J-S46031-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.L., F.L. AND L.L., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellees
v.
A.A.M.,
Appellant No. 530 MDA 2014
Appeal from the Order entered on February 25, 2014, in the Court of Common Pleas of Franklin County, Civil Division, at No.: 2013-1943
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 28, 2014
Custody
-
proceedings.
The trial court set forth the procedural history of this appeal as
follows:
This matter arose by a Complaint for Custody, filed by [Father and Paternal Grandparents] on May 13, 2013. The parties attended a conciliation conference on August 2, 2013. [The trial c]ourt approved the recommendations of the Conciliatio[r], and a temporary custody [O]rder was entered on August 16, 2013. Under that [O]rder, Mother and Father had J-S46031-14
shared legal custody, with Father having primary physical custody and Mother having custody one weekend per month. On September 11, 2013, Mother filed a Motion for Scheduling of a pre-trial conference. The matter proceeded to trial, which was held on February 12, 2014.
Trial Court Opinion, 4/15/14, at 2 (some capitalization omitted).
The trial court set forth the relevant testimony presented at the
custody trial1 as follows:
When [C]hild was born, Mother and Father lived with [C]hild Pennsylvania. [N.T., 2/12/14,] at 26. In February [] 2010, Mother moved out of that house and stayed with her mother in Chambersburg. Id. at 58-59. Mother then moved in with her grandmother in Fayetteville until June [] 2010. Id. at 59. During that time, the parties operated under a week-on, week- off custody schedule, each parent [having] alternating weeks with [C]hild. Id. at 59. Upon Mother securing an apartment in June, the parties continued to share custody on a weekly basis. Id.
In June [] 2011, Mother moved to Conneaut Lake, Pennsylvania, approximately 3.5 [to] 4 hours away from Chambersburg. Id. Mother did not seek to relocate with [C]hild, and a relocation petition was never filed with [the trial c]ourt. The reason for her relocation was that her boyfriend had obtained new employment in that area and had to move. Id. at 60. Mother and her boyfriend are the parents of a three[-]year[-]old child who lives with them. Id. at 61. Upon the move to Conneaut Lake, Mother attended school from
Degree as a medical assistant. Id. at 60. During this time, [C]hild continued to live with Father at [P]aternal Id. at 61. Mother usually sees [C]hild once a month. Id. at 63.
1 The trial court heard testimony from Father, Paternal Grandmother, in camera). We note that both Father and Paternal Grandparents appeared pro se, and Paternal Grandmother questioned several of the witnesses and raised objections during the course of the trial. -2 - J-S46031-14
factory located in Chambersburg. Id. at 8-10.] Father then began residing part-time with his girlfriend in Shippensburg, Pennsylvania, who was pregnant at the time. Id. at 7. The custody arrangement has been that Father gets [C]hild on weekends and any day he has off [] work. Id. Father works the second shift at [the factory], from 3:00 p.m. until approximately 1:00 a.m. Id. at 10. He calls [C]hild at [P]aternal Id. schedule, Father and [P]aternal [G]randparents have established a routine where [C]hild during the week.
Trial Court Opinion, 4/15/14, at 3-4.
On February 24, 2014, the trial court orally set forth its findings and
decision in open court on the record. The next day, the court entered the
Custody Order, awarding, inter alia, (1) primary physical custody of Child to
Father, with a provision that Paternal Grandparents could exercise partial
;2 (2) partial
physical custody to Mother during the school year, in accordance with a
schedule; and (3) primary physical custody to Mother during the summer,
when Child is not in school.
Mother filed a Motion for Reconsideration, which the trial court denied.
Thereafter, Mother timely filed a Notice of Appeal, along with a Concise
2 Father shall have primary physical custody of [Child] during the school year. Father may permit [Child] to reside with [Paternal Grandfather] and [Paternal Grandmother] during the school week due to his current work schedule, but shall transition to another work schedule if available so that [Child] may
-3 - J-S46031-14
Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b), after which the trial court issued an Opinion.
On appeal, Mother presents the following issue for our review:
Whether the award of [] primary custody to Father with a provision that he can delegate his custody to [Paternal G]randparents[,] when the [trial] court has specifically found that [Paternal G]randparents have not overcome [Mother and prima facie right to primary custody[,] is [an] abuse of discretion?
Mother argues that Father is largely unavailable to care for Child (and
thus not an appropriate resource for primary physical custody), and that the
trial court improperly permitted him to delegate his physical custody to
Paternal Grandparents during his workweek. Id. at 9, 12; see also id. at 9
(wherein Mother asserts that, under the Custody Order, Father essentially
does not exercise physical custody of Child on Monday through Saturday
Mother points out that the trial court found that neither parent was unfit to
care for Child. Id. at 9, 11. Mother further argues that Paternal
legally entitled to partial physical custody, not primary custody, which,
Mother asserts, the Custody Order effectively awarded to Paternal
Grandparents, not Father. Id. at 9-12. Accordingly, Mother requests this
Court to vacate the Custody Order and remand the matter to the trial court
-4 - J-S46031-14
to enter an order awarding her primary physical custody, in Conneaut Lake,
Pennsylvania. Id. at 13.
Our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first- deductions or inferences from its factual findings. Ultimately,
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).
With any custody case, the paramount concern is the best interests of
the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5338 of Child Custody 3 provides that, upon petition, a trial court may modify a
custody order if it serves the best interests of the child. Id. § 5338. Section
5328(a) of the Act sets forth sixteen best interest factors (collectively
when awarding custody. Id. § 5328(a).
3 See 23 Pa.C.S.A. §§ 5321 to 5340; see also C.R.F., 45 A.3d at 445 (stating that, where, as here, the custody evidentiary proceeding commences on or after the effective date of the Act, i.e., January 24, 2011, the provisions of the Act apply). -5 - J-S46031-14
Further, where, as here, a request for relocation of the subject child is
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J-S46031-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.L., F.L. AND L.L., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellees
v.
A.A.M.,
Appellant No. 530 MDA 2014
Appeal from the Order entered on February 25, 2014, in the Court of Common Pleas of Franklin County, Civil Division, at No.: 2013-1943
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 28, 2014
Custody
-
proceedings.
The trial court set forth the procedural history of this appeal as
follows:
This matter arose by a Complaint for Custody, filed by [Father and Paternal Grandparents] on May 13, 2013. The parties attended a conciliation conference on August 2, 2013. [The trial c]ourt approved the recommendations of the Conciliatio[r], and a temporary custody [O]rder was entered on August 16, 2013. Under that [O]rder, Mother and Father had J-S46031-14
shared legal custody, with Father having primary physical custody and Mother having custody one weekend per month. On September 11, 2013, Mother filed a Motion for Scheduling of a pre-trial conference. The matter proceeded to trial, which was held on February 12, 2014.
Trial Court Opinion, 4/15/14, at 2 (some capitalization omitted).
The trial court set forth the relevant testimony presented at the
custody trial1 as follows:
When [C]hild was born, Mother and Father lived with [C]hild Pennsylvania. [N.T., 2/12/14,] at 26. In February [] 2010, Mother moved out of that house and stayed with her mother in Chambersburg. Id. at 58-59. Mother then moved in with her grandmother in Fayetteville until June [] 2010. Id. at 59. During that time, the parties operated under a week-on, week- off custody schedule, each parent [having] alternating weeks with [C]hild. Id. at 59. Upon Mother securing an apartment in June, the parties continued to share custody on a weekly basis. Id.
In June [] 2011, Mother moved to Conneaut Lake, Pennsylvania, approximately 3.5 [to] 4 hours away from Chambersburg. Id. Mother did not seek to relocate with [C]hild, and a relocation petition was never filed with [the trial c]ourt. The reason for her relocation was that her boyfriend had obtained new employment in that area and had to move. Id. at 60. Mother and her boyfriend are the parents of a three[-]year[-]old child who lives with them. Id. at 61. Upon the move to Conneaut Lake, Mother attended school from
Degree as a medical assistant. Id. at 60. During this time, [C]hild continued to live with Father at [P]aternal Id. at 61. Mother usually sees [C]hild once a month. Id. at 63.
1 The trial court heard testimony from Father, Paternal Grandmother, in camera). We note that both Father and Paternal Grandparents appeared pro se, and Paternal Grandmother questioned several of the witnesses and raised objections during the course of the trial. -2 - J-S46031-14
factory located in Chambersburg. Id. at 8-10.] Father then began residing part-time with his girlfriend in Shippensburg, Pennsylvania, who was pregnant at the time. Id. at 7. The custody arrangement has been that Father gets [C]hild on weekends and any day he has off [] work. Id. Father works the second shift at [the factory], from 3:00 p.m. until approximately 1:00 a.m. Id. at 10. He calls [C]hild at [P]aternal Id. schedule, Father and [P]aternal [G]randparents have established a routine where [C]hild during the week.
Trial Court Opinion, 4/15/14, at 3-4.
On February 24, 2014, the trial court orally set forth its findings and
decision in open court on the record. The next day, the court entered the
Custody Order, awarding, inter alia, (1) primary physical custody of Child to
Father, with a provision that Paternal Grandparents could exercise partial
;2 (2) partial
physical custody to Mother during the school year, in accordance with a
schedule; and (3) primary physical custody to Mother during the summer,
when Child is not in school.
Mother filed a Motion for Reconsideration, which the trial court denied.
Thereafter, Mother timely filed a Notice of Appeal, along with a Concise
2 Father shall have primary physical custody of [Child] during the school year. Father may permit [Child] to reside with [Paternal Grandfather] and [Paternal Grandmother] during the school week due to his current work schedule, but shall transition to another work schedule if available so that [Child] may
-3 - J-S46031-14
Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b), after which the trial court issued an Opinion.
On appeal, Mother presents the following issue for our review:
Whether the award of [] primary custody to Father with a provision that he can delegate his custody to [Paternal G]randparents[,] when the [trial] court has specifically found that [Paternal G]randparents have not overcome [Mother and prima facie right to primary custody[,] is [an] abuse of discretion?
Mother argues that Father is largely unavailable to care for Child (and
thus not an appropriate resource for primary physical custody), and that the
trial court improperly permitted him to delegate his physical custody to
Paternal Grandparents during his workweek. Id. at 9, 12; see also id. at 9
(wherein Mother asserts that, under the Custody Order, Father essentially
does not exercise physical custody of Child on Monday through Saturday
Mother points out that the trial court found that neither parent was unfit to
care for Child. Id. at 9, 11. Mother further argues that Paternal
legally entitled to partial physical custody, not primary custody, which,
Mother asserts, the Custody Order effectively awarded to Paternal
Grandparents, not Father. Id. at 9-12. Accordingly, Mother requests this
Court to vacate the Custody Order and remand the matter to the trial court
-4 - J-S46031-14
to enter an order awarding her primary physical custody, in Conneaut Lake,
Pennsylvania. Id. at 13.
Our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first- deductions or inferences from its factual findings. Ultimately,
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).
With any custody case, the paramount concern is the best interests of
the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5338 of Child Custody 3 provides that, upon petition, a trial court may modify a
custody order if it serves the best interests of the child. Id. § 5338. Section
5328(a) of the Act sets forth sixteen best interest factors (collectively
when awarding custody. Id. § 5328(a).
3 See 23 Pa.C.S.A. §§ 5321 to 5340; see also C.R.F., 45 A.3d at 445 (stating that, where, as here, the custody evidentiary proceeding commences on or after the effective date of the Act, i.e., January 24, 2011, the provisions of the Act apply). -5 - J-S46031-14
Further, where, as here, a request for relocation of the subject child is
involved, the trial court must consider the ten relocation factors (collectively
Act. Id. § 5337(h); see also E.D. v. M.P., 33 A.3d 73, 81 (Pa. Super.
ial court shall
consider all of the factors listed therein, giving weighted consideration to
is no black letter formula that easily resolves relocation
disputes; rather, custody disputes are delicate issues that must be handled
on a case-by- C.M.K. v. K.E.M., 45 A.3d 417, 421 (Pa. Super.
2012) (citation and quotation marks omitted).
Initially, we must address whether Paternal Grandparents have
standing to sue in their own right in this case.4
Section 5324 of the Act provides the following with regard to standing
to file a custody action:
§ 5324. Standing for any form of physical custody or legal custody
The following individuals may file an action under this chapter for any form of physical custody or legal custody:
4 Although the trial court indicates in its Opinion that Mother does not
in fact, raise this issue, as she argues, and the trial court concedes, that
entitlement to primary physical custody of Child as Father or Mother, as See Trial Court Opinion, 4/15/14, at 6. -6 - J-S46031-14
(1) A parent of the child.
(2) A person who stands in loco parentis to the child.
(3) A grandparent of the child who is not in loco parentis to the child:
(i) whose relationship with the child began either with the consent of a parent of the child or under a court order;
(ii) who assumes or is willing to assume responsibility for the child; and
(iii) when one of the following conditions is met:
(A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);
(B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
(C) the child has, for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home.
23 Pa.C.S.A. § 5324. Here, it is undisputed that Paternal Grandparents were
not eligible to seek primary physical custody in their own right, as they
cannot satisfy any of the subsections of section 5324.
However, section 5325 of the Act provides, in relevant part, as follows:
grandparents and great-grandparents may file an action
-7 - J-S46031-14
under this chapter for partial physical custody or supervised physical custody in the following situations:
***
(2) where the parents of the child have been separated for a period of at least six months or have commenced and continued a proceeding to dissolve their marriage[.]
23 Pa.C.S.A. § 5325(2); see also Hill v. Divecchio, 625 A.2d 642, 645-48
(Pa. Super. 1993) (addressing whether grandparents had standing to sue for
partial physical custody in their own right under section 5312 of the former
3 Pa.C.S.A. § 5312 (i.e., the predecessor
statute to the standing provisions set forth at sections 5324 and 5325)).
at least six months, and they were never married. Thus, we determine that
the trial court properly granted Paternal Grandparents standing to seek
partial physical custody pursuant to 23 Pa.C.S.A. § 5325(2).
Mother argues that Paternal Grandparents have not met their burden
prima facie custody when Mother, as a
parent, is ready, willing, and able to assume custody. See Brief for Mother
at 10-12. -established legal principal that
natural parents have a rebuttable presumption against third parties,
including grandparents, in custody disputes. See 23 Pa.C.S.A. § 5327(b)
(providing
parent of the child and a nonparent, there shall be a presumption that
-8 - J-S46031-14
custody shall be awarded to the parent. The presumption in favor of the
see also V.B.
v. J.E.B., 55 A.3d 1193, 1199 (Pa. Super. 2012) (discussing the
presumption in section 5327(b) and stating th
preclude an award of custody to a non-parent. Rather they simply instruct
the [trial] judge that the non-parent bears the burden of production and the
burden of persuasion and that the non-
omitted)).
In its Opinion, the trial court found that Paternal Grandparents had
met this heightened burden, and discussed its reasons for entering the
Custody Order, stating as follows:
In this case, the dispute was not between the parents on one side and the grandparents on the other. Father and [P]aternal Grandparents [jointly] filed their Complaint against Mother, and[,] thus, there was a parent on either side. This [c]ourt awarded primary physical custody to Father, and granted [P]aternal [G]randparents partial physical custody during the
detail on the record. Mother focuses on the fact that, because exercise custody, she should be granted primary physical custody over Father, and over any third party.
This [c]ourt stands by its findings that granting Mother
This [c]ourt cannot simply ignore the bigger picture
sought to neglect his parental responsibilities due to any kind of personal selfishness. This [c]ourt found no evidence
-9 - J-S46031-14
arrangements were made for reasons other than what was in
on the record that Father will not be permitted to simply coast along, making no effort to obtain a different work schedule, one that would permit him to spend time with [C]hild weekly. This [c]ourt was required to render a determination regarding
relation to a fixed standard, but by determining what is best for Commonwealth ex rel. Batturs v. Batturs, 60 A.2d 610, 611 (Pa. Super. 1948).] This [c]ourt examined the entirely of the circumstances, taking into account all
been, and found that awarding Father primary physical custody
Trial Court Opinion, 4/15/14, at 7, 9 (emphasis in original).
However, this case also involves considerations of relocation. 5 While
the trial court considered and discussed the sixteen section 5328(a) best
interest factors on the record, it did not consider the ten relocation factors
on the record, nor did it set forth any findings regarding section 5337(h) in
its Pa.R.A.P. 1925(a) Opinion.
cases involving proposed relocation, this Court has stated as follows:
Section 5337(h) requires courts to consider all relocation factors. The record must be clear on appeal that the trial court considered all the factors.
5 As discussed above, Mother sought primary physical custody and to relocate Child to live with her and her boyfriend in Conneaut Lake. Father also sought primary physical custody; however, primary physical custody under an arrangement whereby Child would not relocate from Paternal
custody for Father would i Shippensburg, which he shares with his girlfriend and their daughter. -10 - J-S46031-14
Section 5323(d) [of the Act] provides that a trial court
and relocation.
A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014) (emphasis added;
citations to case law and quotation marks omitted).
We determine that the trial court committed an error of law when it
failed to consider the section 5337(h) relocation factors, either on the record
or in a written opinion or order. See E.D., 33 A.3d at 81, 82 (vacating the
custody order and remanding to the trial court where the court had failed to
consider the relocation factors in a case involving relocation, and stating that
the trial court to consider each of the
factors set forth in section 5337(h), and to state both its reasoning and
see also A.M.S. v. M.R.C., 70
A.3d 830, 836 (Pa. Super. 2013) (stating that the trial court must consider
all ten relocation factors, and all sixteen best interest factors, when making
a decision on relocation that also involves a custody decision). Therefore,
we must remand the matter to the trial court for further proceedings and a
consideration of the relocation factors. See E.D., 33 A.3d at 82; see also
A.V., 87 A.3d at 825. On remand, the trial court should consider all of the
-11 - J-S46031-14
best interest and relocation factors, and set forth its analysis in a written
opinion.6
Finally, Mother argues that the Custody Order is improper in that it
essentially
awarded primary physical custody of [C]hild to [] Paternal Grandparents[,] while couching it [the award] in language that they were actually awarded partial physical custody. This was done despite the Grandparents were only entitled to partial physical custody under [the Act] and under the facts of this case.
th Paternal
Grandparents (while Father resides with his girlfriend in Shippensburg), and
Paternal Grandparents are not entitled to an award of primary physical
custody. See 23 Pa.C.S.A. § 5324. Accordingly, on remand, we instruct the
trial court that it may not award primary physical custody to Father and, at
the same time, have Child reside at the home of Paternal Grandparents, if
that is not where Father is going to be residing during his workweek.
Based upon the foregoing, we vacate the Custody Order and remand
the case to the trial court for further proceedings and the entry of a new
6 Moreover, on remand, the trial court should ensure that it does not consider any inappropriate factual matter developed by Paternal Grandmother questioning witnesses or making objections at the custody trial, as she was not able to serve as an attorney for any of the pro se plaintiffs but herself. This Court has observed that the right to self- representation in a civil case does not give leave for the party to fail to comply with rules of procedure and substantive law. Winpenny v. Winpenny, 775 A.2d 815, 817 n.1 (Pa. Super. 2001). -12 - J-S46031-14
custody order and a supplemental Pa.R.A.P. 1925(a) Opinion, consistent
with this Memorandum.
Order vacated. Case remanded for further proceedings. Superior
Court jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/28/2014
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