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A.P.G. v. L.C.

Superior Court of Pennsylvania

February 24, 2014

A.P.G.
v.
L.C., Appellant
v.
D.R.

NON-PRECEDENTI AL DECISION

Appeal from the Order entered May 13, 2013, in the Court of Common Pleas of Westmoreland County, Civil Division, at No(s): 1189 of 2010-D.

BEFORE: PANELLA, ALLEN, and STRASSBURGER [*] , JJ.

MEMORANDUM

PANELLA, J.

L.C., (Mother), appeals the final order entered on May 13, 2013, granting visitation and partial custody to D.R., (Paternal Grandmother), and the prior order entered on March 13, 2012, which denied her petition to schedule a hearing on the m atter of the court's right to entertain initial jurisdiction and ongoing jurisdiction with respect to Paternal Grandmother's standing to assert grandparental custody rights in the custody proceeding between Mother and A.P.G., (Father). We vacate and remand.

Mother and Father are the parents of H.G., born in August 2007, and G.G., born in September 2009, and married on January 5, 2008. Mother filed a com plaint for divorce on August 2, 2010, which was finalized on December 12, 2010. Father filed for custody of the Children on June 21, 2010, and was awarded partial custody by order of court dated September 2, 2010. On November 9, 2010, Paternal Grandmother presented a petition requesting perm ission to intervene. The petition also requested periods of partial custody for Paternal Grandm other. The trial court, in an order dated November 9, 2010, permitted Paternal Grandmother to intervene in the custody case. Paternal Grandmother participated in the review conference scheduled for November 16, 2010. Following the conference, the trial court, by order of court dated November 29, 2010, awarded Paternal Grandmother partial custody of the Children every Sunday from 2: 00 p.m. until 4: 00 p.m.

In an order dated on March 25, 2011, Paternal Grandmother's visits were switched to supervised visits, to be supervised by Counseling and Assessment Services (CCAS) and paid for by Paternal Grandmother. Also at Paternal Grandmother's expense, CCAS was ordered to conduct a home evaluation at Paternal Grandmother's residence.

After a review on September 9, 2011, based on the report and recommendations of Nicole Lavale, M.A., of CCAS, the supervisor of the visits between Paternal Grandm other and the Children, the trial court ordered that the visits were to be m onitored, with the visits being unsupervised. Paternal Grandmother was to pay the costs of the m onitoring.

On January 13, 2012, the Mother's current counsel entered her appearance. Shortly thereafter, a flurry of petitions were filed, m ost raising allegations against Paternal Grandm other, requesting that Paternal Grandmother's rights be suspended or switched back to supervised.

On February 14, 2012, Mother filed a Motion to Schedule Hearing to Determine Initial and Ongoing Custody Jurisdiction, Venue and Standing Pursuant to Pa. Rules of Civil Procedure 1915.5 and 23 Pa.C.S.A., Sections 5313(A) and 5422. The trial court denied Mother's request in an order dated March 9, 2012, and entered on March 13, 2012. Mother filed a motion for reconsideration of the March 9, 2012 order, which the trial court denied on March 29, 2012, after hearing arguments.

Thereafter, in April 2012, Mother filed a Petition to Term inate Grandparent Partial Custody/ Visitation. After hearing argum ents on the petition, the trial court denied the petition on April 26, 2012. On April 26, 2012, the trial court scheduled the trial to occur on August 31, 2012. On August 31, 2012, Father and Paternal Grandmother consented to the relocation of Mother and the Children from Westmoreland County to Fayette County, and the trial court entered a consent order. On April 29-30, 2013, a trial proceeded on the other issues. In an order dated May 7, 2013, and entered on May 13, 2013, the trial court issued an order awarding partial custody of the Children to Paternal Grandmother every Sunday, with the visits to be from 2: 00 p.m. to 4: 00 p.m., beginning May 19, 2013.

On May 21, 2013, Mother timely filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1025(a)(2)(i) and (b).

I n her brief, Mother divides her issues into two parts:
I . [ Whether] [ t] he Lower Court erred, by reason of its Order of Court dated March 9, 2012, in refusing to schedule a hearing and consider the issues of initial jurisdiction and ongoing jurisdiction with respect to whether the intervenor had standing to assert custody rights to the m inor children[ ?]
I I . [ Whether] [ t] he Lower Court erred as a m atter of law as to grandparent's [ sic] rights to custody in failing to properly analyze and apply the provisions of prior custody law and 23 Pa.C.S.A., Section 5328(a) as to grandparental custody rights in its ruling at trial and in its decision dated May 7, 2013[ ?]

Mother's Brief, at 2.

With regard to the first issue, the trial court found that Paternal Grandmother's Petition to Intervene was filed and decided prior to the effective date of the new Child Custody Act (the Act), January 24, 2011. For that reason, the trial court found that the previous statutory section of 23 Pa.C.S.A. § 5313 governs in this case. Title 23 section 5313 entitled "When grandparents m ay petition" stated:

(a) Partial custody and visitat ion.- - If an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more and is subsequently removed from the home by his parents, the grandparents or great-grandparents may petition the court for an order granting them reasonable partial custody or visitation rights or both, to the child. The court shall grant the petition if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship.
(b) Physical and legal custody.-A grandparent has standing to bring a petition for physical and legal custody of a grandchild. I f it is in the best interests of the child not to be in the custody of either parent and if it is in the best interest of the child to be in the custody of the grandparent, the court may award physical and legal custody to the grandparent. This subsection applies to a grandparent:
(1) who has genuine care and concern for the child;
(2) whose relationship with the child began with the consent of a parent of the child or pursuant to an order of court; and
(3) who for 12 months has assumed the role and responsibility of the child's parent providing for the physical, em otional and social needs of the child, or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk dues to parental abuse, neglect, drug or alcohol abuse or m ental illness. The court may issue a temporary order pursuant to this section.

23 Pa.C.S.A. § 5313.

Previously, the Supreme Court of Pennsylvania held that the custody statute autom atically conferred standing upon a grandparent to file for custody of his/ her grandchild sim ply by virtue of the fam ilial relationship. R.M. v. Baxter ex rel. T.M., 777 A.2d 446, 451 (Pa. 2001). The Supreme Court explained that the legislature's conferral of autom atic standing to seek the physical and legal custody of a grandchild did not affect a grandparent's evidentiary burden to prove his/ her custody claim on the m erits. Id. The Court further explained that the automatic standing requirement merely elim inated the prelim inary standing requirem ent that a party establish a direct and substantial interest in the custody proceeding before the court. Id. .

Here, the trial court perm itted Paternal Grandm other to intervene in the instant case on Novem ber 9, 2010, prior to the effective date of the Act. After a review of the trial court opinion, we affirm on the basis that the trial court correctly dealt with Paternal Grandm other's intervention in the instant case under the law as it existed prior to the effective date of the Act. See C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (providing that, if the evidentiary proceeding commences on or after the effective date of the Act, i.e., January 24, 2011, the provision of the Act applies). Thus, Mother's issues involving Paternal Grandm other's intervention fail.

Next, as with any custody case decided under the Act, the paramount concern is the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5338 of the Act provides that, upon petition, a trial court m ay m odify a custody order if it serves the best interests of the child. 23 Pa.C.S.A. § 5338. This Court has held that "[ a] ll of the factors listed in section 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) (citation om itted) (em phasis in original). I n an opinion filed on April 22, 2013, C.B. v. J.B., 65 A.3d 946, 955 (Pa.Super. 2013), this Court prospectively held that trial courts m ust set forth consideration of the section 5328(a) factors "prior to the deadline by which a litigant m ust file a notice of appeal").

I n this case, the trial court's June 21, 2013 opinion does not include a discussion of all of the best interests factors of section 5328(a). I n fact, the trial court specifically stated that it addressed only the six factors it deem ed relevant in relation to Mother and Paternal Grandm other. See Trial Court Opinion, 6/ 21/ 13, at 11. Under the Act, the trial court must now consider all sixteen best interests factors under section 5328(a), since the court is required to consider them when entering a custody order and prior to the deadline by which a litigant m ust file a notice of appeal. J.M.R., 33 A.3d at 652; C.B., 65 A.3d at 955.

Therefore, we must conclude that the trial court committed an error of law by failing to expressly consider all of the section 5328(a) best interests factors in open court and in its opinion entered on June 21, 2013. See J.M.R.; C.B.. As such, we are constrained to remand the matter to the trial court to expressly consider in an opinion all of the best interests factors in arriving at its custody decision. The trial court shall file its opinion within thirty (30) days of the filing of this m em orandum . Thereafter, either party m ay file a new appeal based on the trial court's opinion.

Order vacated. Case rem anded for the trial court to file a new opinion. Jurisdiction relinquished.

Judgment Entered.

CONCURRING MEMORANDUM

STRASSBURGER, J.

I reluctantly concur.

Since the enactment of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in 2011, this Court has repeatedly held that the Act requires an evaluation of all sixteen factors in every case, regardless of the type of custody sought or the status of the individual seeking it.

I have no quarrel with the cases imposing such a requirement when the dispute is over prim ary custody. See e.g., J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (holding that, the trial court erred in failing to consider all of the "statutorily m andated" factors listed in section 5328(a) before awarding mother primary physical custody); C.R.F. v. S.E.F., 45 A.3d 441, 442 (Pa.Super. 2012) (holding that the trial court erred in failing to evaluate all 16 factors in case where trial court awarded primary physical custody to mother); B.K.M. v. J.A.M., 250 A.3d 168, 176 (Pa.Super. 2012) (holding that the trial court erred in failing to analyze the factors set forth in sections 5328(a) and 5337(h) before denying mother's requests for full custody and relocation); V.B. v. J.E.B., 55 A.3d 1193, 1198 (Pa.Super. 2012) (noting with approval the trial court's application of the factors in section 5328(a) in evaluating grandparents' request for custody); M.P. v. M.P., 54 A.3d 950, 956 (Pa.Super. 2012) (acknowledging the trial court's evaluation of the section 5328(a) factors, despite finding that the trial court's ultim ate custody determ ination was in error); M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013) appeal denied, 68 A.3d 909 (Pa. 2013) (holding that "the trial court did precisely what it should have done; it weighed the entirety of the section 5328(a) factors in m aking the custody determination"); C.B. v. J.B., 65 A.3d 946, 950 (Pa.Super. 2013) appeal denied, 70 A.3d 808 (Pa. 2013) (holding, inter alia, that evaluation of the section 5328(a) factors was appropriate in a case where primary physical custody was awarded to the children's uncle); A.M.S. v. M.R.C., 70 A.3d 830 (Pa.Super. 2013) (vacating the trial court's order and rem anding for additional proceedings where trial court failed to consider adequately all statutorily m andated factors in m aking custody and relocation determination); and M.O. v. J.T.R., -- A.3d --, 2014 PA.Super. 15 (Pa.Super. filed Feb. 4, 2014) (holding that " [ t] he plain language of Section 5328(a) requires that the sixteen enumerated factors be considered when the court is determ ining a child's best interest for the purpose of m aking an award of custody [ as defined by 23 Pa.C.S. § 5323(a)] ").

However, I part company with cases such as L.A.L. v. V.D., 72 A.3d 690 (Pa.Super. 2013) (vacating the trial court's order and rem anding for additional proceedings because trial court failed to consider adequately all 16 factors in case where grandparents were petitioning for partial custody of child) and the instant case where we have the narrow issue of grandparent partial custody.

Section 5328(c) sets forth special considerations for grandparents seeking custody.

(c) Grandparents and great-grandparents.- -

(1) I n 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.
(2) I n ordering partial physical custody or supervised physical custody to a parent's parent or grandparent who has standing under section 5325(3), the court shall consider whether the award:
(i) interferes with any parent-child relationship; and
(ii) is in t he best int erest of t he child.

23 Pa.C.S. §5328(c).

In cases such as this where a limited amount of monitored partial custody is being sought by the child's grandparent, the necessity of a pro forma evaluation of the section 5328(a) factors is greatly dim inished. I t seems a poor use of limited resources and time to require our overworked fam ily court judges to draft an opinion paying lip service to the other factors outlined in Section 5328(a) where (1) the legislature has set forth special considerations regarding grandparent custody and (2) where the dispute involves a bi-weekly, two-hour period of m onitored partial custody.


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