J.D. APPEAL OF: E.A.S., Intervenor
OF: E.A.S., Intervenor: Appeal from the Order Entered
December 26, 2018 In the Court of Common Pleas of Dauphin
County Civil Division at No(s): 2013-CV-06988-CU
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS [*] , P.J.E.
paternal grandmother (Grandmother), appeals from the trial
court's order denying her petition to intervene in the
underlying custody action for lack of standing. Appellees,
M.S. and J.D., are the natural parents of the subject minor
child (Child) (born 8/12). After careful review, we affirm.
parents, M.S. (Father) and J.D. (Mother), were never married.
Grandmother has been actively involved in Child's life.
Mother has consented to Grandmother's involvement in
Child's life, including permitting Child to spend
weekends, as well as the entire summer of 2018, at
Grandmother's house. N.T. Petition to Intervene Hearing,
10/4/18, at 14. In August 2013, Father filed a custody
complaint against Mother. In August 2016, Grandmother filed a
petition to intervene; Mother and Father filed a response and
preliminary objections to the petition. On September 1, 2016,
following a custody conference, Mother and Father agreed to
the following custody arrangement: parents share legal
custody of Child; Mother has primary physical custody of
Child; and Father has partial physical custody of Child,
subject to an agreed-upon custodial schedule. Custody Order,
9/1/16. On January 3, 2017, Mother filed an emergency
petition seeking sole custody of Child alleging that Father
had been physically abusive toward Child. On January 4, 2017,
the trial court entered an order granting Mother's
emergency petition and awarding her temporary primary
physical custody and shared legal custody pending a hearing
scheduled on January 24, 2017.
February 6, 2017, the trial court denied Grandmother's
petition to intervene. In June 2017, Father's custodial
rights to Child were suspended "pending an investigation
by Dauphin County Children and Youth Services and an
evaluation of [Father] under [s]ection 5329 to determine if
[Father] poses a threat of harm to [C]hild." Trial Court
Order, 6/22/17. The order further mandated that the
evaluation should be conducted by a licensed psychologist at
Father's expense and that the psychologist's report
be sealed and sent to the trial judge. Id. The order
suspending Father's custody rights was precipitated by
the filing of criminal charges against Father and the
issuance of a temporary Protection from Abuse order to
protect Father's spouse and her children. On June 27,
2017, the trial court amended its June 22, 2017 order,
temporarily suspending Father's partial custody rights
under the parties' prior custody order dated September 1,
2016, subject to the same psychological evaluation
requirement. On August 3, 2017, Grandmother filed a
second petition to intervene. However, Mother and Grandmother
reached an agreement regarding custody and Grandmother
withdrew her petition on March 19, 2018.
August 13, 2018, Grandmother filed the instant petition, her
third, seeking to intervene and obtain custody of Child,
arguing she has legal standing to seek custody pursuant to 23
Pa.C.S. §§ 5324(4) and 5325(2). In her petition,
Grandmother seeks primary physical custody or, in the
alternative, partial physical custody of child in order
"to be able to attend to [his] educational needs ... in
addition to seeing to his personal and emotional
welfare." Petition to Intervene and for Custody,
8/13/18, at ¶ 30. Grandmother also avers in her petition
that she has a "sustained, substantial, and sincere
interest in the welfare of the minor Child."
Id. at ¶ 29. Grandmother asserts that she is
"gravely concerned" for Child's well[-]being
since Mother has permitted Father to exercise custody after
his rights were suspended by court order, is concerned that
neither Mother nor Father "h[as] a genuine interest in.
. . Child's well[-]being nor any form of care and control
of . . . Child," and believes "it is in the best
interest of the minor child to allow [her] to intervene and
be granted primary physical custody of [C]hild."
Id. at ¶¶ 33-34, 37, 43. On October 4,
2018, the trial court held a hearing on Grandmother's
petition; the parties were directed to file briefs in support
of their respective positions.
December 26, 2018, the trial judge, the Honorable Edward M.
Marsico, Jr., entered an order denying Grandmother's
petition to intervene pursuant to 23 Pa.C.S. §§
5324(3), 5324(4), and 5325(2) of Pennsylvania's Child
Custody Act (the Act). Grandmother filed a timely petition to
reconsider, which was denied on January 16, 2019. On January
25, 2019, Grandmother filed a timely notice of appeal and
contemporaneous Pa.R.A.P. 1925(a)(2) concise statement of
errors complained of on appeal.Grandmother presents three issues
for our consideration:
(1) Whether the trial court erred by finding that Intervenor
Paternal Grandmother failed to show that the minor child is
substantially at risk due to parental abuse, neglect, drug or
alcohol abuse or incapacity.
(2) Whether the trial court erred in failing to consider that
presumptively fit parents act in the child's best
interests when finding that Intervenor Paternal Grandmother
did not meet the requirements for standing under section
(3) Whether the trial court erred in finding that Intervenor
Paternal Grandmother failed to show that neither parent has
any form of care and control of the child as required under
Appellant's Brief, at 4 (renumbered for ease of
issues of standing are questions of law; thus, our standard
of review is de novo and our scope of review is
plenary. K.W. v. S.L., 157 A.3d 498, 504 (Pa. Super.
2017). The concept of standing is vital in ensuring that
cases are presented to the court by an individual who has a
genuine, and not merely a theoretical, interest in the
matter. Thus, the traditional test for standing is that the
proponent of the action must have a direct, substantial and
immediate interest in the matter at hand. D.G. v.
D.B., 91 A.3d 706 (Pa. Super. 2014). In M.W. v.
S.T., 196 A.3d 1065 (Pa. Super. 2018), our Court
In the area of child custody, principles of standing have
been applied with particular scrupulousness because they
serve a dual purpose: not only to protect the interest of the
court system by assuring that actions are litigated by
appropriate parties, but also to prevent intrusion into the
protected domain of the family by those who are merely
strangers, however well-meaning.
Id. at 1069 (citation omitted).
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." Id., citing K.W.,
157 A.3d at 504. Grandparents may seek any form of physical
or legal custody under section 5324 of the Act, which
provides, in pertinent part:
The following individuals may file an action under this
chapter for any form of physical ...