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V.B. and C.B v. J.E.B. and C.C.

September 21, 2012


Appeal from the Order Entered of December 20, 2011 In the Court of Common Pleas of Northampton County Civil Division at No(s): C-0048-CV-209-707

The opinion of the court was delivered by: Bowes, J.




C.C. ("Father") appeals from the order entered on December 20, 2011, wherein the trial court awarded V.B. ("Grandmother") and C.B. ("Grandfather"), maternal grandparents, hereinafter referred to collectively as "Grandparents," legal custody and primary physical custody of A.B. and Z.B., who were born of Father's polyamorous*fn2 relationship with J.E.B. ("Mother")*fn3 and her husband, B.J. ("Husband"). Mother and Father, who maintain separate households, each were awarded two non-consecutive overnight periods of partial physical custody per month.*fn4 After careful review, we reverse and remand for entry of a custody order consistent with this opinion and further proceedings.

Mother and Father never married. A.B. and Z.B., ages six and five respectively, were conceived while Mother was married to Husband. At that time, Mother, Father, and Husband resided together in an apartment in Newark, New Jersey. However, prior to A.B.'s birth, the family moved to a home that Grandparents, Mother's adoptive parents, purchased during January of 2005 because they did not approve of the family's neighborhood and they wanted A.B. to "have a backyard to grow up in." N.T., 12/13/11, at 19, 76. Grandparents charged Mother, Father, and Husband $1,000 monthly rent. Id. at 21, 70-73.

During June 2007, the New Jersey Department of Youth and Family Services ("DYFS") intervened as a result of a spiral fracture A.B. sustained to her leg. Id. at 16. The agency placed A.B. and Z.B. in Grandparents' care pending an investigation. Grandparents resided in Bloomingdale, New Jersey with their twenty-six-year-old son. Id. at 15. While the agency completed its investigation in approximately six months, finding that A.B. was not the victim of physical abuse,*fn5 the children remained with Grandparents for approximately nine additional months due to bureaucratic formalities. N.T., 12/14/11, at 9, 20, 32, 68-69. Grandparents opposed reunification. N.T., 12/13/11, at 23. Eventually, the agency returned the children to Mother and Father during September 2008. Id. at 44.*fn6

Meanwhile, during October 2007, Grandparents evicted Mother, Husband, and Father, and the triad moved to an apartment in Bethlehem, Pennsylvania. Id. 21, 73.

In 2007, Mother, Husband, and Father opened their relationship and their home to L.C. ("Stepmother"), whom Father subsequently married during 2008, and with whom he had a daughter. Thus, after September 2008, A.B. and Z.B lived with Mother, Husband, Father, Stepmother, and their half-sister until Father severed his polyamorous bonds and moved his wife and child to an adjoining apartment in the same building. N.T., 12/14/11, at 62, 67, 70. Father and Stepmother later moved from that apartment building to their current residence in April 2010. Id. Husband subsequently moved to Texas and filed for divorce. Id. at 4-5. Mother is currently in a monogamous relationship with M.N., and they have a one- year-old son. Id. at 4, 23.

After the four-way polyamorous relationship between Mother, Husband, Father, and Stepmother dissolved, Mother and Father assented to a shared custody schedule wherein Grandparents had partial custody of the children on alternating weekends. Id. at 45, Custody Order, 3/6/09, at unnumbered page 2. Mother and Father, who reside within walking distance, shared legal custody and rotated periods of primary physical custody during the week. N.T., 12/13/11, at 25-26. Mother and Father remain cordial and practice co-parenting. N.T., 12/13/11, at 47; N.T., 12/14/11, at 7, 32, 45. While Mother does not have any apparent animosity toward Grandparents, Father's relationship with Grandparents is openly hostile and uncooperative. N.T., 12/13/11, at 39, 50-51. In fact, Mother characterized the interactions between Father and Grandparents as a "disaster." N.T., 12/14/11, at 16. In contrast, she described her relationship with Grandparents as amicable. Id. at 9. Grandparents provided and continued to provide Mother with various forms of financial support including cash advances, a lawyer to represent her in her divorce proceedings against Husband, rent, use of a motor vehicle, and a cleaning service to clean her apartment twice a month. N.T., 12/13/11, at 69, 78; N.T., 12/14/11, at 9-10.

On February 11, 2011, Grandparents filed a petition to modify the existing custody order wherein they requested, inter alia, that either they or Mother receive primary physical custody. Father countered with a petition to modify the custody arrangement wherein he requested that the trial court confirm his shared legal custody with Mother and award him primary physical custody. Not to be excluded, Mother also filed a petition to modify custody that requested primary physical custody of the children. On April 1, 2011, the trial court ordered Northampton County Children Youth and Families ("CYF") to conduct a comparative home custody evaluation, which CYF performed on Mother's and Father's residences on June 4 and 7, 2011. Even though the order made accommodations for parties who lived outside of Northampton County to secure an evaluation, Grandparents' residence in New Jersey was never assessed. Instead, Grandparents were permitted to introduce an expired foster home license that was issued in 2008. The trial court accepted the expired foster care license as evidence demonstrating both the appropriateness of Grandparents' residence and that they were "better suited to nurture and develop the minor children," yet it summarily disregarded CYF's court-ordered custody evaluation which revealed, inter alia, that Father's home was reasonably clean and adequate, that A.B. excelled in school during the 2010-2011 academic year, and that A.B. disfavored continuing visitation with Grandparents. See Trial Court Opinion, 2/8/12, at 17.

In addition, the trial court granted Grandparents' petition to compel Stepmother to submit to a psychological evaluation by an evaluator who they selected and compensated. However, the trial court subsequently sustained Grandparents' objection to admitting their previously requested court-ordered psychological report without their evaluator's in-court testimony.

On December 20, 2011, following a two-day custody trial wherein the court interviewed both children in camera, the trial court awarded Grandparents primary physical custody of A.B. and Z.B. and granted Mother and Father each two non-consecutive days of partial custody per month, portions of certain holidays, and one week during summer vacation. In addition, the court granted Grandparents sole legal custody of the children sua sponte. Father filed this timely appeal on January 9, 2012, and he complied with Pa.R.A.P. 1925(a)(2)(i) by filing a statement of errors complained of on appeal concurrent with his notice of appeal. Father presents the following issues for our review:

I. Did the trial court err and abuse its discretion by not considering the presumption of custody in favor of a parent over a third party and then not considering whether the third party rebutted that presumption by clear and convincing evidence in accordance with 23 Pa.C.S. § 5327(b) after it found "all parties capable of performing parental duties, weighted in the favor of the plaintiffs'"?

II. Did the trial court err and abuse its discretion by not recusing itself after discovering that the trial court had heard a separate custody action years prior concerning [Stepmother] and her children causing partiality and prejudice against [Father]?

Father's brief at 10 (footnote omitted).

We recently reiterated the applicable scope and standard of review as follows:

In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court's deductions or inferences from its factual findings. Ultimately, the test is whether the trial court's conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.

A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa.Super. 2010) (internal citations omitted).

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012).

At the outset, we observe that the new Child Custody Act, 23 Pa.C.S. §§ 5321-5340, applies to the case at bar because Grandparents filed their petition to modify the existing custody order after January 24, 2011, the effective date of the new law. See E.D. v. M.P., 33 A.3d 73 (Pa.Super. 2011). We further note that the trial court complied with the new custody law by explicitly examining each of the factors enumerated in § 5328 in reaching its best-interest determination and discussing the factors in its custody order and opinion. However, as addressed infra, in analyzing several of the relevant factors delineated in § 5328, the trial court injected artificial morality concerns that the legislature has deemed irrelevant.

As identified by our legislature, the relevant factors to consider when awarding custody are as follows:

(a) Factors.--In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2) The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide ...

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