A.J.B. v. A.G.B. Appeal of: A.M.G.

J-S82029-17
2018 PA Super 50A.J.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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v. :
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:
A.G.B. :
******************************* :
D.K. : No. 1164 WDA 2017
:
:
v. :
:
:
A.B. AND A.G.B. :
:
:
APPEAL OF: A.M.G. :
Appeal from the Order Entered July 31, 2017
In the Court of Common Pleas of Cambria County Civil Division at No(s):
No. 2016-2996, No. 2017-941
BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**
OPINION BY STEVENS, P.J.E.: FILED MARCH 7, 2018
Appellant, A.M.G. (“Ex-Wife”), files this appeal from the Order dated
July 7, 2017, and entered July 31, 2017,1 in the Cambria County Court of
____________________________________________
1The subject order was dated July 7, 2017. However, the clerk did not provide
notice pursuant to Pa.R.C.P. 236(b) until July 31, 2017. Our appellate rules
designate the date of entry of an order as “the day on which the clerk makes
the notation in the docket that notice of entry of the order has been given as
required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further, our Supreme Court
has held that “an order is not appealable until it is entered on the docket with
the required notation that appropriate notice has been given.” Frazier v. City
of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115 (1999).
____________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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Common Pleas, granting A.J.B.’s (“Mother”) Motion to Strike Co-Defendant
[Ex-Wife] for Lack of Standing, and granting D.K.’s (“Father”) Motion to Vacate
Order and Mother’s Petition to Vacate Consent Order. After review, we affirm
in part, and vacate and remand in part.
The trial court summarized the relevant procedural and factual history
as follows:
PROCEDURAL HISTORY
This matter involves two cases and three pleadings, which
the trial court consolidated for hearing:
DIVORCE ACTION (DOCKET NO. [])
In the first case (Docket No. []), A.J.B. [“Mother”] filed a
Complaint in Divorce against A.M.B., now A.M.G. [“Ex-Wife”], on
August 12, 2016 [(]“divorce action”[)]. Although Mother’s
Complaint did not include a claim for custody, Mother and Ex-Wife
nonetheless filed a Consent Order for Custody [(]“Consent
Order”[)] regarding a minor child, D.H.B. (born November []
2015) [(]“Child”[)]. The trial court executed the Consent Order
on August 15, 2016. Pursuant to the Consent Order, Mother and
Ex-Wife shared legal custody; Mother exercised primary physical
custody; and Ex-Wife had partial custody every weekend, shared
holidays, and at other times as mutually agreed.
On April 21, 2017, Father filed a Motion to Vacate Order in
the divorce action. On April 24, 2017, Mother filed a Petition to
Vacate Consent Order for Custody.
CUSTODY ACTION (DOCKET NO. [])
In the second case (Docket No. []), [Father] filed a
Complaint for Physical Custody and Shared Legal Custody against
Mother and Ex-Wife on March 13, 2017 [(]“custody action”[)]. On
April 17, 2017, Mother filed a Motion to Strike Co-Defendant for
Lack of Standing.
PROCEEDINGS
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The trial court consolidated the cases for hearing and
scheduled summary proceedings for June 19, 2017.[2] The trial
court scheduled the matter for an additional full-day hearing on
July 7, 2017.[3] The trial court rendered a decision from the bench
at the conclusion of the hearing. The trial court filed an Order
confirming its decision on July 31, 2017.[4] Ex-Wife filed a Notice
of Appeal and a Concise Statement of Matters Complained of on
Appeal on August 7, 2017.[5] . . .
FINDINGS OF FACT
The [c]ourt makes the following Findings of Fact:
...
3. Mother had a romantic and sexual relationship with [Ex-
Wife] that led to marriage and culminated in divorce.
...
5. Beginning April 6, 2009, Mother and Ex-Wife dated while Ex-
Wife was in high school. Ex-Wife was 15 years old when she
began to date Mother; Mother was 20.
6. In 2011, Mother and Ex-Wife began to reside together.
____________________________________________
2 The Notes of Testimony for this proceeding are not included as part of the
certified record.
3 Mother, Father, and Ex-Wife were all present at the hearing and represented
by counsel. All testified on their own behalf. Additionally, Ex-Wife presented
the testimony of a friend, J.L.
4 In the interim, Ex-Wife filed a Motion for Reconsideration/Motion for Court
Intervention in Custody Reduction Schedule/Motion for Final Order on July 27,
2017. By Order dated and entered August 2, 2017, the court, in relevant part,
denied the Motion for Reconsideration and determined the Motion for Final
Order moot as a result of the subject order of the instant appeal dated July 7,
2017, and entered July 31, 2017.
5 Ex-Wife filed a revised Notice of Appeal on September 5, 2017, to correct
the caption.
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7. On March 15, 2013, Mother and Ex-Wife developed a plan
to conceive a child. Mother and Ex-Wife determined that Mother
would carry the child. Mother chose men to engage in three-way
sex with her and Ex-Wife. The men ejaculated in Mother. Some
of the men knew they were being used as sperm donors; others
did not. Mother did not become pregnant after approximately one
year of following this protocol.
8. Between February 2014 and February 2015, Mother and Ex-
Wife were not in a relationship.
9. From March 2014 to January 2015, Mother had a romantic
relationship with [Father] that included sexual intercourse.
Mother and Father also had sexual relations around Mother’s
birthday (January 27, 2015) through mid-February 2015 during
an unsuccessful reconciliation attempt.[6]
10. During Mother’s relationship with Father, Mother did not
believe she could become pregnant.
11. Mother did not intend for Father to impregnate her so she
could raise the child with Ex-Wife.
12. On January 25, 2015, Mother had sexual relations with a
male, D.F., in Clarion, Pennsylvania. D.F. was not one of the men
used for the purpose of conception.
...
14. In February 2015, Mother and Ex-Wife met for lunch to
discuss reconciliation. That night, Mother sent Ex-Wife a photo of
a positive pregnancy test. The next day, Mother took three more
pregnancy tests in Ex-Wife’s presence. All were positive.
15. About two weeks after their luncheon meeting, Mother and
Ex-Wife moved in together.
16. Mother’s doctor calculated the date of conception to be
January 29, 2015.
17. Mother and Ex-Wife were not in a monogamous relationship
at the time of Child’s conception.
____________________________________________
6 Critically, Mother testified that she and Father had sexual relations
approximately the second weekend of February. N.T. at 50, 170-71, 175.
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18. Initially, Mother did not believe Father could be Child’s
parent based on the date of conception.
19. Father . . . learned Mother was pregnant. Mother advised
Father that “the dates didn’t match up to the time [Father] had
intercourse with [Mother].” Father reasonably believed he was
not Child’s father at this time.
20. On April 14, 2015, Mother and Ex-Wife legally married.
21. After their marriage[,] but prior to Child’s birth, Mother and
Ex-Wife consulted an attorney regarding termination of parental
rights for D.F., whom Mother and Ex-Wife believed to be Child’s
father. Neither Mother nor Ex-Wife followed through with legal
action.
22. Mother gave birth to Child [in] November [of] 2015.
23. Mother and Ex-Wife are both listed on Child’s birth
certificate as parents.
24. Ex-Wife chose Child’s first name; Mother and Ex-Wife jointly
selected Child’s middle name.
25. Ex-Wife served as the sole source of financial support for
Mother and Child for approximately six weeks after Child’s birth
when Mother was on maternity leave.
26. From Child’s birth until December 16, 2015, Mother and Ex-
Wife intended to “raise the child together in a happy marriage....”
The parties shared day-to-day childcare duties during this time.
27. The marriage lasted approximately five to six weeks after
Child was born. On December 16, 2015, Mother learned that [Ex-
Wife] was having an affair; and the parties separated. (The
parties memorialized the date of separation in a Marriage
Settlement Agreement filed on August 12, 2016.)
28. After separation, Mother refused Ex-Wife’s offers of support.
Mother did not file a complaint for support against Ex-Wife.
29. On January 21, 2016, D.F. participated in a store-bought
paternity test. By report dated February 3, 2016, D.F. was
“excluded as the biological father of [Child].”
30. In March of 2016, Mother approached Father and advised
him that D.F. had failed the paternity test. Father took a store-
bought paternity test, which indicated he was not Child’s father.
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31. Ex-Wife continued to reside at the home, mostly separate
and apart from Mother, from December 16, 2015, to April 2016.[7]
32. Between December 16, 2015, and April 2016, Ex-Wife’s
contact with Child was impacted by working an overnight shift,
attending college classes, and staying with a male friend. Ex-Wife
continued to perform routine parenting duties for Child when she
(Ex-Wife) was available.[8]
33. In April 2016, Ex-Wife moved out of the home she shared
with Mother.
34. Between April 2016 and August 2016, Ex-Wife had contact
with Child initially for a few hours per week, then on Wednesdays
and every weekend.
35. Mother received and relied upon legal advice from a
competent attorney that Ex-Wife was entitled to custody because
Child was born during their marriage.
36. Ex-Wife presented credible testimony that Mother agreed to
Ex-Wife’s weekend custody in exchange for Mother receiving the
marital residence in equitable distribution.
37. On August 12, 2016, Mother filed for divorce.
38. On or about August 15, 2016, Mother and Ex-Wife executed
a Consent Order for Custody.[9] Pursuant to the Order, Mother
and Ex-Wife shared legal custody; Mother exercised primary
physical custody; and Ex-Wife had partial custody every weekend
(Friday at 5:00 P.M. to Monday at 12:00 P.M.), shared holidays,
and other times by mutual agreement.
39. Neither Mother nor Ex-Wife notified Father of the Consent
Order.
____________________________________________
7 Ex-Wife disputed Mother’s characterization of their interaction while Ex-Wife
remained in the home. N.T. at 81.
8Mother disputed the nature and extent of Ex-Wife’s involvement with Child
prior to her leaving the marital home. N.T. at 13.
9 The trial court notes that “[i]t is the trial court’s policy to approve and
execute consent orders that contain executed joinders without requiring the
parties to appear in court.” Trial Court Opinion (“T.C.O.”), 9/15/17, at 2 n.4.
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40. Ex-Wife attended to Child’s day-to-day needs during her
custody periods. Ex-Wife also attends Child’s doctor
appointments with Mother.
41. Mother and Ex-Wife were divorced by Decree dated
December 12, 2016.
42. In January 2017, Father took a second store-bought
paternity test that indicated he is Child’s father. Father received
the results of this test in mid-February 2017.
43. On March 1, 2017, Father took a third paternity test
administered by a reputable lab that confirmed he is Child’s father.
44. Father contacted an attorney the day after receiving the lab
test results; and he filed a Complaint for Physical Custody and
Shared Legal Custody against Mother and Ex-Wife on March 13,
2017.
45. Father had no contact with Child between her birth and
March 2017.
46. Since March 2017, Mother has facilitated partial physical
custody between Father and Child a few days every week.
47. Child calls Father “Dad.”
48. Child calls Ex-Wife “Mommy.” Child also calls maternal
grandmother, maternal great-grandmother, Father’s fiancée, and
paternal grandmother “Mom” or “Mommy” on occasion.
49. Ex-Wife holds herself out as Child’s mother, although Ex-
Wife’s family and friends understand she is not a biological parent.
...
T.C.O. at 2-9 (citations to record omitted) (footnotes omitted).
On appeal, Ex-Wife raises the following issues for our review:
I. Did the [t]rial [c]ourt err in failing to grant [Ex-Wife] in loco
parentis standing under 23 Pa.C.S.[A.] § 5324(2) to pursue
continued custody of [C]hild born during same-sex marriage when
[Ex-Wife] assumed parental status with consent of biological
[m]other and discharged parental duties for nearly two years,
wherein [Ex-Wife] established strong bond with [C]hild by
providing care, nurture and affection, like that of a parent?
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II. Should the [t]rial [c]ourt have used [a] best interest analysis
to determine whether or not to vacate [the] Consent Order for
Custody entered into between same-sex spouses’ [sic] during
divorce when: 1.) [C]hild’s best interests require [Ex-Wife] be
granted standing in order to fully litigate if [the] parent-child
relationship should be maintained over natural parent’s objection;
2.) the need to protect the rights of a natural parent must be
tempered by the paramount need to protect the child’s best
interests as declared by the Pennsylvania Supreme Court in T.B.
v. L.R.M. (Pa. 2001); and 3.) vacating the Consent Order
constituted a change in custody under 23 Pa.C.S.[A.] § 5338?
III. Absent corroborative expert testimony, was the [t]rial
[c]ourt’s finding that [] [C]hild would not remember [Ex-Wife]
supported by the record below?
Ex-Wife’s Brief at 4.10
Our scope and standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
____________________________________________
10 We observe that Ex-Wife states her issues somewhat differently than in her
Rule 1925(b) Statement, but find that she has preserved her first and second
issues. In addition, we note that Ex-Wife raised numerous additional issues
in her 1925(b) Statement, which she did not address in her Statement of
Questions Involved or her brief. As such, Ex-Wife has waived any claims as
to these issues. See Krebs, 893 A.2d at 797; see also In re W.H., 25 A.3d
330, 339 n.3 (Pa.Super. 2011), appeal denied, 611 Pa. 643, 24 A.3d 364(2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa.Super. 2010)) (“[W]here
an appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.”). With regard to Ex-Wife’s third
issue, that the trial court erred in determining that Child would not remember
Ex-Wife, in light of our discussion infra, we find it unnecessary to address this
issue.
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However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted).
See also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015), appeal denied,
635 Pa. 754, 135 A.3d 586 (2016). This Court consistently has held:
the discretion that a trial court employs in custody matters should
be accorded the utmost respect, given the special nature of the
proceeding and the lasting impact the result will have on the lives
of the parties concerned. Indeed, the knowledge gained by a trial
court in observing witnesses in a custody proceeding cannot
adequately be imparted to an appellate court by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa.Super. 2004)).
Initially, we must first consider whether the July 31, 2017, Order was
properly appealable.11
“‘[S]ince we lack jurisdiction over an unappealable order it is
incumbent on us to determine, sua sponte when necessary,
whether the appeal is taken from an appealable order.’” Gunn v.
Automobile Ins. Co. of Hartford, Connecticut, 971 A.2d 505,
508 (Pa.Super. 2009) (quoting Kulp v. Hrivnak, 765 A.2d 796,
798 (Pa.Super. 2000)). It is well-settled that, “[a]n appeal lies
only from a final order, unless permitted by rule or statute.”
Stewart v. Foxworth, 65 A.3d 468, 471 (Pa.Super. 2013).
Generally, a final order is one that disposes of all claims and all
parties. See Pa.R.A.P. 341(b).
K.W. v. S.L. & M.L. v. G.G., 157 A.3d 498, 501-02 (Pa.Super. 2017).
____________________________________________
11While Ex-Wife addressed in her brief the appealability of the order in
question, this was not addressed by the trial court.
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In the case sub judice, the order in question is not a final order. See
G.B. v. M.M.B., T.B. & A.B., 670 A.2d 714 (Pa.Super. 1996) (a custody order
is final and appealable after the trial court has concluded its hearings on the
matter and the resultant order resolves the pending custody claims between
the parties). Ex-Wife concedes this fact. Ex-Wife’s Brief at 8. Nonetheless,
the order is appealable pursuant to the collateral order doctrine. See
Pa.R.A.P. 313(a) (providing that an appeal may be taken as of right from a
collateral order of a lower court). “A collateral order is an order separable
from and collateral to the main cause of action where the right involved is too
important to be denied review and the question presented is such that if
review is postponed until final judgment in the case, the claim will be
irreparably lost.” Pa.R.A.P. 313(b). See also K.C. & V.C. v. L.A., 633 Pa.
722, 729-32, 128 A.3d 774, 779-81 (2015); K.W., 157 A.3d at 501-04(“standing is an issue separable from, and collateral to, the main cause of
action in a child custody case;” the right to intervene in custody cases
implicates Pennsylvania’s “paramount interest in the welfare of children and,
as a result, in identifying the parties who may participate in child custody
proceedings;” and the right to appeal is irreparably lost when intervention in
child custody proceedings is denied).
Having determined that the subject order was appropriately appealable
as a collateral order, we take Ex-Wife’s issues out of turn for ease of
disposition and address her second issue first. With this issue, Ex-Wife
challenges the trial court’s vacation of the Consent Order.
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The Pennsylvania Rules of Civil of Procedure establish parameters with
regard to the filing of a claim for custody and notification of those with parental
and custodial rights. Rule 1915.3 provides as follows with regard to the
commencement of an action for custody:
Rule 1915.3. Commencement of Action. Complaint. Order
(a) Except as provided by subdivision (c), an action shall be
commenced by filing a verified complaint substantially in the form
provided by Rule 1915.15(a).
(b) An order shall be attached to the complaint directing the
defendant to appear at a time and place specified. The order shall
be substantially in the form provided by Rule 1915.15(b).
Note: See § 5430(d) of the Uniform Child Custody
Jurisdiction and Enforcement Act, 23 Pa.C.S.[A.] §
5430(d), relating to costs and expenses for
appearance of parties and child, and 23 Pa.C.S.[A.] §
5471, relating to intrastate application of the Uniform
Child Custody Jurisdiction and Enforcement Act.
(c) A claim for custody which is joined with an action of divorce
shall be asserted in the complaint or a subsequent petition, which
shall be substantially in the form provided by Rule 1915.15(a).
Note: Rule 1920.13(b) provides that claims which
may be joined with an action of divorce shall be raised
by the complaint or a subsequent petition.
(d) If the mother of the child is not married and the child has no
legal or presumptive father, then a putative father initiating an
action for custody must file a claim of paternity pursuant to 23
Pa.C.S.[A.] § 5103 and attach a copy to the complaint in the
custody action.
Note: If a putative father is uncertain of paternity, the
correct procedure is to commence a civil action for
paternity pursuant to the procedures set forth at Rule
1930.6.
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...
Pa.R.C.P. No. 1915.3 (bold in original).
Further, Rule 1915.15, in relevant part, sets forth the following as to
notification of those with custodial and/or parental rights:
Rule 1915.15. Form of Complaint. Caption. Order. Petition
to Modify a Custody Order
...
6. Plaintiff (has) (has not) participated as a party or witness, or in
another capacity, in other litigation concerning the custody of the
child in this or another court. The court, term and number, and its
relationship to this action is:
___________________________________________________
___________________________________________________
___________________________________________________
Plaintiff (has) (has no) information of a custody proceeding
concerning the child pending in a court of this Commonwealth or
any other state. The court, term and number, and its relationship
to this action is: _______________
Plaintiff (knows) (does not know) of a person not a party to the
proceedings who has physical custody of the child or claims to
have custodial rights with respect to the child. The name and
address of such person is:
___________________________________________________
...
8. Each parent whose parental rights to the child have not been
terminated and the person who has physical custody of the child
have been named as parties to this action. All other persons,
named below, who are known to have or claim a right to custody
of the child will be given notice of the pendency of this action and
the right to intervene:
Name Address Basis of Claim
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___________________________________________________
___________________________________________________
___________________________________________________
9.(a) If the plaintiff is a grandparent who is not in loco parentis to
the child and is seeking physical and/or legal custody pursuant to
23 Pa.C.S.[A.] § 5323, you must plead facts establishing standing
pursuant to 23 Pa.C.S.[A.] § 5324(3).
___________________________________________________
___________________________________________________
(b) If the plaintiff is a grandparent or great-grandparent who is
seeking partial physical custody or supervised physical custody
pursuant to 23 Pa.C.S.[A.] § 5325, you must plead facts
establishing standing pursuant to § 5325.
___________________________________________________
___________________________________________________
(c) If the plaintiff is a person seeking physical and/or legal custody
pursuant to 23 Pa.C.S.[A.] § 5324(2) as a person who stands in
loco parentis to the child, you must plead facts establishing
standing.
___________________________________________________
___________________________________________________
...
Pa.R.C.P. No. 1915.15 (bold in original).
In addition, when seeking custody in connection with an action for
divorce, Rule 1920 provides:
Rule 1920.13. Pleading More Than One Cause of Action.
Alternative Pleading
(a) The plaintiff may state in the complaint one or more grounds
for divorce and may join in the alternative a cause of action
for annulment.
(b) The plaintiff may
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(1) join in the complaint in separate counts any other claims
which may under the Divorce Code be joined with an action
of divorce or for annulment or, if they have not been so
joined, the plaintiff may as of course amend the complaint
to include such other claims or may file to the same term
and number a separate supplemental complaint or
complaints limited to such other claims; or
(2) file to the same term and number a subsequent petition
raising such other claims.
(c) The court may order alimony pendente lite, reasonable counsel
fees, costs and expenses pending final disposition of any claim.
Pa.R.C.P. No. 1920.13 (bold in original).
Moreover, Rule 1915.7 states as follows with regard to Consent Orders:
Rule 1915.7. Consent Order
If an agreement for custody is reached and the parties desire a
consent order to be entered, they shall note their agreement upon
the record or shall submit to the court a proposed order bearing
the written consent of the parties or their counsel.
Pa.R.C.P. No. 1915.7 (bold in original).
In the instant matter, in vacating the Consent Order entered into by
Mother and Ex-Wife, the trial court reasoned as follows:
In the case at bar, Mother and Ex-Wife short-circuited the custody
process. Neither woman filed either a custody complaint or a
count for custody in the divorce action. Nevertheless, they jointly
presented a Consent Order for Custody in the divorce case, which
the trial court executed. It is clear that Father was not given
notice of the pendency of this action or the right to intervene in
accordance with the Rules of Civil Procedure. Mother and Ex-
Wife’s collective failure to properly file the Consent Order in a
custody action/count does not relieve them of the obligations to
notify all parties who could claim a right to Child’s custody.
The trial court acknowledges that Mother and Ex-Wife did not have
confirmation of Child’s paternity when they reached the custody
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agreement on August 15, 2016. D.F. had been excluded as Child’s
father on February 3, 2016; Father had been ruled out in March
2016. Despite the apparently-inexplicable test results, Mother
and Ex-Wife knew Child had a father; they did not know the
father’s identity. Mother and Ex-Wife failed or refused to take
reasonable steps at that time to determine Child’s parentage by
retesting the putative fathers. (Father’s second paternity test did
not occur until January 2017, after the Consent Order was filed.)
Because of their omission, Mother and Ex-Wife entered into the
Consent Order for Custody at their own risk; and the Consent
Order cannot stand. Accordingly, Father’s Motion to Vacate Order
and Mother’s Petition to Vacate Consent Order for Custody are
GRANTED.
T.C.O. at 10-11 (footnotes omitted) (emphasis in original).
Ex-Wife argues that the trial court should have utilized a best interest
analysis in determining whether to vacate the Consent Order. Ex-Wife’s Brief
at 16-17. Ex-Wife asserts that Child’s best interests supersede any parental
objection to third party standing and Child’s best interests support her
standing to pursue custody. Id. Moreover, Ex-Wife posits that the resulting
change to the Consent Order as to Ex-Wife amounts to a modification requiring
a formal best interest analysis pursuant to 23 Pa.C.S.A. § 5328. Id. at 16.
In so arguing, Ex-Wife states:
The [t]rial court’s Order[] of July 7, 2017[][12] vacated the existing
Consent Order for Custody, dated August 15, 2016, between
Mother and [Ex-Wife]. The change to the Order, reducing and
eliminating [Ex-Wife] from the child’s life, clearly constitutes a
“modification of an existing Order” which triggers a best interest
analysis under 23 Pa.C.S.[A.] § 5328.
Our [c]ourts have held that a natural parent’s objection to a third
party’s in loco parentis relationship is not grounds to deny
standing because the best interests of the child is paramount to
____________________________________________
12 As indicated, this order was not entered until July 31, 2017.
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the rights of a parent. Standing is fact sensitive, based upon the
conduct/actions of the third party towards the child. Once
standing is granted, the third party must meet their evidentiary
burden which provides protection to biological parents against
unwanted intrusion into the sanctity of the family. Here[,]
however, there is no intact family unit to protect. Mother is
remarried to another woman. Father has a fiancée to whom [sic]
has a son. And, [Ex-Wife] lives with her boyfriend.
The [t]rial [c]ourt never considered the child’s best interests
which, as previously stated, are paramount to the rights of a
natural parent to object to a third party’s standing. Under
Pennsylvania law, a best interest analysis would have proven that
removal of a stepparent from a child’s life wreaks the same havoc
and negative effects as removal of a parent.
Thus, the [t]rial [c]ourt committed an error of law in failing to
grant standing to [Ex-Wife] and in failing to apply the best interest
factors to determine if modification, i.e. reduction/elimination of
[Ex-Wife]’s partial physical custody, was in child’s best interests.
Id. at 16-17 (citation omitted).
Upon review, we disagree. We discern no abuse of discretion by the
trial court in vacating the Consent Order. Mother and Ex-Wife did in fact
“short-circuit” the custody process. Mother and Ex-Wife failed to file a
Complaint for Custody or a count for custody in the Complaint for Divorce, as
required, in complete disregard of the Rules of Civil Procedure.13 Moreover,
as noted by the trial court, “Father’s fundamental constitutional right to parent
Child” favors vacation of the Consent Order. T.C.O. at 11. As a result, as
determined by the trial court, this procedural deficit requires that the Consent
____________________________________________
13We do, however, disagree with the trial court’s suggestion that both Mother
and Ex-Wife “failed or refused to take reasonable steps at that time to
determine Child’s parentage by retesting the putative fathers.” T.C.O. at 11.
We decline to state that Mother and Ex-Wife had a duty to “retest” either
Father or D.F. and find that the trial court erred in creating such a duty.
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Order be vacated. Ex-Wife’s second issue is, therefore, without merit and
fails.
Next, with Ex-Wife’s first issue, she alleges error generally with regard
to the trial court’s finding that she did not stand in loco parentis to pursue
custody of Child. Ex-Wife’s Brief at 9-16. Ex-Wife maintains that she “fully
assumed her parental status with the consent of Mother and discharged
parental duties, for nearly two years, wherein [Ex-Wife] established a strong
bond with the child by providing care, nurture and affection, like that of a
parent.” Id. at 10.
A trial court’s determination regarding standing will not be disturbed
absent an abuse of discretion. Butler v. Illes, 747 A.2d 943, 944 (Pa.Super.
2000). As we have stated, “An abuse of discretion is not merely an error of
judgment; if, in reaching a conclusion, the court overrides or misapplies the
law, or the judgment exercised is shown by the record to be either manifestly
unreasonable or the product of partiality, prejudice, bias or ill will, discretion
has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa.Super.
2007) (quotation omitted).
As to third parties and standing with respect to custody, 23 Pa.C.S.A. §
5324 provides as follows:
§ 5324. Standing for any form of physical custody or legal
custody.
The following individuals may file an action under this chapter for
any form of physical custody or legal custody:
(1) A parent of the child.
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(2) A person who stands in loco parentis to the child.
(3) A grandparent of the child who is not in loco parentis to the
child:
(i) whose relationship with the child began either with the
consent of a parent of the child or under a court order;
(ii) who assumes or is willing to assume responsibility for
the child; and
...
23 Pa.C.S.A. § 5324.
For purposes of the instant matter, we focus on “in loco parentis.”14 On
this topic, this Court has stated:
Generally, the Child Custody Act does not permit third parties to
seek custody of a child contrary to the wishes of that child’s
parents. The Act provides several exceptions to this rule, which
apply primarily to grandparents and great-grandparents. See 23
Pa.C.S.A. § 5324(3); 23 Pa.C.S.A. § 5325. In fact, unless a
person seeking custody is a parent, grandparent, or great-
grandparent of the child, the Act allows for standing only if that
person is “in loco parentis.” 23 Pa.C.S.A. § 5324(2).
“The term in loco parentis literally means ‘in the place of a
parent.’” Peters v. Costello, 586 Pa. 102, 891 A.2d 705, 710
(2005) (citing Black’s Law Dictionary, 791 (7th Ed. 1991)). A
person stands in loco parentis with respect to a child when he or
she “assum[es] the obligations incident to the parental
relationship without going through the formality of a legal
adoption. The status of in loco parentis embodies two ideas; first,
the assumption of a parental status, and, second, the discharge
of parental duties.” Id. (quoting T.B. v. L.R.M., 567 Pa. 222, 786
A.2d 913, 916-17 (2001)). Critical to our discussion here, “in loco
parentis status cannot be achieved without the consent and
knowledge of, and in disregard of [,] the wishes of a parent.” E.W.
____________________________________________
14 Mother asserts that Ex-Wife argues standing as a parent. While Ex-Wife
offered a presumption of parentage and parentage by estoppel in her reply to
Mother’s petition to vacate the consent order and her Rule 1925(a)(2)(i)
statement, Ex-Wife has not pursued those arguments in this Court.
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v. T.S., 916 A.2d 1197, 1205 (Pa.[Super.] 2007) (citing T.B.,
supra).
K.W., 157 A.3d at 504-05. “[T]he showing necessary to establish in loco
parentis status must in fact be flexible and dependent upon the particular facts
of the case.” J.A.L. v. E.P.H., 682 A.2d 1314, 1320 (Pa.Super. 1996).
Of relevance, looking to cases involving step-parents, we have held that
former same-sex partners are entitled to in loco parentis standing as third
parties where they “lived with the child and the natural parent in a family
setting, whether a traditional family or a nontraditional one, and developed a
relationship with the child as a result of the participation and acquiescence of
the natural parent.” J.A.L., 682 A.2d at 1321; see also T.B. v. L.R.M., 567
Pa. 222, 232-33, 786 A.2d 913, 918-19 (2001). Specifically, as we
summarized recently in C.G. v. J.H., 172 A.3d 43 (Pa.Super. 2017), allocatur
granted, No. 769 MAL 2017 (January 17, 2018):
In T.B., the trial court found that a same-sex partner, T.B., had
in loco parentis standing to the child at issue, A.M. This Court and
the Supreme Court of Pennsylvania affirmed. In its opinion, the
Supreme Court deferred to the trial court’s factual findings
because the record supported them. T.B., 786 A.2d at 919.
Those findings included that the parties “engaged in an exclusive,
intimate relationship,” “shared finances and expenses,” “jointly
purchased a home,” “decided to have a child,” and “agreed that
[the biological mother, L.R.M.] would be impregnated by a sperm
donor and that [T.B.] would choose the donor.” Id. at 914-15
(footnote omitted). T.B. “cared for [L.R.M.] during her pregnancy
and attended childbirth classes with her[, and] was the designated
co-parent for purposes of being present in the operating room
during the birth.” Id. at 915. After the child was born, the parties
lived together with the child but did not enter into a formal
parenting agreement. Id. L.R.M. named T.B. as guardian of the
child in her will. Id. L.R.M. and T.B. “shared day-to-day child
rearing responsibilities, including taking [the child] for medical
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check-ups and other appointments.” Id. T.B. “was active, yet
deferential to [L.R.M.] in making parental decisions.” Id.
Accepting the trial court’s findings, the Court agreed that T.B.
stood in loco parentis and had standing to seek partial custody.
Id. at 919-20.
In J.A.L., this Court reversed a trial court ruling that a same-sex
partner, J.A.L., lacked in loco parentis standing with respect to the
child there at issue, G.H. J.A.L., 682 A.2d at 1316. We stated
that “[t]he facts as found by the trial court clearly indicate that
[the biological mother,] E.P.H. and J.A.L. lived together ... as a
nontraditional family, for many years before the birth of the child”
and that the child “was to be a member of their nontraditional
family.” Id. at 1321. Those facts included: “the parties agreed
that E.P.H. would be artificially inseminated to attempt to conceive
a child whom the parties would raise together”[;] the parties
selected a sperm donor together; J.A.L. performed the
inseminations; J.A.L. accompanied E.P.H. to doctor visits and
childbirth classes; J.A.L., along with two other friends of E.P.H.,
was present at the birth of the child; and the child was given
J.A.L.’s surname as a middle name. Id. at 1316. In addition,
before the child’s birth, the parties consulted an attorney who
drafted documents, including “a Nomination of Guardian in which
E.P.H. named J.A.L. as the guardian of the child in the event of
E.P.H.’s death or disability”; “an Authorization for Consent to
Medical Treatment of Minor, permitting J.A.L. to consent to
medical or dental treatment of the child[;]” “a Last Will and
Testament for each party, providing for the other party and the
child[,]” and, in E.P.H.’s will, a clause appointing J.A.L. as the
guardian of the child; and a co-parenting agreement. Id. at 1316-
17. The parties executed all of these documents except for the
co-parenting agreement, which J.A.L. refused to execute after
counsel advised the parties that the agreement was not
enforceable in Pennsylvania. Id. at 1317. After the child’s birth,
the parties lived together with the child, and J.A.L. “assisted with
all aspects of the care of the baby.” Id. After the parties
separated, J.A.L. visited the child frequently and regularly. Id. at
1317, 1322.
C.G., 172 A.3d at 57-58.
Notably, however, in C.G., we affirmed the trial court’s determination
that a former same-sex partner did not stand in loco parentis due to the
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specific factual circumstances of the case. In distinguishing C.G. from J.A.L.
and T.B., we stated:
The court’s holding rests on the unique facts of this case, and
there are significant distinctions between this case and T.B. and
J.A.L., the main decisions on which C.G. relies. For example, in
T.B. and J.A.L., the parties decided together to have a child; here,
the court credited J.H.’s testimony that C.G. “never agreed to
have a child, but merely tolerated the idea of [J.H] having a child.”
Moreover, unlike the parties seeking custody in T.B. and J.A.L.,
C.G. did not participate in educational or medical decisions
regarding the child, was not intended to be the child’s guardian if
something happened to J.H., and acted more like a babysitter than
a parent. Further, there were no formal documents indicating a
co-parenting arrangement, the child did not bear C.G.’s surname,
and C.G. did not visit the child frequently and regularly after the
parties separated.
Id. at 58-59 (citations omitted).
Moreover, in loco parentis status cannot be in defiance of the natural
parents’ wishes and the parent-child relationship. T.B., 567 Pa. at 229, 786
A.2d at 917. Notwithstanding, such defiance must have been to the creation
of a parent-child bond with the third party, rather than to the continuation of
the relationship. Liebner v. Simcox, 834 A.2d 606, 610 (Pa.Super. 2003).
This has been reiterated in cases involving prospective adoptive parents where
a child has been placed for adoption against a natural parent’s wishes. See
B.A. v. E.E. ex rel. C.E., 559 Pa. 545, 741 A.2d 1227 (1999) (reversing and
vacating the trial court’s order granting prospective adoptive parents standing
in loco parentis where the father refused to consent to the child’s adoption
and attempted to gain custody from shortly after the child’s birth); K.W., 157
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A.3d at 505-07 (reversing the trial court’s order granting prospective adoptive
parents standing in loco parentis where the mother placed child for adoption
without the father’s knowledge of her pregnancy and, upon location by the
adoption agency, the father expressed his lack of consent and filed for custody
shortly thereafter). Nevertheless, a natural parent cannot seek to “eras[e] a
relationship between a former partner and a child which was voluntarily
created and actively fostered simply because after the parties’ separation [the
natural parent] regretted having done so.” J.A.L., 682 A.2d at 1322; see
also T.B., 567 Pa. at 232, 786 A.2d at 919. Also a factor and consideration,
is whether only limited custody rights were being sought by the third party.
J.A.L., 682 A.2d at 1321.
In the case sub judice, while acknowledging a parent-child relationship,
in determining Ex-Wife lacked in loco parentis standing, the trial court
reasoned as follows:
In the case at bar, Ex-Wife is in a similar position to the
prospective adoptive parents in B.A. and K.W., supra. Here,
Mother attempted to confer in loco parentis status on Ex-Wife,
initially when they agreed to raise Child in an intact marriage, and
later when they entered into a Consent Order for Custody. Father
reasonably believed he was not Child’s father at that time. First,
Mother told Father that the date of conception “didn’t match up
to” the dates of their sexual encounters. Second, an initial
paternity test (purchased from a drug store) concluded he was not
Child’s father. However, from mid-February 2017, when Father
received positive results from a second store-bought paternity
test, he took swift and decisive action. On March 1, 2017, Father
took a third paternity test administered by a reputable lab. One
day after receiving confirmation from the lab that he is Child’s
father, he contacted an attorney. On March 13, 2017, Father filed
a custody complaint against Mother and Ex-Wife. When Father
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learned of his paternity, his actions were immediately inconsistent
with consent to Ex-Wife’s in loco parentis status.
Several other salient facts likewise support the trial court’s
decision. Father and Mother were engaged in a relationship.
Father was not one of the men recruited by Mother and Ex-Wife
to be a sperm donor. Mother and Father did not conceive Child to
be raised by Mother and Ex-Wife. Ex-Wife is not a biological
parent. Ex-Wife did not pursue adoption through the courts. Ex-
Wife’s marriage to Mother lasted only six weeks after Child’s birth.
The Child was less than two years old when the trial court ordered
Ex-Wife to transition from Child’s life. Child likely will not
remember this period in her youth. The trial court cannot continue
to perpetrate the fiction of Ex-Wife’s in loco parentis status based
on her short relationship with Child, which Mother and Ex-Wife
facilitated in defiance of Father’s constitutional rights.
T.C.O. at 15-16.
Upon review, we disagree with the trial court and find that Ex-Wife does
have standing in loco parentis with respect to Child. The record reveals that
Ex-Wife participated in the pregnancy and preparations prior to Child’s birth,
as well as Child’s birth. N.T. at 9, 34, 38-39, 86, 103. Further, Mother and
Ex-Wife were married at the time of Child’s birth and, regardless of the
ultimate length of the marriage, they had the intent to jointly raise Child
“together in a happy marriage.” Id. at 7, 22, 34, 47. Ex-Wife was named as
a parent on Child’s birth certificate and involved in the naming of Child. Id.
at 34, 86, 104. Prior to Child’s birth, Mother and Ex-Wife consulted an
attorney regarding termination of D.F.’s parental rights. Id. at 39, 46-48,
103. Moreover, while there was some disparity as to the extent of Ex-Wife’s
involvement, Ex-Wife was clearly involved financially and otherwise during the
marriage and remained involved in Child’s life after separation. Id. at 13-14,
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18-19, 34, 86-89, 91, 94-95, 101-02. Although known to family and friends
that she was not Child’s biological parent, Ex-Wife likewise held herself out as
Child’s parent. Id. at 94-95, 123-24. Significantly, while declining to confer
standing, the trial court even found the existence of a parent-child relationship
as to Ex-Wife and Child, stating as follows:
Here, there is little doubt that Ex-Wife established a parent-
like relationship with Child during the approximately six weeks
Mother and Ex-Wife were happily married after Child’s birth. Even
after Mother and Ex-Wife separated (December 16, 2015), but
prior to Ex-Wife’s departure from the residence (April 2016), Ex-
Wife performed day-to-day childcare duties consistent with her
schedule of work, school, and relationships. After separation,
Mother afforded Ex-Wife increasing amounts of custody,
culminating in the Consent Order of August 15, 2016.
T.C.O. at 13.
By way of contrast from the cases involving prospective adoptive
parents, instantly, a situation is presented where Mother is attempting in
hindsight to expunge Ex-Wife’s relationship with Child, a relationship that was
created, fostered, and continued, regardless of any legal beliefs or advice, by
Mother, a biological parent, since prior to Child’s birth and for approximately
a year and a half thereafter. Also distinguishable, Mother was the only known
biological parent, as Child’s paternity was unknown, until Child was
approximately 1½ years old. See Father’s Exhibit 1. In addition, Father, once
aware of his paternity, filed a Complaint for Custody against both Mother and
Ex-Wife. N.T. at 62-63. Notably, he did not file to challenge Ex-Wife’s
standing. Further, unlike prospective adoptive parents, whose intent by virtue
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of adoption is to completely supplant and oust the biological parents, Ex-Wife
does not intend to completely supplant and oust Mother and Father. See Ex-
Wife’s Brief at 13.
Importantly, we recognize that this conferral of standing does not
automatically result in or equate to custodial time for Ex-Wife. It merely
allows the trial court to consider Child’s best interests. J.A.L., 682 A.2d at
1319-20.
. . .The existence of such a colorable claim to custody grants
standing only. In other words, it allows the party to maintain an
action to seek vindication of his or her claimed rights. A finding
of prima facie right sufficient to establish standing does not affect
that party’s evidentiary burden: in order to be granted full or
partial custody, he or she must still establish that such would be
in the best interest of the child under the standards applicable to
third parties.
Id. As we further stated, “A determination of standing simply implies that the
party has a substantial interest in the subject matter of the litigation and that
the interest is direct, immediate and not a remote consequence.” T.B., 567
Pa. at 233, 786 A.2d at 919-20 (citation omitted). However, it “does not
speak to [the] chance of success on the merits, but merely affords . . . the
opportunity to fully litigate the issue.” Id. at 233-34, 920.
Accordingly, for the foregoing reasons, we affirm the order of the trial
court in part, and vacate and remand in part.
We affirm the trial court’s order as it relates to the Consent Order.
However, we vacate the trial court’s order as it relates to Ex-Wife’s standing
and remand for a custody hearing on the merits as to Father’s Complaint for
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Custody as against Mother and Ex-Wife. The custody hearing should be
accomplished as quickly as is practicable in order to satisfy the interests of
finality and stability in custody arrangements for the Child.
Additionally, it is hereby Ordered that the custody arrangement with Ex-
Wife having physical custody every weekend (Friday at 5:00 p.m. to Monday
at 12:00 p.m.) shall be reinstated pending the outcome of the new hearing.
Order affirmed in part, and vacated and remanded in part. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2018
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