D.W. and D.W. v. F.T. and J.T.

• Court: Superior Court of Pennsylvania
• Decided: May 6, 2016
• Docket: 1892 WDA 2015
• Status: Unpublished

Opinion

J-S29042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.W. AND D.W. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellants : v. : : F.T. AND J.T. : : : No. 1892 WDA 2015

Appeal from the Order Entered November 5, 2015 in the Court of Common Pleas of Indiana County Civil Division at No(s): 11815 C.D. 2014

BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.

JUDGMENT ORDER BY FITZGERALD, J.: FILED MAY 6, 2016

Appellants, D.W. and D.W. (collectively, “Maternal Grandparents”), the

maternal grandparents of two minor, male children, J.T., born in January of

2006, and W.T., born in January of 2008, and a minor, female child, P.T.,

born in May of 2002 (collectively, “Children”), appeal from the order dated

and entered on November 5, 2015, that denied Maternal Grandparents’

petition for partial physical custody of Children.

Maternal Grandparents raise five issues arguing the trial court erred in

denying their motion for partial custody. Section 5328(c)(1) of the Child

Custody Act requires a court to consider the following factors when awarding

custody to grandparents:

* Former Justice specially assigned to the Superior Court. J-S29042-16

(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)(i)-(iii). Section 5328(a) provides a non-exhaustive

list of factors that courts must consider when determining the best interest

of the child. See 23 Pa.C.S. § 5328(a)(1)-(16); K.T. v. L.S., 118 A.3d

1136, 1154 (Pa. Super. 2015) (noting procedural history in which this Court

vacated and remanded to have trial court consider the Section 5328(a)

factors and the Section 5328(c)(1) factors in addressing the grandparents’

custody petition).

Our review of the record confirms that the trial court did not address

these factors at the conclusion of the custody hearing or in its Pa.R.A.P.

1925(a) opinion. See K.T., 118 A.3d at 1154. The trial court discussed only

the Section 5328(c)(1) partial custody factors (pertaining to parties who

have standing pursuant to Section 5325(1) or (2), on the finding that

Maternal Grandparents have standing under Section 5325(2)). Accordingly,

we must vacate the trial court’s order and remand this matter for the

preparation of a new order and opinion that discusses the Section 5328(a)

best interest factors and the Section 5328(c)(1) partial custody factors. The

trial court is directed, upon remand, to issue a new order and opinion within

thirty days of the date of this judgment order.

-2- J-S29042-16

Order vacated. Case remanded for further proceedings consistent with

this judgment order. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/6/2016

-3-