Petition for Writ of Certiorari — Lauren N. Stone, Petitioner v. Theodore Worner, et al.

Supreme Court briefJul 3, 2024

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No.

In the

Supreme Court of the United States

LAUREN N. STONE,

Petitioner,

THEODORE WORNER AND ADELINA WORNER,

Respondents.

On Petition for a Writ of Certiorari to

the Supreme Court of P ennsylvania

PETITION FOR A WRIT OF CERTIORARI

Michael Confusione

Counsel of Record

Hegge & Confusione, LLC

P.O. Box 366

Mullica Hill, NJ 08062-0366

(800) 790-1550

mc@heggelaw.com

Counsel for Petitioner

Lauren N. Stone

130087

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

Does Pennsylvania’s Child Custody Act, 23 Pa. Stat.

and Cons. Stat. Ann. § 5325, permitting a judge to grant

to a grandparent, over a fit parent’s objection, partial

physical custody of a child where the other parent is

deceased, violate the fit parent’s right under the Due

Process Clause of the Fourteenth Amendment?

• Is a fit parent’s constitutional right, most

recently addressed in Troxel v. Granville,

530 U.S. 57, 64, 120 S. Ct. 2054, 147

L. Ed. 2d 49 (2000), a fundamental right?

• Must state laws restricting a fit parent’s

right, such as the grandparent visitation

statute like Pennsylvania’s, pass strict

scrutiny review, or does lesser scrutiny

apply?

• Must a court order compelling custody or

visitation over a fit parent’s objection be

premised on a finding of harm or potential

harm to the child?

• Does the state court decision in Petitioner’s

case violate Troxel’s holding that a fit

parent’s constitutional right cannot be

overridden simply because a judge believes

another decision is better for the child?

PARTIES TO THE PROCEEDINGS

Petitioner, Lauren N. Stone, was the defendant in the

Pennsylvania Court of Common Pleas of Philadelphia

County, Family Law Division, the appellant in the

Pennsylvania Superior Court, and the petitioner in the

Pennsylvania Supreme Court. Respondents, Theodore

Worner and Adelina Worner, were the plaintiffs in the

Pennsylvania Court of Common Pleas of Philadelphia

County, Family Law Division, the respondents in the

Pennsylvania Superior Court, and the respondents in

the Pennsylvania Supreme Court.

iii

STATEMENT OF RELATED PROCEEDINGS

There are no proceedings in any court that are

directly related to this case.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . ii

STATEMENT OF RELATED PROCEEDINGS . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . vi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . vii

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTIT U TIONA L A N D STAT U TORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2

REASONS FOR GRANTING THE PETITION . . . . 9

D O E S P E N N S Y LVA N I A’ S C H I L D

CUSTODY ACT, 23 PA. STAT. AND CONS.

STAT. ANN. § 5325, PERMITTING A

JUDGE TO GRANT PARTIAL PHYSICAL

CUSTODY OF A MINOR CHILD TO A

Table of Contents

Page

PETITIONING GRANDPARENT OVER

THE OBJECTION OF A FIT PARENT

W H E R E T H E O T H E R PA R E N T I S

DECEASED, VIOLATE A FIT PARENT’S

F U N DA M E N TA L R IGH T U N DE R

THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION? . . . . . . . . . 9

A. Is the right discussed in Troxel a

fundamental constitutional right? . . . . . . . . . 10

B. The Court should clarify that strict

scrutiny applies to any law restricting the

constitutional right of a fit parent to the care

and custody of his or her child . . . . . . . . . . . . 14

C. Must a judge find that harm has occurred

or will occur to the child if the custody or

visitation demanded is not ordered by the

court? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

D. Ms. Stone’s case illustrates how state courts

are disregarding Troxel’s fundamental

holding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

TABLE OF APPENDICES

Page

Appendix A

Order Denying Petition for

Allowance of Appeal in the Supreme

Court of Pennsylvania, Eastern

District (April 9, 2024) . . . . . . . App. 1

Appendix B

Opinion in the Superior Court

of Pennsylvania (February 2,

2024) . . . . . . . . . . . . . . . . . . . . . App. 2

Appendix C

O pi n ion i n the C ou r t of

Common Pleas, Philadelphia

County, Family Court Division

(October 4, 2023) . . . . . . . . . . App. 21

Appendix D

Proposed Order of Custody

i n t he C ou r t o f C om m o n

Pleas of Philadelphia County,

Fami ly Cou r t Div ision

(March 10, 2023) . . . . . . . . . . App. 58

Appendix E

Proposed Order and Findings of

Custody Hearing Officer First

Judicial District of Pennsylvania,

Cour t of Common Pleas of

Philadelphia County, Family Court

Division – Domestic Relations

Branch (March 10, 2023) . . . . App. 63

vii

TABLE OF CITED AUTHORITIES

Page

CASES

Ailport v. Ailport,

2022 WY 43, 507 P.3d 427 (2022) . . . . . . . . . . . . . . . 16

Blakely v. Blakely,

83 S.W.3d 537 (Mo.),

as modified on denial of reh’g (Aug. 27, 2002) . . . . . 26

Blixt v. Blixt,

437 Mass. 649, 774 N.E.2d 1052 (2002) . . 16, 24, 30, 31

Bowman v. Study,

2022 WY 139, 519 P.3d 985 (Wyo. 2022) . . . . . . . . . . 25

Brooks v. Parkerson,

265 Ga. 189, 454 S.E.2d 769 (1995) . . . . . . . . . . . . . . 24

Doe v. Doe,

116 Haw. 323, 172 P.3d 1067 (2007) . . . . . . . . . . . 23, 30

Enrique M. v. Angelina V.,

174 Cal. App. 4th 1148, 94 Cal. Rptr. 3d 883

(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Fitzpatrick v. Youngs,

186 Misc. 2d 344, 717 N.Y.S.2d 503

(Fam. Ct. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Glidden v. Conley,

2003 VT 12, 175 Vt. 111, 820 A.2d 197 (2003) . . . . . 24

viii

Cited Authorities

Page

Hamit v. Hamit,

271 Neb. 659, 715 N.W.2d 512 (2006) . . . . . . . . . . 16, 17

Hernandez v. Hernandez,

151 Idaho 882, 265 P.3d 495 (2011) . . . . . . . . . . . . . . 20

Hiller v. Fausey,

588 Pa. 342, 904 A.2d 875 (2006) . . . . . . . . . . . 7, 18, 25

In re Adoption of C.A.,

137 P.3d 318 (Colo. 2006) . . . . . . . . . . . . . 25, 26, 27, 28

In re Adoption of J.S.,

2014 UT 51, 358 P.3d 1009 . . . . . . . . . . . . . . . . . . . . . 17

In re Herbst,

1998 OK 100, 971 P.2d 395 . . . . . . . . . . . . . . . . . . 23, 30

In re Marriage of Harris,

34 Cal. 4th 210, 96 P.3d 141 (2004) . . . . . . . . . . . . . . . 17

In re Marriage of Howard,

661 N.W.2d 183 (Iowa 2003) . . . . . . . . . . . . . . . . . . . . 16

In re Marriage of O’Donnell-Lamont,

337 Or. 86, 91 P.3d 721 (2004) . . . . . . . . . . . . . . . 26, 27

Jones v. Jones,

2013 UT App. 174, 307 P.3d 598,

as amended (Apr. 9, 2024),

aff ’d, 2015 UT 84, 359 P.3d 603 . . . . . . . . . . . . . . . . . 24

Cited Authorities

Page

Koshko v. Haining,

398 Md. 404, 921 A.2d 171 (2007) . . . . . . . . . . . . . . . 24

Lamberts v. Lillig,

670 N.W.2d 129 (Iowa 2003) . . . . . . . . . . . . . . . . . 24, 30

Lassiter v.

Dep’t of Soc. Servs. of Durham Cnty., N.C.,

452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640

(1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Matter of B.J.A.S.,

2023-Ohio-4514, 231 N.E.3d 514 . . . . . . . . . . . . . . . . 25

Meyer v. Nebraska,

262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042

(1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12, 16

Moriarty v. Bradt,

177 N.J. 84, 827 A.2d 203 (2003) . . . . . . . 23, 27, 29, 30

Nelson v. Evans,

170 Idaho 887, 517 P.3d 816 (2022) . . . . . . . . . . . . . . . 16

Parham v. J. R.,

442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101

(1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 19

Pierce v. Soc’y of the Sisters of the

Holy Names of Jesus & Mary,

268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070

(1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 12, 16

Cited Authorities

Page

Polasek v. Omura,

2006 MT 103, 332 Mont. 157, 136 P.3d 519 . . . . . . . . 28

Prince v. Massachusetts,

321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645

(1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16

Quilloin v. Walcott,

434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511

(1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Reno v. Flores,

507 U.S. 292, 113 S. Ct. 1439, 123 L. Ed. 2d 1

(1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Santi v. Santi,

633 N.W.2d 312 (Iowa 2001) . . . . . . . . . . . . . . . . . 16, 17

Santosky v. Kramer,

455 U.S. 745, 102 S. Ct. 1388,

71 L. Ed. 2d 599 (1982) . . . . . . . . . . . . . . . . . . . . . 12, 19

Sayler v. Sun,

2023 MT 175, 413 Mont. 303, 536 P.3d 399 . . . . . . . . 17

Stanley v. Illinois,

405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551

(1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Cited Authorities

Page

Troxel v. Granville,

530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49

(2000) . . . . . . . . . . . . . 7, 9, 10, 13, 14, 15, 17, 19, 20, 21,

22, 23, 25, 26, 27, 28, 29, 31, 32

Vibbert v. Vibbert,

144 S.W.3d 292 (Ky. Ct. App. 2004) . . . . . . . . . . . . . . 26

Walker v. Blair,

382 S.W.3d 862 (Ky. 2012) . . . . . . . . . . . . . . . . . . . 27, 28

Washington v. Glucksberg,

521 U.S. 702, 117 S. Ct. 2258,

138 L. Ed. 2d 772 (1997) . . . . . . . . . . . . . . . . . . . . . . . 12

Wisconsin v. Yoder,

406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972) . . . 12

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . 1, 8, 13, 20

STATUTES, RULES AND REGULATIONS

28 U.S.C.A. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Colo. Rev. Stat. Ann. § 14-10-124.4 (West 2005) . . . . . . 28

Domestic Relations Law Article 5 . . . . . . . . . . . . . . . . . 18

xii

Cited Authorities

Page

Family Court Act § 651 . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Family Court Act Article 10 . . . . . . . . . . . . . . . . . . . . . . 18

22Ga. Code Ann. § 19-7-3(c) (1999) . . . . . . . . . . . . . . . . . 23

Pennsylvania’s Child Custody Act, 23 Pa. Stat.

and Cons. Stat. Ann. § 5325 . . . . . . . . . . . . . . . . . . . . . 9

Washington Supreme Court § 26.10.160(3) . . . . . . . 10, 14

PETITION FOR A WRIT OF CERTIORARI

Lauren N. Stone petitions this Court for a writ of

certiorari to review the decisions of the Pennsylvania

Supreme Court, Superior Court, and Court of Common

Pleas.

OPINIONS BELOW

The April 9, 2024 Order of the Pennsylvania

Supreme Court is unpublished and appears at App.

1. The February 2, 2024 Memorandum Opinion of

the Pennsylvania Superior Court is unpublished and

appears at App. 2. The October 4, 2023 Opinion of the

Pennsylvania Court of Common Pleas of Philadelphia

County, Family Court Division, is unpublished and

appears at App. 21. The proposed order and findings

of the Custody Hearing Officer is unpublished and

appears at App. 58 and 63.

JURISDICTION

The Pennsylvania Supreme Court’s Order denying

Ms. Stone’s Petition for Allowance of Appeal was entered

on April 9, 2024. App. 1. This Court’s jurisdiction is

invoked under 28 U.S.C.A. § 1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Due Process Clause of the Fourteenth

Amendment provides “ No State shall make or

enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or property,

without due process of law.”

STATEMENT OF THE CASE

Lauren Stone is the mother of her five year old

daughter, G. She has been her daughter’s primary

caretaker since birth. The state courts, and all parties

and their lawyers, acknowledged that Ms. Stone is an

excellent and loving mother and perfectly fit parent.

She holds a bachelor’s degree. She is employed as a

nutritionist. She has never been involved with child

services agencies in any manner. She has no criminal

history. G. has grown up healthy and happy in her

mother’s care. As the Court of Common Pleas Judge

noted in her decision in this case, “Mother attends to

the daily physical and emotional needs of the child and

testified that she and the child share a strong bond.

Mother reports that the child is thriving, participates in

gymnastics, and attends Christian school on Sundays.

Mother maintains a loving, stable, and consistent

relationship with the child.”

Unfortunately, G.’s father (Joseph) was a drug

addict, in and out of rehab throughout his life. Ms.

Stone and Joseph lived together with their newborn

daughter during the first years of G.’s life, until the

parents separated on October 31, 2021 because of the

father’s continued drug addiction.

The parents continued to co-parent successfully,

though, even after they ended their romantic

relationship. The father trusted Ms. Stone as an

excellent and loving mother.

The parents’ coparenting included decisions about

the extent of involvement of Joseph’s own parents—

Paternal Grandparents, Theodore and Adeline

Worner—in their granddaughter G.’s life. Mr. and Mrs.

Worner were initially very involved in G.’s life, and, as

G. approached her second birthday (around September

2020), began helping provide care for G. when Mother

and Father were working as well.

In June 2021, however, an incident occurred that

caused the parents (Lauren and Joseph) to decide,

jointly, to no longer leave G. unsupervised with the

Paternal Grandparents. This incident occurred while

G. was in her grandparents’ home in their care. Mrs.

Worner pulled G.’s arm so forcefully that it pulled from

its socket. Paternal Grandfather called Mother (Ms.

Stone) immediately to take G. to the hospital. Mother

and Father brought their daughter to the hospital right

away, and the doctors confirmed that that G.’s arm “was

pulled really hard out of the socket.” The doctors were

able to repair G.’s arm, thankfully, so the child suffered

no lasting injury.

But this incident prompted Lauren and Joseph

to limit the Paternal Grandparents’ involvement to

supervised visits only. Joseph “was afraid that the

same thing that happened to him growing up, would

happen to” his own daughter. Lauren and Joseph

enrolled G. in daycare. When G. visited with her

Paternal Grandparents after this, Joseph was always

present. G. did not spend any overnights at her Paternal

Grandparents’ home either. Mother and Father “decided

that she wasn’t to stay. We actually didn’t let her stay

anywhere overnight,” Ms. Stone affirmed at trial of this

case in the state court.

Meanwhile, the Father’s drug issues continued. He

relapsed by September 2021. He entered rehab again

in January 2022, but died in March 2022.

The conf lict between Mother and Paternal

Grandparents then began. Paternal Grandparents

claimed, in their testimony before the state court, that

Mother simply stopped permitting them to see G. after

Joseph’s funeral.

Mother, however, revealed a far different reality.

As she ultimately admitted in the court proceedings,

Mrs. Worner confronted Mother immediately after

Father’s funeral and threatened Mother with litigation

to enforce their “rights” to their grandchild.

Mrs. Worner’s threat of litigation was accompanied

by bizarre behavior that, Ms. Stone came to understand,

showed that the Paternal Grandparents were preparing

to sue her as Mrs. Worner had threatened. In one

instance, when Ms. Stone arrived at the Worner’s home

to retrieve the death certificate, “I noticed that they

were kind of taking pictures of her, back and forth in the

living room. Like Adelina [Mrs. Worner] would take a

picture with her and then Ted [Mr. Worner] would take

a picture with her. And I thought it was bizarre. . . .

Because it was—it was almost like a calculated thing

that they were doing. It wasn’t exactly like a happy

moment, let’s take a picture together.”

Mrs. Worner then threatened Mother again “about

how she has rights to my daughter, that I was to leave

her there, um, unsupervised, I’m not welcome in her

home. . . . she said how . . . she only cared about Joe

and the baby.” “I was really taken back,” Ms. Stone

told the state court judge below. “I didn’t argue with

her. I didn’t say anything, really, back to her . . . I just

pretty much took G., and that’s when I went home and

retained a counsel.”

This culminated in the lawsuit that the Paternal

Grandparents filed against Mother in this case, in the

state court below. Paternal Grandparents demanded

that the state court grant, over Ms. Stone’s objection,

their request for partial physical custody of their

granddaughter. The Paternal Grandparents premised

their demand on a provision of Pennsylvania’s Child

Custody Act, 23 Pa. Stat. and Cons. Stat. Ann. § 5325,

which permits grandparents to seek a court order

granting partial physical custody of a minor child

whose parent has died (here, G.’s father, Joseph—Mr.

and Mrs. Worner’s son, died). In their Complaint for

Custody, Paternal Grandparents alleged that “[t]he best

interests and permanent welfare of the Minor Child

will be served by granting the relief requested herein

as Paternal Grandparents have, and should continue to

have a meaningful relationship with the Minor Child

. . . An abrupt discontinuation of same can have serious

detrimental effects on the physical and emotional wellbeing of the Minor Child, who has already experienced

significant trauma with the loss of her father.”

Mother (Ms. Stone) opposed Paternal Grandparents’

demand, advising the state court, “I’m asking to keep

my rights as a parent. . . . I think that me and my

daughter have been through a lot of trauma, and

she’s doing really well right now. And I would hate

for her peace to be disturbed by other people. . . . she’s

doing really well in school. . . . she’s doing really well,

emotionally. She’s extremely healthy and . . . we have

a busy schedule together and it’s always just me and

her. She doesn’t stay with anybody. . . . I don’t leave her

with anybody. She’s an emotional child. She gets scared

and we have a bond, a really strong bond.”

A testimonial hearing was held before a Hearing

Officer on February 1 and March 6, 2023. After the

hearing concluded, the Hearing Officer issued a Proposed

Order and Findings that an “appropriately tailored

award of custodial time to Paternal Grandparents

would not be overly burdensome or interfere with the

child’s scheduled activities.” “[T]his Custody Hearing

Officer believes it would be in the child’s best interest

to award Paternal Grandparents partial physical

custody.” The Hearing Officer ruled that Paternal

Grandparents “shall have partial physical custody of

the child” “at least one day-visit each month spending

at least four hours with the child,” and “partial physical

custody of the child the third Saturday of each month

from 10:00 a.m. to 2:00 p.m. at Paternal Grandparents’

home.” “Mother shall not interfere with Paternal

Grandparents’ custodial time.”

Mother filed exceptions to the Hearing Officer’s

Report with the Court of Common Pleas, but the court

denied Mother’s exceptions and adopted the Hearing

Officer’s report as a final order. In a supplemental

opinion filed with Pennsylvania’s appeal (Superior)

court, Court of Common Pleas Judge Palmer rejected

Mother’s claim that her federal constitutional right as a

fit parent was infringed, ruling that Mother waived her

rights by “conced[ing] the issue of standing” for Paternal

Grandparents, and that Mother’s constitutional right

was not violated because Pennsylvania courts had

already ruled, in prior decisions, that the Grandparents’

Custody Act was constitutional.

Mother appealed to Pennsylvania’s Superior Court,

arguing that the application of the Child Custody Act to

override her decision as a fit parent without any showing

of harm to her daughter violated her fundamental right

under the United States Constitution and this Court’s

controlling decision in Troxel v. Granville, 530 U.S. 57,

64, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).

But Pennsylvania’s Superior Court rejected Mother’s

argument that any showing of harm is required by

federal constitutional law, citing to the Pennsylvania

Supreme Court’s decision Hiller v. Fausey, 588 Pa.

342, 904 A.2d 875 (2006), which rejected the same

constitutional attack.

Though this Court in Troxel, 530 U.S. 57, said that

a court must apply “special weight” to a fit parent’s

decision before overriding it, and that a judge cannot

override a fit parent’s decision simply because the judge

believes another decision is better for the child, the

Superior Court agreed with Paternal Grandparents (the

Worners) that a judge’s decision on whether to grant

the custody demanded by the petitioning grandparent

lawfully can be “based on the amount of prior contact

that grandparents had with the child, whether an award

would interfere with the parent-child relationship, and

what is in the best interest of the child” and that “[t]

his is precisely what the Hearing Officer considered

when reaching her decision” in this case. The Superior

Court ruled, “[t]he record confirms that prior to Mother

denying Paternal Grandparents any contact with G.W.,

they had a loving relationship with her in which they

saw her multiple times per week. The state has a

strong interest in preserving this relationship between

G.W. and her deceased father’s family. The narrowly

tailored order only grants Paternal Grandparents four

hours per month with their grandchild, with Paternal

Grandfather, with whom Mother admits she has a good

relationship, present at all times.” App. 2.

Mother filed a Petition for Allowance of Appeal to

Pennsylvania’s Supreme Court, asking Pennsylvania’s

high court to review the facial and as-applied validity

of the Grandparents’ Custody Act. But the court denied

the Mother’s request for review by Order entered April

9, 2024. App. 1.

REASONS FOR GRANTING THE PETITION

DOES PENNSYLVANIA’S CHILD CUSTODY ACT,

23 PA. STAT. AND CONS. STAT. ANN. § 5325,

PERMITTING A JUDGE TO GRANT PARTIAL

PHYSICAL CUSTODY OF A MINOR CHILD TO

A PETITIONING GRANDPARENT OVER THE

OBJECTION OF A FIT PARENT WHERE THE

OTHER PARENT IS DECEASED, VIOLATE

A FIT PARENT ’S FUNDA MENTA L RIGHT

UNDER THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION?

The Court should grant Certiorari to review the

following questions left unresolved by Troxel, 530 U.S.

at 64:

• Is the right discussed in Troxel a fundamental

right under the United States Constitution?

• What level of constitutional scrutiny applies to

assess the validity of governmental restrictions on a

fit parent’s right?

• In a proceeding by a grandparent (or any nonparent) asking a court to compel visitation or custody

over the objection of a fit parent, must the court find

that harm has been or will be caused to the child unless

the visitation or custody demanded is provided?

A. Is the right discussed in Troxel a fundamental

constitutional right?

In Troxel, 530 U.S. at 64, grandparents petitioned

the state court to order visitation for them over the

objections of the fit mother. The trial court granted

visitation under a Washington law that permitted it

whenever “visitation may serve the best interest of the

child.” Troxel, 530 U.S. at 60.

The Washington Supreme Court ruled the trial

judge’s ruling unconstitutional, and this Court affirmed

in a 6-3 decision. The plurality opinion, jointed by four

Justices, noted that the Washington Supreme Court

had identified the fit parent’s right as a fundamental

constitutional right: “The case ultimately reached

the Washington Supreme Court, which held that

§ 26.10.160(3) unconstitutionally interferes with the

fundamental right of parents to rear their children,”

Troxel, 530 U.S. at 60. The plurality opinion stated

that “[t]he liberty interest at issue in this case—the

interest of parents in the care, custody, and control of

their children—is perhaps the oldest of the fundamental

liberty interests recognized by this Court,” reasoning,

More than 75 years ago, in Meyer v. Nebraska,

262 U.S. 390, 399, 401, 43 S. Ct. 625, 67

L. Ed. 1042 (1923), we held that the “liberty”

protected by the Due Process Clause includes

the right of parents to “establish a home

and bring up children” and “to control the

education of their own.” Two years later, in

Pierce v. Soc’y of the Sisters of the Holy Names

of Jesus & Mary, 268 U.S. 510, 534–535,

45 S. Ct. 571, 69 L. Ed. 1070 (1925), we

again held that the “liberty of parents and

guardians” includes the right “to direct the

upbringing and education of children under

their control.” We explained in Pierce that

“[t]he child is not the mere creature of the

State; those who nurture him and direct

his destiny have the right, coupled with the

high duty, to recognize and prepare him for

additional obligations.” Id., at 535, 45 S.Ct.

571. We returned to the subject in Prince v.

Massachusetts, 321 U.S. 158, 64 S. Ct. 438,

88 L. Ed. 645 (1944), and again confirmed

that there is a constitutional dimension to

the right of parents to direct the upbringing

of their children. “It is cardinal with us that

the custody, care and nurture of the child

reside first in the parents, whose primary

function and freedom include preparation for

obligations the state can neither supply nor

hinder.” Id., at 166, 64 S.Ct. 438.

In subsequent cases also, we have recognized

the fundamental right of parents to make

decisions concerning the care, custody, and

control of their children. See, e.g., Stanley v.

Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208,

31 L. Ed. 2d 551 (1972) (“It is plain that the

interest of a parent in the companionship,

care, custody, and management of his or

her children ‘come[s] to this Court with a

momentum for respect lacking when appeal

is made to liberties which derive merely

from shifting economic arrangements’ “

(citation omitted)); Wisconsin v. Yoder, 406

U.S. 205, 232, 92 S. Ct. 1526, 32 L. Ed. 2d

15 (1972) (“ The history and culture of

Western civilization reflect a strong tradition

of parental concern for the nurture and

upbringing of their children. This primary

role of the parents in the upbringing of their

children is now established beyond debate as

an enduring American tradition”); Quilloin

v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549,

54 L. Ed. 2d 511 (1978) (“We have recognized

on numerous occasions that the relationship

between parent and child is constitutionally

protected”); Parham v. J. R., 442 U.S.

584, 602, 99 S. Ct. 2493, 61 L. Ed. 2d 101

(1979) (“Our jurisprudence historically has

reflected Western civilization concepts of

the family as a unit with broad parental

authority over minor children. Our cases have

consistently followed that course”); Santosky

v. Kramer, 455 U.S. 745, 753, 102 S. Ct.

1388, 71 L. Ed. 2d 599 (1982) (discussing “[t]

he fundamental liberty interest of natural

parents in the care, custody, and management

of their child”); [Washington v. Glucksberg,

521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed. 2d

772 (1997)] (“In a long line of cases, we have

held that, in addition to the specific freedoms

protected by the Bill of Rights, the ‘liberty’

specially protected by the Due Process Clause

includes the righ [t] . . . to direct the education

and upbringing of one’s children” (citing

Meyer and Pierce)). In light of this extensive

precedent, it cannot now be doubted that

the Due Process Clause of the Fourteenth

Amendment protects the fundamental right

of parents to make decisions concerning the

care, custody, and control of their children.

[Troxel, 530 U.S. at 65–66].

Justice Thomas’ opinion concurring in the judgment

also stated that a parent’s right is a fundamental

constitutional one: “I agree with the plurality that this

Court’s recognition of a fundamental right of parents

to direct the upbringing of their children resolves this

case.” Troxel, 530 U.S. at 80 (Thomas, J., concurring

in judgment).

Thus, five of the nine Justices in Troxel declared

the fit parent’s right a fundamental constitutional right

(which we contend shows that governmental restrictions

on the right must pass strict scrutiny, as argued below).

The other four Justices in Troxel did not characterize

the parent’s right as a fundamental one.

Justice Souter, concurring in the judgment, simply

stated that such rights are “generally protected.” Id.

at 77.

Justice Stevens, in his dissenting opinion, said

that the Court’s precedent did not show that a parent’s

right is a fundamental one: “we have never held that

the parent’s liberty interest in this relationship is so

inflexible as to establish a rigid constitutional shield,

protecting every arbitrary parental decision from any

challenge absent a threshold finding of harm.” Troxel,

530 U.S. at 85–86 (Stevens, J., dissenting). At the

same time, however, Justice Stevens said, “Our cases

leave no doubt that parents have a fundamental liberty

interest in caring for and guiding their children, and

a corresponding privacy interest—absent exceptional

circumstances —in doing so without the undue

interference of strangers to them and to their child.”

Troxel, 530 U.S. at 87 (Stevens, J., dissenting).

Justice Kennedy, dissenting, did not find a

fundamental right, and Justice Scalia, also dissenting,

said that a parent has no constitutional right at all,

Troxel, 530 U.S. at 92.

B. T he C ou r t s hou ld cl a r i f y t h at s t r ic t

scrutiny applies to any law restricting the

constitutional right of a fit parent to the care

and custody of his or her child.

Though five of the nine Justices in Troxel agreed

that a fit parent’s right is a fundamental constitutional

one, the Court did not declare that strict scrutiny

review, as is typically applied to determine the validity

of governmental restrictions on other fundamental

rights, applied to restrictions on a fit parent’s right to

the care and custody of the child. Instead, the plurality

opinion provides,

Because we rest our decision on the sweeping

breadth of §26.10.160(3) and the application

of that broad, unlimited power in this case,

we do not consider the primary constitutional

question passed on by the Washington

Supreme Court—whether the Due Process

Clause requires all nonparental visitation

statutes to include a showing of harm or

potential harm to the child as a condition

precedent to granting visitation. We do not,

and need not, define today the precise scope of

the parental due process right in the visitation

context. In this respect, we agree with Justice

Kennedy that the constitutionality of any

standard for awarding visitation turns on

the specific manner in which that standard

is applied and that the constitutional

protections in this area are best ‘elaborated

with care.’” [Troxel, 530 U.S. at 73].

Only Justice Thomas’ opinion declared that strict

scrutiny should apply (“I would apply strict scrutiny to

infringements of fundamental rights. Here, the State

of Washington lacks even a legitimate governmental

interest—to say nothing of a compelling one—in secondguessing a fit parent’s decision regarding visitation

with third parties,” Troxel, 530 U.S. at 80 (Thomas,

J., concurring in judgment).

The Court should clarify this issue as well by

granting Certiorari. We submit that if the parent’s

constitutional right is a fundamental one as we

contend, then strict scrutiny should apply to determine

the constitutionality of governmental restrictions

on the right—meaning that a law infringing on the

right must be narrowly tailored to serve a compelling

governmental interest (as it is, for example, where a

parent is found to have abused or neglected the child, or

where a parent’s care of a child warrants termination of

the parental right altogether). Reno v. Flores, 507 U.S.

292, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993); Lassiter

v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S.

18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981).

The Court should address its precedent and clarify

this issue. Though the Court’s early cases said that

parents possess a liberty interest, protected by the

Due Process Clause, in directing the upbringing and

education of their children (Prince, 321 U.S. at 166;

Pierce, 268 U.S. at 534; Meyer, 262 U.S. at 399), these

cases suggest that the right may be restricted as

long as the restriction bears a rational relation to the

governmental objective, Prince, 321 U.S. at 168–170;

Pierce, 268 U.S. at 535–536; Meyer, 262 U.S. at 399–

400. This suggests that less than strict scrutiny applies.

Clarifying this issue will help guide state courts,

which are facing an increasing number of requests by

grandparents and other relatives for courts to grant

custody or visitation over a parent’s objection.

Whether strict scrutiny applies to gauge the

constitutionality of such laws varies by state. Nelson

v. Evans, 170 Idaho 887, 517 P.3d 816 (2022); Hamit v.

Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006); Santi v.

Santi, 633 N.W.2d 312 (Iowa 2001).

In Iowa, for example, that state’s Supreme Court

applied strict scrutiny to determine whether a

section of Iowa’s grandparent visitation statute was

unconstitutional. In re Marriage of Howard, 661 N.W.2d

183 (Iowa 2003); see also Blixt v. Blixt, 437 Mass. 649,

774 N.E.2d 1052 (2002) (Massachusetts law); Ailport

v. Ailport, 2022 WY 43, 507 P.3d 427 (2022) (Wyoming

law).

In other decisions, the level of scrutiny being applied

is unclear, see, e.g., Hamit v. Hamit, 271 Neb. 659,

715 N.W.2d 512 (2006). In Utah, the Supreme Court

found that the Grandparent Visitation Statute was

constitutional as applied, but did not specify the level

of scrutiny being applied, Santi, 633 N.W.2d 312; see

also In re Adoption of J.S., 2014 UT 51, 358 P.3d 1009

(stating Troxel “comes nowhere close to establishing a

generalized, fundamental right of an unwed father” and

that an “unwed father’s” right was “only a provisional

right, subject to reasonable regulation by the states”);

Sayler v. Sun, 2023 MT 175, 413 Mont. 303, 328, 536

P.3d 399 (“The level or standard of constitutional

scrutiny applicable to state law infringement of

fundamental parental rights is not at issue in this

case.”)

In Enrique M. v. Angelina V., 174 Cal. App. 4th

1148, 1155, 94 Cal. Rptr. 3d 883 (2009), the California

court stated, “Ordinarily, governmental action that

‘substantially interferes with the enjoyment of a

fundamental right is subject to strict scrutiny . . . i.e., it

must be set aside or limited unless it serves a compelling

purpose and is necessary to the accomplishment of that

purpose.’” The court noted that “the Troxel plurality did

not expressly state whether it was subjecting the statute

at issue in that case to the strict scrutiny standard,”

see also In re Marriage of Harris, 34 Cal. 4th 210, 96

P.3d 141 (2004).

A New York case, approving of a statute similar

to Pennsylvania’s in this case, said that a parent’s

constitutional right was a fundamental one but did not

appear to apply strict scrutiny to reviewing the law

restricting it—never specifying the level of scrutiny

being applied. The court said, “Notwithstanding such

fundamental right, such parental primacy rights are not

unfettered or absolute. For example, the intervention of

the State in parental relationships with their children is

allowed in Child Protective Proceedings (Family Court

Act Article 10); in Juvenile Delinquency and Person in

Need of Supervision matters . . . and Courts are often

called upon to determine custody and visitation issues

between parents themselves (Domestic Relations Law

Article 5; Family Court Act § 651). The best interest

of the child is the governing standard in many of these

situations, to the point that best interest of a child in

most cases justify intervention by the State as parens

patriae.” Fitzpatrick v. Youngs, 186 Misc. 2d 344, 347,

717 N.Y.S.2d 503 (Fam. Ct. 2000).

Petitioner Stone’s case illustrates the need to clarify

these constitutional issues. Prior Pennsylvania cases

considering Pennsylvania’s grandparent custody law

said that the statute must pass strict scrutiny—a

showing that the statute is “narrowly tailored” to further

a “compelling” governmental interest. Hiller, 904 A.2d

at 883 (“this Court traditionally has applied a strict

scrutiny analysis to asserted violations of fundamental

rights protected by the Due Process Clause”). Yet the

state courts in this case failed to apply strict scrutiny

review. In affirming the trial judge’s order granting

partial custody to the Paternal Grandparents, the

Pennsylvania Superior court stated, “The state has a

strong interest in preserving this relationship between

G.W. and her deceased father’s family.” That is not a

“compelling” interest. The only governmental interest

that courts have held is “compelling” enough to warrant

intrusion into a fit parent’s decision making is where a

child has been harmed or is being threatened with harm

by the parental action—hence, the long recognized

constitutional validity of abuse and neglect, and

termination of parental rights, proceedings, Santosky,

455 U.S. at 766; Parham, 442 U.S. at 603 (“[A] state

is not without constitutional control over parental

discretion in dealing with children when their physical

or mental health is jeopardized.”).

The Pennsylvania courts in this case did not assess

whether the Child Custody Act is “narrowly tailored”

to further a compelling interest, either. The Superior

Court said that Pennsylvania’s statute is constitutional

because it limits “standing” to grandparents whose

child has died. That is not narrowly tailored, because

not all grandparents whose child has died present an

interest compelling enough to warrant court-ordered

partial custody over the surviving parent’s decision.

There are grandparents whose child has died yet have

had no relationship with the grandchild (because they

are estranged, etc.). Pennsylvania’s statute provides

those grandparents the same standing.

As with several other states providing such

standing for grandparents whose own child has died,

this standing issue is critical because, as the Court

of Common Pleas said in Ms. Stone’s decision, “once

the Paternal Grandparents were deemed to have

standing . . . Paternal Grandparents merely needed

to establish that it was in child’s best interest to

maintain a relationship with them.” The Court should

clarify that this fails to apply Troxel’s core holding and

impermissibly affords a presumption of harm where a

parent has died—typically considered impermissible

when assessing the constitutionality of a fundamental

right.

The Court should clarify, relatedly, the relative

authority between a fit parent and the government.

Justice Stevens, in his dissent in Troxel, noted the

parens patriae authority of the state to protect a minor

child’s health or welfare—“the State’s long-recognized

interests as parens patriae . . . and, critically, the child’s

own complementary interest in preserving relationships

that serve her welfare and protection.” Troxel, 530 U.S.

at 88 (Stevens, J., dissenting). As Justice Stevens noted,

however, the Court has yet to “elucidate the nature

of a child’s liberty interest in preserving established

familial or family-like bonds.” Id. “[T]he Due Process

Clause of the Fourteenth Amendment leaves room for

States to consider the impact on a child of possibly

arbitrary parental decisions that neither serve nor are

motivated by the best interests of the child.” Troxel,

120 S. Ct. at 2073. It is the State’s job, not that of

the federal courts, “to assess in the first instance the

relative importance of the conflicting interests that give

rise to disputes such as this.” Id.

States have cited this language from Justice Stevens’

dissent as authorizing grandparent visitation orders

on the grounds that failing to provide the visitation

demanded may impact the child’s best interests, see,

e.g., Hernandez v. Hernandez, 151 Idaho 882, 886,

265 P.3d 495 (2011). This would seem to contradict the

core holding of Troxel that a judge cannot override a fit

parent’s decision simply because the judge, personally,

believes a better decision can be made for the child.

Parens patriae authority, moreover, has historically

been invoked only where a parent has caused or will

cause harm to the child—typically through abuse or

neglect in caring for the child. Such cases are consistent

with a parent’s right because, in these instances, the

parent is no longer a “fit” parent and the parent’s

conduct impacts the welfare of the child, a natural

person who is entitled to his or her own personal

rights and the government’s protection of them. The

Court should clarify whether a state’s parens patriae

authority extends to assessing the best interests of the

child with regard to visitation or custody demands by

a grandparent over a fit parent’s objection.

C. Must a judge find that harm has occurred

or will occur to the child if the custody or

visitation demanded is not ordered by the

court?

If strict scrutiny applies, the Court should hold that

a grandparent (or any non-parent) demanding that a

court override a fit parent’s decision must prove, and the

judge must find, that harm has been or will be caused

to the child unless the custody or visitation is provided.

In invalidating the Washington statute in Troxel, the

plurality opinion stated that “some special weight” must

be afforded to a fit parent’s decision on what custody or

visitation is best for the child. The grandparent must

overcome the special weight accorded to the fit parent’s

decision, which cannot be overcome “simply because a

state judge believes a ‘better’ decision could be made,”

Troxel, 530 U.S. at 73. A court cannot overrule the fit

parent’s decision based on “nothing more than a simple

disagreement between the [court] and [the parent]

concerning her children’s best interests.” Id.

The Washington State Supreme Court had ruled

that the visitation statute was unconstitutional because

the United States Constitution permits a state to

interfere with a fit parent’s right only to prevent harm

or potential harm to the child, which the state law did

not require. The plurality opinion did not address that

part of the state court decision, however, stating, “we do

not consider the primary constitutional question passed

on by the Washington Supreme Court—whether the

Due Process Clause requires all nonparental visitation

statutes to include a showing of harm or potential

harm to the child as a condition precedent to granting

visitation. We do not, and need not, define today the

precise scope of the parental due process right in

the visitation context. In this respect, we agree with

Justice KENNEDY that the constitutionality of any

standard for awarding visitation turns on the specific

manner in which that standard is applied and that

the constitutional protections in this area are best

“elaborated with care,” Troxel, 530 U.S. at 73–74 (citing

Justice Kennedy’s dissenting opinion).

Justice Kennedy specifically disapproved of the

Washington State Supreme Court’s ruling that harm

was required to abide by the parent’s constitutional

right, stating, “it is quite a different matter to say, as I

understand the Supreme Court of Washington to have

said, that a harm to the child standard is required

in every instance,” Troxel, 530 U.S. at 94 (Kennedy,

J., dissenting). “To say that third parties have had

no historical right to petition for visitation does not

necessarily imply, as the Supreme Court of Washington

concluded, that a parent has a constitutional right to

prevent visitation in all cases not involving harm.” Id.

at 97. Justice Souter, concurring in the judgment, stated

similarly—“there is no need to decide whether harm is

required or to consider the precise scope of the parent’s

right or its necessary protections,” Troxel, 530 U.S. at

77 (Souter, J., concurring in judgment).

Justice Kennedy noted that, at the time of the

Troxel decision, “Georgia’s is the sole state legislature

to have adopted a general harm to the child standard”

(citing Ga. Code Ann. § 19-7-3(c) (1999). Since Troxel

was decided 25 years ago, however, the laws of several

states now require a showing of harm. Because of the

open questions left in Troxel, state courts have applied

a fit parent’s right differently, splitting into two main

groups.

The first group of states holds that a fit parent’s

constitutional right cannot be overridden unless

harm or threat of harm to the child is found, see, e.g.,

Moriarty v. Bradt, 177 N.J. 84, 827 A.2d 203, 218

(2003) (ruling third party must show parent is unfit

or that child has been or will be harmed by denial

of visitation demanded over fit parent’s objection);

Doe v. Doe, 116 Haw. 323, 172 P.3d 1067, 1069, 1080

(2007) (Hawaii’s grandparent visitation statute, which

required only a showing that grandparent visitation

was in the best interests of the child, could not pass

strict scrutiny unless grandparents showed child would

suffer significant harm without visitation petitioner

demanded); In re Herbst, 1998 OK 100, 971 P.2d 395,

398 (“Without the requisite harm or unfitness, the

state’s interest does not rise to a level so compelling

as to warrant intrusion upon the fundamental rights

of parents”); Lamberts v. Lillig, 670 N.W.2d 129, 133

(Iowa 2003) (Iowa’s grandparent visitation statute did

not meet strict scrutiny demands, in part, because it

did not require grandparent to show parent was unfit

or that child would be harmed by lack of visitation

demanded); Blixt, 774 N.E.2d at 1061 (grandparents

must prove “failure to grant visitation will cause the

child significant harm by adversely affecting the child’s

health, safety, or welfare”); Jones v. Jones, 2013 UT

App 174, 307 P.3d 598, as amended (Apr. 9, 2024),

aff ’d, 2015 UT 84, 359 P.3d 603 (holding paternal

grandparents failed to show that state’s interest in

ordering visitation under Grandparent Visitation

Statute was compelling; though father was deceased

and grandparents enjoyed substantial relationship with

child before mother ended visitation, grandparent failed

to establish harm to child); Koshko v. Haining, 398 Md.

404, 921 A.2d 171 (2007) (grandparents petitioning

for visitation under grandparent visitation statute

first required to show prima facie evidence of parental

unfitness or exceptional circumstances demonstrating

current or future detriment to child absent visitation

demanded by grandparents, before court can proceed to

best interest assessment); Glidden v. Conley, 2003 VT

12, 175 Vt. 111, 820 A.2d 197 (2003) (statute governing

grandparent visitation not violative of parent’s due

process right because grandparent, to overcome

parent’s decision, required to show circumstances such

as parental unfitness or significant harm to child in

absence of court order); Brooks v. Parkerson, 265 Ga.

189, 454 S.E.2d 769 (1995) (“state interference with

parental rights to custody and control of children is

permissible only where the health or welfare of a child

is threatened”); Bowman v. Study, 2022 WY 139,

¶ 13, 519 P.3d 985 (Wyo. 2022) (“To interpret § 20-7101(a) consistent with these constitutional principles,

the grandparents must demonstrate the state has a

compelling reason to interfere with the parents’ rights,

which requires proof by clear and convincing evidence

‘the parents are unfit or their visitation decision is

harmful to the child[ren]. This threshold requirement

ensures the parents’ decision is given ‘special weight’

in accordance with Troxel’s directive.’”)

The second group of states, including Pennsylvania,

holds that a showing of harm is not required, and that

Troxel held only that the Washington statute there was

too broad, see, e.g., Matter of B.J.A.S., 2023-Ohio-4514,

¶ 27, 231 N.E.3d 514 (“Appellant contends that as a

‘fit parent,’ his wishes, even though not supported by

any articulable and credible reason, must override all

other considerations, including the best interests of the

child. However, Appellant’s assertion is not supported

by Ohio law. In Ohio, the wish of the parent is only one

consideration that is to be carefully balanced against

other factors that affect the best interest of the minor

child, who cannot assert his wishes on his own. While

in Ohio the wishes of the parent are to be accorded ‘at

least some special weight,’ the Ohio Supreme Court

has clarified that ‘nothing in Troxel suggests that a

parent’s wishes should be placed before a child’s best

interest . . . ’”)

Some states, including Pennsylvania (Hiller v.

Fausey, 588 Pa. 342, 904 A.2d 875 (2006)), have

noted Troxel’s silence on whether harm is required to

mean that a court is not required to find any harm

and may order grandparent visitation simply when

shown to be in the child’s best interest, In re Adoption

of C.A., 137 P.3d 318 (Colo. 2006); Vibbert v. Vibbert,

144 S.W.3d 292 (Ky. Ct. App. 2004) (“We believe that

a modified ‘best interest’ standard can be used in

cases where grandparent visitation is sought within

the constitutional framework of Troxel. What Troxel

requires us to recognize is that a fit parent has a

superior right, constitutionally, to all others in making

decisions regarding the raising of his or her children,

including who may and may not visit them. A fit parent’s

decision must be given deference by the courts, and

courts considering the issue must presume that a fit

parent’s decision is in the child’s best interest”); Blakely

v. Blakely, 83 S.W.3d 537 (Mo.), as modified on denial of

reh’g (Aug. 27, 2002) (“While the Supreme Court found

the Washington statute unconstitutional as applied, it

declined the invitation to address whether the statute

would have been unconstitutional had it been more

narrowly interpreted by the Washington Supreme

Court . . . and specifically declined to address the

mother’s claim that all grandparent visitation statutes

are unconstitutional unless they require a showing of

harm as a condition precedent to visitation . . . Instead,

the Supreme Court held that the constitutionality

of any standard for awarding visitation should turn

on the specific manner in which that standard was

applied, stating that ‘the constitutional protections in

this area are best ‘elaborated with care.’ . . . Because

much state-court adjudication in this context occurs

on a case-by-case basis, we would be hesitant to hold

that specific nonparental visitation statutes violate

the Due Process Clause as a per se matter.’”); In re

Marriage of O’Donnell-Lamont, 337 Or. 86, 91 P.3d

721 (2004) (“Troxel holds only that the Due Process

Clause requires that ‘some special weight’ be given to

the interest of the legal parent”).

Other state court decisions are vague on the issue,

e.g., In re Adoption of C.A., 137 P.3d at 325 (noting

parental wishes are entitled to “extreme deference”

but state may “override[ ] parental wishes only if the

parent is unfit to make the decision or when denying

visitation would harm or substantially harm the child’s

emotional health”).

The differing approaches to whether harm is

required to be shown in turn affects the constitutional

assessment that states employ.

One approach is to avoid identifying a level of

scrutiny but typically does not require a showing

that the child has or will suffer harm, In re Adoption

of C.A., 137 P.3d at 328–29 (stating “intermediate

standard—more stringent than a preponderance of the

evidence but less stringent than a substantial harm

standard—is appropriate to reconcile the General

Assembly’s intent and Troxel”); Polasek v. Omura, 2006

MT 103, 332 Mont. 157, 136 P.3d 519, 523; Walker, 382

S.W.3d 862. Such courts assess the constitutionality

of grandparent visitation statutes by comparing them

to the Washington statute in Troxel, with most of

these state courts concluding that the Washington

statute was simply too broad in providing who could

petition for visitation or custody. Moriarty, 827 A.2d

at 219–20. To incorporate the substantive due process

requirement of Troxel, these courts simply alter the

weighing process used to balance multiple factors

related to the best interests of the child by giving

“special weight” to the parent’s decision and identifying

“special factors” upon which a grandparent visitation

order must be based, see, e.g., Polasek, 136 P.3d at 523

(“The close scrutiny that we apply to any infringement

on a person’s right to parent a child requires that the

petitioning grandparent prove by clear and convincing

evidence that it is in the child’s best interest to have

contact with the grandparent, and, in the case of an

objecting fit parent, that the presumption in favor of

the parent’s wishes has been rebutted”); Walker, 382

S.W.3d at 868–70 (approving “modified best interest

standard” incorporating a presumption in favor of fit

parent decision).

The Colorado Supreme Court used such an approach

to analyze that state’s grandparent visitation statute

in In re Adoption of C.A., 137 P.3d at 322 (discussing

Colo. Rev. Stat. Ann. § 14-10-124.4 (West 2005)). Unlike

the “breathtakingly broad” Washington state statute in

Troxel that allowed “any person” to apply for visitation

rights with a child, the Colorado statute significantly

narrowed the situations where grandparent visitation

could be ordered by requiring a showing that the

parents’ marriage had been dissolved, someone other

than a parent had custody of the child, or the child’s

parent had died. Id. at 322, 326. Following the lead of

Troxel, the Colorado court did not articulate or employ

typical due process review. Id. at 325. Instead, the

Colorado court explained the due process requirements

imposed on grandparents seeking visitation as follows:

[ I ]n order t o ef fectuate the G enera l

Assembly’s intent consistent with Troxel,

we construe Colorado’s statute to contain a

presumption that parental determinations

about grandparent visitation are in the child’s

best interests. See Troxel, 530 U.S. at 67,

120 S.Ct. 2054 (“[T]here is a presumption

that fit parents act in the best interests of

their children.”). However, this presumption

is rebuttable in the context of a section

19–1–117 petition when the grandparent

articulates facts in the petition and goes

forward with clear and convincing evidence

at a hearing that the parent is unfit to

make the grandparent visitation decision,

or that the visitation determination the

parent has made is not in the best interests

of the child. If the grandparent meets

this evidentiary burden, the burden then

shifts to the parent to adduce evidence in

support of the parental determination. The

grandparent bears the ultimate burden of

proving by clear and convincing evidence

that the parental determination is not in

the child’s best interests and the visitation

schedule grandparent seeks is in the child’s

best interests. [Id. at 327–28]

Another approach applies traditional strict scrutiny

review to grandparent visitation statutes, see Moriarty,

827 A.2d at 218–19. Grandparents must overcome

a presumption in favor of parental decision-making

and establish that the state has a compelling interest

in granting grandparent visitation over the parent’s

objection. Id. at 218. The petitioner must show that

the parent is unfit or that the child has been or will

be harmed by the denial of the visitation or custody

the grandparent is demanding, Moriarty, 827 A.2d

at 218–19; see Doe, 172 P.3d at 1069, 1080 (Hawaii’s

grandparent visitation statute, which required only

a showing that grandparent visitation was in best

interest of child, could not pass strict scrutiny unless

grandparent showed child would suffer significant

harm in absence of visitation); In re Herbst, 971 P.2d

at 398 (“Without the requisite harm or unfitness, the

state’s interest does not rise to a level so compelling

as to warrant intrusion upon the fundamental rights

of parents”); Lamberts, 670 N.W.2d at 133 (Iowa’s

grandparent visitation statute did not meet strict

scrutiny demands, in part, because it did not require

grandparent to show parent was unfit or child would

be harmed by lack of visitation); Blixt, 774 N.E.2d

at 1061 (requiring grandparent to prove “failure to

grant visitation will cause the child significant harm

by adversely affecting the child’s health, safety, or

welfare”).

This Court should grant Certiorari here to clarify

the type of evidence that is sufficient to establish

harm in such cases. The New Jersey Supreme Court

in Moriarty, for instance, did not state what type of

evidence would be sufficient to establish harm, noting

the “possibilities are as varied as the factual scenarios

presented.” Moriarty, 827 A.2d at 223–24. The New

Jersey court said, however, that harm might include

when a surviving parent restricts a child’s contact with

grandparents after the death of a parent, the breakup

of the child’s home through divorce or separation, and/

or the termination of a long-standing relationship

between the grandparents and the child, see also Blixt,

774 N.E.2d at 1060 (“[t]he requirement of significant

harm presupposes proof of a showing of a significant

preexisting relationship between the grandparent and

the child”).

D. Ms. Stone’s case illustrates how state courts

are disregarding Troxel’s funda mental

holding.

A fundamental part of the plurality opinion in

Troxel is that a court may not override a fit parent’s

decision simply because a judge “believes a ‘better’

decision could be made.” Ms. Stone’s case illustrates

that state court judges are doing just what Troxel

said they cannot do—paying lip service to the “special

weight” that Troxel says must be afforded to a fit

parent’s decision and deciding a grandparent’s demand

for custody or visitation based entirely on what the

judge personally believes is in the child’s best interest.

In Ms. Stone’s case, for instance, once standing

was found for the petitioning grandparents, no

“special weight” was applied to afford any meaningful

presumption in favor of Ms. Stone’s decision. The judge

simply engaged in the best interest assessment that

Troxel holds is impermissible, Troxel, 530 U.S. at 67.

As the Superior Court said in affirming Ms. Stone’s

case, “‘[t]he ultimate decision is based on the amount

of prior contact that grandparents had with the child,

whether an award would interfere with the parent-child

relationship, and what is in the best interest of the

child.’ . . . This is precisely what the Hearing Officer

considered when reaching her decision.”

How is that assessment any different from what

at least four of the nine Justices in Troxel said is

constitutionally impermissible? The Hearing Officer

who decided Ms. Stone’s case said that providing the

partial custody the grandparents demanded “would

not be overly burdensome or interfere with the child’s

scheduled activities.” That’s not even close to the

showing that Troxel requires, we submit.

The pleading and evidence that the Paternal

Grandparents presented to the state court demonstrates

this further. In their Complaint, the Grandparents

alleged, “The best interests and permanent welfare of

the Minor Child will be served by granting the relief

requested herein as Paternal Grandparents have, and

should continue to have a meaningful relationship

with the Minor Child.” The Grandparents argued,

“[a]n abrupt discontinuation of same can have serious

detrimental effects on the physical and emotional wellbeing of the Minor Child, who has already experienced

significant trauma with the loss of her father . . . ” The

Grandparents did not introduce any evidence to even

establish those allegations, let alone evidence of harm

that has or would befall the child. The Grandparents

did not present any evidence of the “significant trauma”

they claimed that the child, only two years at the time,

had experienced from her father’s death.

All that the Grandparents presented in support

of their petition was their own testimony, telling the

Hearing Officer that they loved their granddaughter,

describing the circumstances that led to the decision

of the parents to restrict them to supervised visitation,

and describing the breakdown in their relationship

with the Mother (Ms. Stone) that culminated in the

grandparent’s lawsuit.

Counsel for the Grandparents argued a simple

best interest assessment in asking the Hearing Officer

to grant partial custody over the Mother’s objection,

contending to the Hearing Officer, “[t]he ultimate

decision is based on the amount of prior contact that

grandparents had with the child, whether an award

would interfere with the parent-child relationship, and

what is in the best interest of the child.” “Now more

than ever, it’s important for grandparents to continue

this relationship with the child,” counsel said:

They just want to continue the relationship

that they already established with their

grandchild. Additionally, it will be in [G’s]

best interest to continue her relationships

with her paternal grandparents. *** It

would be against [G’s] best interest not

to allow Mr. and Mrs. Worner to continue

their relationship with the child. Whatever

happened to Ms. Stone, she changed her

mind. She wants them to have nothing to do

with the child, is not demonstrated through

her actions, which occurred after the June

2021 incident. And [G] should not be punished

for whatever ill will or resentment Ms. Stone

would like to create as revisionist history

in this matter. I urge you that it would be

contrary to the statute, the factors that you

consider not to award them partial, physical

custody of their granddaughter.

These are often critical issues for a parent and

the child involved. In Ms. Stone’s case, for example,

the state courts compelled visitation over the mother’s

objection even though the Paternal Grandmother had

pulled the young child’s arm out of its socket in the

past—which had led to the decision of both parents to

cease unsupervised visitation in the first place. The

Hearing Officer acknowledged that after the child

(G.) was injured at the Paternal Grandparents’ home,

“both Mother and Father decided together to revoke

their consent and deny Paternal Grandparents any

unsupervised time with the child.” The Hearing Officer

acknowledged, further, that this decision by Mother

and Father (alive at that time) “following the child’s

injury demonstrates that they made a choice as parents

designed with their child’s best interest in mind . . . ”

Yet the Hearing Officer, affirmed by the state courts

thereafter, overrode this fit mother’s decision and placed

the young child back—unsupervised—with these same

grandparents, simply overriding the Mother’s decision

on what is best for her own daughter. The Court should

grant Certiorari here to correct this state court decision

as violating Ms. Stone’s constitutional right as a fit

parent, and to clarify for all lower courts the kind of

evidence and findings that are required before a court

may overrule the decision of a fit parent on what type

and manner of visitation and custody is best for her

child.

CONCLUSION

The Court should grant this Petition for a Writ of

Certiorari.

Respectfully submitted,

Michael Confusione

Counsel of Record

Hegge & Confusione, LLC

P.O. Box 366

Mullica Hill, NJ 08062-0366

(800) 790-1550

mc@heggelaw.com

Counsel for Petitioner

Lauren N. Stone

APPENDIX

TABLE OF CONTENTS

Appendix A Order Denying Petition for Allowance

of Appeal in the Supreme Court of

Pennsylvania, Eastern District

(April 9, 2024) . . . . . . . . . . . . . . . . App. 1

Appendix B Opinion in the Superior Court of

Pennsylvania

(February 2, 2024) . . . . . . . . . . . . App. 2

Appendix C Opinion in the Court of Common

Pleas, Philadelphia County, Family

Court Division

(October 4, 2023) . . . . . . . . . . . . . App. 21

Appendix D Proposed Order of Custody in the

Court of Common Pleas of

Philadelphia County, Family Court

Division

(March 10, 2023) . . . . . . . . . . . . . App. 58

Appendix E Proposed Order and Findings of

Custody Hearing Officer First Judicial

District of Pennsylvania, Court of

Common Pleas of Philadelphia

County, Family Court Division –

Domestic Relations Branch

(March 10, 2023) . . . . . . . . . . . . . App. 63

App. 1

APPENDIX A

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

No. 68 EAL 2024

[Filed April 9, 2024]

______________________________

THEODORE WORNER AND )

ADELINA WORNER,

)

Respondent

)

LAUREN N. STONE,

)

Petitioner

)

_____________________________ )

Petition for Allowance of Appeal

from the Order of the Superior Court

ORDER

PER CURIAM

AND NOW, this 9th day of April, 2024, the Petition

for Allowance of Appeal is DENIED.

App. 2

APPENDIX B

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

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2260 EDA 2023

[Filed February 2, 2024]

_____________________________

THEODORE WORNER AND )

ADELINA WORNER

)

LAUREN N. STONE

)

Appellant

)

_____________________________ )

Appeal from the Order Entered August 23, 2023

In the Court of Common Pleas of Philadelphia County

Domestic Relations at No(s): XC2200813

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and

COLINS, J.*

MEMORANDUM BY PANELLA, P.J.E.:

FILED FEBRUARY 2, 2024

Retired Senior Judge assigned to the Superior Court.

App. 3

Lauren N. Stone (“Mother”) appeals from the order

filed in the Philadelphia County Court of Common

Pleas that denied her exceptions and granted Theodore

Worner and Adelina Worner (“Paternal

Grandparents”), partial physical custody of their

granddaughter, G.W. (d.o.b. 11/2018). We affirm.

Mother and G.W.’s father, Joey Worner (“Father”),

separated in 2021, and Father subsequently died in

March 2022. On November 28, 2022, Paternal

Grandparents filed a Complaint for partial custody of

G.W. pursuant to section 5325(1) of the Grandparents’

Custody Act, which provides, in pertinent part, that

“grandparents and great-grandparents may file an

action … for partial physical custody or supervised

physical custody … where the parent of the child is

deceased[.]” 23 Pa.C.S.A. § 5325(1). The Custody

Hearing Officer held a two-day hearing on the

Complaint on February 1, 2023 and March 6, 2023, at

which the following relevant facts were adduced.

Prior to June 2021, G.W. shared a close relationship

with Paternal Grandparents and spent a significant

amount of time with them. In 2019, Paternal

Grandparents shared childcare responsibilities with

Lisa Stone (“Maternal Grandmother”) when Mother

returned to work. See N.T. Hearing, 2/01/23, at 20. In

September 2020, Paternal Grandparents assumed fulltime care of G.W. on Tuesdays through Fridays. See id.

at 18-21, 61-62; N.T. Hearing, 3/06/23, at 56. Paternal

Grandparents introduced videos into evidence that

showed how happy G.W. was in their care. See N.T.

Hearing, 2/01/23, at 22-26.

App. 4

In June 2021, G.W. suffered an elbow dislocation

while at Paternal Grandparents’ home. Paternal

Grandmother explained that G.W. forcefully pulled

away while she was changing her, almost falling off the

table. See id. at 49-50. In an effort to avoid the fall,

Paternal Grandmother caught G.W.’s elbow, causing it

to come out of its socket, a condition called,

“nursemaid’s elbow.” Id. at 50; see id. at 51-52, 100.

Paternal Grandfather contacted Mother, who

immediately took G.W. to the hospital, where staff

easily put her elbow back in its socket. G.W. did not

require x-rays or follow-up care, has no long-term

injury, and neither hospital staff nor Mother or Father

contacted DHS about the incident. See id. at 108.

Soon after the incident, Paternal Grandfather

texted Mother to check on G.W., and Mother said that

G.W. was “feeling fine Just a little sore.” N.T. Hearing,

3/06/23, at 81-82, 84. Mother admitted she had

experienced nursemaid’s elbow as a child herself and it

“wasn’t a big deal.” N.T. Hearing, 2/01/23, at 57, 68.

However, Mother testified that, after the June 2021

incident, Mother and Father decided to no longer have

Paternal Grandparents take care of G.W. Id at 1, 106.

This conflicted with text message evidence introduced

by Paternal Grandparents that reflected Mother and

Father told them that they no longer needed to care for

G.W. because she had been on a waiting list to attend

a particular daycare and finally had been approved

around that time. Mother claimed that they only told

Paternal Grandparents this story so as not to hurt

their feelings.

App. 5

Over the years, Father had been in and out of drug

rehabilitation facilities for his substance abuse issues.

See id. at 77; N.T. Hearing, 3/06/23, at 36. After

Mother and Father separated in October 2021, Father

lived with Paternal Grandparents who saw G.W.

during his periods of custody, which Mother conceded

G.W. enjoyed. See N.T. Hearing, 2/01/23, at 59, 65-67.

In October 2021, Father even left G.W. alone with

Paternal Grandparents for a couple of hours. Id. at 67.

In January 2022, Father entered an in-patient

rehabilitation program. He was discharged in February

2022, but subsequently died on March 27, 2022. Id. at

63.

After Father’s funeral, Mother brought G.W. to

Paternal Grandparents’ home to pick up a check, which

contained donations Paternal Grandmother had

requested for G.W. and Mother in lieu of flowers. See

id. at 29. Mother also brought G.W. to the home one

other time to pick up Father’s death certificate so she

could apply for social security benefits. See id. at 1415, 71. After that, Mother “ghosted” Paternal

Grandmother and would not let Paternal Grandparents

see G.W., including preventing them from having any

contact when they dropped off Easter and Halloween

gift baskets for her. Id. at 79; see id. at 15, 27-28.

Although Mother and Paternal Grandmother have

no relationship anymore and Mother does not

communicate with any other members of G.W.’s

paternal family, Mother testified that she and Paternal

Grandfather text regularly, have a good relationship

and that she trusted him to care for G.W. See id. at 84;

N.T. Hearing, 3/06/23, at 71. In fact, in July 2021,

App. 6

Mother texted Paternal Grandfather to wish him a

happy birthday. See N.T. Hearing, 3/06/23, at 88.

Because the parties did not conclude testimony on

February 1st, the Hearing Officer scheduled a second

day to continue the hearing, March 6th. At the

commencement of the March 6th hearing, Mother

mentioned her intent to present the testimony of

Maternal Grandmother for the first time. See id. at 7.

When asked for a proffer, Mother’s counsel explained

that Maternal Grandmother would testify about her

interactions with Paternal Grandparents, what she

witnessed of them and how they treated G.W. and

Mother. See id. at 8. Paternal Grandparents’ counsel

stipulated that Maternal Grandmother’s testimony

would be negative toward his clients. The Hearing

Officer precluded Maternal Grandmother from

testifying due to the unfair surprise and the fact that

her testimony would be cumulative.

On March 10, 2023, the Hearing Officer entered the

Proposed Order and Findings of Custody Hearing

Officer. She recommended that Paternal Grandparents

have partial physical custody of G.W. for at least four

hours, once a month, at a time agreed to by Mother, but

if the parties could not agree, custody would be on the

third Saturday of each month. The Officer found that

G.W. and Paternal Grandparents “enjoyed a significant

[and] loving relationship[,] [and that] limited partial

custody, overseen by Paternal Grandfather,” was not

only in the best interest of G.W. but it also addressed

any safety concerns of Mother. Proposed Order and

Findings of Custody Hearing Officer, 3/10/23, at 4.

App. 7

Mother timely filed fifteen exceptions to the

recommendation, and the trial court held a hearing on

them on August 23, 2023. It denied the exceptions and

adopted the Proposed Order and Findings. Mother

timely appealed and contemporaneously filed a concise

statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(a)(2)(i) and (b). She also filed a

motion for stay pending appeal that the court denied.

On appeal, Mother raises one claim for our review

in which she argues that the trial court abused its

discretion in adopting the Proposed Order and Findings

of the Hearing Officer and granting partial physical

custody of G.W. to Paternal Grandparents over her

objection. See Mother’s Brief, at 1. She maintains the

court did not apply either the “special weight” to her

decision about G.W. that federal law requires under

Troxel v. Granville, 530 U.S. 57 (2000), or the “clear

and convincing evidence” standard required by

Pennsylvania law. See id. In the argument section of

her brief, Mother also complains that the Hearing

Officer erred when she precluded maternal

grandmother from testifying.1 See id. at 31.

Our standard of review of these claims is

deferential:

Our standard of review over a custody order

is for a gross abuse of discretion. Such an abuse

of discretion will only be found if the trial court,

Although it is well-settled that “[n]o question will be considered

unless it is stated in the statement of questions involved or is fairly

suggested thereby,” we will provide a brief review of this claim.

Pa.R.A.P. 2116(a).

App. 8

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.

In reviewing a custody order, 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 trial court 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.

Rogowski v. Kirven, 291 A.3d 50, 60-61 (Pa. Super.

2023) (internal citations, brackets, and quotation

marks omitted).

Here, the trial court adopted the Proposed Order

and Findings of the Custody Hearing Officer after the

parties appeared at a custody conference before her. In

such a situation we have explained:

Where ... the parties proceed by agreement

before a hearing officer on the issues of standing

App. 9

and partial custody for purposes of visitation,

the trial court is required to make an

independent review of the record to determine

whether the hearing officer’s findings and

recommendations are appropriate. See

generally Pa.R.C.P. 1915.4-1, 1915.4-2.

Although advisory, the hearing officer’s report

and recommendations are given the fullest

consideration particularly on the issue of

credibility of witnesses, which the trial court is

not empowered to second-guess. See generally

Neil v. Neil, 731 A.2d 156 (Pa. Super. 1999)

(holding that reviewing court may not secondguess hearing officer’s credibility

determinations).

K.B. v. M.F., 247 A.3d 1146, 1150 (citation omitted).

Mother first claims the trial court abused its

discretion by adopting the Findings and Proposed

Order because granting partial custody to Paternal

Grandparents violated her federal due process rights

and failed to give her decisions regarding G.W. the

“special weight” identified in Troxel. Mother’s Brief, at

We first consider whether this argument is properly

before us or whether, as the trial court found and

Paternal Grandparents maintain, Mother waived the

argument by raising it for the first time in her Rule

1925(b) statement. See Trial Court Opinion, 10/03/23,

at 15-16; Appellees’ Brief, at 10-11.

It is well-settled that “[i]ssues not raised in the trial

court are waived and cannot be raised for the first time

App. 10

on appeal.” Pa.R.A.P. 302(a); As such, issues raised for

the first time in a Rule 1925(b) statement are waived.

see Estate of O’Connell ex. rel. O’Connell v.

Progressive Ins. Co., 79 A.3d 1134, 1140 (Pa. Super.

2013)..

Our review of the record confirms the observation of

the trial court and Paternal Grandparents that Mother

raised her arguments about the Hearing Officer’s

failure to apply the “special weight” identified in

Troxel or that granting Paternal Grandparents partial

physical custody violates her federal due process rights

for the first time in her Rule 1925(b) statement.

Therefore, these claims are waived. See Estate of

O’Connell, 79 A.3d at 1140; Pa.R.AP. 302(a).

However, even if not waived, Mother’s claims would

not merit relief.

Similar to the circumstances before us, Troxel

involved a grandparent seeking partial physical

custody of a grandchild after a parent’s death. The

United States Supreme Court found the Washington

statute on which the grandparent relied to be

unconstitutionally broad because it directed “that any

person may petition the court for visitation at any

time.” J. & S.O. v. C.H., 206 A.3d 1171, 1177 (Pa.

Super. 2019) (citing Troxel, 530 U.S. at 67) (emphases

in original). However, in J. & S.O. this Court

concluded that Troxel’s holding was inapplicable to the

Pennsylvania Grandparents’ Custody Act because

section 5325(1) is narrowly tailored to grandparents

whose child has died. See id. at 1177-78.

App. 11

Additionally, although Mother argues the

Grandparents’ Custody Act is “constitutionally infirm

because it does not require [] a showing of harm” before

a court may intervene into a fit parent’s authority, the

Pennsylvania Supreme Court rejected such an

argument in Hiller v. Fausey, 904 A.2d 875 (Pa.

2006). Mother’s Brief, at 17-18 n.1. There, the Court

concluded that, although proof of “significant harm”

could justify longer periods of visitation, such harm is

implicit in the statute and “requiring grandparents to

demonstrate that the denial of visitation would result

in harm in every [section 5325(1)] case would set the

bar too high, vitiating the purpose of the statute and

the policy [of ensuring] the continued contact between

grandchildren and grandparents when a parent is

deceased.” Id. at 890; see id. at 890 n.24.

Moreover, Mother’s focus on the language of Troxel

that she should have been afforded “special weight”

that is somehow more than the presumption already

afforded to such parents is not availing. As explained

further in Justice Newman’s concurrence in Hiller, in

cases involving grandparent custody, “the court must

presume that a fit parent’s decision is in the best

interest of the child, and the court may reach a decision

contrary to the wishes of the parent only if there is

evidence sufficient to overcome that presumption.

Troxel goes no further.” Id. at 902; see also J. & S.O.,

206 A.3d at 1177 (holding that the Pennsylvania

Grandparents’ Custody Act does not violate the

surviving parent’s due process rights).

Therefore, as aptly observed by the Paternal

Grandparents, “[t]he ultimate decision [of when to

App. 12

grant custody to grandparents] is based on the amount

of prior contact that grandparents had with the child,

whether an award would interfere with the parentchild relationship, and what is in the best interest of

the child.” See N.T. Hearing, 3/06/23, at 161; see also

23 Pa.C.S.A. § 5328(c). This is precisely what the

Hearing Officer considered when reaching her decision.

See Proposed Order and Findings of Custody Hearing

Officer, 3/10/23, at 4 (finding G.W. spent approximately

four days a week with Paternal Grandparents with

whom she had loving, close relationship until Mother

stopped all contact; that a narrowly tailored custody

order would not interfere with G.W. and Mother’s

relationship; and spending time with her deceased

father’s family is in G.W.’s best interest). Mother’s

claim that the custody order violates her federal

constitutional rights and Troxel lacks merit.

Mother next argues her Pennsylvania

Constitutional rights were violated because the

Custody Hearing Officer failed to apply the clear and

convincing evidence standard before granting Paternal

Grandparents partial physical custody. See Mother’s

Brief, at 21.2

Paternal Grandparents maintain that Mother is relying on an

incorrect legal burden for this argument because this burden is

found in Section 5327, which only applies where a party is seeking

primary physical custody. See Paternal Grandparents’ Brief, at 13;

23 Pa.C.S.A. § 5327(b). This is not persuasive because a review of

Mother’s brief reveals she only mentioned Section 5327(b) when

directly quoting the Hearing Officer. See Mother’s Brief, at 11;

Proposed Order and Findings of Custody Hearing Officer, 3/10/23,

at 3..

App. 13

“[I]n a dispute between a parent and … a

grandparent, the parent has 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 grandparent].” Douglas v.

Wright, 801 A.2d 586, 590-91 (Pa. Super. 2002)

(citation omitted). “The burden is on grandparents

seeking rights under [section 5325(1)] to demonstrate

that partial custody or visitation in their favor is in the

child’s best interest and will not interfere with the

parent-child relationship.” Id. (citations omitted).

In addition to the sixteen custody factors outlined in

section 5328(a), when deciding whether to award

partial physical custody to a grandparent who has

standing pursuant to section 5325(1), as we stated

previously, the tribunal must consider: (1) the amount

of personal contact between the child and the party

prior to the filing of the action, (2) whether the award

interferes with any parent-child relationship, and

(3) whether the award is in the best interest of the

child. See 23 Pa.C.S. § 5328(c); see also 23 Pa.C.S.A.

§ 5328(a).

“[T]he goal in each case is to foster those

relationships which will be meaningful for the child,

while protecting the child from situations which would

have a harmful effect. Factors to consider in

determining the best interests of the child include the

child’s ‘physical, intellectual, emotional and spiritual

well-being.’” Douglas, 801 A.2d at 591 (citations

omitted).

App. 14

Instantly, the Custody Hearing Officer explained:

Paternal Grandparents are requesting

partial physical custody of the child. Mother,

however, feels that Paternal Grandparent[s]

should not be afforded any custodial time with

the child. Paternal Grandparents shared a

loving, close relationship with the child until she

was injured. Then, both Mother and Father

decided together to revoke their consent and

deny Paternal Grandparents unsupervised time

with the child. Unfortunately, the [c]ourt does

not have the benefit of Father’s testimony to

know how strongly Father felt about the

situation. The [c]ourt cannot ascertain whether

Father agreed with Mother to keep the peace or

whether he felt as vehemently as Mother did.

Prior to Father’s death, he was living with

Paternal Grandparents and their custody rights

would have been derivative of Father’s rights.

Sadly, Father has passed and the [c]ourt must

now consider if it is in child’s best interest to

never see her grandparents again as Mother has

requested.

Prior to the child’s injury, the child enjoyed a

significant relationship with Paternal

Grandparents. The child saw them nearly every

day and it is clear from the demeanor of

Paternal Grandparents, video evidence

presented, and text message evidence discussed

in the hearing that the child shared a loving

relationship with Paternal Grandparents. An

award of partial physical custody would not

App. 15

interfere with the parent child relationship.

Mother testified she and the child share a close

bond. An appropriately tailored award of

custodial time to Paternal Grandparents would

not be overly burdensome or interfere with the

child’s scheduled activities. As Paternal

Grandparent[s’] counsel argued, their intent is

not to replace Mother or Father in the child’s

affection but to maintain the loving relationship

they had developed with their granddaughter.

Finally, this Custody Hearing Officer believes it

would be in the child’s best interest to award

Paternal Grandparents partial physical custody.

One of the factors the [c]ourt must consider in

determining the best interest of the child is the

availability of extended family. Now more than

ever, it is important for the child to remain

connected to Father’s extended family. Mother

testified that she has lost contact with other

members of Father’s extended family following

the discord with Paternal Grandparents.

Providing limited custodial time, overseen by

Paternal Grandfather, provides the child the

opportunity to remain connected with Father’s

extend[ed] family while addressing Mother’s

safety concerns.

Custody Hearing Officer’s

Recommendation, 3/10/23, at 4.

Report

and

Based on our independent review of the record, we

discern no abuse of discretion. The record confirms that

prior to Mother denying Paternal Grandparents any

contact with G.W., they had a loving relationship with

App. 16

her in which they saw her multiple times per week.

The state has a strong interest in preserving this

relationship between G.W. and her deceased father’s

family. The narrowly tailored order only grants

Paternal Grandparents four hours per month with

their grandchild, with Paternal Grandfather, with

whom Mother admits she has a good relationship,

present at all times. Mother’s claim that the Paternal

Grandparents failed to produce sufficient evidence to

support the partial custody award lacks merit.

Nor are we persuaded by Mother’s summary claims

that the Custody Hearing Officer failed to apply certain

custody factors.

The Custody Act provides, in pertinent part, that,

“in ordering any form of custody, the court shall

determine the best interest of the child by considering

…

(4) The need for stability and continuity in the

child’s education, family life and community

life[,] … (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[, and] (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 from abuse by another party is

not evidence of unwillingness or inability to

cooperate with that party.

23 Pa.C.S.A. § 5328(a)(4), (9), (13).

App. 17

Mother’s entire argument in support of this issue is

that:

[T]he lower court incorrectly applied factor 4

in light of the evidence showing that mother has

been the primary source of stability and safety

for the child. The lower court incorrectly applied

factor 9 in light of the evidence showing that the

mother has maintained a loving, stable,

consistent, and nurturing relationship with the

child and has supported her emotional needs.

The lower court incorrectly applied factor 13 in

light of the evidence showing a high degree of

conflict between the mother and the paternal

grandparents at the time of the grandparents’

petition.

Mother’s Brief, at 30-31.

No one disputes that Mother has been G.W.’s

primary source of stability who maintains a loving

environment for her. Paternal Grandparents’ four

hours per month certainly will not conflict with this.

Also, although Mother and Paternal Grandmother

seem to have a contentious relationship, Mother and

Paternal Grandfather have a good one and he will be

present during any custodial time. Mother’s argument

lacks merit.

Finally, Mother contends that the Custody Hearing

Officer abused her discretion when she precluded

Maternal Grandmother from testifying, thereby

infringing on Mother’s due process rights to a fair trial.

See Mother’s Brief, at 31. We disagree.

App. 18

It is well-settled that our standard of review of the

Custody Hearing Officer’s evidentiary ruling is for an

abuse of discretion. See Commonwealth v. Walter, 93

A.3d 442, 450 (Pa. Super. 2014) (citation omitted).

“[P]rocedural due process requires, at its core, adequate

notice, opportunity to be heard, and the chance to

defend oneself before a fair and impartial tribunal

having jurisdiction over the case. Due process is

flexible and calls for such procedural protections as the

situation demands.” Interest of K.L., 296 A.3d 1267,

1272 (Pa. Super. 2022) (citation omitted).

In this case, Mother had the opportunity to be heard

over the course of a two-day hearing. Specifically, the

Custody Hearing Officer conducted a hearing on

February 1, 2023, and when it became evident that the

parties would not finish, she scheduled a second day for

March 6, 2023. Mother, who was represented by two

different counsel, had the opportunity to testify on her

own behalf, present evidence and cross-examine

Paternal Grandparents.

At the March 6, 2023 hearing, Mother advised, for

the first time, that she intended to present Maternal

Grandmother as a witness, proffering that Maternal

Grandmother would testify “about her interactions

with the Paternal Grandparents, and what she’s

witnessed, with how the Paternal Grandparents are

with [G.W.], as well as how the Paternal Grandparents

are with [Mother].” N.T. Hearing, 3/06/23, at 8.

Paternal Grandparents’ counsel argued that Maternal

Grandmother’s testimony was irrelevant and he agreed

to stipulate that she would “say negative things about

App. 19

[his] client[s], and they behaved badly, and that they

don’t behave well with the child.” Id. at 124.

We discern no abuse of discretion in the Hearing

Officer’s preclusion of this testimony on the bases that

the lack of notice prejudiced Paternal Grandparents

and because her proposed testimony would be

cumulative of Mother’s. See id. at 130. Mother’s final

issue lacks merit.3

In their response brief, Paternal Grandparents seek

attorney’s fees, arguing that this appeal is frivolous

and brought only to delay their seeing G.W. See

Paternal Grandparents’ Brief, at 21-23. It is wellsettled that “[t]he general rule is that the parties to

litigation are responsible for their own counsel fees and

costs unless otherwise provided by statutory authority,

agreement of the parties, or some other recognized

exception.” Wrenfield Homeowners Ass’n, Inc. v.

DeYoung, 600 A.2d 960, 962 (Pa. Super. 1991).

Pursuant to Pa.R.A.P. 2744, this Court may award

reasonable counsel fees if we “determine[] that an

appeal is frivolous or taken solely for delay or that the

conduct of the participant against whom costs are to be

imposed is dilatory, obdurate or vexatious.” Pa.R.A.P.

2744(1).

We are not persuaded by Mother’s reliance on Commonwealth

v. Ward, 605 A.2d 796 (Pa. Super. 1992), in support of this issue.

See Mother’s Brief, at 32. Ward was a criminal case in which the

trial court precluded the testimony of a police detective that

individuals other than the defendant had a motive to commit the

crime at issue. This is wholly irrelevant to the situation here,

where Mother sought to introduce a surprise witness in a custody

trial whose testimony would have been cumulative.

App. 20

We deny Paternal Grandparents’ request. While

ultimately we conclude that Mother’s appeal lacks

merit, we cannot find that, on their face, the issues

raised by Mother could only be perceived as frivolous

delay tactics justifying sanctions.

Order affirmed.

Judgment Entered.

/s/ Benjamin D. Kohler

Benjamin D. Kohler, Esq.

Prothonotary

Date: 2/2/2024

App. 21

APPENDIX C

IN THE COURT OF COMMON PLEAS

PHILADELPHIA COUNTY

FAMILY COURT DIVISION

Docket No. XC2200813

Superior Court

Docket No. 2260 EDA 2023

[Filed October 4, 2023]

________________________

Theodore Worner and

)

Adelina Worner,

)

Appellees,

)

Lauren N. Stone,

)

Appellant.

)

_______________________ )

Palmer, J.

OPINION

Appellant Mother, Lauren N. Stone is the mother of

G.W., age 4, born XXXXXX XX, 2018. Appellees

Theodore Worner and Adelina Worner are the paternal

grandparents of G.W.. The child’s Father, Joseph

Worner, is deceased, having died on March 27, 2022.

This appeal, filed by Mother, arises from a Final

Custody Order entered on August 23, 2023 denying

App. 22

Mother’s Exceptions filed to the Proposed Order of

Custody for Paternal Grandparents to have partial

physical custody by agreement of the Mother or for a

period of four hours each month. This court requests

that the Superior Court of Pennsylvania affirm the

order of August 23, 2023. The factual and procedural

history are set forth below.

FACTUAL BACKGROUND

& PROCEDURAL HISTORY

Paternal Grandparents filed a Complaint for

Custody on November 28, 2022, seeking partial

physical custody of their grandchild G.W. following the

death of their son, Joseph Worner, seven months prior.

Mother had cut off contact between G.W. and her

Paternal Grandparents and paternal relatives

following the funeral of Father.

Mother and Paternal Grandparents participated in

a two-day record hearing pursuant to Pa. R.C.P.

1915.4-2(b) before Hearing Officer Lauren McCulloch,

Esquire on February 1, 2023 and on March 6, 2023.

Both parties were represented by counsel at the

hearing dates, however, Mother retained new counsel

after the first day of testimony.

The hearing testimony showed that Paternal

Grandparents live alone in a three-bedroom house.

Mother and the child reside with Maternal

Grandmother. Mother has always been the child’s

primary caregiver. Mother and Father lived together

with the child in their own apartment until October 31,

2021. After their separation, Father then resided with

Paternal Grandparents and Mother resided with

App. 23

Maternal Grandmother. Father suffered from a

substance use disorder and had been in and out of drug

rehabilitation centers over the years, most recently in

January 2022. Father was discharged from a

rehabilitation center sometime in February 2022 and

died in March 2022.

Mother indicated that the Department of Human

Services (DHS) has never been involved with this child.

Mother has no known criminal history in Pennsylvania.

Mother attends to the daily physical and emotional

needs of the child and testified that she and the child

share a strong bond. Mother reports that the child is

thriving, participates in gymnastics, and attends

Christian school on Sundays. Mother maintains a

loving, stable, and consistent relationship with the

child.

Neither counsel requested to have the Hearing

Officer interview the child. Therefore, it was not

possible to ascertain the preference of the child.

However, since the child was only 4 years old, the child

was too young to testify.

Paternal Grandmother testified that she began

providing care for the child two to three days a week in

2019 and then began watching the child fulltime in

September 2020 when the parents were working.

Mother testified that she stayed home with the child

for the first year following her birth and then went

back to work on a part-time basis. Mother stated that

Maternal Grandmother and Father watched the child

while Mother worked. Mother’s testimony was

contradictory in this regard. She initially agreed that

App. 24

Paternal Grandmother participated in babysitting the

child during this period but subsequently insisted that

Paternal Grandmother did not watch the child until

September 2020. The parties all agreed that Paternal

Grandparents provided care for the child while the

parents worked from Tuesday through Friday

beginning in September 2020.

All parties agreed that Paternal Grandparents were

no longer permitted to provide childcare following an

incident in June 2021 in which the child’s arm was

pulled from the socket by Paternal Grandmother.

Paternal Grandparents testified that Paternal

Grandmother was checking the child’s diaper and the

child pulled away in a manner where the child was

going to fall, and Paternal Grandmother caught the

child by her arm which caused it to come out of socket a condition called, “nursemaid’s elbow.” Mother was not

present for the incident. When the injury occurred,

Paternal Grandfather contacted Mother to take the

child to the hospital.

Mother alleged that Paternal Grandmother pulled

on the child’s arm forcefully enough to pull it from the

socket, but also testified that Mother herself had the

same condition as a child. The parents took the child to

the hospital. The child’s arm was easily repaired, no xray was required, and she has no lasting injury. She

was discharged from the hospital the same day.

Neither Mother, Father, nor anyone at the hospital,

contacted DHS regarding the child’s injury. There was

no child abuse or neglect investigation.

The following day, Paternal Grandmother came to

the house to apologize to the parents and the child for

App. 25

the accident, bringing gifts and flowers. Paternal

Grandmother testified that Mother told her it “wasn’t

a big deal.” N.T. February 1, 2023, p. 57.

Mother testified that she and Father discussed the

child’s injury and agreed not to leave the child alone

with Paternal Grandparents going forward. The child

was enrolled in daycare and Mother and Father split

the cost. Paternal Grandparents’ counsel presented

text message evidence that Mother and Father told

Paternal Grandparents that the child had been on a

waitlist at a particular preschool for more than a year

and had been accepted. Mother testified that they told

Paternal Grandparents that because Father did not

want to hurt their feelings. Mother testified that

Father was present with the child for subsequent visits

at Paternal Grandparent’s home until the time Father

passed away. Paternal Grandparents testified Father

left the child in their care in October 2021 for a couple

of hours.

In September 2021, Father relapsed, and Mother

found him either “asleep or dead” in his car outside and

she called Paternal Grandparents to come over to help.

When Father was revived, Father and Paternal

Grandfather had a physical altercation about the

incident.

The text message evidence presented by Paternal

Grandparent’s counsel also illustrated that Mother had

a friendly relationship with Paternal Grandfather.

Mother testified that she trusted Paternal Grandfather

with the child and texted back and forth with him

frequently. Even after the child’s injury, Paternal

Grandparents were seeing the child monthly when

App. 26

Father brought her over or when they came over to see

the child. Mother continued a cordial text relationship

with Paternal Grandfather. Mother described their

relationship as “genuine.”

Following the funeral for Father, Mother ended the

child’s contact with Paternal Grandparents. Prior to

the funeral, Mother and Paternal Grandfather

continued to communicate and Mother agreed they

continued to have a “nice” relationship. “Yeah,

especially after he passed away. It was very traumatic.”

N.T., March 6, 2023, p. 115.

Paternal Grandmother testified that after the

funeral, in April 2022, Mother brought the child to

their house to pick up a check for $2,355. Paternal

Grandmother had requested donations for Mother and

the child in lieu of flowers for the funeral and wanted

to give the check to Mother. Mother came over one

other time to pick up the death certificates so Mother

could apply for Social Security. Paternal Grandmother

testified that after those two times, Mother “ghosted”

them. Mother testified that Paternal Grandmother

confronted her threatening custody litigation about

their “rights” to the child and Mother then cut off

contact and retained counsel. Paternal Grandparents

contacted Mother and sought contact with the child on

Easter and Halloween as they had done in the past.

They dropped off Easter baskets and Halloween gifts

for the child but were not permitted to see the child by

Mother.

The hearing testimony reflected that it was

uncontested that Paternal Grandparent’s relationship

with the child began with the consent of both Mother

App. 27

and Father. Paternal Grandparents shared a loving,

close relationship with the child until she was injured.

After June 2021, while they no longer provided daily

childcare for the child, they still maintained a

grandparent relationship with monthly contact until

the parties’ separation and Father’s in-patient drug

rehabilitation program in January and February 2022,

just prior to his death in March 2022.

Prior to the child’s injury, the child enjoyed a

significant relationship with Paternal

Grandparents. The child saw them nearly every

day and it is clear from the testimony and

demeanor of Paternal Grandparents, video

evidence presented, and text message evidence

discussed in the hearing that the child shared a

loving relationship with Paternal Grandparents.

Report, March 10, 2023, p. 4.

Mother conceded that her relationship with

Paternal Grandfather was “very cordial” and she

trusted him with the child. Even after the June 2021

incident, Mother and Paternal Grandfather texted

about the child very frequently and told each other “We

love you.” The Hearing Officer found that an award of

partial physical custody would not interfere with the

parent child relationship:

Mother testified that she and the child share a

close bond. An appropriately tailored award of

custodial time to Paternal Grandparents would

not be overly burdensome or interfere with the

child’s scheduled activities. As Paternal

Grandparent’s counsel argued, their intent is not

App. 28

to replace Mother or Father in the child’s

affection but to maintain the loving relationship

they had developed with their granddaughter.

Report, March 10, 2023, p. 4.

Finally, the Custody Hearing Officer found it would

be in the child’s best interest to award Paternal

Grandparents partial physical custody:

One of the factors the Court must consider in

determining the best interest of the child is the

availability of extended family. Now more than

ever, it is important for the child to remain

connected to Father’s extended family. Mother

testified that she has lost contact with other

members of Father’s extended family following

the discord with Paternal Grandparents.

Providing limited custodial time, overseen by

Paternal Grandfather, provides the child the

opportunity to remain connected with Father’s

extend family while addressing Mother’s safety

concerns.

Report, March 10, 2023, p. 4.

Following the Hearing, the Hearing Officer

identified and properly applied all the relevant statutes

to testimony presented in the case and detailed those

in her Report and Recommendation to the Court as

follows:

While neither counsel raised any objection as to

standing for the Paternal Grandparents, the Hearing

Officer addressed the relevant statutes, finding that,

Paternal Grandparents have standing under 23 Pa.

App. 29

C.S. § 5325(1). It was uncontested that Father, Joseph

Worner, passed away on March 27, 2022. Paternal

Grandparents presented an original death certificate at

the hearing. Paternity was established and all parties

agreed that Joseph Worner was the child’s father. As

Paternal Grandparents are only requesting partial

physical custody, they have standing pursuant to 23

Pa.C.S. § 5325(1).

In her Report, the Hearing Officer also identified

and addressed the sixteen custody factors set forth in

5328(a) and the additional considerations for

grandparent custody set forth in 23 Pa. C.S. § 5328(c),

which includes, “the amount of personal contact

between the child and the party prior to the filing of

the action, whether the award interferes with any

parent-child relationship, and whether the award is in

the best interest of the child.”

The Hearing Officer addressed in the Report the

presumption and burden set forth in 23 Pa. C.S.

§ 5327(b), that custody shall go to the parent in an

action between a parent and a third-party. That

presumption can be rebutted by clear and convincing

evidence.

Lastly, the Hearing Officer’s Report addressed the

safety concerns and enumerated convictions pursuant

to 23 Pa. C.S. § 5329. The Hearing Officer properly

conducted the initial evaluation of Paternal

Grandfather’s enumerated conviction under 23 Pa. C.S.

§ 5329(c) finding that the most recent conviction is

from 1997. “Given the age of these convictions and the

fact that Mother and Father trusted Paternal

Grandfather with the child’s care, this Custody

App. 30

Hearing Officer finds that Paternal Grandfather poses

no risk of harm to the child .” Report, March 10, 2023,

p. 3. Additionally, the Hearing Officer noted that

neither party nor their counsel raised the issue at the

hearing. Paternal Grandmother and Mother have no

known criminal history in Pennsylvania.

The Hearing Officer prepared the Report and

Recommendation and Proposed Order on March 10,

2023 in consideration of the testimony, credibility

determinations, and evidence offered at the hearing by

petitioner Paternal Grandfather, co-petitioner Paternal

Grandmother, and respondent Mother, including all

the factors listed under 23 Pa. C.S. § 5328(a), finding

the following to be in the child’s best interest:

The Complaint for Partial Physical Custody

regarding the child G.W., born XXXXXX XX,

2018, filed 11/29/2022 by Paternal

Grandparents, Theodore and Adelina Worner, is

hereby granted.

Mother, Lauren Stone, shall have sole legal and

primary physical custody of the child.

Paternal Grandparents shall have partial

physical custody of the child as agreed and

arranged with Mother. Paternal Grandparents

shall have at least one day-visit each month

spending at least four hours with the child. If

the parties cannot agree, then Paternal

Grandparents shall have partial physical

custody of the child the third Saturday of each

month from 10:00 a.m. to 2:00 p.m. at Paternal

Grandparents’ home.

App. 31

Paternal Grandparents’ custodial time shall be

overseen by Paternal Grandfather. The child

shall not be left alone with Paternal

Grandmother. Paternal Grandfather shall keep

Mother informed of where the child will be

during Paternal Grandparent’s custodial time

and of the child’s wellbeing. Mother shall not

interfere with Paternal Grandparents’ custodial

time.

Mother timely filed Exceptions on April 4, 2023,

raising fifteen Exceptions to the Proposed Order of

Custody issued on March 10, 2023 as follows:

a. The Hearing Officer failed to act in the

best interest of the Child.

b. The Hearing Officer incorrectly

recommended partial physical custody to the

Plaintiffs.

c. The Hearing Officer incorrectly

recommended Theodore Worner supervise

Adelina Worner.

d. The Hearing Officer incorrectly sustained

Plaintiffs’ objections and thus precluded Mother

from testifying and introducing evidence of

Plaintiffs’ violent behavior and abuse.

e. The Hearing Officer incorrectly disallowed

Defendant’s mother from testifying despite her

being an eyewitness to much of the abuse

inflicted by Plaintiffs.

App. 32

f. The Hearing Officer failed to recognize

evidence of Father’s intent for the Child not to

have a relationship with Plaintiffs prior to his

passing.

g. The Hearing Officer incorrectly assumed

that the Child would be safe within the

Plaintiffs’ care.

h. The Hearing Officer misapplied the law

by expanding the Plaintiffs’ rights by

recommending they have more time with the

Child than prior to when the Child’s Father

passed and prior to their filing.

i. The Hearing Officer failed to give the

appropriate weight to the considerations

required pursuant to 23 Pa.C.S. Section 5328(c),

by recommending a partial physical custody

schedule that substantially increases the

personal contact between the Child and

Plaintiffs prior to the filing of the action,

interferes with the parent-child relationship,

and is against the best interest of the Child.

j. The Hearing Officer incorrectly applied

custody factor 2 wherein Mother had significant

concerns regarding the paternal grandparents’

history of violence. Mother attempted to testify

regarding more violence she witnessed and it

was improperly objected to at the time of the

proceeding. Despite this, the Hearing Officer

seemingly recommended that the Plaintiffs’ are

to supervise themselves.

App. 33

k. The Hearing Officer incorrectly applied

custody factor 4 wherein Mother is and has been

the primary source of stability and safety of the

child. Despite this, she has always attempted to

allow the Child to have a safe relationship with

her family and has used proper parental

judgement with regard to her hesitation in

allowing the Child around the Plaintiffs.

l. The Hearing Officer incorrectly applied

custody factor 9 wherein Mother has maintained

a loving, stable, consistent, and nurturing

relationship with the child and has supported

the child’s emotional needs.

m. The Hearing Officer incorrectly applied

custody factor 13 wherein it was clearly

demonstrated in court the high conflict between

the parties at the time of Plaintiffs’ filings.

n. The Hearing Officer incorrectly applied

custody factor 14 where in the Plaintiffs have a

history of drug abuse within their home.

o. The Hearing Officer incorrectly applied

custody factor 16 wherein, as a result of the

child’s biological parents making a decision on

what is best for the child during Father’s

lifetime, Father’s sporadic and infrequent

contact with the child, Mother has been the

primary caregiver, nurturer and stabilizing

parent of the minor child from birth.

The Exceptions hearing was then scheduled for oral

argument and the hearing transcripts and record were

transmitted to this Judge. The Exceptions hearing was

App. 34

held before this Judge on August 23, 2023, wherein

counsel for Mother and counsel for Paternal

Grandparents each presented oral argument on the

Exceptions.

Following the hearing and upon an independent

review of the record for the case, including the

transcripts of the two-day hearing and the detailed

proposed order, this Court entered an order denying

the Exceptions and making the proposed order a final

order of court. This appeal by Mother followed and was

timely filed on September 5, 2023.

Mother also filed a Motion for Stay pending the

appeal on September 5, 2023, which was denied on

September 21, 2023.

ISSUES RAISED ON APPEAL

Mother filed a 1925(B) Statement of Errors

Complained of on Appeal contemporaneously with her

Notice of Appeal, setting forth nine errors of law as

follows:

A. Whether granting custody and visitation rights for

the paternal grandparents over the objection of the

mother violates the mother’s (appellant’s) fundamental

due process right as G.W.’s parent under the United

States Constitution and Troxel v. Granville, 530 U.S.

57, 64, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). where

the decision is not based upon sufficient evidence and

findings to overcome the decision of appellant, a fit

parent. on what is in the best interests of her child, and

where the decision failed to accord sufficient “special

weight”’ to the interest of appellant in making decisions

regarding her child.

App. 35

B. Whether granting custody and visitation rights for

the paternal grandparents over the objection of the

mother violates the mother’s federal constitutional

right where there was insufficient proof by the

grandparents, and insufficient finding by the Court,

that denial of the visitation the grandparents sought

would result in harm to the child, but see Hiller v.

Fausey, 588 Pa. 342, 904 A.2d 875 (2006), cert. denied,

549 U.S. 1304, 127 S.Ct. 1876, 167 L.Ed.2d 363 (2007)

(upholding constitutionality of prior Pennsylvania

statute with regard to petitioning grandparent where

natural parent is deceased); J. & S.O. v. C.H. 2019 PA

Super 91 (Mar. 27, 2019) (upholding constitutionality

of current statute on same grounds).

C. Whether the Court violated Pennsylvania and

federal law under Troxel, supra, in granting custody

and visitation rights to the petitioning grandparents

without sufficient finding and proof that the

grandparents had carried their clear and convincing

burden under 23 Pa.C.S. § 5327.

D. Whether the Court incorrectly applied and

considered the statutory factors in granting

unsupervised partial custody and visitation to the

grandparents despite the evidence showing that the

paternal grandmother, Adelina had abused or

neglected the child; the mother and father previously

had stopped visitation for the grandparents because of

the abuse or neglect inflicted on the child, and the

father had supervised visitation with the grandparents

all other times; the paternal grandfather, Theodore,

has a history of criminal convictions; and in light of the

mother’s overall concerns about. in particular,

App. 36

unsupervised visitation by the paternal grandparents

with the child.

E. Whether the Court incorrectly applied custody

factor 4 in light of the evidence showing that the

mother has been the primary source of stability and

safety for the child.

F. Whether the Court incorrectly applied custody

factor 9 in light of the evidence showing that the

mother has maintained a loving, stable, consistent, and

nurturing relationship with the child and has

supported her emotional needs.

G. Whether the Court incorrectly applied custody

factor 13 in light of the evidence showing a high degree

of conflict between the mother and the paternal

grandparents at the time of the grandparents’ petition.

H. Whether the Court incorrectly applied custody

factor 14 in light of the evidence showing that the

grandparents have a history of drug abuse within their

home.

I. Whether appellant’s (mother’s) right to a fair trial

was violated by the hearing officer speaking to the

attorney for the grandparents, and viewing evidence

proffered by the grandparents, without the presence

and participation of counsel for the mother; by

disallowing testimony from the mother about other

violence by the paternal grandparents; and by

disallowing testimony by the maternal grandmother

about abuse and neglect inflicted on the child by the

paternal grandparents.

App. 37

ANALYSIS OF ISSUES RAISED ON APPEAL

The standard of review for a final child custody

order is well-established:

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).

In this case, the parties appeared before a Hearing

Officer for a two-day hearing, and this trial court

adopted the Report and Recommendation of the

Hearing Officer when the Exceptions were denied on

August 23, 2023. The Superior Court has discussed a

trial court’s responsibilities with respect to custody

actions that proceed before a hearing officer as follows:

App. 38

Where ... the parties proceed by agreement

before a hearing officer on the issues of standing

and partial custody for purposes of visitation,

the trial court is required to make an

independent review of the record to determine

whether the hearing officer’s findings and

recommendations are appropriate. See generally

Pa.R.C.P. 1915.4-1, 1915.4-2. Although advisory,

the hearing officer’s report and

recommendations are given the fullest

consideration particularly on the issue of

credibility of witnesses, which the trial court is

not empowered to second-guess. See generally

Neil v. Neil, 731 A. 2d 156 (Pa. Super. 1999)

(holding that reviewing court may not secondguess hearing officer’s credibility

determinations).

T.B. v. L.R.M., 753 A.2d 873, 881-882 (Pa. Super. 2000)

(en banc).

Appellant Mother raises nine points of error in her

1925(B) Statement filed with her Notice of Appeal,

which are consolidated and addressed below.

Points A & B

Due Process Under United States Constitution

The issues set forth in Points A and B allege an

error that granting custodial rights to a grandparent

over the objection of a parent violates a parent’s

fundamental rights to due process under the United

States Constitution. Counsel for Mother did not bring

a facial challenge to the constitutionality of 23 Pa. C.S.

Section 5425 that grants grandparents standing in

App. 39

child custody cases where a parent is deceased. The

issues raised in Points A and B were raised for the first

time in the 1925(B) Statement filed with this Notice of

Appeal and are therefore waived. See Pa. R.A.P. 302(a)

(“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal”).

Typically, in child custody procedure, objections as

to a third party’s right to file a custody case against a

parent are raised in the form of Preliminary Objections

pursuant to Pa. R.Civ.P. 1028(a)(5) as to standing. See

C.G. v. J.H., 193 A.3d 891 (Pa. 2018). Mother’s counsel

never filed any responsive pleadings in the form of

Preliminary Objections or an Answer, raising the issue

of standing or the Constitutionality of the statute.

This issue was also not raised by counsel for mother

at the two hearing dates before the Hearing Officer. In

fact, both attorneys for Mother conceded the issue of

standing at the hearing before the Hearing Officer –

agreeing that 23 Pa. C.S. Section 5325(1) applied to

this case where the child’s Father is deceased, and

parental grandparents seek only partial physical

custody. N.T. February 1, 2023, p. 7-8.

Nowhere in the 15 Exceptions filed by counsel for

Mother is there an assertion that granting custodial

rights to a grandparent over the objection of a parent

violates fundamental due process under the United

States Constitution. Pa. R.C.P. 1915.4-2(b)(4) requires

a party to raise such objections in the form of

Exceptions or such objections are waived.

Pa. R.C.P. 1915.4-2(b)(4) sets forth as follows:

App. 40

Each exception shall set forth a separate

objection precisely and without discussion.

Matters not covered by exceptions are deemed

waived unless, prior to the entry of the final

order, leave is granted to file exceptions raising

those matters.

Further, Mother’s counsel did not present this issue

at oral argument on the Exceptions on August 23, 2023.

Mother’s counsel did not request leave of the court to

amend the Exceptions to include this argument.

Even if this issue is not waived, this question of

whether the grandparent custody statute violates a

parent’s right to due process has already been

addressed by the Pennsylvania appellate courts. The

Superior Court has concluded that Section 5325(1),

which allows grandparents to seek partial physical

custody or supervised physical custody of their

deceased child’s children, does not violate the living

parent’s due process rights. J. & S.O. v. C.H., 206 A.3d

1171, 1177 (Pa. Super. 2019), appeal denied, --- Pa. ----,

216 A.3d 230 (2019). Mother’s counsel even cites this

case in the 1925(B) Statement of Errors. The Superior

Court further noted:

While recognizing that a parent has the

fundamental right to make decisions regarding

the care, custody, and control of their child, this

Court found that the statutory provisions

contained in Section 5325(1) are necessary to

advance a compelling state interest in the

protection of the health and emotional welfare of

children, including ensuring that the child has

an opportunity to have a relationship with the

App. 41

family of the child’s deceased parent. Id. This

Court also found that Section 5325(1) is

“narrowly tailored to provide grandparents and

great-grandparents standing to file for partial

physical custody where the parent of the child is

deceased.”

Id. at 1176.

Therefore, the issues set forth in Appellant Mother’s

Points A and B do not set forth any cognizable errors of

law.

Point C

Failure to Meet Burden under Presumption at

23 Pa. C.S. Section 5327

The error raised in Point C relates to the Court’s

application of the presumption set forth in 23 Pa. C.S.

Section 5327 in cases between a parent and a third

party. The crux of Mother’s argument in C is that the

Parental Grandparents failed to present clear and

convincing evidence to rebut the statutory presumption

in favor of awarding custody to Mother.

Section 5327 of the Custody Act provides that, “[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). The Superior Court has defined clear and

convincing evidence “as presenting evidence 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.”

App. 42

M.J.S. v. B.B. v. B.B., 172 A.3d 651, 660 (Pa. Super.

2017) (citations and internal quotation marks omitted).

In this case, Mother was awarded both primary

physical and sole legal custody. Some cases have found

that the statutory presumption set forth in Section

5327 is inapplicable in cases where a party seeks only

partial or supervised custody, although the statute

itself is not clear on this point. “[F]avoring an award of

custody to parents over third-parties is inapplicable

where grandparents seek only partial physical custody.

K.T. v. L.S., 118 A.3d 1136, 1159 (Pa. Super.

2015)(citing 23 Pa. C.S.A. § 5327(b) (setting forth

presumption in cases concerning primary physical

custody)). Finally, a court must consider

Pennsylvania’s strong public policy “favoring

grandparent involvement in a child’s life.” Id. at 1164.

In custody cases between a parent and a third

party, “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 (quoting Charles v. Stehlik, 744 A.2d 1255, 1258

(Pa. 2000). When making a decision to award primary

physical custody to a nonparent, the trial court must

“hear all evidence relevant to the child’s best interest,

and then, decide whether the evidence on behalf of the

third party is weighty enough to bring the scale up to

even, and down on the third party’s side.” Id. (quoting

McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super.

2000)). There is no requirement that the third party

prove that a parent is “unfit” as her counsel argued in

the hearing. The standard has been described as

follows:

App. 43

These principles do not preclude an award of

custody to the nonparent but simply instruct the

trial court that the nonparent bears the burden

of production and the burden of persuasion and

that the nonparent’s burden is heavy. Jones v.

Jones, 884 A.2d 915, 918 (Pa. Super. 2005). It is

well settled, “[w]hile this Commonwealth places

great importance on biological ties, it does not do

so to the extent that the biological parent’s right

to custody will trump the best interests of the

child. In all custody matters, our primary

concern is, and must continue to be, the wellbeing of the most fragile human participant—

that of the minor child.” Charles, 744 A.2d at

1259. “Once it is established that someone who

is not the biological parent is in loco parentis,

that person does not need to establish that

the biological parent is unfit, but instead

must establish by clear and convincing evidence

that it is in the best interests of the children to

maintain that relationship or be with that

person.” Jones, 884 A.2d at 917 (emphasis in

original).

R.L. v. M.A., 209 A.3d 391, 396 (Pa. Super. 2019)

Therefore, in this case, once the Paternal

Grandparents were deemed to have standing, they did

not need to establish that Mother was “unfit” or

deficient in any of the Section 5328 custody factors;

Paternal Grandparents merely needed to establish that

it was in child’s best interest to maintain a relationship

with them. See Jones, 884 A.2d at 917.

App. 44

Here, the Hearing Officer engaged in an analysis of

the Section 5328 custody factors, applied the Section

5327(b) statutory presumption in favor of Mother,

found that clear and convincing evidence rebutted that

presumption, found that a limited partial physical

custody schedule was in the child’s best interest. This

trial court agreed in approving the March 10, 2023

Report and Recommendations and properly denying

Mother’s exceptions. Accordingly, Appellant’s issue

raised in Point C, lacks merit.

Points D, E, F, G, & H

Application of the Custody Factors Set Forth in

23 Pa. C.S. 5328(a)

The errors alleged by Mother in Points D, E, F, G,

and H are related to the Hearing Officer’s application

of the custody factors set forth in 23 Pa. C.S. § 5328(a)

at factors 2, 4, 9, 13, and 14.

The Custody Act requires trial courts to consider all

of the sixteen best interest factors set forth in Section

5328 in “ordering any form of custody.” 23 Pa. C.S.

§ 5328(a). Specifically, Section 5328(a) of the Act

provides as follows:

§ 5328. Factors to consider when awarding

custody

(a) Factors.–In ordering any form of custody, the

court shall determine the best interest of the

child by considering all relevant factors, giving

weighted consideration to those factors which

affect the safety of the child, including the

following:

App. 45

(1) Which party is more likely to encourage and

permit frequent and continuing contact between

the child and another party.

(2) The present and past abuse committed by a

party or member of the party’s household,

whether there is a continued risk of harm to the

child or an abused party and which party can

better provide adequate physical safeguards and

supervision of the child.

(2.1) The information set forth in section

5329.1(a)(1) and (2) (relating to consideration of

child abuse and involvement with protective

services).

(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.

(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 maturity and judgment.

(8) The attempts of a parent to turn the child

against the other parent, except in cases of

domestic violence where reasonable safety

measures are necessary to protect the child from

harm.

(9) Which party is more likely to maintain a

loving, stable, consistent and nurturing

App. 46

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.

(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 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).

Further, in awarding partial physical custody or

supervised physical custody to a grandparent who has

standing under Section 5325(1), the trial court must

consider:

App. 47

(i) the amount of personal contact between the

child and the party prior to the filing of the

action;

(ii) whether the award interferes with any

parent-child relationship; and

(iii) whether the award is in the best interest of

the child.

23 Pa. C.S. § 5328(c)(1).

The trial court does not have to give any specific

“required amount of detail” when it explains a custody

award; all that is necessary is that enumerated factors

are considered and that the court’s custody decision is

based on those considerations. M.J.M. v. M.L.G., 63

A.3d 331, 336 (Pa. Super. 2013).

Pursuant to Pa. R.C.P. 1915.4-2(b), the Hearing

Officer conducted a record hearing, taking testimony

and hearing argument from counsel, which formed the

basis for her report and recommendation, which

detailed her findings. The application of the factors

pursuant to 23 Pa. C.S. Section 5328 were primarily

based upon credibility determinations made upon the

testimony presented. For example, Mother’s testimony

on the second day of the hearing was in direct conflict

with her testimony on the first day of the hearing.

These credibility determinations cannot be secondguessed by this trial court as noted in T.B. v. L.R.M.:

Although advisory, the hearing officer’s report

and recommendations are given the fullest

consideration particularly on the issue of

credibility of witnesses, which the trial court is

App. 48

not empowered to second-guess. See generally

Neil v. Neil, 731 A.2d 156 (Pa. Super. 1999)

(holding that reviewing court may not secondguess hearing officer’s credibility

determinations).

T.B. v. L.R.M., 753 A.2d 873, 881-882 {Pa. Super. 2000)

(en banc).

Each of the alleged errors raised by Mother in her

1925(B) Statement in Points D, E, F, G, and H related

to the application of the custody factors in Section

5328(a) and are addressed separately below as follows:

Point D - Allegations of Abuse, Neglect &

History of Criminal Convictions

Mother raises in Point D an alleged error of law as

follows:

D. Whether the Court incorrectly applied and

considered the statutory factors in granting

unsupervised partial custody and visitation to

the grandparents despite the evidence showing

that the paternal grandmother, Adelina had

abused or neglected the child; the mother and

father previously had stopped visitation for the

grandparents because of the abuse or neglect

inflicted on the child, and the father had

supervised visitation with the grandparents all

other times; the paternal grandfather, Theodore,

has a history of criminal convictions; and in light

of the mother’s overall concerns about. in

particular, unsupervised visitation by the

paternal grandparents with the child.

App. 49

While not specifically, cited, this issue relates to

Factor 2 and 2.1 of 23 Pa. C.S. Section 5328 as follows:

(2) The present and past abuse committed by a

party or member of the party’s household,

whether there is a continued risk of harm to the

child or an abused party and which party can

better provide adequate physical safeguards and

supervision of the child.

(2.1) The information set forth in section

5329.1(a)(1) and (2) (relating to consideration of

child abuse and involvement with protective

services).

In the Report, the Hearing Officer noted that

neither party nor this counsel raised the issue of

Paternal Grandfather’s criminal history at the hearing

or requested Paternal Grandfather to undergo any

forensic evaluation related to his 1997 criminal

conviction. Report, March 10, 2023, p. 3. Therefore, this

issue has been waived pursuant to Pa. R.C.P. 1915.42(b)(4) and Pa. R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the

first time on appeal”).

Even if this issue was not waived, the Hearing

Officer heard testimony from the parties to the case as

to the incident in 2021 and from Mother as to her

safety concerns for the child. Mother testified that her

safety concerns were related to Paternal Grandmother,

not Paternal Grandfather. Additionally, the Hearing

Officer properly conducted the initial evaluation of

Paternal Grandfather’s 1997 conviction pursuant to 23

Pa. C.S. § 5329(c). There were no child abuse

App. 50

investigations or protection from abuse proceedings to

consider pursuant to 23 Pa. C.S. § 5328(2) and (2.1).

This court did not find that the Hearing Officer

made any error in the application of factor 2 or Section

5329. Specifically, the Hearing Officer did make a

finding that: Paternal Grandfather’s most recent

conviction is from 1997. “Given the age of these

convictions and the fact that Mother and Father

trusted Paternal Grandfather with the child’s care, this

Custody Hearing Officer finds that Paternal

Grandfather poses no risk of harm to the child.”

Therefore, there was no error of law as to the

application of Factor 2 or Section 5329.

Points E & F - Factors 4 & 9

Mother raises in Point E an alleged error of law as

follows:

E. Whether the Court incorrectly applied

custody factor 4 in light of the evidence showing

that the mother has been the primary source of

stability and safety for the child.

Mother raises in Point F an alleged error of law as

follows:

F. Whether the Court incorrectly applied

custody factor 9 in light of the evidence showing

that the mother has maintained a loving, stable,

consistent, and nurturing relationship with the

child and has supported her emotional needs.

Section 5328(a)(4) requires consideration of “[t]he

need for stability and continuity in the child’s

App. 51

education, family life and community life” in awarding

any form of custody.

Section 5328(a)(9) requires consideration of “Which

party is more likely to maintain a loving, stable,

consistent and nurturing relationship with the child

adequate for the child’s emotional needs.”

The Hearing Officer did make a finding that Mother

has always been the primary caregiver for the child.

Further, the Hearing Officer made findings related to

the child’s stability and emotional needs as follows:

Mother attends to the daily physical, and

emotional needs of the child and testified that

she and the child share a strong bond. Mother

reports that the child is thriving, participates in

gymnastics, and attends Christian school on

Sundays. Mother maintains a loving, stable, and

consistent relationship with the child.

Report, March 10, 2023 p. 3.

The Hearing Officer also made a finding that “as

Paternal Grandparent’s counsel argued, their intent is

not to replace Mother or Father in the child’s affection

but to maintain the loving relationship they had

developed with their granddaughter.”

Stability for the child, and adequately meeting the

child’s emotional needs, would require maintaining

connections to extended family after the death of a

parent, and Factors 4, 9, and Factor 5 together

(availability of extended family), resulted in the

following finding:

App. 52

One of the factors the Court must consider in

determining the best interest of the child is the

availability of extended family. Now more than

ever, it is important for the child to remain

connected to Father’s extended family. Mother

testified that she has lost contact with other

members of Father’s extended family following

the discord with Paternal Grandparents.

Providing limited custodial time, overseen by

Paternal Grandfather, provides the child the

opportunity to remain connected with Father’s

extend family while addressing Mother’s safety

concerns.

Report, March 10, 2023 p. 4.

Therefore, there was no error of law as to the

application of Factors 4 and 9 of section 5328(a)

because continued contact between the child and

Paternal Grandparents after the death of Father would

serve to maintain stability for the child and meet her

emotional needs in her best interests.

Point G - Factor 13

Mother raises in Point G an alleged error of law as

follows:

G. Whether the Court incorrectly applied

custody factor 13 in light of the evidence

showing a high degree of conflict between the

mother and the paternal grandparents at the

time of the grandparents’ petition.

App. 53

Factor 13 of 23 Pa. C.S. 5328(a) requires

consideration of “[t]he 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 from abuse by another party is not evidence of

unwillingness or inability to cooperate with that party.”

The Hearing Officer did consider the relationship

between the parties and willingness to cooperate and

the “discord” that resulted in this custody litigation

where Mother severed the relationship the child

previously shared with Paternal Grandparents after

Father’s death. Specifically, the Hearing Officer found

that:

The text message evidence presented by

Paternal Grandparent’s counsel also illustrated

that Mother had a friendly relationship with

Paternal Grandfather. Mother testified that she

trusted Paternal Grandfather with the child and

texted back and forth with him frequently. Even

after the child’s injury when Paternal

Grandparents were only seeing the child when

Father brought her over, Mother continued a

cordial text relationship with Paternal

Grandfather. Mother described their

relationship as “genuine.”

Report, March 10, 2023 p. 4.

Therefore, there was no error of law as to the

application of Factor 13 of section 5328(a) and the

Exceptions were properly denied.

App. 54

Point H - Factor 14

Mother raises in Point H an alleged error of law as

follows:

H. Whether the Court incorrectly applied

custody factor 14 in light of the evidence

showing that the grandparents have a history of

drug abuse within their home.

Section 5328(a)(14) requires consideration of “[t]he

history of drug or alcohol abuse of a party or member of

a party’s household.”

The record reflects that the parties stipulated that

Father had a history of drug abuse. Father was in and

out of drug rehabilitation facilities many times over the

years, most recently, just one month prior to his death.

It is an uncontested fact that Father suffered from drug

addiction issues while living with Mother and the child

and while living with Paternal Grandparents.

There was no allegation by either party that Mother

or Paternal Grandparents themselves currently suffer

from any drug or alcohol issues. There was no request

for any party to submit to drug or alcohol testing. This

issue of Father’s drug and alcohol abuse was addressed

extensively in the hearing and was not a significant

factor in this case as the party who had drug and

alcohol issues is now deceased and this case is between

Mother and Paternal Grandparents.

Therefore, there was no error of law as to the

application of Factor 14 of section 5328(a).

App. 55

In this case, this trial court found the Hearing

Officer’s application of the statutory factors set forth in

Section 5328 to the facts of the case to be reasonable,

properly applied, and in the best interests of the child.

This trial court gave the Hearing Officer’s Report,

which was based upon the testimony and evidence

presented, the fullest consideration, especially with

respect to credibility determinations, which cannot be

second-guessed by this trial judge. Mother’s testimony

on the second day of the hearing after changing counsel

contradicted the first day of hearing testimony on many

points. Further, her testimony that she did not want

the child to have a relationship with the Paternal

Grandparents was not consistent with the extent and

nature of the communications she had with Paternal

Grandfather after June of 2021 as demonstrated in the

record. Therefore, the Exceptions were properly denied

and there was no error of law in the application of 23

Pa. C.S. Section 5328(a).

Point I

Violation of Right to a Fair Trial

The errors alleged in Point I are related to whether

the hearing officer denied mother’s right to a fair trial

by allegedly “speaking to the attorney for the

grandparents, and viewing evidence proffered by the

grandparents, without the presence and participation

of counsel for the mother; by disallowing testimony

from the mother about other violence by the paternal

grandparents; and by disallowing testimony by the

maternal grandmother about abuse and neglect

inflicted on the child by the paternal grandparents.”

App. 56

There is no record or evidence that the Hearing

Officer engaged in any ex parte communications in this

case. In fact, this issue raised in Point I of “speaking to

the attorney for the grandparents, and viewing

evidence proffered by the grandparents, without the

presence and participation of counsel for the mother,”

is being raised for the first time in the 1925(B)

Statement for this the Notice of Appeal. It was not

included in the fifteen Exceptions filed by Mother’s

counsel and as such, it is waived. See Pa. R.C.P.

1915.4-2(b)(4). See also Pa. R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be

raised for the first time on appeal”).

The issue of the Hearing Officer’s rulings on

objections related to “disallowing testimony from the

mother about other violence by the paternal

grandparents and disallowing testimony by the

maternal grandmother about abuse and neglect

inflicted on the child by the paternal grandparents”

does not set forth a cognizable error. The record reflects

that neither the Hearing Officer nor counsel for

Paternal Grandparents were notified that Mother

sought to have a witness testify at the continued

hearing. N.T. March 6, 2023, p. 7-8. Further, Mother

herself did not testify to any violence, abuse, or neglect

of the child by Paternal Grandparents other than the

June 2021 incident, which was covered extensively in

the hearing.

This Court did not find the Hearing Officer’s rulings

on the objections to be improper or in error. The

Hearing Officer heard testimony from the parties to the

case as to the incident in 2021 and from Mother as to

App. 57

her safety concerns for the child. The Hearing Officer

properly conducted the initial evaluation of Paternal

Grandfather’s 1997 conviction pursuant to 23 Pa. C.S.

5329(c). There were no child abuse investigations or

protection from abuse proceedings to consider pursuant

to 23 Pa. C.S. Section 5328(2) and (2.1).

This Court made an independent review of the

findings of the Hearing Officer based upon the

transcripts of the two-day hearing and proposed order

and found no evidence that the Hearing Officer acted

inappropriately or in any manner that denied Mother

a fair trial. Mother was represented by counsel at each

day of the hearing. Mother presented testimony and

evidence and Mother’s counsel had the opportunity to

cross examine the Paternal Grandparents. Maternal

Grandmother was not permitted to testify as a witness

because she was not disclosed as a witness prior to the

hearing. Therefore, the alleged errors in Point I are

without merit.

CONCLUSION

Therefore, for all the foregoing reasons, this court

requests that the Order of August 23, 2023 be affirmed.

Dated: October 4, 2023

/s/ Tiffany L. Palmer

TIFFANY L. PALMER, J.

App. 58

APPENDIX D

IN THE COURT OF COMMON PLEAS OF

PHILADELPHIA COUNTY

FAMILY COURT DIVISION

CASE ID. XC2200813

[Dated March 10, 2023]

________________________

THEODORE WORNER )

PETITIONER

)

VS.

)

LAUREN N. STONE

)

RESPONDENT

)

_______________________ )

PROPOSED ORDER OF CUSTODY

Now, to wit, This 10TH day of MARCH, 2023, the

undersigned Permanent Hearing Officer, having filed

a report with the Court, a copy of which is attached

hereto and copy of which was

GIVEN TO (PETITIONER) (RESPONDENT) ON

________ , _____

MAILED TO (PETITIONER) (RESPONDENT) ON

March 15 , 2023

And the parties having been advised that any

Exceptions must be filed by 4/5/2023; And no

App. 59

Exceptions having been filed by said date, the

Permanent Hearing Officer hereby recommends that

the Court enter the following order in the abovecaptioned matter;

Jurisdiction: the Court of Common Pleas of

Philadelphia County, Family Court Division shall

retain jurisdiction of this matter until further order of

this court. It is acknowledged that Pennsylvania is the

home state of the child/children and that any violation

of this custody order may subject the violating party to

civil and/or criminal penalties.

Legal Custody: Legal Custody shall mean the right of

a party to make major life decisions concerning the

child/children including but not limited to medical care,

schooling, and religious upbringing. Unless specified to

the contrary below, the parties shall be presumed to

have joint legal custody.

Relocation: any party subject to this order shall not

relocate to an address that would make the carrying

out of this order impractical, without first seeking

permission of this court to relocate. Neither party shall

remove the child/ children from the Continental United

States without written agreement of the other party or

leave of court.

App. 60

NOTICE OF THE RIGHT TO FILE EXCEPTIONS

TO THE REPORT AND RECOMMENDATION OF

THE CUSTODY HEARING OFFICER

HEARING DATE: March 6, 2023

DOCKET/CASE NO.: XC2200813

Any party may file Exceptions in writing to the report

or any part thereof; to rulings on objections to evidence;

to statements of findings of fact; to conclusions of law

or to any other matter occurring during the hearing.

Each Exception shall see forth a separate objection

precisely and without discussion. Matters not covered

by Exceptions are deemed waived unless, prior to entry

of the Final Order, leave is granted to file Exceptions

raising these matters. If Exceptions are filed, any other

party may file Exceptions within 20 days of the date of

service of the original Exceptions.

If no Exceptions are filed within the 20-day period, the

Court shall review the report and, if approved, enter a

final order.

If Exceptions are filed, the Court shall hear argument

on the Exceptions and enter an appropriate final order.

No Exceptions may be filed to the final order.

EXCEPTIONS IN THIS CASE MUST BE FILED BY:

4/5/23.

EXCEPTIONS MUST BE FILED AT:

(by mail or in person in a timely manner)

Clerk of Family Court

1501 Arch Street, 11th floor,

Philadelphia, PA 19102

App. 61

A Copy of the Exceptions must be served upon the

opposing party and/or counsel and with the

undersigned Hearing Officer. Any party or counsel who

intends to rely on the Notes of Testimony at the

Hearing on Exceptions must order the Notes of

Testimony in writing from: Clerk of Family

Court/Notes of Testimony, 1501 Arch Street, 11th floor,

Philadelphia, PA 19102. If you have any questions,

please call the Custody Unit at 215-686-9208.

If you wish to order the Notes of Testimony in person,

please go to the Clerk of Family Court’s Office (8:30 am

to 4:00 pm) at 1501 Arch Street, 11th floor,

Philadelphia, PA 19102. Please bring with you, or

include in your letter, the following information:

hearing date, name of the Custody Hearing Officer, the

parties’ full names and the Docket/Case number. The

party ordering the Notes of Testimony is responsible

for the cost of preparation. A processing fee of $50.00

per hearing date is required at the time the transcript

is ordered ($25.00 as a non-refundable processing fee

and $25.00 as a deposit toward the court’s cost in

obtaining the requested Notes of Testimony). In

addition to the $25.00 processing fee, a charge of $1.70

per page (for regular processing), $1.85 per page

(expedited processing), $2.35 per page (for daily

processing) will be due immediately upon notification

that the Notes of Testimony are ready for pickup.

Additional copies are available at a fee of $.30 per page.

The full transcription cost is payable even if you

determine that you do not need the Notes of Testimony

after the court has processed your request for notes.

Ordering the Notes of Testimony for regular processing

requires at least 21 days’ notice.

App. 62

METHOD OF PAYMENT:

Only money orders, bank checks, attorney

checks (with attorney ID# on each

attorney check) or certified checks, made

payable to the Prothonotary, will be

accepted for payment. No personal checks

will be accepted.

__________________________________________________

A copy of the Report of the Custody Hearing Officer

and Notice of the Right to File Exceptions are to be

sent by First Class Mail to the following:

1) Petitioner:

Theodore Worner

2) Respondent: Lauren N. Stone

Custody Hearing Officer:

/s/ [signature]

A copy of the Report of the Custody Hearing

Officer and Notice of the Right to File

Exceptions were sent First Class Mail on the

date shown below to the following:

1) Petitioner:

[T]

2) Respondent: [T]

Theodore Worner

(Adelina)

Lauren Stone

[T] Yoninah Orestein, ESQ.

[T] Caroline Osborn, ESQ.

/s/ [signature] 3/15/23

App. 63

APPENDIX E

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

COURT OF COMMON PLEAS OF

PHILADELPHIA COUNTY

FAMILY COURT DIVISION – DOMESTIC

RELATIONS BRANCH

D.R. # XC2200813

Action in Custody

[Filed March 10, 2023]

_______________________________________

Theodore Worner (Paternal Grandfather) )

Adelina Worner (Paternal Grandmother) )

Petitioners

)

Lauren N. Stone (Mother)

)

Respondent

)

______________________________________ )

PROPOSED ORDER AND FINDINGS OF

CUSTODY HEARING OFFICER

Date of Hearings:

Parties and

Counsel present:

February 1, 2023 and March 6,

2023

Petitioners appeared w i th

Yoninah Orestein, Esq.

App. 64

Respondent appeared

Caroline Osborn, Esq.

with

Current Order:

There is no Order in effect in

this case

Petition(s) Filed:

Complaint for Custody filed by

Paternal Grandparents on

November 29, 2022

Child or Children:

G.W., born XXXXXX XX, 2018

Summary of Pertinent Testimony:

In their Complaint for Custody, Paternal Grandparents

requested partial physical custody of the child, G.W.,

born XXXXXX XX, 2018. Because no agreement could

be reached by the parties, testimony was taken for

consideration of this report and recommendation.

In ordering any form of custody, under 23 Pa.C.S.A.

§ 5328(a), the Court shall determine the best interest

of the child by considering all relevant factors, giving

weighted consideration to those factors which affect the

safety of the child. The testimony of the parties and

additional relevant information, summarized below,

was considered when evaluating the factors under 23

Pa.C.S.A. § 5328(a).

(1) Which party is more likely to encourage and

permit frequent and continuing contact between the

child and another party.

(2) The present and past abuse committed by a

party or member of the party’s household, whether

there is a continued risk of harm to the child or an

abused party and which party can better provide

adequate physical safeguards and supervision of the

App. 65

child.

(2.1) The information set forth in section 5329.1(a)

(relating to consideration of child abuse and

involvement with protective services).

(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.

(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 maturity and judgment.

(8) The attempts of a parent to turn the child

against the other parent, except in cases of domestic

violence where reasonable safety measures are

necessary to protect the child from harm.

(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.

(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

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

App. 66

member of a party’s household.

(16) Any other relevant factor.

Before addressing the factors set forth under 23

Pa.C.S.A. § 5328(a), a determination must be made as

to whether Paternal Grandparents have standing to

request partial physical custody. There are two

statutes that could apply in this situation, 23 Pa.C.S.

§§ 5324 and 5325.

Under 23 Pa.C.S. § 5325, grandparents and greatgrandparents 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

App. 67

In the instant case, Paternal Grandparents have

standing under 23 Pa.C.S. § 5325(1). Father, Joseph

Worner, passed away on March 27, 2022. Paternal

Grandparents presented an original death certificate at

the hearing. Mother agreed that Father is deceased

and clearly mourned Father’s passing along with

Paternal Grandparents. Paternity was established per

PTS and all parties agreed that Joseph Worner was the

child’s father. As Paternal Grandparents are only

requesting partial physical custody, they have standing

under 23 Pa.C.S. § 5325(1).

Although Paternal Grandparents may have standing,

this does not automatically mean that Paternal

Grandparents will be afforded custodial time with the

child. A determination must be made that an Order is

in the child’s best interest. 23 Pa.C.S. § 5328(c)

instructs that when granting custody to a third-party

under § 5325(1), the Court must consider “the amount

of personal contact between the child and the party

prior to the filing of the action, whether the award

interferes with any parent-child relationship, and

whether the award is in the best interest of the child.”

Additionally, under 23 Pa.C.S. § 5327(b), there is a

presumption that custody shall go to the parent in an

action between a parent and a third-party. That

presumption must be overcome by clear and convincing

evidence.

Paternal Grandparents live in alone in a three-bedroom

house. Paternal Grandfather has enumerated

convictions under 23 Pa.C.S. § 5329. The most recent

conviction is from 1997. Given the age of these

convictions and the fact that Mother and Father

App. 68

trusted Paternal Grandfather with the child’s care, this

Custody Hearing Officer finds that Paternal

Grandfather poses no risk of harm to the child,

Additionally, neither party nor their counsel raised the

issue at the hearing. Paternal Grandmother has no

known criminal history in Pennsylvania.

Mother and the child reside with Maternal

Grandmother. Mother has always been the child’s

primary caregiver. Mother and Father lived together

with the child in their own apartment until October

2021. Mother and Father continued to co-parent on

good terms until Father’s death. Mother indicated that

the Department of Human Services (DHS) has never

been involved with this child. Mother has no known

criminal history in Pennsylvania. Mother attends to

the daily physical, and emotional needs of the child and

testified that she and the child share a strong bond.

Mother reports that the child is thriving, participates

in gymnastics, and attends Christian school on

Sundays. Mother maintains a loving, stable, and

consistent relationship with the child. No party had

previously asked to have the Hearing Officer interview

the child. Therefore, it was not possible to ascertain the

preference of the child.

Paternal Grandmother testified that she began

watching the child two to three days a week in 2019

and then began watching the child fulltime in

September 2020. Mother testified that she stayed home

with the child for the first year following her birth and

then went back to work parttime. Mother stated that

Maternal Grandmother and Father watched the child

while Mother worked. Mother’s testimony was

App. 69

contradictory in this regard. She initially agreed that

Paternal Grandmother participated in babysitting the

child during this period but subsequently insisted that

Paternal Grandmother did not watch the child until

September 2020. The parties agree that Paternal

Grandparents began watching the child TuesdayFriday beginning September 2020.

All parties agreed that Paternal Grandparents were no

longer permitted to watch the child following an

incident in June 2021 in which the child’s arm was

pulled from the socket. Paternal Grandparents testified

that the child was going to fall and Paternal

Grandmother caught the child by her arm which

caused it come out of socket. Mother alleged that

Paternal Grandmother pulled on the child’s arm

forcefully enough to pull it from the socket. When the

injury occurred, Paternal Grandfather contacted

Mother to have her take the child to the hospital. The

child’s arm was easily repaired, and she has no lasting

injury. Neither Mother and Father nor anyone at the

hospital contacted DHS regarding the child’s injury.

Mother testified that she and Father discussed the

child’s injury and agreed not to leave the child alone

with Paternal Grandparents going forward. The child

was enrolled in daycare and Mother and Father split

the cost. Paternal Grandparents’ counsel presented

text message evidence that Mother and Father told

Paternal Grandparents that the child had been on a

waitlist at a particular preschool for more than a year

and had been accepted. Mother testified that they told

Paternal Grandparents that because Father did not

want to hurt their feelings. Mother testified, and

App. 70

Paternal Grandparents testimony corroborates, that

Father was present with the child for all subsequent

visits at Paternal Grandparent’s home until the time

Father passed away. Mother and Father’s behavior

following the child’s injury demonstrates that they

made a choice as parents designed with their child’s

best interest in mind.

The text message evidence presented by Paternal

Grandparent’s counsel also illustrated that Mother had

a friendly relationship with Paternal Grandfather.

Mother testified that she trusted Paternal Grandfather

with the child and texted back and forth with him

frequently. Even after the child’s injury when Paternal

Grandparents were only seeing the child when Father

brought her over, Mother continued a cordial text

relationship with Paternal Grandfather. Mother

described their relationship as “genuine.”

Paternal Grandparents are requesting partial physical

custody of the child. Mother, however, feels that

Paternal Grandparents should not be afforded any

custodial time with the child. Paternal Grandparent’s

relationship with the child began with the consent of

both Mother and Father. Paternal Grandparents

shared a loving, close relationship with the child until

she was injured. Then, both Mother and Father decided

together to revoke their consent and deny Paternal

Grandparents unsupervised time with the child.

Unfortunately, the Court does not have the benefit of

Father’s testimony to know how strongly Father felt

about the situation. The Court cannot ascertain

whether Father agreed with Mother to keep the peace

or whether he felt as vehemently as Mother did. Prior

App. 71

to Father’s death, he was living with Paternal

Grandparents and their custody rights would have

been derivative of Father’s rights. Sadly, Father has

passed and the Court must now consider if it is in the

child’s best interest to never see her grandparents

again as Mother has requested.

Prior to the child’s injury, the child enjoyed a

significant relationship with Paternal Grandparents.

The child saw them nearly every day and it is clear

from the demeanor of Paternal Grandparents, vid

This text is long and has been trimmed here. Open the source document for the complete record.

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