentis status with
regard to the Children. See Appellants’ Brief at 17-18. For the reasons
expressed by the trial court, any order relating to their custody of the
Children while Mother was in North Carolina pending the litigation in this
custody matter is not controlling of their in loco parentis status.
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claim for legal and physical custody. See Appellants’ Brief at 18. Appellants
claim that they are the Children’s grandparents, that their relationship with
the Children began with the consent of Mother, and that they are willing to
continue to assume responsibility for the Children. Id. With regard to
section 5324(3)(iii), Appellants contend that the Children are at substantial
risk due to alcohol abuse by Stepfather and parental neglect by Mother
regarding her failure to obtain health insurance coverage for them, which
they assert was part of a dependency action filed by Fayette County Children
and Youth Services (“CYS”). Id. Appellants allege that CYS withdrew the
dependency with the understanding that Appellants were awarded
temporary legal custody of the Children so that they could obtain health
insurance for them. Id. at 18-19. Moreover, with regard to section
5324(3)(iii)(C), Appellants allege that the evidence established that they
provided a home for the Children for at least twelve months preceding the
filing of the custody action. Appellants assert that they have provided the
primary home for the Children for years, and that Appellants’ address was
the permanent address for L.C.’s school enrollment and medical purposes.
The trial court rejected Appellants’ argument, stating as follows:
The final statutory basis for standing, which can apply
only to a “grandparent”, is § 5324. This [c]ourt finds that
[Maternal Grandmother] does not meet the necessary elements
for this [c]ourt to confer standing under subparagraphs [sic]
iii(A), iii(B), or iii(C). The children at issue in this case clearly
have not been adjudicated dependent, and the testimony did not
reveal that the [C]hildren are substantially at risk due to
parental abuse, neglect, drug or alcohol abuse, or incapacity.
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Although this [c]ourt finds the Plaintiffs’ concern over
[Stepfather’s] alcoholism and recent relapse to be well-justified,
the statute addresses risk due to the parent’s alcohol abuse.
Additionally, although it was well[-]established that the
[C]hildren, along with their [m]other, moved in and out of the
Plaintiffs’ home over the past several years, the [C]hildren spent
many overnights with the Plaintiffs, and the Plaintiffs’ address
was used for all school-related paperwork for [L.C.], it was not
proven that the [C]hildren resided with the Plaintiffs for a period
of at least twelve consecutive months.
Trial Court Opinion, 3/11/15, at 10 (emphasis added).
We find no error of law or abuse of discretion on the part of the trial
court in concluding that Appellants lacked standing to pursue primary
physical custody in this matter.
Next, we address Appellants’ argument that the trial court erroneously
dismissed Maternal Step-Grandfather as a party in this action, finding that
he lacked standing required as a grandparent to be included in such a
proceeding. Appellant’s Brief, at 20. Relying on K.B., II v. C.B.F., 833
A.2d 767 (Pa. Super. 2003), Appellants contend that Maternal Step-
Grandfather has in loco parentis standing and standing under section 5324
as a grandparent, despite his lack of a biological relationship. Appellants
request this Court to vacate the portion of the trial court order that
dismissed Maternal Step-Grandfather as a party in this action, and grant him
in loco parentis status to assert his claim for custody of the Children.
Appellants’ Brief at 20.
The trial court addressed Appellants’ argument as follows:
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The first issue this [c]ourt must address is whether the
Plaintiffs have standing to bring an action for custody and/or
partial custody. Since the parties stipulated that maternal
grandmother, Plaintiff [D.B], has standing under 23 Pa.C.S.A.
§ 5325, we will first consider whether this statutory section also
confers standing on Plaintiff [D.B.].
The statutory language of 23 Pa.C.S.A. § 5325 includes the
situations under which “grandparents and great-grandparents”
may file an action for partial physical custody or supervised
physical custody.
In Hill v. Divecchio, 625 A.2d 642, 648 (Pa. Super.
1993), an action for custody was brought by the maternal
grandmother and maternal step-grandfather, and the Superior
Court denied that step-grandfather had standing. Th[is] Court
held that the unambiguous words of the statute which state
“upon application of the parent or grandparent of a party”
preclude the mother’s step-father, the child’s step-grandfather,
from asserting a cause of action for visitation and/or partial
custody in conjunction with the child’s natural grandmother.
Therefore, in the instant case, we cannot confer standing upon
the step-grandfather under § 5325.
***
Based on the [c]ourt’s analysis of standing, this [c]ourt
concludes that [Maternal Grandmother] has standing to seek
partial custody, under section 5325(2). [Maternal Step-
Grandfather] has been abundantly loving and supportive to his
step-grandchildren, and he has been a great source of stability
for the [C]hildren. However, this [c]ourt is constrained by the
clear language of the statutes[,] as well as case law[,] and must
find that [Maternal Step-Grandfather] lacks standing and shall be
dismissed as a party to this lawsuit.
Trial Court Opinion, 3/11/15, at 10.6
6
We note that, on August 10, 2015, Appellants filed with this Court a
Supplemental Reproduced Record. We may not consider this document,
however, as it was not made a part of the certified record on appeal.
Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (en banc).
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We find no error of law or abuse of discretion on the part of the trial
court in concluding that Appellant Maternal Step-Grandfather lacked
standing to pursue partial physical custody in this matter. Butler, 747 A.2d
at 944.
We find that there was competent evidence in the record to support
the trial court’s credibility and weight determinations. Thus, we will not
disturb them. C.R.F., at 443. Accordingly, we find that the trial court did
not abuse its discretion in denying Maternal Grandmother and Maternal
Step-Grandfather third-party standing, and dismissing Maternal Step-
Grandfather as a party in this action. See Butler; Gradwell; and Argenio,
supra.7
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2015
7
Based on this conclusion, we need not address Appellant’s issues regarding
the propriety of the trial court’s grant of Mother’s petition to relocate to
North Carolina with the Children.
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