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M.J.S v. B.B.

Superior Court of Pennsylvania

October 17, 2017

M.J.S. Appellant

         Appeal from the Order Dated December 6, 2016 In the Court of Common Pleas of Clearfield County Civil Division at No(s): 2015-1290-CD



          BOWES, J.

         M.J.S. ("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.

         L.M.S. 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.

         On 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.

         In the 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.

         On 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.

         The 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.

         On 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.

         Approximately 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.[1] Mother was awarded undesignated periods of physical custody to be exercised during Grandmother's primary custody.

         This 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 Emergency Custody?
II. Whether the Trial Court erred as a matter of law in finding that Grandmother had standing pursuant to 23 Pa.C.S. § 5324?
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.

         At the 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 seriatim.

         As a 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.

         Father's 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 custody[.]").

         Instantly, 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.

         Next, 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.

         We 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.").

         The Child Custody Law provides the following individuals standing to pursue any form ...

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