The opinion
J-A27004-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
SHANE REED : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ELIZABETH REED, :
:
Appellant : No. 1601 EDA 2025
:
:
v. :
:
:
THEODORE REED, :
:
Intervenor :
Appeal from the Order Entered June 26, 2025
In the Court of Common Pleas of Bucks County Civil Division at No(s):
2024-61011
BEFORE: BOWES, J., MURRAY, J., and BECK, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 31, 2025
Elizabeth Reed (“Mother”) appeals from the order awarding Theodore
Reed (“Paternal Grandfather”) shared legal custody and partial physical
custody of M.R., born October 2015, and N.R., born January 2017, and which
also ordered Mother to undergo a mental health evaluation. We reverse the
award of shared legal custody, vacate the remainder of the order, and remand
for proceedings consistent with this memorandum.
This matter has an extensive history and was initiated in 2022 when
Shane Reed (“Father”) filed a custody complaint against Mother as to M.R.
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and N.R. in the Montgomery County Court of Common Pleas. The pleadings
indicated that Mother and Father married in 2014 and separated in 2020. The
trial court summarized the remaining pertinent portions of the proceedings as
follows:
In th[e custody] complaint, Father averred that [Mother]
had threatened him, stating that she would be moving to
Wisconsin to join a church she found on Facebook because “God
told her to do it.” On February 2, 2022, the Montgomery County
Court of Common Pleas entered an emergency order and indicated
that the children are not to be removed or relocated by either
party in the case.
The [court] thereafter entered a temporary order . . . and
awarded Father primary physical custody of the children. During
this brief custodial period, which was from September 10, 2022,
to November 16, 2022, [Paternal Grandfather,] helped Father
take care of the children. Specifically, [Paternal Grandfather]
performed several duties, including but not limited to transporting
the children from school, helping the children with their homework
and interacting with their teachers, taking the children to doctors’
appointments, and putting the children to bed at night.
There were a variety of additional pleadings, custody
conferences, and hearings in Montgomery County in the custody
matter, culminating in an order on December 8, 2022 (following a
hearing . . . at which Father failed to appear), granting [Mother]
sole legal and physical custody of the children. [The evidence
bore out that Mother had taken M.R. and N.R. out of public school
in the months prior and had begun homeschooling them.] On
January 26, 2023, Father unfortunately passed away from a drug
overdose.
[Paternal Grandfather] subsequently filed a petition to
intervene in custody on January 16, 2024, in Montgomery County,
and averred that pursuant to 23 Pa.C.S. § 5324, he ha[d] standing
to file for physical and/or legal custody of the children. [Paternal
Grandfather] indicated that on December 5, 2023, out of concern
that the children were not being formally educated, [he] called the
Bucks County Truancy Department and inquired whether the
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children were registered for homeschooling. [Paternal
Grandfather] was referred to the Bucks County Children and Youth
(“OCY”), who [evidently incorrectly] informed [Paternal
Grandfather] that the children were not registered for any type of
schooling. After discovering that [Paternal Grandfather] had
contacted OCY, . . . [Mother] promptly ended all communication
with [Paternal Grandfather] and prevented the children from
having any further contact with him.
[Paternal Grandfather] and [Mother] attended a custody
conciliation conference on February 14, 2024, however, the
parties were unable to reach an agreement. On March 20, 2024,
the Montgomery County Court of Common Pleas entered an order
transferring the matter to Bucks County since Mother and the
children [moved to and now reside] in Bucks County. [Paternal
Grandfather] thereafter filed a motion for a custody hearing date.
Th[e] court entered an order . . . scheduling a hearing for
September 27, 2024. [Mother] filed a motion for admission pro
hac vice of Peter K. Kamakawiwoole, Jr., Esq., on September 17,
2024, as the Home School Legal Defense Association (for which
[Attorney Kamakawiwoole] is the Director of Litigation), would be
associated in the representation of [Mother]. [Paternal
Grandfather] subsequently filed an answer to [Mother]’s motion
. . ., and requested that th[e] court deny [Mother]’s motion.
At the [first of six total hearings, held] on September 27,
2024, th[e] court determined that [Paternal Grandfather] had
standing to seek [partial physical] custody pursuant to 23 Pa.C.S.
§ 5325(1), and a ruling was reserved on whether [he] had further
standing pursuant to 23 Pa.C.S. § 5324. After the hearing, the
court entered an interim order and granted [Paternal Grandfather]
standing pursuant to 23 Pa.C.S. § 5325(1), granted [Paternal
Grandfather] partial physical custody of the children, which
allowed [Paternal Grandfather] a dinner visit and two FaceTime
calls each week, as well as a six hour visit every Saturday or
Sunday (while [Paternal Grandfather] was in Pennsylvania).
When [Paternal Grandfather] returned to California[, where he
lives with his wife for portions of the year,] th[e] court ordered
that he would still receive two FaceTime calls each week.
On December 9, 2024, th[e] court held a second custody
hearing and determined that the interim order shall remain in
place, but [it] added a requirement . . . that [Paternal
Grandfather] shall give [Mother] a two week notice as to when he
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wants to exercise his visitation rights. Moreover, th[e] court
denied [Mother]’s pro hac vice motion and reasoned that
[Attorney Kamakawiwoole]’s admission may be detrimental to the
prompt, fair, and efficient administration of justice, as well as to
the legitimate interest of the parties to the proceedings, other
than [Mother], whom [Attorney Kamakawiwoole] intended to
represent. The court expanded upon its reasoning in denying the
motion and further indicated that the children being
homeschooled is not the issue, rather, th[e] court’s concern [was]
whether the children [were] actually being homeschooled, and if
so, how [was] the educational plan being effectively implemented.
The custody matter was subsequently relisted for March 3, 2025,
due to th[e] court’s time constraints and unavailability to conduct
a full hearing. [Around this time, Paternal Grandfather purchased
a second home in Norristown, Pennsylvania, to enable him to
spend longer periods of time in the state.]
....
At the custody hearing on March 3, 2025, [Mother] testified
that her friend Joanna[1], who is a member of the “Biker Church”
in Boyertown, P[ennsylvania], traveled “in spirit” to [Paternal
Grandfather]’s home in California, where she saw [Paternal
Grandfather] and his wife talk about [Paternal Grandfather]
reporting [Mother] to OCY.
When asked by this Court whether Joanna had any history
of mental health treatment or criminal background, [Mother]
replied, “Nope.” [Mother] further testified that her children and
God are ranked equally in terms of importance in her life,
however, [Paternal Grandfather]’s counsel offered into evidence a
video from [Mother]’s YouTube channel, where [Mother] stated
that God comes before her children. When asked by [Paternal
Grandfather]’s counsel whether she receives cues from God
regarding her children, [Mother] indicated that she is “led to do
certain things based on [her] faith with God.” When asked by
[Paternal Grandfather]’s counsel whether [Mother] is guided by
voices or instructions, she simply stated, “Not necessarily. Kind
of like you will get an instinct to do something, or your gut feeling
about doing something.” Notably, [Mother] testified that she has
never had any sort of mental health diagnosis and is not willing to
____________________________________________
1 No last name was provided in the record.
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be examined as she does not “feel it’s necessary” and has “no
concerns at all for [her] mental health.”
Regarding [Mother]’s choice to pull the children out of public
school and pursue homeschooling instead, [Mother] stated she
“would prefer to educate them at home. There is a lot of benefits
to homeschooling. A lot of colleges prefer homeschool graduates
over public school graduates.” When asked by th[e] court which
colleges prefer homeschool over public school graduates, [Mother]
was unable to provide specific names. [Mother] further indicated
that she “wanted to be able to control what things the children
learned and wanted to be able to teach them myself.” When asked
by [Paternal Grandfather]’s counsel what things [Mother] did not
want her children to learn about, she stated, “I didn’t want them
to be taught . . . about gays and transgenders, I didn’t want them
to be taught the truth about it.” [Paternal Grandfather]’s counsel
further inquired about this “truth”, to which [Mother] clarified,
“It’s not the truth about it that it’s okay to be [gay and/or
transgender].” [Mother] explained that her “big reason” for
wanting to homeschool the children is “more quality time, and
spending more time together.” [Mother additionally attested at
length concerning her part-time work schedule, which involved
acting as a home health aide for a single client, and how the girls
would accompany her to work and the periods during which they
would perform book work throughout the day. On average, the
children would undergo approximately three and one-half hours a
day of formal homeschooling utilizing a workbook provided by a
company called Christian Light Education, in addition to engaging
in other educational activities within and without the home. The
court further asked Mother numerous questions as to why she
unintentionally allowed her state-funded insurance for the children
to lapse for a period of approximately three months.]
Thereafter, [Paternal Grandfather] testified and indicated
that he was concerned with [Mother]’s mental health, specifically
her religious views, in which she places God before her children,
as well as previously tithing her rent money, which [Paternal
Grandfather] provided to her, to an online ministry. [Paternal
Grandfather] also testified that he was concerned with [Mother]
homeschooling the children, as the children do not have a set
school schedule, they seemed to not know how to read [based
upon an instance where they could not read inscriptions on a
grave at a cemetery], and are not being socialized or exposed to
other children. [Paternal Grandfather expressed open
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disagreement with Pennsylvania law concerning the requirements
for homeschooling children. He additionally recounted that he got
into a heated debate with Mother over her decision to have the
girls brush their teeth with fluoride-free toothpaste. Paternal
Grandfather conceded that the girls are generally in good health,
with the caveat that N.R. requires a hearing aid for one ear.]
[Furthermore, a]t the hearing, [Mother]’s counsel called Ms.
Carolyn McKeon[, Ph.D.,] to testify as an expert witness in the
area of homeschool standardized testing and about her role as
[Mother]’s homeschool evaluator. After [Paternal Grandfather’s
counsel and the trial court extensively questioned] Ms. McKeon
regarding her qualifications, the hearing concluded with the court
qualifying Ms. McKeon as an expert witness in the area of
homeschool standardized testing. The matter was subsequently
re-listed for March 13, 2025, as testimony was not completed.
At the custody hearing on March 13, 2025, Ms. McKeon
testified to M.R.’s testing results and indicated that she has no
concerns with [Mother]’s homeschool program. [Specifically, M.R.
took the required Peabody standardized test, scoring in the 34 th
percentile overall nationwide, with strengths in math and general
knowledge, but weaknesses in reading and spelling. Mother
began having both girls see a reading tutor weekly and enrolled
them to participate in a homeschooling co-operative at a local
church, wherein they can meet other similarly-situated students.
Dr. McKeon further attested to the fact that Mother provided to
her samples of the projects the girls were working on weekly, and
that she performs an evaluation as to the compliance of the
program each year for Mother and over 600 other students.] At
the conclusion of the hearing, th[e] court amended the current
interim order and allowed [Paternal Grandfather] more visitation
time with the children as he was now residing in Norristown,
P[ennsylvania].
....
The custody hearing was resumed on April 11, 2025, in
which [Mother] re-explained that beginning in December 2023,
she severed the children’s relationship with [Paternal
Grandfather] as she was made aware in January 2024 by [Paternal
Grandfather] that he had initiated a[n OCY] investigation against
her.
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This severance of [the] relationship with the children was
despite the fact that [Paternal Grandfather] was greatly involved
[in] the children’s lives during [Mother]’s and Father’s intact
marriage. [Paternal Grandfather] testified that he was “pretty
much with the girls all the time . . . except when they were at
school.” He also indicated that he stayed with the family while the
parties were married, and took care of the girls, such as waking
them up in the morning, helping them get dressed, feeding them
breakfast, making sure they brushed their teeth, etc. After Father
passed away, [Paternal Grandfather] testified that he continued
to visit the children, however, [Mother] did not allow [Paternal
Grandfather] to be alone with the children, and he was only
allowed to speak with the children once a week. He further stated
that he stopped seeing the children in December 2023 after
[Mother] cut him off due to him calling child protective services
on her.
Although the [OCY] case was closed and no findings were
made, [Mother] decided not to let [Paternal Grandfather] continue
to have contact with the children as she “felt that it was in the
children’s best interest to not have someone in their life that was
potentially going to try to take them away from me.” While
[Mother] agreed that the children love [Paternal Grandfather], she
testified that she “does not regret that decision, cutting off
[Paternal Grandfather] completely, . . . and believes that the
children “are better off without [Paternal Grandfather].”
[Mother] further testified that she believes “[Paternal
Grandfather]’s involvement with the children interferes with [her]
parent/child relationship,” as [Paternal Grandfather] does “a lot of
. . . things . . . contrary to the way [Mother has] chosen to raise
the girls.” Specifically, [Mother] testified that she objected to the
children being exposed to Disney movies and materials, as well as
the Harry Potter franchise, for a variety of reasons. [Paternal
Grandfather] testified that Father allowed the children to watch
Disney movies and that [Paternal Grandfather] used to read Harry
Potter books to the children when he resided with Father.
[It also came to light that the girls were “up to date” on all
immunizations, excepting that Mother chose not to have N.R.
receive the second shot of the mumps, measles, and rabies
(“MMR”) vaccination based on her concern with potential side
effects.]
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After lengthy testimony, th[e] court continued the matter to
May 14, 2025, and made a few modifications to the last interim
custody order, which allowed [Paternal Grandfather] overnight
visits and other visitation time. . . .
On May 14, 2025, a final hearing was held on this matter.
[Mother]’s friend, Leticia Olivieri, testified and indicated that
[Mother] directly hears voices from God and the Holy Spirit, as
she and [Mother] are both “faith-based.” [Ms. Olivieri was also a
former supervisor to Mother during a year in which Mother taught
pre-school children at a daycare.]
Trial Court Opinion, 7/29/25, at 1-9 (cleaned up).
As will be discussed in greater detail below, the court played a very
active role in the various hearings, often subjecting Mother and her witnesses
to extensive examination. In particular, the court was heavily involved in
questioning witnesses about the homeschooling of M.R. and N.R., as well as
Mother’s philosophy on religion and how that impacts the decisions she makes
in raising the two girls.
On June 26, 2025, the trial court entered a written decision, as well as
the appealed-from final custody order. Within its writing, the court concluded
that Paternal Grandfather had standing to seek legal custody of M.R. and N.R.,
finding that “the children are substantially at risk due to parental neglect.”
Decision, 6/26/25, at 2. As mentioned, the court’s order granted Paternal
Grandfather shared legal custody with Mother. It also gave Paternal
Grandfather substantial partial physical custody, including, among other
periods, alternating weekends from Friday evening through Sunday evening;2
____________________________________________
2 The order additionally provided that this period be extended to Monday
evening during the summer months.
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one three-hour dinner visit a week; two non-consecutive vacation weeks per
year; and significant overnight and multi-day visits during many holidays. The
court furthermore ordered Mother to obtain a mental health evaluation within
sixty days, but did not require that any copy of the corresponding report be
provided to the court for additional consideration.
This timely appeal followed. Mother included a concise statement within
her notice of appeal, and the trial court authored a responsive Pa.R.A.P.
1925(a) opinion, which in part relied upon its June 26, 2025, written decision.
Mother presents the following seven issues for review:
1. Whether the trial court erred in granting [Paternal]
Grandfather joint legal and physical custody, absent clear
and convincing evidence that the order was narrowly
tailored to serve a compelling state interest, as required in
third-party custody disputes.
2. Whether the trial court erred in concluding that Mother’s
lawful homeschool program—undisputedly in compliance
with 24 Pa.C.S. § 13-1327.1 and certified by a qualified
evaluator as making sustained progress—placed the
children at “substantial risk” of “educational neglect.”
3. Whether the trial court erred in concluding that Mother’s
children were at “substantial risk” of medical neglect, where
the only evidence was a brief lapse in health insurance
coverage, routine parental choices regarding immunizations
and dental care, and uncontroverted testimony that the
children were healthy, insured, and receiving regular
medical and dental treatment.
4. Whether the trial court violated Mother’s rights under the
. . . First and Fourteenth Amendments to the United States
Constitution and Article I of the Pennsylvania Constitution,
by awarding joint custody based on her religiously
motivated decision to homeschool, absent clear and
convincing evidence of harm, which was contrary to
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Wisconsin v. Yoder, 406 U.S. 205 (1972), Mahmoud v.
Taylor, 606 U.S. [522] (2025), and Pennsylvania precedent
requiring strict scrutiny of any state action burdening
religious exercise.
5. Whether the trial court violated Mother’s substantive due
process rights under the Fourteenth Amendment, as
recognized in Troxel v. Granville, 530 U.S. 57 (2000), by
awarding joint custody to a non-parent over Mother’s
objection absent clear and convincing evidence sufficient to
overcome the presumption that a fit parent acts in her
children’s best interests.
6. Whether the trial court violated Mother’s constitutional
rights by ordering a psychological evaluation based on
Mother’s religious beliefs and “preoccupation,” contrary to
Masterpiece Cakeshop v. Colorado C.R. Comm’n, 584
U.S. 617 (2018), [Yoder], and Pennsylvania precedent
requiring religious neutrality in custody disputes.
7. Whether the trial court deprived Mother of due process by
conducting proceedings marked by cumulative error—
including expressing skepticism toward her religious
motivations, mischaracterizing standardized test evidence,
and openly disagreeing with Pennsylvania’s homeschool
statute—and by denying admission pro hac vice to her
chosen counsel, thereby infringing her constitutional right to
a fair and impartial hearing and to counsel of choice, in
violation of the First and Fourteenth Amendments, Judicial
Inquiry and Review Bd. of Supreme Court of
Pennsylvania v. Fink, 532 A.2d 358 (Pa. 1987), United
States v. Gonzalez-Lopez, 548 U.S. 140 (2006), and
Pa.R.Civ.P. 1012.1.
Mother’s brief at 4-6 (cleaned up).3
Generally, Mother attacks on appeal every aspect of the court’s final
custody order, including its award of shared legal custody and partial physical
custody to Paternal Grandfather, as well as the requirement that Mother
____________________________________________
3 Paternal Grandfather did not file a brief in this matter.
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undergo a mental health evaluation.4 The following legal tenets pertain to our
consideration:
Our standard of review over a custody order is for a gross abuse
of discretion. If a trial court, in reaching its conclusion, overrides
or misapplies the law or exercises judgment which is manifestly
unreasonable, or reaches a conclusion that is the result of
partiality, prejudice, bias or ill will as shown by the evidence of
record, then discretion is abused. Our scope of review over
custody disputes is broad; this Court is not bound by the
deductions and inferences the trial court derives from its findings
of fact, nor must we accept the trial court’s findings of fact when
these findings are not supported by competent evidence of record.
Our paramount concern in child custody matters is the best
interests of the children.
Yates v. Yates, 963 A.2d 535, 538-39 (Pa.Super. 2008) (citation omitted).
We first consider Mother’s claims as they relate to the trial court’s
decision to award Paternal Grandfather shared legal custody. In so doing, the
court concluded that Paternal Grandfather had standing pursuant to 23
Pa.C.S. § 5324(3). “Determining standing in custody disputes is a threshold
issue that must be resolved before proceeding to the merits of the underlying
custody action.” C.G. v. J.H., 193 A.3d 891, 898 (Pa. 2018) (citation
____________________________________________
4 At the outset, we note that while Mother raises seven claims, her appellate
brief does not contain an argument section corresponding to each issue
presented, in violation of our appellate rules. See Pa.R.A.P. 2119(a) (“The
argument shall be divided into as many parts as there are questions to be
argued; and shall have at the head of each part--in distinctive type or in type
distinctively displayed--the particular point treated therein, followed by such
discussion and citation of authorities as are deemed pertinent.”).
Nonetheless, because we can ascertain Mother’s claims on appeal, we opt not
to sanction her. See, e.g., Womer v. Hilliker, 908 A.2d 269, 277 (Pa.Super.
2006) (noting that appellate courts have the “authority to disregard
procedural errors that do not affect substantial rights”). Counsel is cautioned,
however, to abide by the Rules of Appellate Procedure in future matters.
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omitted). Additionally, “[i]ssues of standing are questions of law; thus, the
standard of review is de novo and the scope of review is plenary.” Id. (citation
omitted).
The statute relied upon by the trial court provides standing for certain
third parties seeking legal custody. Relevant here, that extends to:
A grandparent of the child who is not in loco parentis to the child:
(i) whose relationship with the child began either with the
consent of a parent of the child or under a court order;
(ii) who assumes or is willing to assume responsibility for
the child; and
(iii) when one of the following conditions is met:
....
(B) the child is substantially at risk due to parental
abuse, neglect, drug or alcohol abuse or incapacity[.]
23 Pa.C.S. § 5324(3).
In its Rule 1925(a) opinion, the court found that this requirement was
satisfied, opining with respect to subsection (3)(iii)(B) that “the children are
substantially at risk due to parental neglect by [Mother].”5 Trial Court Opinion,
7/29/25, at 15. Particularly, it determined that Mother lacks the ability “to
provide her children with a proper education, medical, and dental care.” Id.
at 16. With respect to schooling, the court found that Mother “has no interest
____________________________________________
5 There is no dispute by Mother that Paternal Grandfather began his
relationship with M.R. and N.R. with the consent of Father and that he is willing
to assume responsibility for the children.
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in providing a proper education and is neglecting to appropriately educate her
children.” Id. It additionally stated that Mother “barely had a high school
diploma” and felt that Mother’s desire to homeschool the children was to
satisfy her own religious beliefs and personal desires above the educational
needs of the girls. Id. at 23-24. The court indicated that it was uneasy about
the homeschooling schedule provided by Mother, since it entailed fewer hours
of formal education than those undertaken by students in public schools, and
believed that M.R. was “miserably failing in a few subject areas and is barely
meeting the child testing requirement of 35%.” Id. at 24.
The court also expressed its concern that Mother allowed the children’s
medical insurance to lapse for a period of three months and decides to take
medical and dental advice from videos she has seen on YouTube. Id. at 17.
The court’s opinion furthermore directed us to its previous written decision,
wherein it discussed that Mother declined for N.R. to receive the second MMR
vaccine dose recommended by the Centers for Disease Control and that one
of the medical documents entered into evidence listed N.R. as being “overdue”
for an audiology appointment. See Decision, 6/26/25, at 8-9. The court
showed uncertainty as to whether the girls were receiving proper dental care,
finding that it was not definitively proven through the admitted exhibits. Id.
at 9. Finally, it highlighted the testimony that Mother only allows her children
to utilize fluoride-free toothpaste. Id. at 10.
In response, Mother argues that Paternal Grandfather failed to prove by
clear and convincing evidence that she was neglecting the girls’ education.
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See Mother’s brief at 24-40. She contends that the homeschool program that
she administers for her daughters is undisputedly in compliance with
Pennsylvania law. Id. at 24-30. Mother avers that the court erroneously
found, without record support, that she neglected bookwork and instead relied
upon “field trips” to places like her work or the local library as a substitute for
proper education. Id. at 31-32. Mother recounts that, to the contrary, she
uploads the children’s work to Dr. McKeon for review weekly, and that by the
collective testimony of Dr. McKeon and Mother, several hours of personalized
daily homeschooling could teach a student as much as a full eight-hour day in
a public school since the teacher’s attention is undivided. Id. at 32-35.
Mother additionally faults the trial court’s characterization of M.R.’s test scores
as “abysmal” because the thirty-fourth percentile meant that M.R. performed
better than a third of students nationwide and fell within an “average range.”
Id. at 36-40.
Mother also contends that Paternal Grandfather failed to carry his
burden in showing any risk to the children’s health through her actions or
inactions. Id. at 40-44. She states that “[t]he decision below makes no
argument that producing a[n exhibit entitled a] ‘Private Dentist Report of
Dental Examination’ poses any threat to the girls, especially when
[documents] record that both children received cleanings on September 7,
2024.” Id. at 41-42. Mother also avers that reasonable minds can differ as
to the purported harm caused by brushing without using fluoride, and in any
event, Mother’s dentist expressed no concern over the decision. Id. at 42.
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She concedes that the health insurance lapsed for a brief period due to Mother
making too much money, but it was quickly remedied and had no actual
detriment to the children, who are generally in good health. Id. Mother adds:
Finally, the court’s concerns about one declined MMR booster, a
hearing screen, and a vision screen do not amount to neglect.
While N.R.’s medical report from April 2025 does say she “failed”
a vision screen, the progress notes entered by the nurse
practitioner states only that she had 20/30 and 20/40 vision in her
left/right eyes, without corrective lenses. An audiology screening
was also not administered at N.R.’s April check-up; but as the
report notes, that was because it had already been administered
in late 2022 by [the audiologist], who prescribed N.R. her hearing
aid. Regarding immunizations, Commonwealth law expressly
recognizes the right of a parent to decline immunizations, see 28
Pa. Code § 23.84; 23 Pa.C.S. § 6304(b), and Mother testified that
she discussed the situation with her children’s physician, who did
not press the matter over her objection. [Paternal] Grandfather
has proffered no clear and convincing evidence to rebut any of this
evidence. And the decision below cites no authority that suggests
these facts, without more, would ever rise to the level of medical
neglect, or justify the loss of physical and legal custody.
Id. at 43-44 (citation altered).
Upon de novo review, we determine that the trial court erred in
concluding that Paternal Grandfather had standing to pursue legal custody
pursuant to § 5324. Particularly, Paternal Grandfather did not demonstrate
that the girls were “substantially at risk due to parental abuse, neglect, drug
or alcohol abuse or incapacity.” 23 Pa.C.S. § 5324(3)(iii)(B). Concerning the
adequacy of the girls’ education provided by Mother, we preliminarily note
that homeschooling is statutorily permissible under Pennsylvania law. See 24
P.S. § 13-1327.1 (setting forth the requirements for a home education
program). The court did not find, and our review does not bear out, that
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Mother’s homeschooling program fails to comply with the law in any respect.
To the contrary, Mother opts to send her sample schooling materials to Dr.
McKeon weekly as opposed to yearly, which is significantly more frequent than
required by law. Dr. McKeon noted that Mother appropriately logged the
minimum number of education days and had annually submitted the
paperwork required by the local school district for homeschooling compliance.
Mother’s testimony was that she averages approximately three and one-half
hours a day of direct schoolwork utilizing a commercial curriculum from
Christian Light Education, with Dr. McKeon confirming that this comports with
the amount of instruction she observes from many of the families of the 600
students that she oversees. See N.T., 3/3/25, at 25-26; N.T., 3/13/25, at
21-22.
We also agree with Mother that the court’s characterization of M.R.’s
standardized test score as “miserably failing” or “barely passing” is
unsupported. A standardized testing score placing her in the thirty-fourth
percentile overall indicates that M.R. performed better on the exam than one-
third of similarly-aged students nationwide. Mother has undisputedly taken
steps to address M.R.’s difficulties with reading and spelling by providing her
with a tutor, whom she sees weekly. We further note that M.R.’s math and
general knowledge scores demonstrated that she is advanced for her current
grade level by roughly a year.
Similarly, we cannot conclude that there is evidentiary support for the
notion that Mother has placed the girls at substantial risk of neglect relating
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to their health. Paternal Grandfather presented no evidence that having the
children brush their teeth with fluoride-free toothpaste would subject them to
harm, or that either girl has any issues relating to her teeth or gums. The
same holds true for Mother’s decision not to have N.R. immunized with the
second shot of the MMR vaccine. See 28 Pa. Code § 23.84 (allowing for both
medical and religious exemptions from immunization regarding the
requirements for school health). Finally, the record supports Mother’s
contention that she has been tending to N.R.’s needs as it relates to her
hearing aid and necessary audiology appointments.
In short, it is evident that both the trial court and Paternal Grandfather
have drastically different ideas from Mother as to how M.R. and N.R. should
be raised. Indeed, the trial court expressed that it was “shocked” when it
learned of the Commonwealth’s requirements for a compliant homeschooling
program, and seemingly found the minimum standards inferior to a traditional
public school education. See Decision, 6/26/25, at 5. Nonetheless, we find
no support that any of the information identified by the court in either its
written decision or Rule 1925(a) opinion demonstrates a substantial risk of
neglect. Without this showing, Paternal Grandfather simply did not meet his
burden to establish standing to seek legal custody. That part of the order
therefore must be reversed, along with his award of shared legal custody.
Next, we turn to the court’s decision to grant Paternal Grandfather
partial physical custody. There was no dispute by the parties that Paternal
Grandfather had standing to pursue the same as the parent of Father, who
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had passed away. See 23 Pa.C.S. § 5325(1) (stating that “where the parent
of the child is deceased, a parent or grandparent of the deceased parent may
file an action under this section”); see also N.T., 9/27/24, at 3.
The General Assembly has set forth specific factors a court must weigh
before determining physical custody requests. More particularly, the court
was required to abide by the following version of 23 Pa.C.S. § 5328(a), which
was in effect at the time of the custody hearings:6
In ordering any form of custody, the court shall determine the
best interest of the child by considering all relevant factors, giving
substantial weighted consideration to the factors specified under
paragraphs (1), (2), (2.1) and (2.2) which affect the safety of the
child, including the following:
(1) Which party is more likely to ensure the safety of the
child.
(2) The present and past abuse committed by a party or
member of the party’s household, which may include past
or current protection from abuse or sexual violence
protection orders where there has been a finding of abuse.
(2.1) The information set forth in section 5329.1(a) (relating
to consideration of child abuse and involvement with
protective services).
(2.2) Violent or assaultive behavior committed by a party.
____________________________________________
6 We note that § 5328(a) has been amended since entry of the final custody
order. The newer version largely consolidated and reorganized several of the
custody factors. See 23 Pa.C.S. § 5328 (effective August 29, 2025).
It is well-settled that “[n]o statute shall be construed to be retroactive unless
clearly and manifestly so intended by the General Assembly.” 1 Pa.C.S.
§ 1926. Since the amendment to § 5328 contained no such retroactivity
clause and the proceedings concluded before the changes took legal effect,
we do not apply this revised version.
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(2.3) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party if contact is consistent with the safety needs
of the child.
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life, except if changes
are necessary to protect the safety of the child or a party.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s developmental stage, maturity and judgment.
(8) The attempts of a party to turn the child against the
other party, except in cases of abuse where reasonable
safety measures are necessary to protect the safety of the
child. A party’s reasonable concerns for the safety of the
child and the party’s reasonable efforts to protect the child
shall not be considered attempts to turn the child against
the other party. A child’s deficient or negative relationship
with a party shall not be presumed to be caused by the other
party.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
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(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child or self from abuse
by another party is not evidence of unwillingness or inability
to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a) (effective August 13, 2024 to August 28, 2025).
Additionally, we note that
where the custody dispute is between a biological parent and a
third party, the burden of proof is not evenly balanced. In such
instances, the parents have a prima facie right to custody, which
will be forfeited only if convincing reasons appear that the child’s
best interest will be served by an award to the third party. Thus,
even before the proceedings start, the evidentiary scale is tipped,
and tipped hard, to the biological parents’ side.
V.B. v. J.E.B., 55 A.3d 1193, 1199 (Pa.Super. 2012) (citation omitted).
Stated another way, “[i]n any action regarding the custody of the child
between a parent of the child and a nonparent, there shall be a presumption
that custody shall be awarded to the parent. The presumption in favor of the
parent may be rebutted by clear and convincing evidence.” 23 Pa.C.S.
§ 5327(b). We have explained that the “standard of clear and convincing
evidence means testimony that is so clear, direct, weighty, and convincing so
as to enable the trier of fact to come to a clear conviction, without hesitation,
of the truth of the precise facts in issue.” V.B., 55 A.3d at 1199 (citation
omitted).
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In support of its decision to award partial physical custody to Paternal
Grandfather, the trial court determined he “has demonstrated . . ., through
clear and convincing evidence, that he is more equipped and able to ensure
the children’s need for stability and continuity in their education, family, and
community lives.” Trial Court Opinion, 7/29/25, at 16. The court was
concerned about Mother’s purported failure to tend to the girl’s physical
development, as well as her decision to cut Paternal Grandfather off
completely and deprive the children of socialization outside her church. Id.
at 16-17. It placed significant weight on Paternal Grandfather’s willingness to
relocate to Pennsylvania from California and his testimony that he often took
the children out to do activities within the community. Id. at 16. The court
acknowledged that there is a presumption that Mother is entitled to custody
over Paternal Grandfather, but reiterated many of the concerns discussed
above as to the girls’ schooling and health. Id. at 18-19. It also cited caselaw
for the proposition that our legislature has “intended continuing contact
between children [and] grandparents when a parent is deceased[.]” Id. at
19. Finally, the court determined that it did not abuse its judicial discretion in
directly asking Mother or her witnesses questions about her religious beliefs
or homeschool program, or allowing Paternal Grandfather’s counsel to do the
same, since those matters went to the best interests of the children. Id. at
20-28.
In her brief, Mother does not argue that specific factors enumerated in
§ 5328 favor granting her custody over Paternal Grandfather, but rather that
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that the court’s bias tainted its consideration of the factors as whole. To that
end, Mother argues that the court erred in awarding partial physical custody
to Paternal Grandfather because it held against Mother her constitutional right
to homeschool her children and her religious beliefs. See Mother’s brief at
44-46; 49-54. She additionally accuses the court of failing to apply the
presumption the Mother acts in the best interest of her children. Id. at 46-
48. Mother contends that throughout the proceedings, the court
demonstrated partiality, evidenced by things such as the denial of her motion
for admission of counsel pro hac vice and extended questioning of Mother as
to her religious convictions, including multiple examples wherein she believed
the court did not respect Mother and her witnesses. Id. at 55-69. She avers
that the court’s conduct “undermined the neutrality that custody proceedings
require. Instead of applying the presumption that a fit parent acts in her
child’s best interest, the court substituted skepticism of lawful educational and
religious choices. That error requires reversal.” Id. at 68.
After a thorough review of the certified record, we are persuaded by
Mother of sufficient instances in the proceedings demonstrating partiality and
bias by the trial court, so as to undermine its award of physical custody to
Paternal Grandfather. To begin, the record demonstrates that the court
overstepped its bounds in questioning witnesses, often interrogating them for
extended lengths of time. See, e.g., N.T., 3/3/25, at 29-33 (questioning
Mother’s personal beliefs as it relates to acceptance of those in the LGBTQ+
community); id. at 52-54 (chastising Mother for failing to timely submit
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medical insurance paperwork on behalf of the children); id. at 136-56
(extensively inquiring into the qualifications of expert witness, Dr. McKeon,
and the merits of homeschooling more generally, after Paternal Grandfather’s
counsel completed his voir dire);7 N.T., 3/13/25, at 47-50 (compelling Dr.
McKeon to explain why the Peabody standardized examination, approved by
the Commonwealth for homeschooled students, is as good a measure of ability
compared to tests taken by public school students); N.T., 4/11/25, at 17-22
(challenging Mother’s decision not to have N.R. receive the second shot of the
MMR vaccine); id. at 65-67 (same as to Mother’s choice to brush the children’s
teeth with fluoride-free toothpaste); id. at 88-92 (pressing Mother to explain
why it is problematic for Paternal Grandfather to allow the girls to watch
Disney movies); id. at 93-95 (same as to Mother not permitting her daughters
to read the Harry Potter book series); id. at 97-99 (questioning why Mother
explained the circumstances of Father’s death to her daughters instead of
allowing a therapist to do so); id. at 122-31 (interrogating Mother about her
schedule for homeschooling the children).
Many of these exchanges, based on the volume of the court’s questions,
its refusal to accept answers as given, and its tone, portrayed the court as an
advocate against Mother. See, e.g., Commonwealth v. Manning, 435 A.2d
1207, 1211 (Pa.Super. 1981) (“Although the law is clear that a trial judge may
____________________________________________
7 While it does not have a significant bearing on our analysis, we would be
remiss if we did not notice that the trial court appeared to refuse to
acknowledge Mother’s homeschooling expert as “Dr.” McKeon, despite her
having a Ph.D. in K-12 education.
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interrogate a witness, the judge should not assume the role of an advocate,
express an opinion on the merits of the case or cast doubt on the witness’
credibility.”). For example, when Mother explained that she did not want her
daughters reading Harry Potter due to its subject matter involving witches,
the court called a recess and directed Mother to review the Bible available
within the courtroom to locate verses supporting her notion that the Bible
speaks out against witchcraft and magic. See N.T., 4/11/25, at 94. The court
further devoted significant time to questioning Mother’s character witness, Ms.
Oliveri, after Paternal Grandfather’s counsel completed cross-examination.
Particularly, it directed Paternal Grandfather’s counsel to re-display exhibits
previously admitted during the hearings and confronted her about statements
made by Mother in certain YouTube videos, directly challenging Ms. Olivieri’s
testimony as it related to Mother’s religious convictions about whether Jesus
accepts those within the LGBTQ+ community. See N.T., 5/14/25, at 24-35.
The record is also littered with judicial comments and questions that
appeared outright hostile to Mother, her counsel, Mother’s religious affiliation,
and the homeschooling system in general. In response to a remark from
Mother that homeschooling is not the same as public school in the home
setting, the court stated: “I think that that’s clear to everybody.” N.T.,
3/3/25, at 41. On another occasion, when Mother testified that her daughters
received counseling, the court asked where and interjected, with apparent
exasperation: “Please don’t tell me The Biker Church.” Id. at 45. After
Mother stated that she did not feel it was necessary to go to her local school
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to determine what it offers because she did not want to send M.R. and N.R.
there, the court retorted: “You don’t feel it’s necessary to educate yourself
on that the public school system has to offer your children in terms of an
education?” Id. at 32. Counsel lodged an objection to this line of questioning,
citing Mother’s constitutional right to homeschool her children without
elucidation, and the court openly stated, “I don’t care. I want an explanation.”
Id. at 33.
Additionally, when Mother attested that she did not want financial
contributions from Paternal Grandfather because she believed it showed that
“he wants another form of control in the girls’ life,” the court became
argumentative. It then asked Mother, “do you not understand” that Paternal
Grandfather was trying to “do what he thinks is the best thing for the girls,”
twice, directly contradicting Mother’s belief that Paternal Grandfather is prying
into their lives. Id. at 49. The court refused to accept Mother’s answer that
she forgot to timely submit the paperwork to secure the children’s medical
insurance, asking her repetitively to explain why she forgot, and openly
expressed disapproval of Mother’s answers. Id. at 52-54 (The court
chastising, “What do you mean you don’t know” when Mother stated that she
did not know why she failed to get the paperwork in on time, and the court
expressing “I’m at a loss to understand that kind of an answer.”). It also
appeared to demonstrate strong feelings on the record with respect to
Mother’s decision to tithe money, despite the children having their essentials
taken care of, as well as Mother’s choice not to give Paternal Grandfather the
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girls’ social security numbers based on the fact that she did not trust him. Id.
at 55-56, 58-59. Mother expressed on the stand that she felt the court was
placing her religious beliefs on trial, to which the court abruptly cut her off
mid-sentence. Id. at 56.
Furthermore, the court told Mother’s attorney on numerous occasions
to “sit down” or “have a seat” after making objections to many of the points
discussed above. See, e.g., N.T., 3/3/25, at 12, 33, 39; N.T., 5/14/25, at
18. This was done in conjunction with the court explaining that it
independently researched counsel’s law firm website to confirm whether he is
a Christian lawyer after accusations from Paternal Grandfather on the stand
that counsel practices “Christian law” and is “cultish.” N.T., 3/3/25, at 111,
122.
On top of this, the court denied Mother’s motion for pro hac vice
admission of Attorney Kamakawiwoole in December of 2024. The court
indicated that it did so to prevent a delay in the proceedings. Yet it conducted
four additional hearings and did not render its final order until June 2025,
approximately seven months after denial. The court was aware that Attorney
Kamakawiwoole was a litigator with extensive knowledge and insight
concerning homeschooled families. At the later hearings, both Paternal
Grandfather and the court actively questioned Mother and her expert
concerning homeschooling, testing, and the like. As such, the court’s
justification for denial was not compelling. See Pa.R.Civ.P. 1012.1 (“The court
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shall grant the motion [for admission pro hac vice] unless the court, in its
discretion, finds good cause for denial.” (emphasis added)).
We recognize that many of the decisions of the trial court, such as
whether to question witnesses or grant a motion for admission of counsel pro
hac vice, lie within the court’s discretion. However, when viewed collectively,
the above actions, coupled with the law’s presumption that Mother is entitled
to physical custody of the children against a third-party, constrain us to find
that the court’s custody award was grounded in partiality and bias. See
Yates, 963 A.2d at 538. Accordingly, the court’s best interest analysis cannot
stand, and we vacate the award of partial physical custody.
Finally, we consider the court’s custody order insofar as it directed
Mother to undergo a mental health evaluation. By rule in custody proceedings,
“[t]he court may order the child(ren) and/or any party to submit to and fully
participate in an evaluation by an appropriate expert or experts.” Pa.R.Civ.P.
1915.8.
Here, the directive to obtain an evaluation was not tied to the trial
court’s decision as to whether Paternal Grandfather should be given partial
physical or legal custody. Instead, this requirement was included in the final
custody order after that issue was resolved and does not even require that
the results be provided to the court. It is thus clear that the court ordered
the evaluation not to benefit it in making its decision, but rather to subject
Mother to an examination that may never influence another judicial
determination, based solely upon Mother’s religious statements. When
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considered in this context, combined with the various examples of bias and
partiality exhibited by the trial court throughout the entirety of these
proceedings discussed above, we determine that Rule 1915.8 does not support
the evaluation, and the court abused its discretion in ordering it. Hence, we
also vacate this portion of the order.
Based on the above, we reverse the portion of the trial court’s order
awarding Paternal Grandfather shared legal custody, and vacate the parts
awarding him partial physical custody and directing Mother to undergo a
mental health evaluation.8
Order reversed in part and vacated in part. Case remanded. Jurisdiction
relinquished.
____________________________________________
8 Mother has not requested that this Court remand the matter before another
jurist. “Generally, a party must seek to have a judge recused from a case, by
first bringing the petition for recusal before that jurist, thus enabling the judge
to evaluate the reasons for recusal firsthand.” In re Adoption of L.J.B., 18
A.3d 1098, 1112 (Pa. 2011) (citation omitted). Our Supreme Court has held
that sua sponte removal of a lower court judge “exceed[s] the authority of the
Superior Court. The parties are required to file a motion to recuse and for the
judge in question to rule; his or her decision must stand absent an abuse of
discretion.” Commonwealth v. Whitmore, 912 A.2d 827, 834 (Pa. 2006).
Since Mother has not made a specific recusal request as to the trial court,
there is no motion for the trial court to rule on, and no discretion for us to
review. As we cannot sua sponte address this claim, and it cannot be raised
for the first time on appeal, we do not reach this issue. Should Mother wish
to pursue this, she may file a petition for recusal with the trial court upon
remand.
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Date: 12/31/2025
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