Barbush, R. v. Barbush, A. v. Mehaffie, B.&D.

CourtSuperior Court of Pennsylvania
DecidedOctober 20, 2023
Docket297 MDA 2023
StatusUnpublished

This text of Barbush, R. v. Barbush, A. v. Mehaffie, B.&D. (Barbush, R. v. Barbush, A. v. Mehaffie, B.&D.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barbush, R. v. Barbush, A. v. Mehaffie, B.&D., (Pa. Ct. App. 2023).

Opinion

J-A20013-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

ROBERT D. BARBUSH : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ASHLEY E. BARBUSH : : : No. 297 MDA 2023 v. : : : BRIAN K. MEHAFFIE AND DEBRA R. : MEHAFFIE : : Appellants :

Appeal from the Order Entered January 18, 2023 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2019-CV-3101-CU

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 20, 2023

Brian K. Mehaffie (“Maternal Grandfather”) and Debra R. Mehaffie

(“Maternal Grandmother”) (collectively, “Grandparents”) appeal from the

January 18, 2023 order awarding Ashley E. Barbush (“Mother”) partial

physical custody and shared legal custody of her daughter, L.B., born in July

2016, and two sons, J.B., born in April 2013 and B.B., born in December 2017

(collectively, the “Children”). After careful review, we affirm.

____________________________________________

* Former Justice specially assigned to the Superior Court. J-A20013-23

Robert D. Barbush (“Father”) (collectively with Mother, “Parents”)

initiated the underlying custody action in April 2019, wherein he sought sole

legal and primary physical custody of the Children. Three days later,

Grandparents filed a petition to intervene requesting an emergency hearing

and seeking shared legal custody and primary physical custody of the Children

due to their concerns about Mother’s mental health, Mother’s treatment of the

Children, and Grandparents’ concerns about Mother’s unstable housing. See

Petition to Intervene, 4/29/19. Father supported Grandparents’ bid for

primary physical custody and asserted that he did not believe the Children

were safe in Mother’s custody. See id. at Exhibit “A”.

Ultimately, the parties reached an agreement regarding custody which

the court approved on July 8, 2019. The stipulated custody order awarded

Grandparents sole legal custody of the Children while permitting Parents

access to the Children’s medical, dental, religious, and school records. See

Order, 7/8/2019, at ¶ 1-2. The court also awarded Grandparents primary

physical custody of the Children, while awarding Parents respective partial

physical custody. See id. at ¶ 3-5. The order also specified that Parents would

not exercise their custodial time together. See Order, 7/8/2019, at ¶ 6.

On September 30, 2019, the court entered another stipulated order that

largely affirmed these custody awards. See Order, 9/30/2019, at ¶ 1-6.

Specifically, Mother was awarded “supervised (by Grandparents) visitation

with the [Children] at times, locations and under circumstances agreed to

-2- J-A20013-23

between Mother and Grandparents.” Id. at ¶ 5. On November 5, 2019, Mother

filed a petition for modification of the September 30, 2019 order, seeking legal

and primary physical custody of the Children. Following a custody conciliation,

the parties came to an agreement and the court entered an order on January

8, 2020, which amended the September 30, 2019 order in a number of ways.

Of particular note to the instant appeal, the order provided that future

conciliations between the parties would not be scheduled until all the

conditions in the January 8, 2020 order were met. These conditions included,

inter alia, family counseling between Mother and Grandparents and

completion of a parenting education program by Parents. See id. at ¶ 1-6.

Mother filed a petition to modify custody on April 13, 2022, seeking

shared legal and physical custody of the Children. On June 10, 2022, Mother

also filed a petition for contempt with respect to the September 30, 2019

order.1 On June 23, 2022, a custody conciliation conference occurred, but the

parties were unable to establish an agreement.

On October 4, 5, and 17, 2022, the trial court held a custody trial.2

Mother, proceeding pro se, testified on her own behalf and presented the

testimony of Teasha Bush, Father’s sister-in-law; Chanel De Jager,

1 At the time this appeal was filed, the trial court had not rendered a decision

on Mother’s petition for contempt.

2 Although the trial occurred on three separate days, the notes of testimony

are included in one transcript with consecutive page numbers.

-3- J-A20013-23

Grandparents’ former au pair for the Children; Marlena Tocco, the wife of

Father’s cousin; Janelle Reinhardt, Mother’s friend; Lori McCall Forester,

Mother’s biological father’s wife; and Nicole Therit, family-based therapist at

Pennsylvania Counseling Services. During trial, Mother initially sought

overnights with the Children on the weekends, as she believed some family

members were willing to allow her to exercise her custodial time at their home.

See N.T., 10/4/2022, at 9-10. However, as the trial progressed, Mother

altered her request to unsupervised time with the Children and shared legal

custody.3 See N.T., 10/5/2022, at 388, 392.

Grandparents testified on their own behalf and also adduced the

testimony of Alvin Rostolsky, the Children’s maternal great grandfather; Dr.

Nancy Patrick, Children’s therapist of three years; Laura Burnell, Maternal

Grandmother’s sister; Richard Forester, Mother’s biological father;4 Larraine

Mehaffie, Maternal Grandfather’s sister-in-law; Melissa Collins, the mother of

Mother’s friend; and Claudia Lozano, another former au pair the Grandparents

3 Grandparents identify Mother’s physical custody award as “unsupervised visitation.” In the subject order, the trial court also identifies Mother’s custody award as “unsupervised visitation.” This term is not proper pursuant to the Child Custody Act, which designates the following seven types of custody that a trial court may award if in the best interest of the child: shared physical custody; primary physical custody; partial physical custody; sole physical custody; supervised physical custody; shared legal custody; and sole legal custody. See 23 Pa.C.S.A. § 5323(a).

4 Maternal Grandfather adopted Mother when she was approximately eleven

years old. N.T., 10/4/2022, at 275-276.

-4- J-A20013-23

utilized to care for the Children. Father was present, briefly testified, but did

not produce any witnesses.5

The court also conducted an in camera interview of J.B. and L.B. without

the parties or Grandparents’ attorney present. The court did not speak with

B.B., who was four years old at the time of the trial, due to his age. See Trial

Court Opinion, 11/14/2022, at 16.

At the end of the hearing on October 17, 2023, the trial court closed the

record and stated that careful consideration would be taken in determining

what is best for the Children. However, before the court issued a decision,

Grandparents filed a motion to add testimony and a motion for leave of court

to take discovery on October 25, 2022. By order dated and entered November

14, 2022, the court denied Grandparents’ motions.

In addition, by separate order dated and entered on November 14,

2022, the court awarded Mother and Grandparents shared legal custody of

the Children. See Custody Order, 11/14/2022, at ¶ 1. Grandparents retained

primary physical custody of the Children. See id. at ¶ 2. The trial court

awarded Mother the following:

5Unlike Mother, Father did not file a petition to modify the September 30, 2019 custody order. Father attended the subject proceeding pro se.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hanson v. Hanson
878 A.2d 127 (Superior Court of Pennsylvania, 2005)
Commonwealth v. Robinson
864 A.2d 460 (Supreme Court of Pennsylvania, 2004)
Tucker v. R.M. Tours
939 A.2d 343 (Superior Court of Pennsylvania, 2007)
In Re: M.Z.T.M.W., a minor, Appeal of: M.W.
163 A.3d 462 (Superior Court of Pennsylvania, 2017)
In Re: A.J.R.-H. and I.G.R.-H. Apl of KJR Mother
188 A.3d 1157 (Supreme Court of Pennsylvania, 2018)
G.B. v. M.M.B.
670 A.2d 714 (Superior Court of Pennsylvania, 1996)
In the Interest of A.C.
991 A.2d 884 (Superior Court of Pennsylvania, 2010)
In re W.H.
25 A.3d 330 (Superior Court of Pennsylvania, 2011)
J.R.M. v. J.E.A.
33 A.3d 647 (Superior Court of Pennsylvania, 2011)
A.V. v. S.T.
87 A.3d 818 (Superior Court of Pennsylvania, 2014)
E.B. v. D.B.
209 A.3d 451 (Superior Court of Pennsylvania, 2019)
Rogowski, S. v. Kirven, D.
2023 Pa. Super. 33 (Superior Court of Pennsylvania, 2023)

Cite This Page — Counsel Stack

Bluebook (online)
Barbush, R. v. Barbush, A. v. Mehaffie, B.&D., Counsel Stack Legal Research, https://law.counselstack.com/opinion/barbush-r-v-barbush-a-v-mehaffie-bd-pasuperct-2023.