K.T. & M.T. v. L.S. f/k/a L.R.

J-A10001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.T. AND M.R.T. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
L.S. F/K/A L.R.
Appellee No. 2072 MDA 2014
Appeal from the Order Entered November 6, 2014
In the Court of Common Pleas of York County
Civil Division at No(s): 2013-FC-001604-03
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 28, 2015
Appellants, K.T. (“Paternal Grandmother”) and M.R.T. (“Paternal
Grandfather”) (collectively, “Paternal Grandparents”), appeal from the order
entered in the York County Court of Common Pleas, which denied their
request for partial physical custody of their minor grandchildren, K.A.T.
(born in September 2007) and K.W.R. (born in March 2009) (“Children”), in
this custody action. We reverse and remand for further proceedings.
The certified record indicates the relevant facts and procedural history
of this case as follows. Appellee, L.S. f/k/a L.R. (“Mother”), and D.T.
(“Father”) are the natural parents of Children. Mother gave birth to K.A.T.
while she was in high school and living with her mother (“Maternal
Grandmother”). Maternal Grandmother would not permit Father to live with
Mother because they were unmarried, so Mother moved in with Father in
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Paternal Grandmother’s home in December 2007, when K.A.T. was
approximately two months old.1 Mother and Father did not marry, but they
maintained a relationship until early 2009. In January 2009, when Mother
was pregnant with their second child, K.W.R., Mother and Father separated
and Mother moved with K.A.T. out of Paternal Grandmother and W.B.’s
home.2 At that time, Mother moved in with a co-worker for several months.
Beginning in January or February 2009, Mother and Father split
custody of K.A.T. During Father’s periods of physical custody, Children
resided with Father in Paternal Grandmother and W.B.’s home. Mother gave
birth to K.W.R. in March 2009. Mother and Father subsequently split
custody of K.W.R. as well. In April 2009, Mother met D.S. In May 2010,
Mother married D.S. (“Mother’s Husband”) in Hawaii; Father and Mother
agreed Father would take custody of Children while Mother was in Hawaii to
marry. In the summer of 2010, Father anticipated imminent deployment to
Iraq. Based on his expected deployment, Father agreed Mother could take
____________________________________________
1
Paternal Grandparents were divorced in 1998. When Mother and K.A.T.
moved in with Paternal Grandmother, Paternal Grandmother was living in
Erie County with her long-term significant other, W.B., with whom she still
resides. Paternal Grandfather also lives in Erie County with his significant
other, D.D.
2
The parties dispute whether Mother moved out of Paternal Grandmother
and W.B.’s home in December 2008 or January 2009. When Mother moved
out, Father was away in basic training for the United States Army since
September 2008.
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Children to live in Hawaii with Mother’s Husband.3 Mother and Father agreed
Father would have custody of Children during the summer months and
holidays, and that Father could communicate with Children via phone calls
and social media. Around August 2010, Mother and Mother’s Husband
moved with Children to Hawaii. Mother obtained a new telephone number,
but she did not disclose her new phone number to any of Father’s family
members, including Paternal Grandparents, and limited Children’s telephone
communication only to Father. After Mother had already moved to Hawaii
with Children, Father learned his anticipated deployment would not occur,
but he continued to permit Mother to live with Children in Hawaii. Mother
and Father agreed that if Mother moved back to Erie County, they would
again split physical custody of Children on an equal basis.
In November 2011, Mother and Mother’s Husband returned from
Hawaii with Children and moved to Clymer, New York.4 The parties dispute
whether Mother told Father she had moved back from Hawaii with Children.
In August 2012, Mother and Children moved with Mother’s Husband to
Wisconsin. Mother obtained a new phone number upon moving, which she
did not give to Father or Paternal Grandparents. On February 17, 2013,
while Mother and Children were still living in Wisconsin with Mother’s
____________________________________________
3
Mother’s Husband was in the Army and stationed in Hawaii at that time.
4
Clymer, New York is approximately eight miles away from Corry,
Pennsylvania (where Paternal Grandmother and W.B. live in Erie County).
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Husband, Father died in an automobile accident. Mother and Children did
not attend Father’s funeral. Around March 2013, Mother and Mother’s
Husband moved with Children to York County, Pennsylvania, where they
currently reside.
On September 6, 2013, Paternal Grandparents filed a joint petition in
York County seeking partial physical custody of Children.5 At the time
Paternal Grandparents filed their petition, Mother had denied them any
access whatsoever to Children. By order dated October 4, 2013 and entered
October 7, 2013, the court issued an interim custody order granting sole
legal and primary physical custody of Children to Mother. The court awarded
Paternal Grandparents the following periods of partial physical custody,
beginning with a “phase-in” schedule:6 (1) Friday, September 27, 2013,
from 5:30-7:30 p.m., in York County, with Mother present; (2) Saturday,
September 28, 2013, from 9:30 a.m. until 12:00 p.m., in York County, with
Mother present; (3) December 27-29, 2013, at Paternal Grandmother’s
home in Erie County, phasing out Mother’s presence during the scheduled
visits; and (4) two weekends between January 1, 2014 and June 1, 2014, in
____________________________________________
5
Paternal Grandparents previously filed a joint petition for partial custody in
Erie County but withdrew that petition to refile in York County. Paternal
Grandparents have standing to seek partial custody pursuant to 23 Pa.C.S.A.
§ 5325(1) (stating where parent of child is deceased, parent or grandparent
of deceased parent may file action of partial physical custody or supervised
physical custody).
6
The parties live approximately 5½ hours away.
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York County. The interim custody order provided the following regular
schedule of partial physical custody thereafter: (1) three weeks over the
summer (one week in June, July, and August) in the summer of 2014 and
each following summer; (2) two weekends each in the fall and spring to
occur in York County; (3) four overnight periods during Children’s Christmas
break, between December 27th through December 31st each year; and (4)
any other times agreed to by the parties. The interim custody order also
included a provision for Skype communication between Children and
Paternal Grandparents to occur each Sunday at 7:00 p.m., beginning on
October 6, 2013.
After Paternal Grandparents commenced their custody action, Mother’s
Husband started proceedings to adopt Children. The court initially granted
the adoption, but Paternal Grandparents intervened on or around November
4, 2013, when they learned of the proceedings. Because Mother and
Mother’s Husband failed to notify Paternal Grandparents about the adoption
proceedings, the court vacated the adoption decree.7
The court held a custody trial on February 10, 2014. At the start of
trial, the court announced it was the first custody trial the court had presided
over in approximately five years. The court expressed dissatisfaction with
____________________________________________
7
At the time of trial, Mother’s Husband testified he planned to re-commence
the adoption proceedings once the custody proceedings were resolved.
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the legislature’s enactment of the Custody Act since the court had last
presided over a custody trial. The court stated:
Frankly, I’m not sure how I want to do this. But since this
is the first custody trial that I have to sit on—fortunately,
the other cases assigned to me have been resolved by
agreements.
That being so, I think it fair to counsel to advise them that
I did sit and try and figure out when the last custody trial I
had and I think it was about five years ago having other
assignments in the interim.
And during that period of time, the legislature enacted a
big comprehensive custody act, bunch of stuff that they
did. They determined that they needed to help the courts
in deciding these cases by telling them what factors they
have to consider in determining what the best interest of
the child or children is.
Honestly, I’ve taken a look at the statute. I have personal
reservations as to whether the legislature can tell me how
to make a decision. But I’m told that’s the way we do it.
So counsel should be on the alert that I haven’t studied
these things. I haven’t gone and looked and figured out
whatever. So touch base on those things that you think
are important to decide what is in the best interest[s] of
these children.
(N.T. Trial, 2/10/14, at 11-12; R.R. at 9a).
Paternal Grandmother testified, inter alia, as follows.8 Mother moved
into her home when K.A.T. was approximately two months old. Paternal
Grandmother and Mother had a nice relationship while Mother lived with her
and W.B. During this time, Mother wrote Paternal Grandmother and W.B. a
____________________________________________
8
(See id. at 14-74; R.R. at 10a-40a.)
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“thank you” card expressing gratitude for their kindness and generosity, as
well as a Valentine’s Day card.9 Mother also wrote Paternal Grandmother a
“get well” card after Paternal Grandmother had surgery. On February 7,
2008, Mother executed an “authorization for treatment of a minor” form,
which gave Paternal Grandmother and W.B. authority to accompany K.A.T.
to doctor’s appointments and to consent to K.A.T.’s medical examinations
and/or treatment.
Mother moved out in January 2009. When Mother and Father split
custody of Children, Father was living with Paternal Grandmother, so
____________________________________________
9
The “thank you” card states:
I wanted to find a thank you card filled with all the words
that I feel. But then I found this card & knew it was
perfect [because] it’s in this card that I can write down my
own feelings with all of my own words.
[Paternal Grandmother and W.B.,]
Everything you guys do and have done for me (& [K.A.T.])
is so appreciated. I hope that eventually I can help you
the way that you’ve helped me. You’ve dealt with my
bullshit and helped me on my feet—and for that I’m truly
grateful. I’ve never met two other people who are so
willing to help others. You’ve given me so much & much of
that isn’t what money can buy. You’ve taught me lessons
that I won’t forget & shown me love that I will always
remember. I thank you both for all that you do. Thank
you for everything.
[Mother].
(Paternal Grandparents’ Exhibit 3).
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Children stayed at Paternal Grandmother and W.B.’s home during Father’s
periods of physical custody. Paternal Grandmother testified Mother refused
to let Paternal Grandparents communicate with Children when they lived in
Hawaii. Paternal Grandmother explained Mother threatened Father while in
Hawaii that if Father disclosed Mother’s phone number to Paternal
Grandparents, or allowed anyone else on the phone line during Father’s
phone calls with Children, that Mother would disconnect the call. Mother
also “un-friended” Paternal Grandmother on Facebook.
Paternal Grandmother testified that Mother failed to tell Father when
she moved from Hawaii to Clymer, New York. In February 2012, Father
learned that Mother was in Clymer, and when Father confronted Mother
about moving from Hawaii, Mother claimed she was back in town for a short
time on vacation. Paternal Grandmother explained Mother agreed Father
could visit Children once during this “vacation” period. Paternal
Grandmother testified that Father visited Children again in July 2012, when
Father discovered through Maternal Grandmother that Mother was still living
with Children in Clymer. In August 2012, Father returned to Clymer to visit
Children again, but Mother had already moved away.
Following Father’s sudden death in February 2013, Paternal
Grandmother hired a private investigator to locate Mother and Children.
When the private investigator discovered Mother had an address in
Wisconsin, Paternal Grandmother hired a second private investigator in
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Wisconsin. Ultimately, Paternal Grandmother located Mother and Children in
York County, Pennsylvania. Upon finding Mother and Children, Paternal
Grandparents served Mother with the custody complaint.
Paternal Grandmother testified that Mother was uncooperative with the
terms of the interim custody order. With respect to the court-ordered Skype
conversations, Paternal Grandmother said Mother claimed her camera was
broken, so Paternal Grandparents could not actually see Children during the
calls. Paternal Grandmother’s son, S.T. (“Children’s Uncle”), offered to fix
Mother’s camera free-of-charge, but Mother refused the offer. Paternal
Grandmother testified that if she called Mother to speak with Children
outside of the court-ordered Skype timeframe, Mother would not answer the
phone or she would state it was not a good time or tell Paternal
Grandmother to wait until the court-ordered timeframe to speak with
Children.
Paternal Grandmother testified that Paternal Grandparents’ first visit
with Children under the interim custody order was a success. The visit took
place at an arcade, and Children recognized Paternal Grandparents right
away. Paternal Grandmother also spoke highly of Paternal Grandparents’
visit with Children over the Christmas holiday. Paternal Grandmother had a
Christmas party at her home with Children’s extended family. Paternal
Grandparents, their significant others, and Children’s paternal aunts, uncles,
cousins, and other relatives attended. Children made glow bugs, balloons,
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made a Christmas gift for Mother, and played with their cousins. Children
also participated in a balloon launch to honor Father’s memory. Children’s
great-aunt gave Children a memory box containing a small toy soldier and
Father’s dog tags. Mother later discarded the toy soldier, claiming it
promoted violence.
While the interim custody order was in place, Paternal Grandmother
sent Children Captain America and Superman action figures. Paternal
Grandmother testified Mother also discarded these action figures as “too
violent,” even though Mother permitted Children to dress-up as Superman
and Batman for Halloween.
Paternal Grandmother admits she has rheumatoid arthritis. Paternal
Grandmother denied having any health issues which would impede her
ability to care for Children. Paternal Grandmother and W.B. both smoke
cigarettes but do not smoke around Children. Paternal Grandmother
admitted she was charged with passing a bad check in 2012 and with theft
of services in 2009.10 Paternal Grandmother did not explain the details of
these charges.
Paternal Grandmother is currently employed with Interim Health Care
for the past four years. Prior to her employment with Interim Health Care,
____________________________________________
10
Counsel for Paternal Grandparents objected to the admission of testimony
concerning these criminal charges. The court overruled the objection as
relevant to Children’s best interests. Paternal Grandparents challenge this
evidentiary ruling in their third issue on appeal.
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Paternal Grandmother owned a daycare which she operated out of her
home. Children were enrolled in the daycare when Father was at work
during his periods of physical custody (when Father and Mother had split
custody). Father paid Paternal Grandmother approximately $14.00 or
$15.00 each week as his “co-pay” for the daycare services. Paternal
Grandmother said Father paid her to babysit K.A.T. even when Mother had
been living with Paternal Grandmother and W.B.
Paternal Grandmother intervened with the adoption proceedings
because she does not want Mother’s Husband to adopt Children. Paternal
Grandmother said Mother’s Husband uses military-style discipline with
Children. Paternal Grandmother also expressed concerns that Mother’s
Husband is racist, based on his Facebook posts related to “racial stuff and
Nazi stuff.”11
Paternal Grandmother requested the court to enlarge Paternal
Grandparents’ periods of partial physical custody under the interim custody
order. Paternal Grandmother sought three weekends each in the fall and
spring to occur in Erie County so that Children’s extended family can see
Children. Paternal Grandmother suggested the parties could meet at a half-
way point to exchange custody. Paternal Grandmother also sought two
weeks’ custody in June, July, and August. Paternal Grandmother explained
____________________________________________
11
The Facebook rants were keenly distressing to Paternal Grandmother
because W.B. is African-American.
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that she has an amicable relationship with Paternal Grandfather, and they
agreed that during Paternal Grandparents’ periods of partial physical
custody, Children will stay overnight at Paternal Grandmother and W.B.’s
home; Paternal Grandfather will see Children during the daytime.
Paternal Grandfather testified, inter alia, as follows.12 Paternal
Grandfather has a good relationship with Paternal Grandmother. Paternal
Grandfather goes to Paternal Grandmother’s house during the court-ordered
timeframe for Skype calls with Children. Paternal Grandfather echoed
Paternal Grandmother’s testimony regarding the successful first visit with
Children under the interim custody order. Paternal Grandfather said
Children remembered him when Paternal Grandfather first saw them at the
arcade. Paternal Grandfather had a great interaction with Children at the
Christmas visit as well. Children asked Paternal Grandfather to teach them
guitar. Paternal Grandfather admitted he had a problem with alcohol abuse
in the past that worsened after Father’s death. Paternal Grandfather
currently attends Alcoholics Anonymous meetings twice each week and does
not consume alcohol. Paternal Grandfather last consumed alcohol on
December 21, 2013. When confronted with a recent picture of himself
holding a beverage can, Paternal Grandfather described the beverage
____________________________________________
12
(See N.T., 2/10/14, at 75-93; R.R. at 41a-50a.)
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pictured as a “Genny NA”; the “NA” stands for non-alcoholic.13 Paternal
Grandfather smokes cigarettes, but he does not do so in front of or around
Children.
Paternal Grandfather is unemployed due to a 1996 work-related oil
field injury that required multiple surgeries. Paternal Grandfather currently
collects social security disability and has no residual effects from the injury
which would impair his ability to care for Children. Paternal Grandfather
discussed a custody schedule with Paternal Grandmother and echoed
Paternal Grandmother’s request for additional time with Children. Paternal
Grandfather confirmed Paternal Grandmother’s statement that Children
would sleep at Paternal Grandmother and W.B.’s home during Paternal
Grandparents’ periods of partial physical custody. Paternal Grandfather
indicated that he will travel with Paternal Grandmother to York County to
visit Children if the court permits Paternal Grandparents to exercise partial
physical custody; they will obtain separate rooms in the same hotel.
Paternal Grandfather indicated he did not call Mother to speak with
Children while they were in Hawaii because Mother threatened to disconnect
her phone and disappear with Children if anyone from Father’s family
contacted her. Paternal Grandfather said Father did not disclose Mother’s
phone number to his family members in fear of losing Children. Paternal
____________________________________________
13
The Genesee Brewing Company website confirms that “Genny NA” is a
non-alcoholic beer. See http://www.geneseebeer.com/beer/genesee-na/.
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Grandfather asked Maternal Grandmother for Mother’s address, but Maternal
Grandmother would not disclose it. Maternal Grandmother gave Paternal
Grandfather a ride home once. Maternal Grandmother asked where Father
was and told Paternal Grandfather that she knew where Children were
residing. Father happened to be at Paternal Grandfather’s home at that
moment. Father then had a discussion with Maternal Grandmother outside
of Paternal Grandfather’s presence, after which Father left Paternal
Grandfather’s home with Maternal Grandmother to see Children.14
Laurie Rogan, the first private investigator Paternal Grandmother
hired, testified via telephone, inter alia, as follows.15 Paternal Grandmother
hired her in March 2013 to locate Mother and Children. Ms. Rogan’s initial
investigation led her to believe Mother and Children were residing in
Wisconsin. Paternal Grandmother subsequently hired a private investigator
in Wisconsin, who determined that Mother and Children had lived there but
moved. Ms. Rogan subsequently sent a United States Postal Service
ancillary service request to obtain Mother’s forwarding address, which
provided Mother’s current location in York County, Pennsylvania.
____________________________________________
14
Paternal Grandfather did not elaborate on the details of this event, but
additional testimony at trial indicated that Father’s interaction with Maternal
Grandmother took place while Mother was living with Children in Clymer,
New York, shortly before she moved to Wisconsin in August 2012.
15
(See N.T., 2/10/14, at 94-105; R.R. at 51a-56a.)
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Children’s Uncle testified, inter alia, as follows.16 Children’s Uncle
offered to fix Mother’s computer for no charge so the Skype visual
technology would work. During Children’s visit over the Christmas holiday,
Children recognized Children’s Uncle and jumped into his arms. Children’s
Uncle played guitar with Children, and they built toys. Children’s Uncle
observed that Children seemed very happy during their visit with Father’s
family over Christmas. Children’s Uncle did not contact Mother when she
lived in Hawaii with Children because Father told him that if anyone from his
family were to call Mother, she would hang up the phone. Children’s Uncle
has attempted to contact Mother on Facebook in the past, but he cannot find
her name; so Children’s Uncle believes Mother “blocked” him.
W.B. testified, inter alia, as follows.17 W.B. is Paternal Grandmother’s
significant other. W.B. has known Children since they were babies; Children
call W.B. “poppy.” W.B. loves Children as if they are his biological
grandchildren; W.B. gets along very well with Children. Mother lived with
K.A.T. in Paternal Grandmother and W.B.’s home. W.B. and Mother were
mostly friendly during that timeframe.
In June 2010, the Commonwealth charged W.B. with harassment due
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16
(See id. at 105-116; R.R. at 56a-61a.)
17
(Id. at 116-135; R.R. at 61a-71a.)
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to a physical altercation with a neighbor;18 the neighbor had pulled into
W.B.’s driveway, continually revved his engine, and refused to exit W.B.’s
property. The Commonwealth also charged the neighbor in relation to the
incident. The neighbor no longer lives in W.B.’s neighborhood. W.B. did not
recall a charge against him for trespass by a motor vehicle.
W.B. is currently disabled due to multiple degenerative discs. W.B.
receives social security disability. W.B. does not drink alcohol.
W.B. attended the first visit between Paternal Grandparents and
Children under the interim custody order. Children remembered W.B. and
called him “poppy.” The second visit with Children under the interim
custody order took place on September 28, 2013, at a park. W.B. also
attended that visit and played tag with Children, at great physical cost. At
the Christmas visit at Paternal Grandmother and W.B.’s home, Children were
excited and appeared to have lots of fun. Children made Mother pictures of
reindeer as a Christmas gift.
W.B. denied he smoked marijuana in his home when Mother lived
there. W.B. also denied driving by Mother’s place of employment after
Mother had moved out of his home. Following W.B.’s testimony, Paternal
Grandparents rested their case.
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18
Counsel for Paternal Grandparents objected to testimony concerning this
harassment charge, but the court overruled the objection as relevant to
Children’s best interests.
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Mother testified, inter alia, as follows.19 Mother moved out of Maternal
Grandmother’s home in December 2007 and moved into Paternal
Grandmother and W.B.’s home at that time. Mother lived with Paternal
Grandmother and W.B. with K.A.T. until December 2008. Mother’s
relationship with Paternal Grandmother was good at first. Over the course
of Mother’s stay at Paternal Grandmother and W.B.’s home, Mother’s
relationship with Paternal Grandmother worsened. Mother felt like nothing
she did was good enough while living in Paternal Grandmother’s home.
Mother said Paternal Grandmother had strict rules. For example, Paternal
Grandmother would not allow Mother to talk on the phone or go to the
grocery store without Paternal Grandmother’s permission. Mother claimed
Paternal Grandmother told Mother that if she wanted to move out, Mother
would have to leave K.A.T. with Paternal Grandmother and W.B.
Mother conceded that she let Paternal Grandmother watch K.A.T. while
Mother worked; Mother enrolled K.A.T. in Paternal Grandmother’s home
daycare. Mother said she paid Paternal Grandmother for her daycare
services using government assistance. Mother paid Paternal Grandmother
every other week; Father paid Paternal Grandmother on the alternating
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19
(Id. at 136-209; R.R. at 71a-108a.)
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weeks.20 Mother claimed Paternal Grandmother forced her to commit
welfare fraud; Mother alleged she ultimately had to repay the government as
a result.21
Mother claimed she also had difficulties with W.B. while living in his
home. Mother said she initially liked W.B. but is now “terrified” of him.
Mother observed W.B. smoke marijuana in the home. Mother claimed she
once overheard W.B. talking about a drug deal, and W.B. threatened to kill
Mother if she told anyone what she had heard. Mother said she could not
escape from Paternal Grandmother and W.B.’s home because they allegedly
had video surveillance around the home and trained guard dogs.
When confronted with the letters Mother wrote to Paternal
Grandmother and W.B. while living in their home, Mother claimed she was
grateful to have a roof over her head. Mother testified: “I know how to
count my blessings regardless of how bad something can be, and I did not
want to make [Paternal Grandmother and W.B.] mad.” (N.T., 2/10/14, at
182; R.R. at 94a).
Mother said she had an okay relationship with Paternal Grandfather.
According to Mother, Paternal Grandfather drank a lot.
____________________________________________
20
Mother claimed she had receipts for each payment she made to Paternal
Grandmother, but she did not present those receipts at trial.
21
Mother presented no evidence at trial to substantiate these allegations.
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Mother testified that she attempted to contact Father at basic training
to inform him she planned to move out of Paternal Grandmother and W.B.’s
home with K.A.T. Mother’s attempts to reach Father at basic training were
unsuccessful. Mother left in the middle of the night in December 2008 and
moved in with a co-worker with K.A.T.; Mother was pregnant with K.W.R. at
that time. Father returned home from basic training for a break around
January 2009. Mother met with Father at that time and brought K.A.T. to
their meeting. Mother claimed Father “kidnapped” K.A.T. for a week and
refused to return K.A.T. to Mother’s care until Mother’s relative threatened
Father that he would lose his military career if he did not return K.A.T.
Mother admitted she did not report the alleged kidnapping to any
authorities.
In early 2009, Mother and Father split physical custody of K.A.T. on a
50/50 basis. Mother gave birth to K.W.R. in March 2009. Once K.W.R.
reached six months’ old, Mother and Father split physical custody of K.W.R.
on a 50/50 basis as well. Mother said Father did not utilize all of his
custodial time with Children under the shared custody arrangement. Mother
conceded that Paternal Grandparents might have spent time with Children
during Father’s periods of physical custody, though she was uncertain where
Father lived at this time.
Mother began a relationship with D.S. in April 2009, and they married
in May 2010. Mother admitted that Father took custody of Children for two
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weeks while she was in Hawaii to marry.22 Mother and Father agreed that
Mother could take Children to live in Hawaii with Mother and Mother’s
Husband if Mother agreed to release Father from his child support obligation.
The agreement provided that Father would get custody of Children during
the summertime, holidays, and have unlimited communication with Children
through phone calls and social media. Mother also agreed the custody
arrangement would revert to 50/50 custody if Mother moved back to Erie
County.
Mother moved with Children and Mother’s Husband to Hawaii in
September 2010. Mother said Father called only once every four to six
months while she lived in Hawaii with Children. Father did not send Children
cards while they lived in Hawaii. Mother admitted she told Father not to
disclose her phone number to others, but she did not recall threatening to
run away with Children if Father gave out her number. Mother said Father
did not utilize all of his custody time with Children in the summer because
Father anticipated deployment overseas.
Mother, Children, and Mother’s Husband relocated from Hawaii to
Clymer, New York in November 2011. Mother stayed in New York until
August 2012, when she moved with Children and Mother’s Husband to
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22
Counsel for Paternal Grandparents suggested that Father took custody of
Children for six weeks while Mother was in Hawaii to marry; Mother denied
this proposition.
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Wisconsin.23 Mother claimed she told Father about her return to New York,
and she permitted Father to see Children. Mother said her stay in New York
was only temporary, to use up Mother’s Husband’s vacation time from the
Army. Mother admitted she told Husband she was only in New York on
vacation. Mother conceded she did not immediately tell Father she was back
from Hawaii for good. Mother denied that she was hiding from Father or
Father’s family while she moved around the country.
Mother, Children, and Mother’s Husband moved to Wisconsin in August
2012, when Mother’s Husband started school. After the move to Wisconsin,
Mother claimed she had problems with her phone which necessitated a new
phone number. Mother did not tell Father her new phone number. Mother
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23
Mother admitted she was angry with Maternal Grandmother for bringing
Father to see Children in New York the night before Mother and Children
moved to Wisconsin. Counsel for Paternal Grandparents had the following
exchange with Mother regarding this incident:
[Counsel]: [I]f I ask [Maternal Grandmother] whether
she brought [Father] to Clymer, New York, because she
thought it was wrong for you to be hiding these kids from
him, she’s going to tell me that I’m full of crap and that
didn’t happen?
[Mother]: Good luck. My mom is a pistol. Good luck.
[Counsel]: You were angry with your mother, weren’t
you, because of what she did?
[Mother]: Yeah.
(N.T., 2/10/14, at 192; R.R. at 99a).
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claimed Father still could have contacted Mother through Facebook, if he
wanted to reach her. When Father died in the automobile accident in
February 2013, Mother was living with Children and Mother’s Husband in
Wisconsin. Mother did not attend the funeral because of the cost of travel.
Additionally, Mother claimed Children did not really know Father and
regarded Father as the “guy with the cool tattoo.” After Father’s death,
some of his family reached out to Mother’s Husband through Facebook,
asking to see Children. Mother denied their request, stating Father’s family
had not previously made any effort to see Children. Paternal Grandmother
tried to contact Mother to discuss Father’s life insurance policy, but Mother
did not want to work with Paternal Grandmother.
Mother testified that Children’s behavior has changed since entry of
the interim custody order. Mother claimed Children now need counseling
because they are wetting the bed and having nightmares. Mother insisted
Children’s emotional issues did not begin until after entry of the interim
custody order. Mother said Children hate the Skype calls, and the calls are
terrible. Mother contended Children have nightmares because of the Skype
calls. Mother tried to fix her phone to allow use of the visual technology, but
her efforts were unsuccessful. Mother testified that Children’s first visit with
Paternal Grandparents under the interim custody order was terrible.
Children did not recognize Paternal Grandparents and Children hid behind
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Mother’s leg when they saw Paternal Grandparents. Mother claimed she had
bruises on her leg from Children squeezing her so tight.
Mother would not permit Children to play with the action figure toys
Paternal Grandparents sent Children because Mother said that the toys
promote violence. Mother threw away candy Paternal Grandparents sent
Children because Mother thinks candy is bad for Children. Mother
complained Children returned home, from the Christmas visit with Paternal
Grandparents, smelling like cigarettes and were sick and exhausted after
this visit.
Mother denied Paternal Grandmother’s request to speak with Children
on the phone outside of the court-ordered Skype timeframe because Mother
said Children are too busy. Children participate in martial arts classes two to
four days each week. Mother does not want Paternal Grandparents to have
any custody of Children whatsoever because she thinks Paternal
Grandparents are horrible people. Mother admitted that she once filed an
abuse report against Paternal Grandmother, which Children and Youth
Services ruled “unfounded.”
Mother’s Husband testified, inter alia, as follows.24 Mother’s Husband
has a good relationship with Children. Prior to Father’s death, Mother’s
Husband was on good terms with Father. Mother’s Husband gave his phone
____________________________________________
24
(Id. at 210-229; R.R. at 108a-118a.)
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J-A10001-15
number to Father in case Father was unable to reach Mother. Mother’s
Husband said Father did not exercise his holiday time with Children while
they lived in Hawaii. Father called Children only five or six times while they
were in Hawaii.
Mother’s Husband said that during Children’s first visit with Paternal
Grandparents under the interim custody order, Children seemed
uncomfortable. Mother’s Husband denied that Children ran into Paternal
Grandparents’ arms at the first visit. Children called Paternal Grandmother
“nana” only after she repeated that word to Children multiple times.
Children are not excited to participate in the Skype calls. Mother’s Husband
has tried to fix the visual technology for the Skype calls but to no avail.
Mother’s Husband initially denied posting racist and Nazi-type
comments on Facebook. Mother’s Husband said he is not a racist or a Nazi.
Upon further questioning, Mother’s Husband admitted he posted a response
to a friend’s comment on Facebook on August 11, 2011, stating: “We need
to start a fucking chapter of the KKK or Nazi or something. I refuse to live
in a town with anything but whites.” (Id. at 227; R.R. at 117a.) Mother’s
Husband said this post “was a joke because [my friend was talking] about all
of the niggers moving here because there is lots of them.” (Id. at 227-28;
R.R. at 117a.) Mother’s Husband said he was not serious. Mother’s
Husband admitted he had a conversation with a friend on Facebook on
February 15, 2013, in which Mother’s Husband said: “I want to go nigger
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hunting.” (Id. at 224; R.R. at 115a.) Mother’s Husband defended this
comment as follows: “…I was angry. But nigger by definition is an ignorant
person. It does not mean anybody of color.” (Id. at 228; R.R. at 117a.)
Mother’s Husband said he has African-American friends. Mother’s
Husband could not recall posting a picture of Hitler to his Facebook page,
stating: “Hail to Hitler. We should all be like him.” (Id.) Mother’s Husband
explained that when he was in the Army he would shave his head and people
would call him Hitler because his last name is German, so if Mother’s
Husband did post a picture of Hitler, it was meant as a joke. Mother’s
Husband conceded that on October 18, 2013, he posted: “…I won’t stop until
they get nothing because that’s what they deserve[,]” in reference to
Paternal Grandparents and the current custody action. (Id. at 226; R.R. at
116a.) Mother’s Husband’s Facebook post referencing Paternal
Grandparents continued that during Paternal Grandparents’ last visit with
Children, Mother’s Husband believed Paternal Grandparents were high on
pain pills.
Mother’s Husband said he disciplines Children using exercise. Mother’s
Husband makes Children do squats, leg lifts, and other forms of exercise as
punishment. Children learn a similar discipline in their Hapkido marital arts
classes. Mother’s Husband said Mother did not throw away the action figure
toys Paternal Grandparents sent Children; Mother stored the action figures
in the laundry room because Mother and Mother’s Husband do not allow
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Children to play with toys that promote violence. Mother’s Husband said
Children’s behavior has changed since the start of the custody proceedings.
Children sleep in Mother and Mother’s Husband bed more frequently and
have nightmares. Children are currently in counseling.
Mother’s Husband tried to adopt Children. Paternal Grandparents
intervened, which caused the court to vacate the adoption decree. Mother’s
Husband still plans to adopt Children after these custody proceedings are
resolved.
Mr. Dennis Lagan is a private investigator whom Mother hired for
purposes of the custody proceedings. Mr. Lagan testified, inter alia, as
follows.25 Mother hired Mr. Lagan to conduct background investigations on
Paternal Grandparents, W.B., and any other relatives with whom Children
might have contact.26 Mr. Lagan discovered the following criminal records.
In October 2009, the Commonwealth charged Paternal Grandmother with
theft of services; Paternal Grandmother pled guilty in November 2009, paid
a fine, $250.00 in restitution, and costs. In 2012, Paternal Grandmother
pled guilty to a traffic violation. Later in 2012, the Commonwealth charged
____________________________________________
25
(Id. at 229-241; R.R. at 118a-124a.)
26
Counsel for Paternal Grandparents objected to testimony/evidence
concerning criminal records, but the court overruled the objection as
relevant to Children’s best interests.
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Paternal Grandmother with bad checks; the disposition was guilty.27 Also in
2012, the Commonwealth charged Paternal Grandmother with operating a
vehicle without required financial responsibility; that charge was dismissed.
In 2013, Paternal Grandmother pled guilty to speeding (71 mph in a 55 mph
zone).
Mr. Lagan did not discover any criminal history, bankruptcies, tax
liens, or judgments against Paternal Grandfather. Mr. Lagan found one child
support action against Paternal Grandfather from 1998.
Mr. Lagan discovered that the Commonwealth charged W.B. with
trespass by a motor vehicle in 2008; W.B. pled guilty to this offense and
paid a fine and costs. In 2010, the Commonwealth charged W.B. with
harassment due to a physical altercation; W.B. pled guilty to this offense in
July 2010 and paid a fine and costs.
____________________________________________
27
Mr. Lagan shared no factual basis for the theft of services, traffic violation,
and bad checks convictions. Mr. Lagan also could not determine whether
the convictions were summary offenses or misdemeanor offenses.
Additionally, counsel for Paternal Grandparents confronted Mr. Lagan with a
print-out from the Pennsylvania State Police dated May 15, 2012, which
showed that Paternal Grandmother had no criminal record. Mr. Lagan
explained that the Pennsylvania State Police records are generally based on
fingerprinting; Mr. Lagan suggested Paternal Grandmother might not have
been fingerprinted for her crimes. Mr. Lagan indicated that the Pennsylvania
State Police records might be different than the records accessed through
the Unified Judicial System Portal. Neither the Pennsylvania State Police
record nor the Unified Judicial System Portal record pertaining to Paternal
Grandmother’s convictions is part of the certified record on appeal.
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Maternal Grandmother testified, inter alia, as follows.28 Maternal
Grandmother’s relationship with Mother is currently fine, though they have
had their “ups and downs” over the years. Maternal Grandmother would not
permit Mother and Father to live together when Mother gave birth to K.A.T.
because they were unmarried, so Mother moved in with Father at Paternal
Grandmother and W.B.’s home. Mother became distraught living with
Paternal Grandmother and W.B., so Mother moved out.
When Mother and Father shared custody of Children, Maternal
Grandmother described the custodial arrangement as “horrible.” Maternal
Grandmother said Children had no set routine because they were always
back and forth between homes. Maternal Grandmother said Father did not
always show up for his periods of physical custody.
Maternal Grandmother said she drove Father to see Children in New
York on March 20, 2012, but Father did not get out of the car. Maternal
Grandmother indicated Father already knew Mother was living with Children
in New York when this incident took place. Maternal Grandmother admitted
Mother was upset that Maternal Grandmother brought him to see Children
on this date. Maternal Grandmother said she spoke to Father again on
August 18, 2012 and informed Father that Mother and Mother’s Husband
planned to move to Wisconsin with Children. Maternal Grandmother told
____________________________________________
28
(Id. at 241-257; R.R. at 124a-132a.)
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Father it might be the last opportunity to see Children for a while, but Father
said he did not want to see Children.29 Maternal Grandmother denied that
anyone from Father’s family had ever contacted her, asking for Mother’s
phone number or address. Maternal Grandmother believes Mother’s
Husband is a great man who is good with Children and is giving Children a
good life.
Mr. Wilson L. Richardson teaches Children Hapkido,30 a martial arts
class, two to three days each week. Mr. Richardson testified, inter alia, as
follows.31 Mr. Richardson said Mother and Mother’s Husband attend the
classes and watch Children more frequently than most parents do. Children
are doing well in the class.
Keiton Lyle Westfall testified, inter alia, as follows.32 Mr. Westfall is
Father’s second cousin. Mr. Westfall and Father did not spend much time
together, but they always conversed when they saw each other. In speaking
____________________________________________
29
There is some inconsistency in the testimony as to whether Maternal
Grandmother drove Father to see Children on March 20, 2012, or on August
18, 2012, shortly before Mother and Children moved to Wisconsin with
Mother’s Husband.
30
Hapkido is a self-defense based curriculum that also teaches Children the
discipline of exercise.
31
(Id. at 257-261; R.R. at 132a-134a.)
32
(Id. at 262-265; R.R. at 134a-136a.)
- 29 -
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with Father, Mr. Westfall did not recall Father ever being distraught about
Children or discussing a search for Children.
After Mr. Westfall’s testimony, Mother rested her case. The court
instructed counsel to address in closing arguments the statutory factors
relating to grandparent custodial rights as well as the two or three year
period in which Paternal Grandparents had no contact with Children.
Regarding the lack of contact, the court stated: “And, of course, the effect
of—assuming parent withholds the children from grandparents, and frankly it
makes no difference whether it is hiding them or just simply saying you can’t
see them, it is the time lag that I’m concerned about.” (Id. at 267; R.R. at
137a.) The court explained that it planned to make a decision immediately
following closing arguments so that the parties could leave the courtroom
informed of the result.
Following closing argument, the court explained its custody decision as
follows:
Now, before we had this most recent legislation, the test
was actually pretty direct and somewhat simple. Upon the
death of a child, the parents of the deceased child may
seek reasonable partial custody to an unmarried child upon
a finding that partial custody would be in the best interest
of the child and would not interfere with the parent-child
relationship.
Court decisions instruct that the court must consider the
amount of personal contact between the parents, the
grandparents, and the child or children.
The purpose of allowing partial custody under this is not to
replace a parent with a grandparent as a primary
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caregiver. And essentially what the cases were saying is
natural biological parent trumps grandparent for primary
physical custody, period.
But as it relates to partial physical custody, that was to
continue a healthy relationship with grandparents if that
was in the child’s best interest and would not interfere with
the parent’s relationship. And the statute was then
apparently replaced by this new one with these factors.
And I’m sorry. I have to say this. When I started
reviewing the code when I got this assignment, my first
reaction was the legislature has embarked upon an
unconstitutional encroachment of the court’s authority.
They are telling us what we must consider to make a
decision.
I’m not sure—the example came to mind is for example if
the legislature said we’re going to control fat people. So
anybody who makes a personal injury claim in an
automobile accident case, you’ve got to consider whether
they are fat or not. Now what the heck does that have to
do with somebody’s injuries? And some of the factors, I’m
sorry, that I have reviewed I’m shaking my head saying
what the heck does this have to do with the best interest
of the children? Oh, it controls the conduct of the adults
because the adults can’t act like adults. So we’ll dictate
how the adults will act and call it in the best interest of the
children.
I’m tempted to just rule, [Paternal Grandparents’ counsel],
because I know you are a competent, qualified, good
practitioner in the area of family law that this is all
unconstitutional because it infringes upon my authority to
make a decision. Any I may find the case that I will do
that.
But nevertheless, the legislature has enacted these factors.
You addressed them. Now, as [Mother’s counsel] pointed
out, there is no testimony on some of the stuff because it
doesn’t exist. All right. So we pass over those and we
look at the factors and we do so with the understanding
that grandparents have the burden of proof in these areas.
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There is a curious circumstance that comes to mind. If a
biological parent—I’m not saying that’s the case here. But
if a biological parent intentionally creates conflict and
estrangement with that biological parent’s former in-laws,
do they get punished for what they did by saying we’re
going to ignore the conflict because biological parent
created it and we’re still going to give partial physical
custody to grandparents knowing there is an irreconcilable
conflict and then say you live with it? I don’t think that is
in the best interest of the children.
Which brings me back to finally all well and good, here are
the factors you[,] that you consider. How do you consider
them? Who caused what? That is part of the equation.
That is part of the discussion. I guess as I get more
educated in this area, I’ll answer that question for myself.
But the facts are that I would find from the testimony
there is contact between [Paternal Grandmother] and
there has been literally no contact with [Paternal
Grandfather]. And he’s—I don’t mean to be disrespectful
to you. You’re sort of the passenger sitting in the car and
your former wife is driving it. And in whichever direction
she ends, that’s where you’re going. That’s another
circumstance.
We have divorced grandparents involved with significant
others living in separate households, both of them are
Plaintiffs. And yet they solved the apparent problem of
splitting time with them by their own agreement that if
they get partial physical custody, the kids are going to stay
overnight with [P]aternal [G]randmother and [P]aternal
[G]randfather will come and pick them up and be with
them during the day while [Paternal Grandmother] works.
That doesn’t sound like it has…much court supervision at
all, but nobody is asking me to get involved in that
because they’ve agreed. So I don’t have the dilemma of
saying let me figure out…how to split time with
grandfather, grandmother, Skype calls. He goes over to
her place, and they participate in these Skype calls.
That’s another thing. I’m sorry. This micromanaging
contacts over the phone and Skype and all that stuff, you
just can’t be all things to all people. And from the
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evidence, I do accept [M]other’s testimony that these
Skype calls are upsetting. They are an interruption of their
routine. And I can appreciate that.
How do you have a conversation with a 4-year-old? Hi.
How are you? Tell me what you did today. What do you
think of the Middle East situation? Four-year-olds don’t
have conversations with people in most instances. They
report. I played. I like the puzzle. I like my bat. I like
the ball. I watched the Muppets. They are not on [TV]
anymore or whatever, whoever.
But 6-year-olds are starting to have conversations. They
are going to school. They are in kindergarten, first grade.
This Skype technology, I heard the evidence. And I heard,
oh yeah, we’ll get you the right device and this will all
work. Mom refused that. But then she doesn’t apparently
know how to use her phone to make it work. But then I
heard testimony that it doesn’t work for group calls with
phones.
And I will tell you what my concern was when I heard all of
that testimony and there was I believe you said you could
get up to ten people on a call if you’re on a computer.
Ma’am, in my judgment, that is overload. You get ten
people yammering at a 4-year-old, all visual, all seeing, all
that. To me, I can’t comprehend how that would impact a
4-year-old.[33]
All right. Where am I? Well, I’m analyzing the evidence in
front of me. There is no question there is a conflict
between the two. I’m calling them households even
though I know [Paternal Grandparents have] two
households. Conflict between the households.
One thing that I will tell you struck me and was concerning
to me, [M]other’s current husband has been described as a
____________________________________________
33
No testimony established that Paternal Grandparents placed or intended
to place ten people on the Skype calls while the interim custody order was in
effect. Rather, testimony explained that the “group call” function on Skype
allows up to ten people to participate on a call.
- 33 -
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good father, doing a good job, accepting of these children.
And he stepped up to adopt these children and apparently,
according to evidence, had got an order allowing him to
adopt the children. And [Paternal G]randparents couldn’t
just let that go. They had to go in and undo that to get it
vacated. To what end?
And my reaction was real simple to that. They stuck their
nose in that situation and probably they should have
stayed the hell out of it. Their—I can’t say daughter-in-
law but their son’s paramour and their grandchildren are in
a stable family, legally married, doing the right thing to
adopt these boys. And [Mother’s Husband] steps up and
for whatever reasons, you undid it. I don’t believe that
could possibly be considered a best interest for your
grandchildren in any way, shape, or form.
Yes, I read the section. One notation. I do agree
[Mother’s counsel] referred [to] grandparent
considerations under the 5328 subsection, but you said as
well as the other general factors.
If I am compelled to use the factors that the legislature set
up, I’m not looking beyond what the statute says.
And the statute says grandparents factors. Fine. If I’m
told I have to use those factors, I’m not going back and
looking at general factors because I don’t think I should
anyway be compelled to.
But the bottom line is this. There is a conflict between
[Paternal G]randmother and [M]other. Who created it?
Even if I say [M]other, still is a fact. Now I don’t
necessarily believe that [M]other created the conflict.
And even if she did and her perception is wrong, what is
the old saying[,] perception becomes reality[,] is reality.
Now, what am I to do with that, say [M]other you have got
to make it up with your former paramour’s mother? Gee,
I’m sure that will work. Wait a minute, counseling. We’ll
make you spend money for counseling to heal this rift.
Well, [Paternal G]randmother is in Erie. Excuse me.
[Corry], close to Erie.—
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* * *
Corry. And [Mother] is in Hanover. How is that going to
work? Oh, let’s make everybody drive three hours to get
at a middle point and find some counselor to talk to these
people for an hour and send them back on their way. That
will give them a lot of time to think while they are driving
back and forth. That is not going to work.
So bottom line is this. Right or wrongly, I don’t believe
that the conflict between [M]other and [P]aternal
[G]randmother can be fixed. And I don’t think, therefore,
it is in the best interest to trump [M]other’s decision not to
give access to grandparents simply because grandparents
want to establish a relationship with their grandchildren. I
don’t see any need. Mother needs no help. She has a new
husband. He’s doing good by her. They are stable, adding
to their family.[34] So I’m not going to interfere with her
decision.
She is [C]hildren’s mother. And I don’t see any reason,
even considering all of these factors that I’m supposed to
think about, to conclude that [C]hildren would be better or
it would be in their best interest to be compelled to spend
regulated time with grandparents, nor for that matter have
dictated times for contact on the phone.
So having said all of that, the bottom line order is this.
ORDER
AND NOW, to wit, this 10th day of February, 2014, the
complaint for custody filed by [Paternal Grandparents] is
dismissed. We will enter no order of partial physical
custody.
* * *
____________________________________________
34
Mother was pregnant at the time of the custody trial.
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(Id. at 289-298; R.R. at 148a-152a.)35
On March 7, 2014, Paternal Grandparents timely filed a notice of
appeal and concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i). Paternal Grandparents raised four issues in their
concise statement challenging: (1) the court’s decision to sever all ties
between Children and their Paternal Grandparents’ ancestry; (2) the court’s
admission of evidence of criminal and motor vehicle offenses; (3) the court’s
failure to consider the Custody Act’s statutory factors and to conduct a
detailed analysis; and (4) the court’s exclusive focus on the conflict between
Mother and Paternal Grandparents. On March 24, 2014, the court issued a
responsive Pa.R.A.P. 1925(a) opinion. In its opinion, the court stated:
We have reviewed our Decision and feel no need presently
to elaborate further. As the issues are styled, we would
take the opportunity to offer some generalized comments
and observations. Simply put, this Judge believes that the
legislature has unduly encroached upon the judiciary and
the way Judges are to perform their responsibilities. To
state the issues of error as failing to conduct a detailed
child custody analysis as required misdirects the focus
away from the sole question of what is in the best interests
of children. …
Since it is unlikely a litigant would directly challenge “the
factors” (23 Pa.C.S. 5328), in the context of the issues
____________________________________________
35
Prior to trial, the parties had filed motions for contempt. Mother filed for
contempt, alleging Paternal Grandparents had smoked in front of Children.
Paternal Grandparents filed for contempt based on Mother’s alleged
interference with the visual capabilities of the Skype calls. The court denied
both petitions for contempt at the conclusion of trial, finding insufficient
evidence to substantiate either claim.
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styled, it is hoped this appeal may address the threshold
question[:] can the legislature do what this law purports to
do? The development of custody law, as is so with the
common-law, was unquestionably within the province of
the judiciary. An absolute preclusion from primary custody
when a parent moved in the paramour[,] evolved to a
more precise consideration of what is the effect of such a
meretricious relationship on children. While the judiciary
may have struggled with shifting social [mores], the
Courts never lost focus that the paramount question was
and always will be[,] what is in the best interest of
children.
* * *
This is not a new challenge for the Courts. When called
upon, it has been decided by the Superior Court that
legislation is not the end all be all. In considering a
natural parent’s petition to resume custody of his or her
children, the best interest of the child standard was
applicable rather than the clear necessity standard as set
out in the Juvenile Act (42 Pa.C.S.A. 6301 et seq.).
Perhaps in hindsight, this Judge should have declared
outright in this case that “the factors” would not be
considered and thus pre[v]ented the precise question
being asked now. What we did do is consider the evidence
and arguments presented by the litigants and to the best
of our human ability decide what was in the best interest
of these two boys. We do not think we were wrong in the
result or how we got there.
(Rule 1925(a) Opinion, filed March 24, 2014, at 2-5) (some internal citations
omitted).
On September 16, 2014, this Court vacated and remanded the matter,
based on the trial court’s failure to utilize the requisite statutory factors in
making its determination. Specifically, this Court instructed the trial court to
consider upon remand the sixteen general statutory “best interest” factors
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applicable when making any order of custody (see 23 Pa.C.S.A. § 5328(a))
and the three statutory custody factors pertaining to grandparents and
great-grandparents (see 23 Pa.C.S.A. § 5328(c)(1)). Based on its
disposition, this Court declined to address the merits of any of Paternal
Grandparents’ issues.
On November 6, 2014, the trial court issued its remand decision. The
trial court’s remand decision provides no facts or procedural history of the
case. The remand decision initially references the closing arguments of
counsel and incorporates by reference the court’s on-the-record discussion
at the conclusion of the custody trial. The court’s remand decision
continues, in its entirety and without any discussion of legal authority
whatsoever, as follows:
We then reference the grandparents’ factors in Section
5328(c)(1) of the Child Custody Act. We consider the
three subsections as follows: (i) none for approximately 3
years; (ii) interference would result to the parent/child
relationship as it did when grandparents intervened in a
finalized adoption by Mother’s current husband resulting in
the adoption being undone and still pending at the time of
this custody trial; (iii) awarding custody to grandparents
would not be in the best interest of the children. The
analysis however, does not end there and we continue to
consider the 16 factors set forth at pages 4-6 of the
Superior Court Opinion. We will address each factor ad
seriatum.
Factor 1: Neither party is more likely to encourage
and promote frequent and continuing contact.
Factor 2: There exists no risk of physical harm to the
children, though efforts to influence a child’s thinking may
possibly create emotional stress.
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Factor 3: Grandparents have performed no parental
duties for at least three years, while Mother has.
Factor 4: Grandparents are unnecessary to provide
stability and continuity in [Children’s] education, family life
and community life as circumstances present at trial.
Mother provides for those.
Factor 5: Grandparents (and others) are the extended
family, 5½ travel hours away. Mother’s current husband
completes the traditional family unit of husband and wife
and children. There is no evidence they need help from
any outside source.
Factor 6: There is no reason to believe [C]hildren’s
relationship is anything but good and at the time of trial a
third sibling was expected. We fail to see how
grandparents add anything to the sibling relationships.
Factor 7: There was no evidence presented as to the
well-reasoned preference of [C]hildren.
Factor 8: Not applicable.
Factor 9: Mother is more likely to maintain a loving,
stable, consistent and nurturing relationship “adequate” for
[C]hildren’s emotional needs.
Factor 10: Mother is more likely to attend to the daily,
physical, emotional, developmental, educational and
special needs of [C]hildren. Need it be stated,
Grandparents are 5½ hours away.
Factor 11: The parties [live] at least 5½ travel hours
apart.
Factor 12: While each party may have the ability to
make appropriate child-care arrangements and be
“available,” as written, we do not believe this subsection
permits us to rewrite the statute to address quality of care.
However, see factor 9.
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Factor 13: There exists a high level of conflict between
the parties, more so with [Paternal Grandmother] than
with [Paternal Grandfather]. While the parties may state a
willingness to cooperate, we are unpersuaded that there
exists the ability to cooperate.
Factor 14: While there was evidence presented about
past drug and alcohol use/abuse, adequate evidence of
present circumstances is lacking.
Factor 15: While [Paternal G]randfather may have
some difficulties getting around, there is no evidence that
any party or household member is mentally impaired or
physically incapable.
Factor 16: No other relevant factors exist of
significance.
Following then the directive to properly consider
[Children’s] best interest in light of the statutory factors,
we have done so. To answer this question we have
balanced each factor singularly and in toto in each to the
other and as each may apply to the underlying
circumstances presented. Considering then the evidence
presented as to the subject matter of each factor and
further considering the arguments of counsel, we do
conclude that it is not in the best interests of these
children to be compelled by court order to spend times of
partial physical custody with [Paternal] Grandparents. An
appropriate Order dismissing [Paternal G]randparents’
complaint follows hereinafter.
(Remand Decision, filed November 6, 2014, at 1-4). Paternal Grandparents
timely filed a notice of appeal and Rule 1925(a)(2)(i) statement on
December 5, 2014. On December 17, 2014, the trial court issued a
supplemental opinion, commenting only on its evidentiary rulings concerning
the criminal offenses of Paternal Grandmother and W.B. (See Supplemental
Rule 1925(a) Opinion, filed December 17, 2014, at 1-2.)
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Paternal Grandparents raise the following issues for our review:
WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF
DISCRETION OR AN ERROR OF LAW BY FAILING TO
PROPERLY ANALYZE THE CUSTODY FACTORS SET FORTH
IN 23 PA.C.S. § 5328(a) AND (c) OF THE CUSTODY ACT,
AS AMENDED, ON REMAND, AS DIRECTED BY THE
SUPERIOR COURT OF PENNSYLVANIA WHEN THE TRIAL
COURT MERELY ENGAGED IN A CURSORY AND
PERFUNCTORY ANALYSIS RATHER THAN THOROUGHLY
EXAMINING AND CONSIDERING ALL FACTORS AS SET
FORTH IN § 5328(a) AND (c), AND IN ACCORDANCE WITH
THE STANDARD OF WHAT IS IN CHILDREN’S BEST
INTERESTS?
WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF
DISCRETION OR AN ERROR OF LAW IN FAILING TO GRANT
PATERNAL GRANDPARENTS ANY RIGHTS OF PARTIAL
PHYSICAL CUSTODY, WHICH, IN EFFECT, CUTS CHILDREN
OFF FROM THEIR PATERNAL ANCESTRY AND IS CONTRARY
TO THE BEST INTEREST[S] OF CHILDREN AND IS IN
CONTRAVENTION OF WELL-SETTLED CASE LAW AND THE
PURPOSE OF 23 PA.C.S. § 5325?
WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF
DISCRETION OR AN ERROR OF LAW BY REPEATEDLY
ALLOWING THE ADMISSION OF EVIDENCE (OVER
OBJECTIONS) OF CRIMINAL AND MOTOR VEHICLE
OFFENSES NOT ENUMERATED IN 23 PA.C.S. § 5329 AND
WHICH WERE NOT OTHERWISE ADMISSIBLE UNDER THE
RULES OF EVIDENCE?
(Paternal Grandparents’ Brief at 4).
For purposes of disposition, we combine Paternal Grandparents’ first
and second issues. Paternal Grandparents argue the legislature recognized
a beneficial relationship between children and their grandparents when it
gave grandparents standing under 23 Pa.C.S.A. § 5325, in the event of a
parent’s death. Paternal Grandparents assert the trial court wholly ignored
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the importance of their role in Children’s lives. Paternal Grandparents
contend the court’s custody decision effectively severed all ancestral ties
between Children and Father’s family because Mother and Mother’s Husband
have made clear they will not permit Paternal Grandparents to have any
contact or communication with Children in the future.
Paternal Grandparents also argue that the court’s decision following
remand fails to set forth a detailed analysis to support the court’s decision to
deny Paternal Grandparents any contact with Children. With respect to the
trial court’s initial consideration of the grandparent factors (see 23 Pa.C.S.A.
§ 5328(c)(1)), under Section 5328(c)(1)(i) (amount of contact between child
and grandparent prior to filing of custody action), Paternal Grandparents
assert the court merely stated Paternal Grandparents have not had contact
with Children for approximately three years. Paternal Grandparents aver the
court ignored their substantial contact with Children prior to the custody
action, where K.A.T. resided with Paternal Grandmother and W.B. for one
year and Paternal Grandparents provided care for both Children when
Mother and Father shared physical custody after their separation in 2009.
Paternal Grandparents claim their lack of contact with Children in recent
years stemmed from Mother’s repeated moves and refusal to inform Paternal
Grandparents of her contact information and whereabouts. Paternal
Grandparents stress how they needed to hire a private investigator to locate
Mother and Children after Father’s death.
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Under Section 5328(c)(1)(ii) (whether custody award interferes with
parent-child relationship), Paternal Grandparents complain the trial court
improperly focused on Paternal Grandparents’ intervention with the adoption
proceedings by Mother’s Husband. Paternal Grandparents insist the trial
court blamed them for asserting their rights under the adoption statute to
provide testimony regarding whether Mother’s Husband would be an
appropriate adoptive parent. Paternal Grandparents maintain that Mother’s
and Mother’s Husband’s failure to notify Paternal Grandparents about the
adoption proceedings (which resulted in the court vacating the adoption
decree) deprived Paternal Grandparents of an opportunity to participate in
the determination of whether adoption by Mother’s Husband would serve
Children’s best interests. Paternal Grandparents suggest their intervention
in the adoption proceedings was especially necessary in light of Mother’s
Husband’s inflammatory racist comments on Facebook.
Regarding Section 5328(c)(1)(iii) (whether custody award is in best
interest of child), Paternal Grandparents recite the court’s entire analysis of
this factor as follows: “awarding custody to grandparents would not be in the
best interest of children.” Paternal Grandparents contend the “best interest
of the child” determination is the polestar criterion in custody cases, and the
court’s bare assertion is woefully inadequate.
Paternal Grandparents proclaim the court was also required to analyze
all of the sixteen statutory custody factors under Section 5328(a). Paternal
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Grandparents highlight the trial court’s initial remarks on the record that it
would not consider the sixteen custody factors and would consider only the
three factors related to grandparents seeking custody. When compelled to
do so by this Court, the trial court mentioned the sixteen factors in its
remand decision but provided no detail or analysis of the factors, and no
references to the record. Paternal Grandparents maintain the court’s
decision after remand falls far short of a thorough analysis.
Paternal Grandparents further suggest the record does not support the
court’s conclusory statements as to certain factors.36 For example, Paternal
Grandparents suggest that factor one (which party is more likely to
encourage and permit frequent and continuing contact between child and
another party) actually favors Paternal Grandparents, as Mother admitted
she will not permit Paternal Grandparents to see Children; the court
erroneously concluded this factor favored neither party. Regarding factor
three (parental duties performed by each party on behalf of child), the court
concluded Paternal Grandparents performed no parental duties for three
years, but Paternal Grandparents maintain the court ignored Mother’s
____________________________________________
36
The court determined there was no evidence presented relevant to the
court’s analysis of factor 2 (present and past abuse committed by party or
member of party’s household), factor 7 (well-reasoned preference of child),
factor 14 (history of drug or alcohol abuse of party or member of party’s
household), and factor 15 (mental and physical condition of party or
member of party’s household). The court did not mention factor 2.1 (related
to child abuse and involvement with protective services) in its decision
following remand.
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repeated moves and efforts to exclude Paternal Grandparents from
Children’s lives as well as Paternal Grandparents’ efforts to locate Mother
and Children. As to factor four (need for stability and continuity in child’s
education, family life and community life), the court said Paternal
Grandparents were “unnecessary” for Children’s stability and continuity.
Paternal Grandparents aver the amount of custodial time awarded to
Paternal Grandparents under the interim custody order does not disrupt
Children’s lives, and the court failed to consider any benefit to Paternal
Grandparents’ involvement in Children’s lives.
Paternal Grandparents contend the court also ignored evidence of
Children’s extended family on Father’s side, who reside in Erie County
(relative to factor five), when the court simply concluded: “Mother’s current
husband completes the traditional family unit of husband and wife and
children. There is no evidence they need help from any outside source.”
Paternal Grandparents explain the court indicated that Paternal
Grandparents add nothing to Children’s sibling relationships (relative to
factor six); Paternal Grandparents submit this factor is inapplicable in the
context of a case where grandparents seek only partial physical custody.
Regarding factor eight (attempts of parent to turn child against other
parent), the court concluded this factor was inapplicable, but Paternal
Grandparents suggest the record is replete with examples of Mother’s efforts
to turn Children against them by excluding Paternal Grandparents from
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Children’s lives. With respect to factor nine (which party is more likely to
maintain loving, stable, consistent and nurturing relationship with child
adequate for child’s emotional needs), Paternal Grandparents contend both
parties demonstrated adequate parenting skills, but the court inexplicitly
determined factor nine favored Mother, without consideration of Paternal
Grandparents’ loving relationship with Children. In deliberation of factor ten
(which party is more likely to attend to daily physical, emotional,
developmental, educational and special needs of child), Paternal
Grandparents complain the court failed to consider Paternal Grandparents’
ability to care for Children during their periods of partial physical custody.
Instead, the court focused on the distance between the parties. Paternal
Grandparents claim the trial court impermissibly relied primarily on the
distance between the parties in its discussion of three of the sixteen
factors,37 when distance is relevant only to factor eleven. Even as to factor
eleven (proximity of residences of parties), Paternal Grandparents insist
their request for partial physical custody as dictated under the interim
custody order is reasonable in light of the distance between the parties.
Concerning factor twelve (each party’s availability to care for child or
ability to make appropriate child-care arrangements), Paternal Grandparents
claim this factor is neutral because Paternal Grandparents will be available to
____________________________________________
37
The court mentioned the distance between the parties’ residences in its
consideration of factors five, ten, and eleven.
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care for Children during their periods of partial physical custody and have
already agreed to a joint schedule during those periods.38 Paternal
Grandparents aver the court erroneously concluded that no party to this
custody action has the ability to cooperate (relative to factor thirteen). To
the contrary, Paternal Grandparents declare that they have been cooperative
with Mother, but Mother remains uncooperative with Paternal Grandparents,
in an effort to keep them away from Children.
Regarding factor sixteen (any other relevant factor), the court said no
other relevant factors of significance exist. Paternal Grandparents submit
the court ignored, inter alia, Mother’s unsubstantiated allegations that
Paternal Grandparents’ conduct during the interim custody order caused
Children to suffer emotional harm and behavioral issues, Mother’s and
Mother’s Husband’s outright refusal to permit Paternal Grandparents any
contact with Children whatsoever, Mother’s efforts to exclude Paternal
Grandparents from Children’s lives over the years preceding the current
custody action, and Mother’s Husband’s racially derogatory comments on
Facebook. Paternal Grandparents conclude the trial court’s remand decision
is severely deficient and unsupported by the record, and this Court must
reverse the trial court’s custody decision and award Paternal Grandparents
____________________________________________
38
The trial court conceded that both parties might have the ability to make
appropriate child-care arrangements and be “available,” but then the court
referred back to its analysis of factor nine, favoring Mother. (See Remand
Decision, filed November 6, 2014, at 3.)
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partial custody in accordance with the terms of the interim custody order. 39
We agree.
In custody cases, the relevant scope and standard of review are as
follows:
[T]he appellate court is not bound by the deductions or
inferences made by the trial court from its findings of fact,
nor must the reviewing court accept a finding that has no
competent evidence to support it…. However, this broad
scope of review does not vest in the reviewing court the
duty or the privilege of making its own independent
determination…. Thus, an appellate court is empowered to
determine whether the trial court’s incontrovertible factual
findings support its factual conclusions, but it may not
interfere with those conclusions unless they are
unreasonable in view of the trial court’s factual findings;
and thus, represent a gross abuse of discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (quoting
Bovard v. Baker, 775 A.2d 835, 838 (Pa.Super. 2001)). “On issues of
credibility and weight of the evidence, we defer to the findings of the trial
judge who has had the opportunity to observe the proceedings and
demeanor of the witnesses.” R.M.G., Jr., supra.
The parties cannot dictate the amount of weight the trial
court places on the evidence. Rather, the paramount
concern of the trial court is the best interest of the child.
Appellate interference is unwarranted if the trial court’s
consideration of the best interest of the child was careful
and thorough, and we are unable to find any abuse of
discretion.
____________________________________________
39
At the custody trial, Paternal Grandparents asked for additional custodial
time with Children, but on appeal they seek only the custodial time awarded
under the interim custody order. (See Paternal Grandparents’ Brief at 65.)
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Id. (quoting S.M. v. J.M., 811 A.2d 621, 623 (Pa.Super. 2002)). “Indeed,
our admittedly circumscribed standard of review does not preclude this Court
from finding that a trial court abused its discretion in fashioning a custody
order. While prudence dictates that we exercise our authority sparingly, we
are not powerless to rectify a manifestly unreasonable custody order.” V.B.
v. J.E.B., 55 A.3d 1193, 1200 (Pa.Super. 2012). “Ultimately, the test is
‘whether the trial court’s conclusions are unreasonable as shown by the
evidence of record.’” Ketterer v. Seifert, 902 A.2d 533, 539 (Pa.Super.
2006) (quoting Dranko v. Dranko, 824 A.2d 1215, 1219 (Pa.Super.
2003)).
The statutory presumption favoring an award of custody to parents
over third-parties is not applicable to the current case because Paternal
Grandparents seek only partial physical custody of Children. See 23
Pa.C.S.A. § 5327(b) (setting forth presumption in cases concerning primary
physical custody). The Child Custody Act (“Act”) provides:
§ 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.
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(2) The present and past abuse committed by a party
or member of the party’s household, whether there is a
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)
(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
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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.
* * *
(c) Grandparents and great-grandparents.—
(1) In ordering partial physical custody or supervised
physical custody to a party who has standing under
section 5325(1) or (2) (relating to standing for partial
physical custody and supervised physical custody), the
court shall consider the following:
(i) the amount of personal contact between the
child and the party prior to the filing of the action;
(ii) whether the award interferes with any
parent-child relationship; and
(iii) whether the award is in the best interest of
the child.
* * *
23 Pa.C.S.A. § 5328(a), (c)(1). Thus, when deciding an award of custody,
the court must conduct a thorough analysis of the best interests of the child
based on the factors set forth in the Act. E.D. v. M.P., 33 A.3d 73
(Pa.Super. 2011). “All of the factors listed in [S]ection 5328(a) are required
to be considered by the trial court when entering a custody order.” J.R.M.
v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (emphasis in original).
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Nevertheless, “there is no required amount of detail for the trial court’s
explanation; all that is required is that the enumerated factors are
considered and that the custody decision is based on those considerations.”
M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013), appeal denied, 620
Pa. 710, 68 A.3d 909 (2013).
Further, “in the recent past, grandparents have assumed increased
roles in their grandchildren’s lives and our cumulative experience
demonstrates the many potential benefits of strong inter-generational ties.”
Hiller v. Fausey, 588 Pa. 342, 360, 902 A.2d 875, 886 (2006), cert.
denied, 549 U.S. 1304, 127 S. Ct. 1876, 167 L. Ed. 2d 363 (2007). Thus:
While acknowledging the general benefits of these
relationships, we cannot conclude that such a benefit
always accrues in cases where grandparents force their
way into grandchildren’s lives through the courts, contrary
to the decision of a fit parent. In contrast, however, we
refuse to close our minds to the possibility that in
some instances a court may overturn even the
decision of a fit parent to exclude a grandparent
from a grandchild’s life, especially where the
grandparent’s child is deceased and the grandparent
relationship is longstanding and significant to the
grandchild.
Id. at 360, 904 A.2d at 886-87 (internal footnote omitted) (emphasis
added). See also Commonwealth ex. rel. Goodman v. Dratch, 159 A.2d
70, 71 (Pa.Super. 1960) (stating: “Unless there [is] some compelling
reason, we do not believe that a grandchild should be denied visitation to his
grandparents”).
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Additionally, in the context of custody proceedings, “[h]ostilities
between the [parties] are relevant only insofar as they constitute a threat to
the child or affect the child’s welfare.” Nancy E.M. v. Kenneth D.M., 462
A.2d 1386, 1388 (Pa.Super. 1983). Importantly:
A custodial parent’s suspicion of or animosity towards
another parent or third party seeking visitation should not
alone warrant denial of visitation; otherwise the custodial
parent could always effectively deny visitation simply by
testifying to suspicion or animosity. Instead of deferring to
suspicion or animosity, the hearing judge must try to
determine whether there is any basis for these feelings.
Stated more broadly, the judge must appraise whether
the relationship between the disputing parties has
an adverse effect on the child.
* * *
Except under unusual circumstances, no child should be
cut off entirely from one side of [his or her] family.
[V]isits with a grandparent are often a precious part of a
child’s experience and there are benefits which devolve
upon the grandchild from the relationship with his
grandparents which he cannot derive from any other
relationship. If animosities continue between the parties,
and result in adverse [e]ffects on [the child]…, a
visitation order may be revised, even to the extent of
retracting visitation.
Commonwealth ex. rel. Williams v. Miller, 385 A.2d 992, 995 (Pa.Super.
1978) (internal citations omitted) (emphasis added) (reversing trial court
order denying maternal grandmother visitation with grandchild following
mother’s death; maternal grandmother offered sufficient reasons why
visitation with child for one weekend each month would serve child’s best
interests; record did not support trial court’s finding that maternal
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grandmother abandoned mother; father’s “mistrust” of maternal
grandmother was not valid reason for denying her visitation; trial court
failed to provide sufficient consideration to unusual facts of case; and if
enforcing visitation away from child’s home presents harmful effects on
child, then trial court may specify place and conditions of visitation). See
also Johnson v. Diesinger, 589 A.2d 1160 (Pa.Super. 1991) (explaining
how rivalry between parents and grandparents for child’s affection can be
devastating; when animosity exists, appropriate inquiry is not where to place
blame, but how does animosity affect best interests of children).
Instantly, the court announced at the start of the custody trial that it
had not presided over a custody trial in the past five years, and the court
was dissatisfied with the legislature’s enactment of the Act since the court
had last presided over a custody trial. (See N.T., 2/10/12, at 12; R.R. at
9a) (stating: “I have personal reservations as to whether the legislature can
tell me how to make a decision”). Following the conclusion of closing
arguments, the court again expressed disdain with the Act. (See id. at 290-
91; R.R. at 148a-149a) (stating: “I’m tempted to just rule…that this is all
unconstitutional because it infringes upon my authority to make a decision”).
During the court’s on-the-record remarks, the court acknowledged the
existence of the statutory factors at Sections 5328(a) and 5328(c)(1), but
went on to state that it would consider only the statutory factors pertaining
to grandparents’ rights. (Id. at 295; R.R. at 151a) (stating: “If I am
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compelled to use the factors that the legislature set up, I’m not looking
beyond what the statute says. And the statute says grandparents factors.
Fine. If I’m told I have to use those factors, I’m not going back and looking
at general factors because I don’t think I should anyway be compelled to”).
At the conclusion of trial, the court dismissed Paternal Grandparents’
custody complaint, awarding them no periods of partial physical custody.
After Paternal Grandparents filed their notice of appeal, the trial court
issued a Rule 1925(a) opinion, once again expressing contempt with the Act
as “unduly encroach[ing] upon the judiciary and the way [j]udges are to
perform their responsibilities.” (Rule 1925(a) Opinion at 2). In its opinion,
the trial court declined to analyze any of the factors set forth in Section
5328(a) or Section 5328(c)(1). Instead, the court simply concluded: “What
we did do is consider the evidence and arguments presented by the litigants
and to the best of our human ability decide what was in the best interest of
these two boys. We do not think we were wrong in the result or how we got
there.” (Id. at 5).
On September 16, 2014, this Court vacated and remanded the matter,
based on the trial court’s failure to utilize the requisite statutory factors in
making its determination. Specifically, this Court instructed the trial court to
consider upon remand the general statutory “best interest” custody factors
set forth at Section 5328(a) and the three statutory custody factors
pertaining to grandparents at Section 5328(c)(1).
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On November 6, 2014, the trial court issued its decision after remand.
Significantly, the trial court’s remand decision provides no facts or
procedural history of the case. (See Remand Decision at 1-4.) Similarly
absent from the court’s decision after remand are any express credibility
determinations.40 The court also supplies no law whatsoever. (See Remand
Decision at 1-4.) Rather, the court issues mere conclusory statements as to
each factor under Section 5328(a) and Section 5328(c)(1). (See id.) Our
review of the court’s decision after remand leaves questionable whether the
court engaged in a thoughtful analysis of, and gave due consideration to,
each relevant factor, where the court offered no facts of record or analysis to
support its conclusions. See M.J.M., supra; J.R.M., supra; E.D., supra.
The court’s decision after remand appears to pay mere lip service to this
Court’s remand directive. Under these circumstances, the trial court’s
remand decision is deficient. See M.J.M., supra; J.R.M., supra; E.D.,
supra.
More importantly, many of the trial court’s conclusory statements do
not accurately reflect the evidence presented at trial. For example, the
court’s bald statement regarding Section 5328(c)(1)(i), that Paternal
Grandparents have had no contact with Children for approximately three
____________________________________________
40
The sole reference to a party’s credibility determination appears in the
midst of the court’s on-the-record remarks at the conclusion of trial, where
the court accepted as true Mother’s testimony that the Skype calls were
upsetting to Children. (See N.T., 2/10/14, at 293; R.R. at 150a.)
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years (see Remand Decision at 1), lacks necessary context. Specifically, the
court ignores, inter alia, the following evidence: (1) Mother and K.A.T. lived
with Paternal Grandmother and W.B. for one year; (2) Paternal
Grandparents spent substantial time with Children when Mother and Father
shared physical custody; (3) Mother repeatedly moved around the country
and refused to disclose (or to permit Father to disclose) her contact
information to Paternal Grandparents; and (4) Paternal Grandparents had to
hire a private investigator to locate Mother and Children in the aftermath of
Father’s death. The court similarly ignores this evidence concerning its
finding at Section 5328(a)(3) (parental duties performed by each party on
behalf of child), where the court simply states: “Grandparents have
performed no parental duties for at least three years, while Mother has.”
(Remand Decision at 2).
Under Section 5328(a)(1) (which party is more likely to encourage and
permit frequent and continuing contact between child and another party),
the trial court found this factor favored neither party. (See Remand
Decision at 2.) Nevertheless, the record discloses that this factor favors
Paternal Grandparents, as the evidence presented at trial shows they have
made efforts to cooperate with Mother during the pendency of the interim
custody order. Conversely, Mother and Mother’s Husband demonstrated
their opinion that Paternal Grandparents are “horrible,” and testified that
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they will not permit Paternal Grandparents to have any contact with Children
in the future (presumably, unless compelled to do so by court order).
Regarding Section 5328(a)(9) (which party is more likely to maintain
loving, stable, consistent and nurturing relationship with child adequate for
child’s emotional needs), Section 5328(a)(10) (which party is more likely to
attend to daily physical, emotional, developmental, educational and special
needs of child), and Section 5328(a)(12) (each party’s availability to care for
child or ability to make appropriate child-care arrangements), the trial court
announced, with little or no explanation, that each of these factors favored
Mother. (See Remand Decision at 3.) Significantly, the trial court made no
factual findings concerning Paternal Grandparents’ ability to care for and
support Children during their periods of partial physical custody. (See id.)
Nothing in the record suggests Paternal Grandparents are unable to or would
have difficulty providing care for Children. Paternal Grandmother and
Paternal Grandfather want to be part of Children’s lives and have amicably
worked out a schedule regarding the care for Children during their periods of
partial physical custody.
Further, the court’s decision following remand focuses on certain
factors, to the detriment of other relevant factors. For example, the court
placed great emphasis on the distance between the parties, which the court
mentioned in its consideration of factors five, ten, and eleven. (Id. at 2-3.)
We fail to see how proximity is relevant to factor five (availability of
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extended family) and factor ten (which party is more likely to attend to daily
physical, emotional, developmental, educational and special needs of child),
in the context of Paternal Grandparents’ request for limited partial physical
custody of Children.41 Compare Durning v. Balent/Kurdilla, 19 A.3d
1125 (Pa.Super. 2011) (explaining that award of shared physical custody of
school-aged child of parents who do not live in geographical proximity to
each other is contrary to child’s need for continuity at home and at school).
As well, the court relied heavily on the conflict between the parties,
determining the conflict could not be resolved. (See N.T., 2/10/14, at 295-
97; R.R. at 151a-152a) (stating: “So bottom line is this. Right or wrongly, I
don’t believe that the conflict between [M]other and [P]aternal
[G]randmother can be fixed”); (see also Remand Decision at 3) (regarding
analysis of Section 5328(a)(13), stating: “While the parties may state a
willingness to cooperate, we are unpersuaded that there exists the ability to
cooperate”). Absent from the court’s remarks, however, is an appropriate
analysis of why the conflict exists and why it adversely affects Children. See
Johnson, supra; Nancy E.M., supra; Miller, supra.
The court also seemed to base its decision largely on Paternal
Grandparents’ unwelcome intervention with the adoption proceedings. (See
N.T., 2/10/14, at 294-95; R.R. at 150a-151a) (stating: “And my reaction
____________________________________________
41
Maternal Grandmother also lives in Erie County, Pennsylvania.
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was real simple to that. They stuck their nose in that situation and probably
they should have stayed the hell out of it”); (see also Remand Decision at
1) (regarding analysis of Section 5328(c)(1)(ii), stating: “interference would
result to the parent/child relationship as it did when grandparents intervened
in a finalized adoption by Mother’s current husband resulting in the adoption
being undone and still pending at the time of this custody trial”). The court’s
comments are shocking in light of some of the disturbing testimony about
Mother’s Husband’s gravely inappropriate posts on Facebook (which he
admitted writing), especially where W.B. is African-American.
The court failed to consider, however, the important contribution
Paternal Grandparents can make in Children’s lives, particularly since their
Father’s death. With respect to Section 5328(a)(4) (need for stability and
continuity in child’s education, family life and community life), the court
coldly stated: “Grandparents are unnecessary to provide stability and
continuity in the child’s education, family life and community life as
circumstances present at trial. Mother provides for those.” (Id. at 2.)
Concerning Section 5328(a)(5) (availability of extended family), the court
explained: “Grandparents (and others) are the extended family, 5½ travel
hours away. Mother’s current husband completes the traditional family unit
of husband and wife and children. There is no evidence they need help from
any outside source.” (Id.) The court’s conclusory statements discount the
significant benefits Children can reap from Paternal Grandparents, who can
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provide Children ties to their deceased Father. See Hiller, supra; Nancy
E.M., supra. Additionally, the court disregarded evidence of Father’s
extended family living near Paternal Grandparents; Children could interact
with Father’s relatives during Paternal Grandparents’ periods of partial
physical custody.
Based on this record, we cannot agree that the court made a reasoned
decision based on the evidence presented, particularly in light of
Pennsylvania’s strong public policy favoring grandparent involvement in a
child’s life. See Hiller, supra; Miller, supra; Dratch, supra. See also
V.B., supra; Ketterer, supra. Therefore, we are compelled to reverse the
trial court’s decision to deny Paternal Grandparents’ request for partial
physical custody of Children, and remand for the court to enter the interim
custody order dated October 4, 2013 and entered October 7, 2013, as a final
order.
In their third issue, Paternal Grandparents acknowledge that in making
a custody determination, a court must consider whether a party seeking
custody poses a threat of harm to the child based on certain enumerated
prior criminal convictions. Paternal Grandparents explain that 23 Pa.C.S.A.
§ 5329(a) lists thirty-two enumerated offenses for the court to consider
when making this assessment. Paternal Grandparents emphasize that the
statute enumerates only misdemeanor and felony offenses and does not list
any summary offenses. Paternal Grandparents maintain that under Section
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5330, one party who has obtained information about a criminal charge filed
against the other party may move for a temporary custody order or
modification of an existing custody order (pending a hearing), but only
where the other party has been charged with an offense under Section
5329(a). Read together, Paternal Grandparents contend the legislature
limited the relevance of criminal convictions to only those offenses
enumerated in Section 5329(a), in awarding custody. Paternal
Grandparents argue that, even where a party seeking custody has a criminal
conviction for an enumerated offense, the court is not precluded from
granting that party custody; instead, the court shall consider the party’s
conduct relative to the offense to determine whether the party poses a
threat of harm to the child. Only when a parent has been convicted of
murder of the other parent can the court deny custody without considering
threat of harm (see 23 Pa.C.S.A. § 5329(b)).
Paternal Grandparents stress that none of the offenses considered by
the court are enumerated offenses under Section 5329(a). Paternal
Grandparents submit the court improperly allowed testimony (over their
objections) concerning Paternal Grandmother’s and W.B.’s respective
criminal histories, absent any prior convictions under Section 5329(a).
Paternal Grandparents acknowledge that the court stated in its supplemental
opinion that if it erred in admitting such testimony, the error was harmless.
Paternal Grandparents suggest the court’s improper admission of prior
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offenses played a part in the court’s determination as to the high level of
conflict between the parties, where the record shows Mother used Paternal
Grandmother’s and W.B.’s respective criminal histories to bolster Mother’s
position that the court should deny Paternal Grandparents any custodial time
with Children. Paternal Grandparents conclude the court’s evidentiary ruling
was erroneous. We agree.
Generally, our standard of review concerning evidentiary rulings is as
follows:
The admission or exclusion of evidence is within the sound
discretion of the trial court, and in reviewing a challenge to
the admissibility of evidence, we will only reverse a ruling
by the trial court upon a showing that it abused its
discretion or committed an error of law A trial court has
wide discretion in ruling on the relevancy of evidence and
its ruling will not be reversed absent an abuse of
discretion.
B.K. v. J.K., 823 A.2d 987, 991-92 (Pa.Super. 2003) (internal citations
omitted).
Section 5329 of the Act provides, in pertinent part:
§ 5329. Consideration of criminal conviction
(a) Offenses.−Where a party seeks any form of custody,
the court shall consider whether that party or member of
that party’s household has been convicted of or has
pleaded guilty or no contest to any of the offenses in this
section or an offense in another jurisdiction substantially
equivalent to any of the offenses in this section. The court
shall consider such conduct and determine that the party
does not pose a threat of harm to the child before making
any order of custody to that parent when considering the
following offenses:
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18 Pa.C.S. Ch. 25 (relating to criminal homicide).
18 Pa.C.S. § 2702 (relating to aggravated assault).
18 Pa.C.S. § 2706 (relating to terroristic threats).
18 Pa.C.S. § 2709.1 (relating to stalking).
18 Pa.C.S. § 2901 (relating to kidnapping).
18 Pa.C.S. § 2902 (relating to unlawful restraint).
18 Pa.C.S. § 2903 (relating to false imprisonment).
18 Pa.C.S. § 2910 (relating to luring a child into a motor
vehicle or structure).
18 Pa.C.S. § 3121 (relating to rape).
18 Pa.C.S. § 3122.1 (relating to statutory sexual assault).
18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
intercourse).
18 Pa.C.S. § 3124.1 (relating to sexual assault).
18 Pa.C.S. § 3125 (relating to aggravated indecent
assault).
18 Pa.C.S. § 3126 (relating to indecent assault).
18 Pa.C.S. § 3127 (relating to indecent exposure).
18 Pa.C.S. § 3129 (relating to sexual intercourse with
animal).
18 Pa.C.S. § 3130 (relating to conduct relating to sex
offenders).
18 Pa.C.S. § 3301 (relating to arson and related offenses).
18 Pa.C.S. § 4302 (relating to incest).
18 Pa.C.S. § 4303 (relating to concealing death of child).
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18 Pa.C.S. § 4304 (relating to endangering welfare of
children).
18 Pa.C.S. § 4305 (relating to dealing in infant children).
18 Pa.C.S. § 5902(b) (relating to prostitution and related
offenses).
18 Pa.C.S. § 5903(c) or (d) (relating to obscene and other
sexual materials and performances).
18 Pa.C.S. § 6301 (relating to corruption of minors).
18 Pa.C.S. § 6312 (relating to sexual abuse of children).
18 Pa.C.S. § 6318 (relating to unlawful contact with
minor).
18 Pa.C.S. § 6320 (relating to sexual exploitation of
children).
Section 6114 (relating to contempt for violation of order or
agreement).
The former 75 Pa.C.S. § 3731 (relating to driving under
influence of alcohol or controlled substance).
75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol
or utilizing drugs).
Section 13(a)(1) of the act of April 14, 1972 (P.L. 233, No.
64), known as The Controlled Substance, Drug, Device and
Cosmetic Act, to the extent that it prohibits the
manufacture, sale or delivery, holding, offering for sale or
possession of any controlled substance or other drug or
device.
(b) Parent convicted of murder.—No court shall award
custody, partial custody or supervised physical custody to
a parent who has been convicted of murder under 18
Pa.C.S. § 2502(a) (relating to murder) of the other parent
of the child who is the subject of the order unless the child
is of suitable age and consents to the order.
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(c) Initial evaluation.—At the initial in-person contact
with the court, the judge, conference officer or other
appointed individual shall perform an initial evaluation to
determine whether the party or household member who
committed an offense under subsection (a) poses a threat
to the child and whether counseling is necessary. The
initial evaluation shall not be conducted by a mental health
professional. After the initial evaluation, the court may
order further evaluation or counseling by a mental health
professional if the court determines it is necessary.
* * *
23 Pa.C.S.A. § 5329(a)-(c) (internal footnote omitted). Section 5330 of the
Act states:
§ 5330. Consideration of criminal charge
(a) Expedited hearing.—A party who has obtained
information under 42 Pa.C.S. § 1904 (relating to
availability of criminal charge information in child custody
proceedings) or otherwise about a charge filed against the
other party for an offense listed under section 5329(a)
(relating to consideration of criminal conviction) may move
for a temporary custody order or modification of an
existing custody order. The court shall hold the hearing
under this subsection in an expeditious manner.
(b) Risk of harm.—In evaluating any request under
subsection(a), the court shall consider whether the party
who is or has been charged with an offense set forth in
section 5329(a) poses a risk of physical, emotional or
psychological harm to the child.
(c) No prejudice.—Failure to either apply for
information under 42 Pa.C.S. § 1904 or act under this
section shall not prejudice any party in a custody
proceeding.
23 Pa.C.S.A. § 5330. “The plain language of the statute reveals the obvious
intent of the Legislature to ensure that custody is not being provided to a
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[party] whose past criminal behavior presents a present threat of harm to
the child.” Ramer v. Ramer, 914 A.2d 894, 900-01 (Pa.Super. 2006).42
Instantly, during Paternal Grandmother’s cross-examination, Mother’s
counsel sought to elicit testimony from Paternal Grandmother concerning a
bad check charge in 2012 and a theft of services charge in 2009. Counsel
for Paternal Grandparents objected. (See N.T., 2/10/14, at 69-70; R.R. at
38a.) Mother’s counsel responded: “[W]e are looking at what is in the best
interest of the children. And [Paternal Grandmother] is up here basically
indicating that she is a wonderful grandparent and we’re just showing her
history.” (Id. at 70; R.R. at 38a.) Mother’s counsel further stated that the
testimony was relevant under Section 5328(a)(16) (any other relevant
factor). (Id.) The court overruled Paternal Grandparents’ objection on this
basis. (Id.) During W.B.’s cross-examination, Mother’s counsel sought to
elicit testimony from W.B. concerning a harassment charge in 2010. (Id. at
129; R.R. at 68a.) Counsel for Paternal Grandparents objected, specifically
stating that harassment is not an enumerated offense under Section 5329,
____________________________________________
42
This Court decided Ramer in the context of 23 Pa.C.S.A. § 5303(b)
(repealed by 2010, Nov. 23, P.L. 1106, No. 112, § 1, effective January 24,
2011; re-codified at 23 Pa.C.S.A. § 5323, 5328-5330). Section 5303(b)
provided similar language to the current Section 5329(a), stating: “If a
parent has been convicted of or has pleaded guilty or no contest to an
offense as set forth below, the court shall consider such criminal conduct and
determine that the parent does not pose a threat of harm to the child before
making an order of custody, partial custody or visitation to that parent[.]”
23 Pa.C.S.A. § 5303(b) (repealed). That statute listed only fourteen
relevant convictions. See id.
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and is therefore irrelevant to the custody proceeding. (Id.) Mother’s
counsel responded: “It is absolutely relevant. We’re talking about the best
interest of these children. These children will be in the home where this
gentleman lives. Absolutely.” (Id.) Mother’s counsel conceded Mother was
not seeking an evaluation under Section 5329, but “[w]e’re just talking
about his character. It is about what is in the best interest of the children
and the people around the children, Your Honor.” (Id. at 130; R.R. at 68a.)
The court overruled Paternal Grandparents’ objection.
During Mr. Lagan’s direct-examination, Mother’s counsel sought to
elicit testimony concerning Mr. Lagan’s background investigations on
Paternal Grandparents and W.B. (Id. at 230; R.R. at 118a.) Counsel for
Paternal Grandparents again objected, explaining that Sections 5329 and
5330 specifically enumerate and discuss criminal convictions which are
relevant in a custody proceeding; counsel also stated any criminal
convictions pertaining to Paternal Grandparents or W.B., which are not
enumerated under the statute, are irrelevant. (Id.) Mother’s counsel
responded as follows: “This matter is what is in the best interest of the
children which includes what each party has in their background, what they
do every day, what type of person they are, and whether or not they should
be around children. It is absolutely relevant.” (Id.) The court then had the
following exchange with Mother’s counsel:
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[THE COURT]: But isn’t it limited by the
legislature moving into this area by defining certain
specific offenses?
[MOTHER’S COUNSEL]: Your Honor, I believe the 5329
section as well as 5330 is to determine who should have
an evaluation to see if they are at risk of harm to the
children to be able to have any custody at all. We’re
certainly not representing that [Mr. Lagan’s] going to give
us information to say that [Paternal Grandmother] has any
5329 offenses.
She has other offenses. We’re not saying that she should
have—well, she should have no contact at all just based on
these offenses.
We’re not asking that she receive an evaluation. We’re
just simply speaking to the type of person who [is] around
the children.
[THE COURT]: Are you saying this to me, for
example, if a criminal background check reveals a person
who has retail thefts, bad checks, forgeries, that somehow
may impact on their character?
[MOTHER’S COUNSEL]: Essentially, Your Honor, yes.
However, not to prove they will…commit those offenses
again but whether or not they should be around children.
[THE COURT]: The children.
[MOTHER’S COUNSEL]: Correct.
[THE COURT]: I’ll allow it. Objection is
overruled.
(Id. at 231-233; R.R. at 119a-120a.) Subsequently, Mr. Lagan testified that
he discovered Paternal Grandmother pled guilty to theft of services in
October 2009, a traffic violation in 2012, and speeding in 2013. Mr. Lagan
said Paternal Grandmother had another conviction for bad checks in 2012
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with a disposition of guilty.43 Mr. Lagan also found that W.B. pled guilty to
trespass by motor vehicle in 2008, and harassment in 2010. (Id. at 233-
35; R.R. at 120a-121a.) Mr. Lagan provided little to no detail concerning
the factual bases for any of these offenses. Mr. Lagan also did not indicate
the grading of any of the offenses.44 (Id.)
Section 5329 makes clear the type of criminal convictions the
legislature deemed relevant for purposes of making an award of custody, by
specifically enumerating only those crimes which evidence a threat of harm
to the child. See 23 Pa.C.S.A. § 5329(a); Ramer, supra. The parties
agree that none of Paternal Grandmother’s or W.B.’s prior criminal
convictions or motor vehicle offenses are listed in Section 5329(a). The
record is unclear whether any of the offenses at issue were graded higher
than summary offenses. In an effort to circumvent Section 5329, Mother’s
counsel attempted to obtain admission of the criminal offenses as relevant
generally to Section 5328(a)(16), which permits the court to consider “any
other relevant factor,” and the over-arching “best interests” analysis. We
cannot agree that the court’s admission of evidence concerning Paternal
Grandmother’s and W.B.’s criminal histories was proper under
____________________________________________
43
Mr. Lagan also indicated Paternal Grandmother was charged with
operating a vehicle without required financial responsibility in 2012, but that
charge was dismissed.
44
The investigatory report(s) on which Mr. Lagan relied at trial are not
included in the certified record.
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subsection(a)(16), where the Act expressly delineates those criminal
convictions which are relevant to a custody determination, and the offenses
at issue are not among those listed. See 23 Pa.C.S.A. § 5329(a). See also
Pa.R.E. 401 (explaining evidence is relevant if it has any tendency to make
fact more or less probable than it would be without evidence; and fact is of
consequence in determining action); Johns v. Cioci, 865 A.2d 931
(Pa.Super. 2004) (explaining that unless it is shown that parent’s conduct
has had harmful effect on child, that conduct should be given little weight in
custody determinations); Vicki N. v. Josephine N., 649 A.2d 709
(Pa.Super. 1994) (stating party’s past conduct is not relevant to custody
proceeding unless it will produce ongoing negative effect on child’s welfare);
Commonwealth ex rel. Gorto v. Gorto, 444 A.2d 1299 (Pa.Super. 1982)
(stating primary concern in custody matters lies not with past but with
present and future; facts as of time of trial are foundation for court’s
determination; past conduct is not relevant unless it will produce ongoing
negative effect on child’s welfare).
Moreover, under the doctrine of ejusdem generis, the court cannot
consider other criminal offenses under the general language of Section
5328(a)(16), where the Act expressly delineates those criminal convictions
which the legislature deemed relevant to a custody determination, and the
offenses at issue are not among those listed. See generally McClellan v.
Health Maintenance Organization of Pennsylvania, 546 Pa. 463, 473,
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686 A.2d 801, 806 (1996) (explaining: “[u]nder our statutory construction
doctrine [of] ejusdem generis (“of the same kind or class”), where general
words follow the enumeration of particular classes of persons or things, the
general words will be construed as applicable only to persons or things of the
same general nature or class as those enumerated. When the opposite
sequence is found, i.e., specific words follow general ones,…the doctrine is
equally applicable, and restricts application of the general term to things
that are similar to those enumerated”). Mother cites no law to the
contrary.45 Therefore, the court erred by admitting into evidence Paternal
Grandmother and W.B.’s previous offenses, which fell outside of Section
5329.46 See B.K., supra.
Accordingly, we reverse the trial court’s decision to deny Paternal
Grandparents’ request for partial physical custody and remand for the trial
court to enter immediately as a final order, the interim custody order dated
October 4, 2013 and entered October 7, 2013. Mother must fix the Skype
feature on her cell phone or home computer to allow visual capabilities
____________________________________________
45
Instead, Mother relies on generic legal principles stating that criminal
convictions are reasonably probative as to the reputation of an individual
and have impact upon assessing a person’s character. (See Mother’s Brief
at 51-54.)
46
In its supplemental trial court opinion, the court indicated that to the
extent the court improperly admitted the evidence at issue, the error was
harmless. (See Supplemental Rule 1925(a) Opinion at 1-2.) In the event
that this matter might proceed to a new custody trial at some point in the
future, the trial court’s harmless error analysis would be immaterial.
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within thirty (30) days of this disposition. Alternatively, the parties could
consider using FaceTime to communicate.
Order reversed; case remanded with instructions. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/2015
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