from the Order Dated December 6, 2016 In the Court of Common
Pleas of Clearfield County Civil Division at No(s):
BEFORE: BOWES, LAZARUS, AND OTT, JJ.
("Father") appeals the trial court order entered on
December 6, 2016, wherein the trial court awarded primary
physical custody of his son, L.M.S., to the maternal
grandmother, B.B. ("Grandmother"). Father
challenges Grandmother's standing to pursue custody,
assails the trial court's miscomprehension of the
procedural posture of the case, and complains that the court
ignored the statutory presumption favoring parents over third
parties. As we agree with the latter two contentions, we
reverse and remand for further proceedings.
was born during January 2010 of Father's relationship
with B.M.B. ("Mother"). For the first five years of
L.M.S.'s life, he lived with Mother at Grandmother's
home in Clearfield County, Pennsylvania. Father, who resides
approximately one-hour away in Dubois, Pennsylvania,
exercised partial physical custody of his son on alternating
weekends pursuant to an informal custody arrangement.
August 19, 2015, Mother informed Father through an
intermediary that she intended to enroll in an inpatient
detoxification program at DuBois Regional Medical Center and
that Father should assume custody of their son. Father took
physical custody of L.M.S., and approximately one week later,
he filed a petition for primary physical custody. The trial
court scheduled a custody conference for September 22, 2015,
and on September 25, 2015, it ordered that Mother and Father
each pay $250.00 for compulsory custody mediation.
interim, Father enrolled then-five-year-old L.M.S. in
kindergarten in the school district near his residence, and
filed an emergency petition alleging that Mother continued to
abuse illicit drugs. Father asserted that the purpose of the
emergency petition was "to ensure that the child is
protected and remains in school until such time as a hearing
can be held." Emergency Petition for Special Relief,
9/15/15, at 2. The trial court granted the emergency petition
summarily, awarded Father temporary physical custody, and
scheduled a hearing on the petition for October 5, 2015.
Mother failed to respond to either the emergency petition or
Father's petition for primary physical custody.
September 23, 2015, Grandmother filed an emergency petition
to intervene wherein she requested primary physical custody
of L.M.S. Grandmother invoked 23 Pa.C.S. § 5324 as the
basis to pursue legal and physical custody of her grandson.
Grandmother asserted that she "has always been the
primary caretaker . . . [and] has provided for all of the
financial, emotional and physical needs of the child."
Petition for Special Relief, 9/23/15, at 2. Essentially,
Grandmother asserted that she has stood in loco
parentis since the child's birth. The trial court
immediately granted Grandmother's petition to intervene,
rescinded its interim custody order in favor of Father, and
awarded Grandmother emergency custody of L.M.S. pending the
hearings on the parties' dueling petitions for emergency
relief. The trial court neglected to state its basis for
finding that Grandmother had standing to pursue primary
custody, and it failed to rule upon Father's ensuing
motion for reconsideration of the standing issue.
court ultimately denied Father's emergency petition for
special relief and entered a temporary order directing that
Grandmother maintain primary physical custody of L.M.S.
subject to Father's periods of partial custody. The court
directed that Grandmother join the compulsory mediation
process and amended its prior order so that responsibility
for the $500.00 mediation fee would be shared equally among
the three parties.
March 11, 2016, the trial court held a custody trial on
Father's petition for primary custody. Father testified
on his own behalf and presented the testimony of his
step-father, fiancée, and future father-in-law. Mother
testified and called L.M.S.'s kindergarten teacher to the
stand to discuss the child's progress in the Clearfield
School District. Grandmother testified on her own behalf. The
trial court conducted an in camera interview with
L.M.S. off the record.
nine months after the hearing, on December 6, 2016, the trial
court entered a final order and opinion awarding all three
parties shared legal custody, granting Grandmother primary
physical custody, and providing Father periods of partial
physical custody. Mother was awarded undesignated periods of
physical custody to be exercised during Grandmother's
timely appeal followed. Father filed a concise statement of
errors complained of appeal pursuant to Pa.R.A.P. 1925(b). He
raised five issues, which he reiterates on appeal as follows:
I. I. Whether the Trial Court abused its discretion in
granting Grandmother Emergency Leave to Intervene and
II. Whether the Trial Court erred as a matter of law in
finding that Grandmother had standing pursuant to 23 Pa.C.S.
III. Whether the Trial Court abused its discretion in finding
that the factors set forth in 23 Pa.C.S. § 5328 favored
a placement of primary physical custody with Grandmother?
IV. Whether the Trial Court erred as a matter of law in
finding that Father had a burden to sustain, where 23 Pa.C.S.
§ 5327(b) clearly states that there is a presumption
custody should be with a parent over a third party and
therefore, Grandmother had the burden of proof?
V. Whether the Trial Court abused its discretion in finding
that Grandmother met her heavy burden of proof to overcome
the presumption set forth in 23 Pa.C.S. § 5327(b)?
Father's brief at 10-11.
outset, we address Father's challenge to
Grandmother's standing. This argument implicates the
first two issues that Father raises in his statement of
questions involved. We address those issues
threshold contention, Father asserts that the trial court
engaged in ex parte review of Grandmother's
emergency petition to intervene and assume physical custody.
While artless in its presentation, Father's argument
essentially assails the trial court's grant of special
relief to Grandmother without a hearing. Oblivious to the
irony of his contention, considering the fact that the trial
court previously granted him special relief in the identical
manner, Father implies that the trial court was required to
schedule a hearing on the emergency petition prior to
awarding Grandmother emergency custody.
claim fails for at least two reasons. First, he neglects to
support his legal argument with citation to any authority
beyond Pa.R.C.P. 1915.13, the rule governing special relief.
Thus, the assertion is underdeveloped. Moreover, contrary to
Father's posturing, Rule 1915.13 does not establish any
specific procedure for the trial court to impose temporary
special relief and, critically, it certainly does not require
that the trial court schedule a hearing or listen to argument
before special relief is awarded. Indeed, pursuant to Rule
1915.13, the court may grant relief sua sponte.
See Pa.R.C.P. 1915.13 ("At any time after
commencement of the action, the court may on application or
its own motion grant appropriate interim of special relief[,
including] the award of temporary legal or physical
we observe that Father does not assert that he was not
provided notice of the emergency petition or that Grandmother
had an extrajudicial communication with the trial court. To
the contrary, the record confirms that Grandmother filed the
emergency petition with the trial court and upon review of
the allegations in the petition, the trial court granted
interim relief as sanctioned by Rule 1915.13. Accordingly,
for both of the foregoing reasons, we reject Father's
bare assertion that the trial court erred in granting what he
styled as ex parte relief.
Father argues that the trial court erred in concluding that
Grandmother stood in loco parentis to L.M.S. and
that, absent that designation, Grandmother cannot establish
the statutory grounds for standing to pursue custody of
L.M.S. For the following reasons, we disagree.
review the trial court's determination of standing de
novo, and our scope of review is plenary. K.L. v.
S.L., 157 A.3d 498, 504 (Pa.Super. 2017)
("Threshold issues of standing are questions of law;
thus, our standard of review is de novo and our
scope of review is plenary.").
Child Custody Law provides the following individuals standing
to pursue any form ...