The opinion
J-A02003-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
A.M. V. A.J. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: L.F., :
:
Intervenor :
:
:
: No. 885 WDA 2020
Appeal from the Order Entered July 22, 2020
In the Court of Common Pleas of Erie County
Civil Division at No(s): 10752-2018
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 19, 2021
L.F. (“Grandmother”), the maternal grandmother of B.J. and A.J.,
appeals from the trial court’s July 22, 2020 order that denied her petition to
intervene in the pending custody litigation between A.M. (“Mother”) and A.J.
(“Father”). We affirm.
B.J. and A.J. were born in 2013 and 2015, respectively. Between 2016
and 2019, the children resided on Kelso Drive in Erie, Pennsylvania, either as
part of an intact family or with Father. There is no dispute that Grandmother
was a fixture in the children’s lives during this period and helped Mother and
Father care for the children. After the relationship between Mother and Father
deteriorated, Mother moved from the residence and filed a complaint for
custody of the children.
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On April 19, 2018, Mother and Father entered a consent agreement
whereby they agreed to share physical and legal custody of the children.
Approximately one year later, Father filed a motion to modify that custody
arrangement due to Mother’s substance abuse problems. The matter was
assigned to the Honorable Elizabeth K. Kelly, who granted the petition on July
23, 2019, and awarded Father sole physical and legal custody of the children.
Grandmother continued to assist Father with caring for the children until
December 2019.
Meanwhile, on October 29, 2019, Mother filed a petition to modify the
July 23, 2019 custody order. While that litigation was pending, Grandmother
filed in the orphans’ court petitions seeking to be appointed the guardian of
the person and the estate of B.J. and A.J. The orphans’ court referred the
family to the Erie County Office of Children and Youth (“OCY”) and appointed
Steven George, Esquire as guardian ad litem. Thereafter, the custody court
scheduled the guardianship and custody matters collectively before Judge
Kelly and directed Mother, Father, and Grandmother to submit hair follicle
samples for drug testing. After it was reported that Mother and Grandmother
failed to comply with the drug testing procedure, the court scheduled a
contempt hearing simultaneous with the guardianship and custody matters.1
____________________________________________
1 The hearing was originally scheduled for April 2020, but was delayed until
July 16, 2020 due to the COVID-19 pandemic.
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On June 11, 2020, Grandmother filed in the custody court a petition to
intervene in the custody proceedings, a motion to dismiss the contempt
hearing, and a counterclaim for physical custody of both children. The
petitions were scheduled for hearing along with the pending custody and
guardianship matters, and on July 16, 2020, Judge Kelly heard evidence from
the guardian ad litem, the OCY caseworker, Father, and Grandmother’s
counsel concerning all of the pending petitions. Grandmother and Father
presented competing narratives regarding the level of Grandmother’s
interaction with the children. The guardian ad litem opined that guardianship
was not appropriate in this case, but he noted that Grandmother played a
substantial role in caring for the children and believed that her continued
contact with B.J. and A.J. would serve the children’s best interest.
Significantly, however, the guardian ad litem intentionally avoided opining on
whether Grandmother stood in loco parentis to the children, highlighting that
the extent of her involvement, whether as a mere helper or a de facto parent,
was still under dispute.
In open court, Judge Kelly denied Grandmother’s petition for
guardianship and dismissed the contempt petition. N.T., 7/16/20, at 8, 10.
After taking the matter relating to Grandmother’s standing under advisement,
Judge Kelly entered the above-referenced order denying Grandmother’s
petition to intervene.
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This timely appeal followed, wherein Grandmother complied with
Pa.R.A.P. 1925(a)(2)(i) by contemporaneously filing a concise statement of
errors complained of on appeal. The trial court entered an opinion pursuant
to Pa.R.C.P. 1925(a). Grandmother presents three issues for our review:
I. Whether the trial court committed an error of law and/or abused
its discretion in denying the motion to intervene, where the
testimony, including that of the guardian ad [l]item, established
that [Grandmother] parented the children along with the
Appellee/Father, thus establishing standing pursuant to 23
Pa.C.S. section 5324(2) (in loco parentis standing).
II. Whether the trial court committed an error of law and/or
abused its discretion in denying the motion to intervene pursuant
to 23 Pa.C.S. section 5325(2) (standing for partial custody or
visitation), where [Grandmother] had a prior relationship with the
children with the consent of the parents, the parents initiated the
custody action, and the parents do not agree whether
[Grandmother] should have partial custody or visitation.
III. Whether the trial court committed an error of law and/or
abused its discretion in disregarding the testimony of the guardian
ad litem as to [Grandmother’s] history and relationship with the
children and that it would be in the children's best interest for
movant to have some form of partial custody.
Grandmother’s brief at 3-4 (unnecessary capitalization omitted).2
Our standard of review is well-settled.
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
____________________________________________
2 Neither Father, Mother, nor the guardian ad litem filed a brief in this appeal.
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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.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa.Super. 2012) (citations omitted).
Grandmother’s issues implicate her standing to participate in the
custody litigation between Mother and Father. In child custody cases, the
concept of standing differs from the typical determination regarding whether
a party has a direct interest in the outcome of litigation. As this Court
explained,
In the area of child custody, principles of standing have been
applied with particular scrupulousness because they serve a dual
purpose: not only to protect the interest of the court system by
assuring that actions are litigated by appropriate parties, but also
to prevent intrusion into the protected domain of the family by
those who are merely strangers, however well-meaning.
D.G. v. D.B., 91 A.3d 706, 708 (Pa.Super. 2014) (quoting J.A.L. v. E.P.H.,
682 A.2d 1314, 1318 (Pa.Super. 1996)).
Grandmother invokes two separate standing provisions under the Child
Custody Law. First, as it relates to standing to exercise any form of physical
custody or legal custody, the Child Custody Law extends standing to, inter
alia, “A person who stands in loco parentis to the child.” 23 Pa.C.S. § 5324(2).
We previously explained,
A person stands in loco parentis with respect to a child when he
or she assumes 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. Critical to our discussion here, in loco
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parentis status cannot be achieved without the consent and
knowledge of, and in disregard of, the wishes of a parent.
K.W. v. S.L., 157 A.3d 498, 505 (Pa.Super. 2017).3
Second, the Child Custody Law provides grandparent standing for partial
physical custody and supervised physical custody as follows:
In addition to situations set forth in section 5324 (relating
to standing for 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 relationship with the child began either with the
consent of a parent of the child or under a court order and
where the parents of the child:
(i) have commenced a proceeding for custody; and
(ii) do not agree as to whether the grandparents or great-
grandparents should have custody under this section; 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.
23 Pa.C.S. § 5325
____________________________________________
3 Grandmother does not assert standing under any of the remaining
subparagraphs, including the provision that addresses a grandparent who is
not in loco parentis, i.e., 23 Pa.C.S. § 5324(3).
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In sum, Grandmother argues that the trial court abused its discretion in
concluding that the evidence presented during the custody hearing did not
warrant finding that she stood in loco parentis pursuant to 23 Pa.C.S.
§ 5324(2). She contends that, for three years, she assisted Mother and Father
in raising the children until Father obtained sole custody and precluded
contact. In support of this position, Grandmother highlights the fact that B.J.
remained in the school district designated for her residence even though
Father was awarded physical custody, presumably in a different district.
As to § 5325(2), Grandmother asserts that her relationships with the
children began with the consent of Mother and Father, who have commenced
a proceeding for child custody and do not agree as to whether she should
exercise custody. The first two prongs of this subsection are not in dispute.
In support of the determinative final prong, Grandmother’s counsel argued
during the hearing, “presently the mother is allowing contact by phone
between the grandmother and the children, while the father has refused all
contact since December of 2019.” N.T., 7/16/20, at 14.
Finally, Grandmother argues that the trial court erred in disregarding
the testimony of the guardian ad litem concerning the benefits of her
continued contact with the children. Specifically, Grandmother contends, “the
testimony of the [guardian ad litem] . . . confirmed that . . . Father and
Maternal Grandmother were the two parties working together to raise the
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children, and that it would be in the children’s best interest to have a schedule
with Maternal Grandmother.” Grandmother’s brief at 19.
After a thorough review of the certified record, Grandmother’s brief, and
the pertinent law, we fully agree with the cogent and well-reasoned opinion
entered on September 4, 2020, by the Honorable Elizabeth K. Kelly.
Specifically, as it relates to Grandmother’s three arguments, Judge Kelly
concluded that (1) in light of Father’s credible testimony to the contrary,
Grandmother’s interactions with B.J. and A.J. did not constitute the
assumption of parental status with Father’s consent; (2) Mother’s willingness
to permit the children’s telephone contact with Grandmother is not
tantamount to evidence of her agreement to Grandmother exercising physical
custody; and (3) notwithstanding his observations about the children’s best
interests, the guardian ad litem specifically declined to speculate about the
threshold determination concerning whether Grandmother stood in loco
parentis with the children. See Trail Court Opinion, 9/4/20, at 4-9. We adopt
Judge Kelly’s reasoning as our own in affirming the denial of Grandmother’s
petition to intervene.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2021
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Received 9/11/2020 3:08:54 PMCirculated 01/29/2021
Superior Court 12:34
Western PM
District
Filed 9/11/2020 3:08:54 PM Superior Court Western District
885 WDA 2020
AMBER MOWREY, IN THE COURT OF COMMON PLEAS
Plaintiff OF ERIE COUNTY, PENNSYLVANIA
v.
ARMANDO JIMENEZ,
Defendant NO. 10752 - 2018
OPINION
Septembere,2020: This child custody matter is before the Court on the appeal of Lori
Ferguson from a July 22, 2020 Order denying her Petition to Intervene and Counter-Claim for
Custody. Ms. Ferguson filed the Petition in the custody action regarding her two grandchildren,
B.J., now seven years old, and A.J., 5 years old (hereinafter "the Children").
PROCEDURAL HISTORY
On March 20, 2018, Amber Mowrey (hereinafter "Mother") filed a Complaint for Custody
against Armando Jimenez (hereinafter "Father") requesting primary physical custody of the
Children. The parties, by a consent order entered April 19, 2018, agreed to an order whereby they
would share legal and physical custody of the Children. Pursuant to the April 19, 2018 Order of
Court, Mother was to exercise physical custody every Monday through Thursday with Father
exercising custody every Thursday through Monday.
On April 9, 2019, Father filed a Modification Petition. Father alleged that the best interest
of the children would be served by modification of the order due to safety concerns, including B.J.
being returned to First Student as Mother was not home when the bus dropped him off from school.
Following a July 23, 2019 Custody Trial, the undersigned issued a July 23, 2019 Order granting
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Father sole legal and physical custody of the Children'.
Mother, on October 29, 2019, filed a Modification Petition requesting primary physical
custody of the Children. Mother and Father attended a November 19, 2019 custody conference at
which they were unable to reach an agreement regarding custody. Accordingly, the matter was
forwarded to court for a custody trial. The case was scheduled in the Custody Trial Term occurring
during the week of January 27, 2020.
Meanwhile, on December 23, 2019, Ms, Ferguson filed a Petition for Appointment of
Guardian of the Person and/or Estate of a Minor requesting guardianship of each of the Children.
Following a January 16, 2020 hearing, the undersigned issued an order of the same date continuing
the hearing to April 13, 2020, referring the matter to the Erie County Office of Children and Youth
for investigation and appointing Steven George, Esquire as Guardian Ad Litem for both of the
Children.2
By Order of Court filed January 30, 2020, the Honorable Joseph M. Walsh, III ordered
Mother, Father and Ms. Ferguson all to submit to drug testing and ordered the custody trial on
Mother's Modification Petition to be heard simultaneously with the April 13, 2020 guardianship
hearing. The custody and guardianship hearings were ultimately continued to July 16, 2020 due to
the global COVID-19 pandemic.
Meanwhile, Ms. Ferguson, on June 11, 2020, filed her Petition to Intervene and Counter -
Claim for Custody alleging that she had standing to intervene.
1 At the Custody Trial, Father testified to Mother's drug use, her eviction from her apartment, and
her association with a
man who hit B.J. Father further testified that the Children had been fully in his custody for over month, with Mother
visiting the Children at times. Father acknowledged that Ms. Ferguson was helping him with the Children.
As noted in the January 16, 2020 Orders in Orphans' Court, the matter was referred to the Erie County Office of
Children and Youth based upon significant allegations of parental abuse and neglect of the Children and unstable
housing, as well as allegations that all parties, including the proposed guardian, Lori Ferguson, were drug addicted and
using the Children for financial gain.
2
Following the July 16, 2020 hearing, the undersigned issued orders denying each Petition for
Appointment of Guardian of the Person and/or Estate of a Minor, as well as the Petition to Intervene
and Counter-Claim for Custody.
In her Statement of Matters Complained of on Appeal, Ms. Ferguson makes the following
allegations of error:
1. The Trial Court committed an error of law and/or abused its discretion in
denying the Motion to Intervene where the testimony, including that of the Guardian
ad Litem, established that Movant, Lori Ferguson, parented the children along with
Defendant/Father, thus establishing standing pursuant to 23 Pa.C.S. §5324(2)(in loco
parentis standing).
2. The Trial Court committed an error of law and/or abused its discretion in
denying the Motion to Intervene pursuant to 23 Pa.C.S. §5325(2)(standing for partial
custody or visitation), where the Movant had a prior relationship with the children
with the consent of the parents, the parents initiated the custody action, and the
parents do not agree whether Movant should have partial custody or visitation.
3. The Trial Court committed an error of law and/or abused its discretion in
disregarding the testimony of the Guardian ad Litem as to the Movant's history and
relationship with the child and that it would be in the children's best interest for
Movant to have some form of partial custody.
DISCUSSION
All of Ms. Ferguson's allegations of error are based upon the decision of this court not to
allow her to intervene in the custody dispute between the Children's parents. With regard to
standing in a custody action, the Pennsylvania Supreme Court has outlined the general principals as
follows:
The fundamental concept of standing ensures that a party seeking to litigate a matter
has a substantial, direct, and immediate interest in the subject-matter of the litigation.
"In the area of child custody, principles of standing have been applied with particular
scrupulousness[.]" This stringent application of standing principles serves to protect
both the interest of the court system by ensuring that actions are litigated by
appropriate parties and the interest in keeping a family unit free from intrusion "by
those that are merely strangers, however well-meaning." Indeed, in evaluating
whether a Washington state statute conferring standing to "any person" to seek
visitation of children, the United States Supreme Court has recognized the significant
interest at stake in the context of persons seeking judicial intervention to gain
visitation or custody of children. "The liberty interest ... of parents in the care,
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custody and control of their children is perhaps the oldest fundamental liberty
interest recognized by this Court." In Pennsylvania, Section 5324 of the Domestic
Relations Code limits the classes of persons deemed to have a substantial, direct, and
immediate interest in the custody of children by conferring standing only upon "(1) a
parent of the child[;] (2) a person who stands in loco parentis to the child[; and] (3) a
grandparent of the child who is not in loco parentis to the child[,]" under certain
circumstances. Determining standing in custody disputes is a threshold issue that
must be resolved before proceeding to the merits of the underlying custody action. It
"is a conceptually distinct legal question which has no bearing on the central issue
within the custody action who is entitled to physical and legal custody" of a child in
light of his or her best interests. Issues of standing are questions of law; thus, the
standard of review is de novo and the scope of review is plenary.
C.G. v. J.H., 193 A.3d 891 (Pa. 2018) (citations omitted).
Ms. Ferguson first alleges that the court erred by denying her request to intervene "where
the testimony, including that of the Guardian ad Litem, established that Movant, Lori Ferguson,
parented the children along with Defendant/Father, thus establishing standing pursuant to 23
Pa.C.S. §5324(2)(in loco parentis standing)."
A person who stands in loco parentis to a child may file a custody action to pursue any form
of physical or legal custody of the child. See 23 Pa.C.S.A. §5324(2). "[T]he phrase 'in loco
parentis refers to a person who puts himself [/herself] in the situation of assuming the obligation
incident to the parental relationship without going through the formality of a legal adoption." D. G.
v. D.B., 91 A.3d 706 (Pa. Super. 2014) quoting Argenio v. Fenton, 703 A.2d 1042, 1044
(Pa.Super.1997). The legal status of in loco parentis requires the individual claiming the status to
prove their: (1) assumption of parental status; and (2) discharge of parental duties. See id; see also
C.G., 193 A.3d at 907. "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." D. G. v. D.B., 91 A.3d at 708-09
quoting Morgan v. Weiser, 923 A.2d 1183, 1187 (Pa.Super,2007).
At the July 16, 2020 hearing, Ms. Ferguson, through counsel, set forth that B.J. lived with
her from birth until the age of two, that Mother and both Children resided with her for several years
4
after that, that the Children were with her all week long after Mother got her own apartment and that
Father shared custody with her once he was granted sole custody of the Children, Ms. Ferguson
further set forth that she provided substantial financial support for the Children when they resided
with her, that she provided B.J. with school clothes, that she drove the Children to almost every
doctor and dental appointment until the Summer of 2019 and that she would have to leave work to
pick the Children up from school because the parents failed to do so.
Contrary to the picture painted by Ms. Ferguson's counsel, Father represented that Ms.
Ferguson has assisted as a grandmother, while he and Mother shared custody of the Children.
Father asserted that Ms, Ferguson's representation that the Children lived with her was a lie. Father
testified that once Mother moved out of Ms. Ferguson's home that he, Mother and the Children
lived together. He further asserted that Ms. Ferguson saw the Children on weekends but that the
relationship evolved to the point that, when she did take the Children for visits, she only wanted one
child at a time or asked for Father to come and play with one while she interacted with the other
because it was too much for her to have both of the Children at the same time.
The documents filed of record throughout these proceedings lend credibility to Father's
testimony. Specifically, long before Ms. Ferguson requested to intervene in the custody action,
Mother and Father consistently represented that the Children resided with them as an intact family
unit since at least 2016. First, when Mother, on March 20, 2018, filed the Complaint for Custody
initiating the custody proceedings, she set forth that the Children resided with both parents at 411
Kelso Drive #53 from November 25, 2016 through March 5, 2018 and that, thereafter, the Children
continued to reside with Father at the Kelso Drive address. By the time that Father filed his
Modification Petition on April 9, 2019, both parents' addresses had changed, however, consistent
with Mother's representation in her Complaint for Custody, Father represented that the Children
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resided with both parents at 411 Kelso Drive #53 in 2017 and 2018. There is no mention of Ms.
Ferguson during this time, nor was there any attempt by her to intervene.
With regard to Ms. Ferguson leaving work to pick up the Children from school, it is
noteworthy that Father, in April of 2019, filed a Petition for Modification indicating that the best
interests of the Children would be served by granting him custody due to the safety concern of
Mother not being home when B.J, arrived home through First Student. Moreover, while
grandmother may have provided transportation for the Children to medical and dental appointments,
the Court cannot ignore Father's testimony from the January 16, 2020 guardianship hearing which
demonstrated that he was very much aware of what was going on with the Children's health and
B.J.'s dental needs, indicating that he was substantially involved in such care.
There is no doubt that Ms. Ferguson assisted Father with the Children when he first assumed
sole physical custody. Father testified to such at the July 23, 2019 Custody Trial, Moreover, based
upon his meetings with the parties, the GAL testified that, because of Mother's serious drug
addiction, Ms. Ferguson stepped into a "mother -like role." Nevertheless, Attorney George
immediately qualified his statement to indicate that he did not identify Ms. Ferguson's role in terms
of standing, but was simply saying that Father worked directly with Ms. Ferguson who provided
some care for the Children.
Ms. Ferguson's actions in helping out with her grandchildren are commendable. They do
not, however, rise to the level of the assumption of parental status. Even if B.J and Mother resided
with Ms. Ferguson until B,J. was two years old, Father's credible testimony indicates that custody
was between the parents thereafter. Once Father assumed sole custody, Ms. Ferguson helped out
with the Children, including taking them to her house at times on the weekends. Nevertheless, even
that diminished as Ms. Ferguson's desire to take only one child at a time became upsetting to the
Children. Providing the Children with occasional shelter, some financial support, and transportation
to and from medical appointments does not confer in loco parentis status. See D.G. v. D.B., 91 A.3d
at 711-12(grandmother did not stand in loco parentis to child, despite child and mother residing
with grandmother for 2 separate time periods, grandmother exercising custody every other weekend
upon mother and grandchild moving out, grandmother doing the grandchild's laundry and providing
meals to mother and grandchild, and grandmother taking grandchild to medical appointments). As
Ms. Feguson's actions are more akin to assistance in a time of need, rather than assuming parental
status, a grant of in loco parentis status is not warranted.
In her second allegation of error, Ms. Ferguson contends that the court committed an error of
law and/or abused its discretion in denying intervention pursuant to 23 Pa.C.S. §5325(2). Pursuant
to the Domestic. Relations Code, a grandparent has standing to file an action for partial physical
custody or supervised physical custody, in relevant part, as follows:
(2) where the relationship with the child began either with the consent of a parent of
the child or under a court order and where the parents of the child:
(1) have commenced a proceeding for custody; and
(ii) do not agree as to whether the grandparents or great-grandparents should have
custody under this section;
23 Pa.C.S.A. §5325(2).
While the parties disagree on the extent of Ms. Ferguson's relationship, it is uncontroverted
that Ms. Ferguson and the Children have a relationship which began with the consent of the parents,
Furthermore, it is clear that there is active litigation between Mother and Father regarding custody
of the Children. Nevertheless, the only evidence that Ms. Ferguson presented to show that the
parents do not agree as to whether she should have custody, is that, while Father has denied Ms.
Ferguson contact with the Children, Mother has allowed her telephone contact with the Children.
The mere fact that Mother has allowed Ms. Ferguson to have contact with the Children via phone in
no way presents a clear desire by Mother for Ms. Ferguson to have some form of physical custody
of the Children. After all, Father clearly asserts his opposition to Ms. Ferguson having custody, yet
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he also attempted to maintain a relationship between Ms. Ferguson and the Children via phone. It is
further noteworthy that Mother, who was not present at the July 22, 2020 hearing where Ms.
Ferguson set forth her assertion of Mother's position, clearly set forth at the January16, 2020
hearing her belief that she and Father should share custody and that Ms. Ferguson should have no
custody, In that regard, Ms. Ferguson has not demonstrated that the parents do not agree as to
whether she should have custody; to the contrary, the parents appear to agree that Ms. Ferguson
should not have physical custody of the Children. Accordingly, all elements of Section 5325(2)
were not satisfied and it was appropriate to deny Ms. Ferguson standing to intervene pursuant to the
same.
In her final allegation of error, Ms. Ferguson alleges that the court erred by disregarding the
testimony of the Guardian ad Litem as to her history and relationship with the Children and that it
would be in the Children's best interest for her to have some form of partial custody.
Attorney George was appointed as the Guardian Ad Litem in the guardianship proceedings.
At the July 16, 2020 hearing, he made it clear that his testimony was in terms of the guardianship
proceeding, that his comments were not made in terms of standing for custody and, while some
form of contact with Ms. Ferguson would probably be appropriate, it was a matter to be litigated in
the custody proceeding. After Ms. Ferguson presented her case to intervene, the undersigned
prompted Attorney George for his opinion on the matter. Attorney George again qualified his
response to indicate that he was not offering his opinion as to whether Ms. Ferguson met her legal
burden, however, he opined that, since Ms. Ferguson had a significant role, some contact with the
Children would be appropriate.
The court did not disregard Attorney George's testimony. Instead, as Attorney George
acutely noted, his opinion was not one which could go to whether or not Ms. Ferguson met her legal
burden for standing. Standing is a distinct legal issue from the best interest analysis. See MS. v.
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J.D., 215 A.3d 595, 601-02 (Pa. Super. 2019); see also C G., 193 A.3d at 898 and 909-10 (noting
that standing is a distinct legal question with no bearing on the central issue within the custody
action, the Supreme Court of Pennsylvania concluded that the existence of a bond between the child
and the mother's same -sex unmarried former partner was not a required factor for consideration as
to whether the former partner stood in loco parentis to the child). In that regard, the Guardian Ad
Litem's opinion on some form of contact serving the Children's best interest does not get Ms.
Ferguson past the threshold requirement that she have standing to proceed. Accordingly, Ms.
Ferguson's final allegation of error is without merit.
For the foregoing reasons, the July 22, 2020 Order should be affirmed.
BY THE COURT:
Elizabeth K. Kelly, Judg
cc: Stacey K. Baltz, Esquire
Steven George, Esquire
Amber Mowrey, 728 West 17th St., Erie, PA 16502
Armando Jimenez, 1156 West 28th St., Erie, PA 16508
Custody Office
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