D.B. and D.B. v. J.W., T.C.

J-A27026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.B. AND D.B., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

J.W., T.C.,

Appellees No. 569 WDA 2015

Appeal from the Order entered March 11, 2015,

in the Court of Common Pleas of Fayette County,

Civil Division, at No(s): 982 of 2014 GD

BEFORE: BOWES, OLSON, and STABILE, JJ.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 17, 2015

Appellants, D.B. (“Maternal Grandmother”), and D.B. (Step-

Grandfather) (collectively, “Appellants” or “Plaintiffs”), the maternal

grandmother and step-grandfather of two minor children, L.C. (born in July

of 2006), and J.B. (born in November of 2009) (the “Children”), appeal from

the order dated March 9, 2015, and entered on March 11, 2015, awarding

J.W. (“Mother”) legal and primary physical custody of the Children, and

granting Mother’s petition to relocate the Children from Fayette County,

Pennsylvania, to Matthews, North Carolina, where Mother resides with her

current husband, I.W. (“Stepfather”), with specific restrictions relative to her

relocation.1 The order further dismissed Maternal Step-Grandfather as a

1

Matthews, North Carolina, is approximately fifteen minutes away from

Charlotte, North Carolina. N.T., 11/10/14, at 8, 13.

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party to the action, and awarded Maternal Grandmother partial physical

custody of the Children. The trial court found that Plaintiffs did not stand in

loco parentis to the Children, and that Maternal Grandmother had standing

to seek only partial custody and/or visitation. After careful consideration, we

affirm.

In its Opinion entered on March 11, 2015, the trial court set forth the

factual background and procedural history of this appeal, which we

incorporate herein and adopt as this Court’s own. See Trial Court Opinion,

3/11/15, at 1-7.2 We set forth only the factual background and procedural

history necessary to an understanding of the issues raised in this appeal.

1. Defendant [Mother] is the biological mother of the minor

children, [L.C.], born July [ ], 2006, who is eight years of age,

and [J.B.], born November [ ], 2009, who is [five] 5 years of

age.

2. Plaintiff [D.B.] is the maternal grandmother of the minor

children; and [D.B.] is the maternal step-grandfather of the

minor children. [Because the Plaintiffs share the same initials,

we shall refer to them individually by their familial relationships

with the Children.]

3. The parties stipulated that grandmother [D.B.] has standing

under 23 Pa.C.S.A. § 5325.

4. The biological father of [L.C.] is [T.C.], and he has not

asserted any right to custody in the course of this trial, [sic] and

he currently has no contact with [L.C.], [sic] and he hasn’t seen

[L.C.] since June 2014.

2

We note that T.C. (biological father of L.C.) was initially named in the case

as a party, but the court commented that it should change the caption to

reflect that T.C. was no longer a party in the trial court. See N.T., 1/28/15,

at 4.

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5. The biological father of [J.B.] is unknown; however, [J.B.] has

viewed [M.B.] as a father figure, and she refers to [M.B.] as her

dad. [J.B.] presently sees [M.B.] when [M.B.] takes [J.B.] to

church on weekends.

6. Mother was in a relationship with [M.B.], and she testified that

she lived with [M.B.] when [J.B.] was born, [sic] and she lived

with him in Normalville for a year during 2011-2012, and from

2012 to January 2014 in Mill Run.

7. Mother married [T.C.] in June 2005, and she lived with him

from 2005 to 2006, and from 2007-2008, [sic] and they were

divorced in 2009 or 2010.

8. Mother first met her current husband [I.W., Stepfather,] 10

years ago when she worked at the Fairfield Inn in New Stanton.

The two were out of contact until the end of January 2014, when

they began a “phone relationship”. [Stepfather] visited Mother

in Fayette County in March 2014, and[,] during the same

month[,] Mother and the [ ] [C]hildren went to North Carolina to

visit [I.W.] for a week.

9. [Mother] married [Stepfather] on April 21, 2014[. In August

of 2014, Mother and Stepfather began residing together in

Matthews, North Carolina, where they currently live.] This is a

first marriage for [Stepfather], who is 33 years old, and a second

marriage for Mother, who is 29 years of age.

10. [Mother] decided to relocate to North Carolina in August

2014, before the issue of relocation was heard by [the trial

c]ourt, and she agreed that the [C]hildren would remain in

Fayette County in the primary custody of her mother and step-

father [sic].

11. This [c]ourt finds no reason why [Mother] would not have

remained in Fayette County with the [ ] [C]hildren, until such

time as the [c]ourt approved or disapproved her relocation.

Th[e] [c]ourt [found] that Mother did not promote the

[C]hildren’s best interest when she relocated to North Carolina

without the [C]hildren.

12. [Stepfather] is presently enrolled as a law student at

Charlotte School of Law, where he intends to complete his

studies for a juris doctor degree in 2016. He took a leave of

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absence from law school for one year, due to a seizure disorder

resulting from a motor vehicle accident in 2006 [,] in which he

sustained a head injury.

13. A transcript was offered to show that [Stepfather] withdrew

from classes at Charlotte School of Law for the Fall 2013

semester and the Fall 2014 semester. It is unknown whether

this transcript would include classes for which final grades and

credits have not been received, such as those classes included in

the current semester.

14. Although a class schedule of [I.W.] was presented, this

computer-generated class schedule is not sufficient evidence to

prove that [Stepfather] is currently actually attending the

classes for which he was registered.

15. Mother testified on November 10, 2014 that she was enrolled

in Central Piedmont Community College to obtain a degree in

accounting; however, when Mother testified in January [of

2015,] she was not enrolled in class[es] due to the pendency of

this case.

16. Mother’s employment during the past two years included

cashier work at Speedy Meedy’s, which is a convenience store.

17. In North Carolina, Mother is currently employed as a sales

associate for Old Navy, where she is a part-time employee,

without predictable work hours, and her hourly rate is $9.00,

which is the same rate of pay she received at Speedy Meedy’s,

where she worked for nearly three years. [Stepfather] has not

been employed for several years, and he currently receives

disability income in the amount of $677.00 every month.

18. Plaintiff [D.B.] is the mother of Defendant [Mother];

however, [Mother] testified that she has [had] a nonexistent

relationship with her mother since May 2014, and [Mother] does

not even refer to Plaintiff [D.B.] as “mom”, but rather

consistently through her testimony, she referred to “D. . .”.

19. Prior to March 2014, the parties enjoyed a close family

relationship, and the Plaintiffs were significantly involved in the

lives of the [ ] [C]hildren.

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20. [L.C.] is a third grade student at Springfield Elementary

School in the Connellsville School District.

21. [The C]hildren have a very close relationship with their

maternal grandparents, the Plaintiffs, and the Plaintiffs have

been a stable, reliable part of the [C]hildren’s lives.

22. [L.C.] is upset by the contentious relationship between the

parties.

23. [Stepfather] has a history of alcohol abuse, and he was

charged with DUI in 2006 and again in 2007. Although he

acknowledges himself to be an alcoholic, Mother is in denial of

his alcoholism, having testified that she doesn’t believe

[Stepfather] has a drinking problem. She also said she has no

concerns about [Stepfather’s alcoholism], because he goes

everyday [sic] to Alcoholics Anonymous [AA]; although when he

came to Pennsylvania in March 2014, he was not attending

meetings or working [with] the AA program.

24. After [Stepfather’s] second DUI, he went into an inpatient

rehabilitation facility, where he spent 28 days. He relapsed

eleven months after he left inpatient treatment the first time,

and when he relapsed in March 2008, he returned to the same

facility for fourteen days. [Stepfather] admits that he relapsed

in July, 2014, and he claims that he hasn’t had alcohol since July

2014, [sic] and he remains active in the AA program.

25. This [c]ourt finds, through the credible testimony of Plaintiff

[Maternal Step-Grandfather], that [Stepfather] was drinking in

March 2014, when he was in Pennsylvania with [Mother] and the

[C]hildren.

26. Mother believes the [C]hildren will thrive in North Carolina,

although she was not specific; and she believes that “people are

brought up better ‘down there’”, and “people are friendlier

there”, and “there’s not a lot of negativity down there”.

Although Mother testified that there are many more

opportunities for the [C]hildren in North Carolina to go to

gymnastics academy, and to swim, she did not offer information

to show there are any opportunities in North Carolina which are

not available to the [C]hildren here, and she offered only

minimal testimony as to how relocation would enhance the

quality of life for the [C]hildren, or for herself.

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27. When Mother relocated to North Carolina, she was unable to

maintain health insurance for the [C]hildren, since they were

insured through a Pennsylvania state program.

28. During this current school year, Mother has not had any

involvement whatsoever with [L.C.’s] school.

29. During the last school year, when [L.C.] was in second

grade, he missed 24 days of school, and Mother testified that

she doesn’t know why he missed so many days of school, and he

shouldn’t miss school.

30. Neither Mother nor her current husband has any family in

North Carolina. Mother’s family is in Fayette County, and

[Stepfather’s] extended family is in Cumberland, Maryland.

31. Although Mother has lived in nine different residences over

the last eight years, she has consistently maintained the address

of the Plaintiffs as [L.C.’s] address for all school purposes.

32. The testimony was undisputed that [L.C.] has always been

picked up and dropped off from the school bus at the address of

[Maternal Grandmother and Step-Grandfather].

33. It is undisputed that [Mother] and [Maternal Grandmother]

no longer speak to one another, and neither assumes

responsibility for the breakdown of their relationship, [sic] and

both insist that it is the other one who won’t speak.

34. There is an obvious hostile relationship between the Plaintiffs

and [Stepfather], and[,] during an incident in August 2014,

when the parties were exchanging custody of the [ ] [C]hildren,

[Stepfather] was cited with summary trespass and disorderly

conduct.

35. Prior to her relocation to North Carolina, Mother informed the

Plaintiffs and Children and Youth Services that she was going to

go to “sign over” the “kids” to the Plaintiffs. Mother informed

[Maternal Step-Grandfather] that she wants [sic] to move to

North Carolina, and the [C]hildren will continue to live with the

Plaintiffs.

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36. The distance between Mother’s residence in North Carolina

and the residence of the Plaintiffs is seven to seven and

[one-half] hours.

37. Plaintiffs have been married for 15 years, and they have

resided in their current residence for 16 years. Plaintiff

[Maternal Grandmother] is a self-employed hairdresser, and

Plaintiff [Maternal Step-Grandfather] has been employed by

West Penn Power for 26 years.

38. Although [Mother] moved to many locations over the past

several years, this [c]ourt finds that she routinely returned to

the home of the Plaintiffs, [sic] with the [ ] [C]hildren; and she

continued to receive mail at the Plaintiff’s home, [sic] and she

always used the Plaintiff’s address for all school-related

purposes, as if [L.C.] lived with the Plaintiffs.

39. This [c]ourt finds that [Mother] and the [ ] [C]hildren

regarded the Plaintiffs’ home somewhat as a “second home”, and

the [C]hildren each have a room and their own wardrobe at the

Plaintiffs’ home. The [C]hildren stayed overnight in the Plaintiff’s

home, regardless of whether Mother was working.

40. The [C]hildren are accustomed to seeing the Plaintiffs on a

daily basis.

41. Despite their frequent visits and overnight stays at the home

of the Plaintiffs, the children have not resided with the Plaintiffs

for a period of twelve consecutive months.

42. In March 2014, when [Stepfather] came to Pennsylvania and

began to see [Mother], the relationship with the Plaintiffs

drastically deteriorated, and [Mother] refused to permit the

Plaintiffs to have any periods of custody with the [C]hildren.

43. Plaintiff [Maternal Grandmother] has recently addressed the

[C]hildren’s medical needs. Specifically, [J.B.] received three

immunizations after Mother relocated to North Carolina, and

[L.C.] was treated at the dentist for a few cavities.

44. The Plaintiffs express valid reasons for their opposition to the

relocation of the [C]hildren. Specifically, Plaintiffs fear that the

[C]hildren will not be properly taken care of, they will not have

any family and friends known to them in North Carolina, they will

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be taken away from the close family they have in Fayette

County, and [sic] [Mother] has always relied on family to help

with the [C]hildren, and she won’t have such extended family in

North Carolina. In addition, Plaintiff [Maternal Grandmother] is

concerned that [Mother] will not take the [C]hildren to the

doctor when they are sick with a sore throat, sore ears, [sic]

fever, and if they are vomiting. She also noted that [Mother]

“jumps around a lot”, and the [C]hildren would be losing the

stability of the Plaintiffs’ significant involvement in their life.

Plaintiff [Maternal Step-Grandfather] is concerned that a

relocation would promote instability. His concern extends to the

instability caused by [Stepfather’s] alcoholism, [sic] the fact that

Mother gets settled somewhere with the [C]hildren and then

“uproots” them, and he believes the [C]hildren are far more

stable in the Plaintiffs’ home.

45. Although Plaintiff [Maternal Grandmother] testified that she

believes it is “important for [Mother] to know everything about

her children”, after [Mother] relocated to North Carolina,

[Maternal Grandmother] has failed to make any attempts

whatsoever to provide information to Mother about the

[C]hildren.

46. Mother refused to permit the Plaintiffs to have any contact

with the [ ] [C]hildren for two months, from April to June in

2014.

47. Plaintiff [Maternal Step-Grandfather] serves as a liaison

between Mother and Maternal Grandmother, and he has been

the facilitator of custody exchanges since June 2014.

Trial Court Opinion, 3/11/15, at 1-7.

On May 19, 2014, Maternal Grandmother and Maternal Step-

Grandfather filed a complaint for custody, seeking primary physical custody

of the Children, and alleging that they had stood in loco parentis to the

Children for extended periods of time and that they had standing pursuant to

section 5324 of the Child Custody Act, 23 Pa.C.S.A. § 5324. Appellants also

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alleged that they had standing pursuant to section 5325 of the Child Custody

Act. On June 24, 2015, Mother filed an answer to the complaint.

On June 27, 2014, the trial court entered a temporary consent order

upon the agreement of the parties. The order provided that the parties

stipulated that Maternal Grandmother had standing pursuant to section

5325. The order further stated that the issue of the standing of Maternal

Grandmother under section 5324, and the standing of Maternal Step-

Grandfather under sections 5324 and 5325, was deferred. Finally, the order

provided that Mother had legal custody of the Children pending further order

of court.

On September 17, 2014, Mother filed a notice of proposed relocation

with the Children to Matthews, North Carolina. On September 25, 2014,

Appellants filed a counter-affidavit regarding relocation.

The trial court held hearings on the custody complaint on November

10, 2014, January 28, 2015, and January 29, 2015. At the hearing on

November 10, 2015, Mother testified on her own behalf. At the hearing on

January 28, 2015, Mother testified on re-direct examination and re-cross

examination. Stepfather also testified on behalf of Mother, and Maternal

Grandmother testified on her own behalf. At the hearing on January 29,

2015, Maternal Grandmother and Maternal Step-Grandfather testified on

their own behalf. Maternal Grandmother and Maternal Step-Grandfather

also presented a number of other witnesses on their behalf.

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On January 30, 2015, the trial court entered an order directing that,

until a final custody order would be entered, Appellants would continue to

have the authority to make any and all necessary medical and/or

educational decisions while the Children are in their physical custody. The

order further provided that, as long as Mother continued to reside in North

Carolina, the Children would remain in the physical custody of the

Appellants, and Mother would have the right to exercise partial physical

custody one weekend each month in Fayette County. The order also made

a provision in the event that Mother would relocate or temporarily stay in

Fayette County prior to the entry of a final custody order.

On February 3, 2015, Appellants filed a petition for special relief

seeking to reopen the record to admit exhibits relating to the actual status of

the enrollment of Stepfather in law school in North Carolina, and his law

school grade record transcript. On February 9, 2015, the trial court entered

an order re-opening the record of the custody trial for the limited purpose of

admitting Plaintiff’s Exhibit F, and Defendant’s Exhibit 3, relating to

Stepfather’s law school enrollment and grade record transcript.

On March 11, 2015, the trial court entered the order that awarded

Mother legal and primary physical custody of the Children, and granted

Mother’s petition to relocate the Children to North Carolina, with specific

restrictions relative to her relocation. The order further removed Maternal

Step-Grandfather as a party to the action, and awarded Maternal

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Grandmother partial physical custody of the Children. The trial court found

that Plaintiffs did not stand in loco parentis to the Children, and that

Maternal Grandmother had standing to seek only partial custody and/or

visitation. On April 7, 2015, Appellants timely filed their notice of appeal

from the March 11, 2015 order, along with a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

On appeal, Appellants raise the following issues:

1. Whether the Trial Court erred and/or abused its discretion in

finding that Maternal Grandmother and Maternal Step-

Grandfather, lacked standing to file for physical and legal

custody under 23 Pa.C.S.A. § 5324?

a. Whether the Trial Court erred/abused its discretion in

finding that the Maternal Grandmother and Maternal

Step-Grandfather lacked ‘in loco parentis’ standing of the

minor children, when they had solely acted as the

primary caregivers for the children since August 22,

2014?

b. Whether the Trial Court erred and/or abused its

discretion in looking at the date of filing the custody

action, as opposed to the date of the hearings on the

action, for purposes of determining the standing of the

Maternal Grandmother and Maternal Step-Grandfather?

c. Whether the Trial Court erred and/or abused its

discretion in failing to find that the Maternal Grandmother

and Maternal Step-Grandfather had standing under 23

Pa.C.S.A. § 5324(3)?

2. Whether the Trial Court erred and/or abused its discretion in

dismissing the Maternal Step-Grandfather from the custody

action for lack of standing, when he has played a significant role

in the raising of these children, [sic] since birth and has been in

loco parentis since before Mother filed her Petition for

Relocation?

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3. Whether the Trial Court erred and/or abused its discretion in

granting Mother’s Petition for Relocation and award of primary

custody to Mother where:

a. the testimony supports a finding that Mother lacked

any involvement in the children’s lives after she relocated

and failed to attend to the children’s medical needs?

b. Mother has historically failed to provide a stable home

and environment for the minor children?

c. the testimony allowed that there is no extended family

available for the children if the relocation were granted?

d. the testimony demonstrated Mother’s lack of concern

for the emotional well-being of the minor children, by

relocating prior to obtaining Court permission, and failing

to maintain any sort of regular contact with the children

after she relocated?

e. the testimony demonstrated that Mother has neglected

the educational and medical needs of the minor children?

f. the testimony demonstrated a concern for Mother’s

ability to make appropriate child care arrangements for

the children?

g. the testimony demonstrated a history of alcohol abuse

by the [m]other’s husband, who will be residing in the

home with the minor children?

h. the testimony failed to demonstrate evidence that it

will enhance the quality of life of the [m]other or minor

children?

i. the testimony failed to demonstrate sufficient reason or

motivation for the relocation?

4. Whether the Trial Court erred and/or abused its discretion in

finding that the [r]elocation of the children would be in the minor

children’s best interest, considering all of the relevant factors?

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Appellant’s Brief, at 4-6.3

In their brief on appeal, Appellants state that, while they have raised a

number of issues on appeal, their primary issue on appeal is whether the

trial court erred as a matter of law and/or abused its discretion when it

found that they lacked standing under section 5324 of the Child Custody Act.

Appellants assert that they had acted as the sole care providers for the

Children since August 22, 2014, by the consent of the parents of the

Children. Further, Appellants allege that Mother left the Children without

proper care and supervision, requiring Appellants to adopt the role of parent

for the Children. Appellants also contend that the trial court erred as a

matter of law and/or abused its discretion in dismissing Maternal Step-

Grandfather from the action for lack of standing. Appellants assert that

Maternal Step-Grandfather clearly acted in a parental role for the Children

for an extended period of time. Appellants further claim that Maternal

Step-Grandfather undisputedly had acted as a parent to the Children after

August 22, 2014, when Mother relocated to North Carolina without the

Children. Appellants request this Court to enter an order finding that they

had standing under section 5324, and to remand the matter to the trial

court, reinstating Maternal Step-Grandfather as a party.

3

We observe that Appellants stated their issues somewhat differently in

their Concise Statement of Errors Complained of on Appeal. We,

nevertheless, find the issues preserved for our review.

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Further, Appellants assert that the trial court erred as a matter of law

and/or abused its discretion in granting Mother’s petition for relocation.

They claim that the award of primary physical custody to Mother is not in the

best interest of the Children, and that the numerous relocation

considerations indicate that relocation is not in the Children’s best interest.

The Appellants, therefore, request this Court to reverse the grant of Mother’s

petition for relocation.

A trial court’s determination regarding standing will not be disturbed

absent an abuse of discretion. Butler v. Illes, 747 A.2d 943, 944 (Pa.

Super. 2000).

In custody cases, our standard of review is as follows:

In reviewing a custody order, our scope is of the broadest type

and our standard is abuse of discretion. We must accept

findings of the trial court that are supported by competent

evidence of record, as our role does not include making

independent factual determinations. In addition, with regard to

issues of credibility and weight of the evidence, we must defer to

the presiding trial judge who viewed and assessed the witnesses

first-hand. However, we are not bound by the trial court’s

deductions or inferences from its factual findings. Ultimately,

the test is whether the trial court’s conclusions are unreasonable

as shown by the evidence of record. We may reject the

conclusions of the trial court only if they involve an error of law,

or are unreasonable in light of the sustainable findings of the

trial court.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

This Court has stated: “[a]n abuse of discretion is not merely an error

of judgment; if, in reaching a conclusion, the court overrides or misapplies

the law, or the judgment exercised is shown by the record to be either

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manifestly unreasonable or the product of partiality, prejudice, bias or ill will,

discretion has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 111

(Pa. Super. 2007) (quotation omitted).

Section 5324 of the Child Custody Act provides as follows:

§ 5324. Standing for any form of physical custody or legal

custody

The following individuals may file an action under this chapter for

any form of physical custody or legal custody:

(1) A parent of the child.

(2) A person who stands in loco parentis to the child.

(3) 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:

(A) the child has been determined to be a

dependent child under 42 Pa.C.S. Ch. 63

(relating to juvenile matters);

(B) the child is substantially at risk due to

parental abuse, neglect, drug or alcohol

abuse or incapacity; or

(C) the child has, for a period of at least 12

consecutive months, resided with the

grandparent, excluding brief temporary

absences of the child from the home, and is

removed from the home by the parents, in

which case the action must be filed within six

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months after the removal of the child from

the home.

42 Pa.C.S.A. § 5324.

Section 5325 of the Child Custody Act provides as follows:

§ 5325. Standing for partial physical custody and

supervised physical custody

In addition to situations set forth in section 5324 (relating

to standing in any form of physical custody or legal custody),

grandparents and great-grandparents may file an action under

this chapter for partial physical custody or supervised physical

custody in the following situations:

(1) where the parent of the child is deceased, a parent or

grandparent of the deceased parent may file an action

under this section;

(2) where the parents of the child have been separated

for a period of at least six months or have commenced

and continued a proceeding to dissolve their marriage; or

(3) when the child has, for a period of at least 12

consecutive months, resided with the grandparent or

great-grandparent, excluding brief temporary absences of

the child from the home, and is removed from the home

by the parents, an action must be filed within six months

after the removal of the child from the home.

42 Pa.C.S.A. § 5325.

Pursuant to section 5324 of the Act, “A person who stands in loco

parentis to the child” may file an action for any form of physical or legal

custody. In Peters v. Costello, 891 A.2d 705 (Pa. 2005), our Supreme

Court outlined the relevant principles as follows:

The term in loco parentis literally means “in the place of a

parent.” Black's Law Dictionary (7th Ed. 1991), 791.

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The phrase “in loco parentis” refers to a person who puts

oneself [sic] in the situation of a lawful parent by

assuming the obligations incident to the parental

relationship without going through the formality of a legal

adoption. The status of in loco parentis embodies two

ideas; first, the assumption of a parental status, and,

second, the discharge of parental duties. . . . The rights

and liabilities arising out of an in loco parentis

relationship are, as the words imply, exactly the same as

between parent and child.

Peters, 891 A.2d at 710 (citation and footnote omitted).

This Court has stated that a third party cannot place himself or herself

in loco parentis status in defiance of the parents’ wishes, and the

parent/child relationship. Gradwell v. Strausser, 610 A.2d 999, 1003 (Pa.

Super. 1992).4 See E.W. v. T.S., 916 A.2d 1197, 1205 (Pa. Super. 2007)

(stating, “the law provides that in loco parentis status cannot be achieved

without the consent and knowledge of, and in disregard of the wishes of a

parent”). The frequency of a caretaker’s services does not confer in loco

parentis status. Argenio v. Fenton, 703 A.2d 1042, 1044 (Pa. Super.

1997) (holding that grandmother’s serving as child’s frequent caretaker was

insufficient to confer on grandmother standing to file custody dispute against

child’s birth father).

In its Opinion and Order, the trial court provided the following

analysis:

After reviewing the facts of this case and the applicable

case law, this [c]ourt cannot confer standing upon the Plaintiffs

4

Persons other than parents are “third parties” for purposes of custody

disputes. See Gradwell, 610 A.2d at 1001.

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pursuant to § 5324(2) through “in loco parentis” status. Our

Supreme Court explained in loco parentis status in T.B. v.

L.R.M., 786 A.2d 913 (Pa. 2001), and the Superior Court

refused to recognize in loco parentis status in D.G. v. D.B., 91

A.3d 706 (Pa. Super.2014). In D.G., maternal grandmother

sought primary [physical] custody and argued that she stood in

loco parentis to her grandchild. Despite [the fact] that the child

resided for periods of time with grandmother, and she took the

child to medical appointments, cooked for the child, financially

supported the child, did laundry for the child, and cared for the

child, she was not in loco parentis. The [c]ourt reasoned that

the grandmother’s efforts were more consistent with

grandmother assisting the mother and the child, but

grandmother did not show an intent to assume all of the rights

and responsibilities of parenthood.

Similar to the grandmother in D.G., the Plaintiffs in the

instant case have played a significant role in the lives of the [ ]

[C]hildren. Plaintiffs have certainly provided financially for the

[C]hildren, and they have opened their home to the [C]hildren,

with each child having his/her own room, clothes, and toys at

the Plaintiff’s home. Even though there were periods of co-

residency between the Plaintiffs, the [C]hildren, and [Mother],

these periods of co-residency are consistent with the Plaintiffs

providing assistance to Mother during times when Mother was in-

between relationships, or for other reasons moved in and out

with Plaintiffs. Despite [the fact] that [L.C.,] and[,] at times[,]

[J.B.,] spent two to four nights each week with the Plaintiffs, this

[c]ourt cannot find that the [ ] [C]hildren were living with the

Plaintiffs. [L.C.] himself stated that he “lived” with “mom and

[Stepfather]”, and he “stayed” at “grandma’s”. The assistance

and involvement of the Plaintiffs have been substantial and

commendable, but this [c]ourt does not find that the Plaintiffs’

involvement with the [C]hildren over the years is consistent with

an intent to assume all rights and responsibilities of parenthood,

but[,] rather[,] their role has been one of loving grandparents

who have made themselves consistently available to assist with

their grandchildren. For these reasons, this [c]ourt finds that

the Plaintiffs did not have in loco parentis status to the [ ]

[C]hildren at the time this action was filed.

Trial Court Opinion, 3/11/15, at 8-10.

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In their brief on appeal, Appellants cite T.B. v. L.R.M., 786 A.2d 913

(Pa. 2001), for the proposition that the phrase in loco parentis refers to a

person who puts oneself in the situation of a lawful parent by assuming the

obligations incident to the parental relationship without going through the

formality of a legal adoption. Appellants’ Brief at 15. Appellants argue that,

from at least the time that Mother relocated to North Carolina in August of

2014, through the dates of the custody relocation trial on November 10,

2014, January 28, 2014, and January 29, 2014, they acted as the lawful

parents of the Children. Id. Appellants assert that the evidence showed

that Mother failed to be involved with the Children’s education, medical

concerns, and physical well-being during this time, and left the parenting

duties exclusively to Appellants. Appellants also assert that Mother visited

the Children only twice during the time after Mother’s relocation to North

Carolina. The first visit was at the custody trial and the second during the

Christmas holiday. Appellants contend that the trial court failed to consider

that they were acting in loco parentis at the time that was relevant to the

petition for relocation, and instead found that they lacked standing based on

their status at the time that the Appellants filed the custody action. Id. at

15-16.

Additionally, Appellants cite D.G. v. D.B., 91 A.3d 706 (Pa. Super.

2014). In D.G., the child’s maternal grandmother and step-grandfather filed

a custody action in 2009, seeking partial physical custody of the child. The

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parties entered into an agreement in January of 2010. In 2013, the

grandmother and step-grandfather filed a modification petition, seeking

primary physical custody and joint legal custody of the child based on the

allegations that the mother was neglecting the child. At the time that the

matter came before the trial court in 2013, the child had not lived with the

grandmother for four years. The trial court found that the grandmother had

in loco parentis standing, and awarded her primary physical custody of child.

On appeal by the mother, this Court vacated the trial court’s order and

remanded the matter, finding that the grandmother’s actions were more

consistent with assisting the mother and the child in a time of need than

with serving as the child’s parent. D.G., 91 A.3d at 711.

Here, Appellants assert that, in D.G., this Court held that the maternal

grandmother’s in loco parentis standing was properly examined with regard

to the custody trial in 2013, and not at the time when the custody action

was initially commenced on 2009. Appellants allege that, as in D.G., this

Court should examine their in loco parentis standing at the time that Mother

filed the custody relocation petition in August of 2014 and the court held the

relocation hearings in 2014 and 2015, and not at the time that they filed the

initial custody action in May of 2014. See Appellants’ Brief at 16.

In its Statement in Lieu of Opinion, the trial court provided the

following explanation for rejecting the argument of Maternal Grandmother

and Maternal Step-Grandfather that they had in loco parentis standing

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because they had solely acted as the primary caregivers for the Children

since August 22, 2014.

The Superior Court has explained that “The rights and

liabilities arising out of an in loco parentis relationship are, as the

words imply, exactly the same as between parent and child.”

Morgan v. Weiser, 923 A.2d 1183, 1187 (Pa. Super. 2007).

“The third party in this type of relationship, however, cannot

place himself in loco parentis in defiance of the parents’ wishes

and the parent/child relationship.” Id.

The Complaint for Custody in this matter was filed by the

[P]laintiffs on May 19, 2014, and when [Mother] filed her Answer

on June 24, 2014, she denied that the [P]laintiffs have stood in

loco parentis to the [ ] [C]hildren. In fact, when the parties

attended a custody conference and entered into a Temporary

Custody Consent Order dated June 27, 2014, the following

provisions were included:

“That the issue as to the standing of the Plaintiff

Maternal Grandmother, [D.B.], under Section 5324 and

the standing of the Plaintiff Maternal Step-Grandfather,

[D.B.], under Section 5324, [sic] 5325, are deferred; and

that it is stipulated that the Maternal Grandmother,

[D.B.,] has standing under Section 5325.”

“The Mother and the Grandparents have entered into this

temporary arrangement in order to stabilize custody and

to afford the parties an opportunity to attempt an

amicable long-term resolution. This temporary

arrangement shall not create a status quo. Neither party

waives a claim to primary custody or to equally (shared)

custody.

“It is understood that Mother is married to a law

student who resides in North Carolina, and in the event

that the Mother decides to relocate as a consequence of

her husband’s studies or eventual employment, she must

first give advance notice to all other parties and must

work out a mutual substitute physical custody

arrangement with the Maternal Grandparents. The

Defendant, [T.C.], does not at this time waive the

relocation procedures provided by law.”

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After the parties’ custody conference, [Mother] did give

proper notice of relocation, and [P]laintiffs objected to said

relocation. [Mother] testified that she believed that[,] if she

moved to Matthews and removed the [ ] [C]hildren from

Pennsylvania, then she would be in contempt of [c]ourt.

Therefore, according to her testimony, [Mother] moved to North

Carolina in order to establish her residency there, and she

waited for a court proceeding before taking the [ ] [C]hildren.

(See Custody Trial Proceedings, Volume 1 of 3, page 77).

Accordingly, when [Mother] left the [ ] [C]hildren in

Pennsylvania in the care of the Plaintiffs, believing that it [would

be] in contravention of a [c]ourt order [if she were] to remove

the [C]hildren, this [c]ourt cannot find that she acquiesced with

the idea that her mother and stepfather would become in loco

parentis. [Mother] had clearly objected to the standing of the

Plaintiffs when this action was first initiated, and both parties[,]

by their Consent Order of June 27, 2014, acknowledged that

their temporary arrangement would not create a status quo.

This [c]ourt believes that to allow [P]laintiffs to benefit from the

custody arrangement that was temporarily in place pending a

determination by this [c]ourt after a custody trial would be

unjustifiable.

See Trial Court Opinion, 5/29/15, at 2-4.

We find no error of law or abuse of discretion on the part of the trial

court in concluding that Appellants lacked in loco parentis standing to pursue

primary physical custody in this matter.5 Butler, 747 A.2d at 944.

Next, Appellants contend that, if this Court concludes that they lack in

loco parentis standing, they have standing under section 5324(3) to assert a

5

Appellants urge that the order entered in October of 2014 in the Fayette

County dependency court, granting them temporary legal and physical

custody of the Children, is evidence of their in loco parentis status with

regard to the Children. See Appellants’ Brief at 17-18. For the reasons

expressed by the trial court, any order relating to their custody of the

Children while Mother was in North Carolina pending the litigation in this

custody matter is not controlling of their in loco parentis status.

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claim for legal and physical custody. See Appellants’ Brief at 18. Appellants

claim that they are the Children’s grandparents, that their relationship with

the Children began with the consent of Mother, and that they are willing to

continue to assume responsibility for the Children. Id. With regard to

section 5324(3)(iii), Appellants contend that the Children are at substantial

risk due to alcohol abuse by Stepfather and parental neglect by Mother

regarding her failure to obtain health insurance coverage for them, which

they assert was part of a dependency action filed by Fayette County Children

and Youth Services (“CYS”). Id. Appellants allege that CYS withdrew the

dependency with the understanding that Appellants were awarded

temporary legal custody of the Children so that they could obtain health

insurance for them. Id. at 18-19. Moreover, with regard to section

5324(3)(iii)(C), Appellants allege that the evidence established that they

provided a home for the Children for at least twelve months preceding the

filing of the custody action. Appellants assert that they have provided the

primary home for the Children for years, and that Appellants’ address was

the permanent address for L.C.’s school enrollment and medical purposes.

The trial court rejected Appellants’ argument, stating as follows:

The final statutory basis for standing, which can apply

only to a “grandparent”, is § 5324. This [c]ourt finds that

[Maternal Grandmother] does not meet the necessary elements

for this [c]ourt to confer standing under subparagraphs [sic]

iii(A), iii(B), or iii(C). The children at issue in this case clearly

have not been adjudicated dependent, and the testimony did not

reveal that the [C]hildren are substantially at risk due to

parental abuse, neglect, drug or alcohol abuse, or incapacity.

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Although this [c]ourt finds the Plaintiffs’ concern over

[Stepfather’s] alcoholism and recent relapse to be well-justified,

the statute addresses risk due to the parent’s alcohol abuse.

Additionally, although it was well[-]established that the

[C]hildren, along with their [m]other, moved in and out of the

Plaintiffs’ home over the past several years, the [C]hildren spent

many overnights with the Plaintiffs, and the Plaintiffs’ address

was used for all school-related paperwork for [L.C.], it was not

proven that the [C]hildren resided with the Plaintiffs for a period

of at least twelve consecutive months.

Trial Court Opinion, 3/11/15, at 10 (emphasis added).

We find no error of law or abuse of discretion on the part of the trial

court in concluding that Appellants lacked standing to pursue primary

physical custody in this matter.

Next, we address Appellants’ argument that the trial court erroneously

dismissed Maternal Step-Grandfather as a party in this action, finding that

he lacked standing required as a grandparent to be included in such a

proceeding. Appellant’s Brief, at 20. Relying on K.B., II v. C.B.F., 833

A.2d 767 (Pa. Super. 2003), Appellants contend that Maternal Step-

Grandfather has in loco parentis standing and standing under section 5324

as a grandparent, despite his lack of a biological relationship. Appellants

request this Court to vacate the portion of the trial court order that

dismissed Maternal Step-Grandfather as a party in this action, and grant him

in loco parentis status to assert his claim for custody of the Children.

Appellants’ Brief at 20.

The trial court addressed Appellants’ argument as follows:

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The first issue this [c]ourt must address is whether the

Plaintiffs have standing to bring an action for custody and/or

partial custody. Since the parties stipulated that maternal

grandmother, Plaintiff [D.B], has standing under 23 Pa.C.S.A.

§ 5325, we will first consider whether this statutory section also

confers standing on Plaintiff [D.B.].

The statutory language of 23 Pa.C.S.A. § 5325 includes the

situations under which “grandparents and great-grandparents”

may file an action for partial physical custody or supervised

physical custody.

In Hill v. Divecchio, 625 A.2d 642, 648 (Pa. Super.

1993), an action for custody was brought by the maternal

grandmother and maternal step-grandfather, and the Superior

Court denied that step-grandfather had standing. Th[is] Court

held that the unambiguous words of the statute which state

“upon application of the parent or grandparent of a party”

preclude the mother’s step-father, the child’s step-grandfather,

from asserting a cause of action for visitation and/or partial

custody in conjunction with the child’s natural grandmother.

Therefore, in the instant case, we cannot confer standing upon

the step-grandfather under § 5325.

***

Based on the [c]ourt’s analysis of standing, this [c]ourt

concludes that [Maternal Grandmother] has standing to seek

partial custody, under section 5325(2). [Maternal Step-

Grandfather] has been abundantly loving and supportive to his

step-grandchildren, and he has been a great source of stability

for the [C]hildren. However, this [c]ourt is constrained by the

clear language of the statutes[,] as well as case law[,] and must

find that [Maternal Step-Grandfather] lacks standing and shall be

dismissed as a party to this lawsuit.

Trial Court Opinion, 3/11/15, at 10.6

6

We note that, on August 10, 2015, Appellants filed with this Court a

Supplemental Reproduced Record. We may not consider this document,

however, as it was not made a part of the certified record on appeal.

Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (en banc).

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We find no error of law or abuse of discretion on the part of the trial

court in concluding that Appellant Maternal Step-Grandfather lacked

standing to pursue partial physical custody in this matter. Butler, 747 A.2d

at 944.

We find that there was competent evidence in the record to support

the trial court’s credibility and weight determinations. Thus, we will not

disturb them. C.R.F., at 443. Accordingly, we find that the trial court did

not abuse its discretion in denying Maternal Grandmother and Maternal

Step-Grandfather third-party standing, and dismissing Maternal Step-

Grandfather as a party in this action. See Butler; Gradwell; and Argenio,

supra.7

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2015

7

Based on this conclusion, we need not address Appellant’s issues regarding

the propriety of the trial court’s grant of Mother’s petition to relocate to

North Carolina with the Children.

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