K.T. & M.T. v. L.S. f/k/a L.R.

• Court: Superior Court of Pennsylvania
• Decided: May 28, 2015
• Docket: 2072 MDA 2014
• Status: Unpublished

Opinion

J-A10001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.T. AND M.R.T. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

L.S. F/K/A L.R.

Appellee No. 2072 MDA 2014

Appeal from the Order Entered November 6, 2014 In the Court of Common Pleas of York County Civil Division at No(s): 2013-FC-001604-03

BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED MAY 28, 2015

Appellants, K.T. (“Paternal Grandmother”) and M.R.T. (“Paternal

Grandfather”) (collectively, “Paternal Grandparents”), appeal from the order

entered in the York County Court of Common Pleas, which denied their

request for partial physical custody of their minor grandchildren, K.A.T.

(born in September 2007) and K.W.R. (born in March 2009) (“Children”), in

this custody action. We reverse and remand for further proceedings.

The certified record indicates the relevant facts and procedural history

of this case as follows. Appellee, L.S. f/k/a L.R. (“Mother”), and D.T.

(“Father”) are the natural parents of Children. Mother gave birth to K.A.T.

while she was in high school and living with her mother (“Maternal

Grandmother”). Maternal Grandmother would not permit Father to live with

Mother because they were unmarried, so Mother moved in with Father in J-A10001-15

Paternal Grandmother’s home in December 2007, when K.A.T. was

approximately two months old.1 Mother and Father did not marry, but they

maintained a relationship until early 2009. In January 2009, when Mother

was pregnant with their second child, K.W.R., Mother and Father separated

and Mother moved with K.A.T. out of Paternal Grandmother and W.B.’s

home.2 At that time, Mother moved in with a co-worker for several months.

Beginning in January or February 2009, Mother and Father split

custody of K.A.T. During Father’s periods of physical custody, Children

resided with Father in Paternal Grandmother and W.B.’s home. Mother gave

birth to K.W.R. in March 2009. Mother and Father subsequently split

custody of K.W.R. as well. In April 2009, Mother met D.S. In May 2010,

Mother married D.S. (“Mother’s Husband”) in Hawaii; Father and Mother

agreed Father would take custody of Children while Mother was in Hawaii to

marry. In the summer of 2010, Father anticipated imminent deployment to

Iraq. Based on his expected deployment, Father agreed Mother could take

____________________________________________

1 Paternal Grandparents were divorced in 1998. When Mother and K.A.T. moved in with Paternal Grandmother, Paternal Grandmother was living in Erie County with her long-term significant other, W.B., with whom she still resides. Paternal Grandfather also lives in Erie County with his significant other, D.D. 2 The parties dispute whether Mother moved out of Paternal Grandmother and W.B.’s home in December 2008 or January 2009. When Mother moved out, Father was away in basic training for the United States Army since September 2008.

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Children to live in Hawaii with Mother’s Husband.3 Mother and Father agreed

Father would have custody of Children during the summer months and

holidays, and that Father could communicate with Children via phone calls

and social media. Around August 2010, Mother and Mother’s Husband

moved with Children to Hawaii. Mother obtained a new telephone number,

but she did not disclose her new phone number to any of Father’s family

members, including Paternal Grandparents, and limited Children’s telephone

communication only to Father. After Mother had already moved to Hawaii

with Children, Father learned his anticipated deployment would not occur,

but he continued to permit Mother to live with Children in Hawaii. Mother

and Father agreed that if Mother moved back to Erie County, they would

again split physical custody of Children on an equal basis.

In November 2011, Mother and Mother’s Husband returned from

Hawaii with Children and moved to Clymer, New York.4 The parties dispute

whether Mother told Father she had moved back from Hawaii with Children.

In August 2012, Mother and Children moved with Mother’s Husband to

Wisconsin. Mother obtained a new phone number upon moving, which she

did not give to Father or Paternal Grandparents. On February 17, 2013,

while Mother and Children were still living in Wisconsin with Mother’s ____________________________________________

3 Mother’s Husband was in the Army and stationed in Hawaii at that time. 4 Clymer, New York is approximately eight miles away from Corry, Pennsylvania (where Paternal Grandmother and W.B. live in Erie County).

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Husband, Father died in an automobile accident. Mother and Children did

not attend Father’s funeral. Around March 2013, Mother and Mother’s

Husband moved with Children to York County, Pennsylvania, where they

currently reside.

On September 6, 2013, Paternal Grandparents filed a joint petition in

York County seeking partial physical custody of Children.5 At the time

Paternal Grandparents filed their petition, Mother had denied them any

access whatsoever to Children. By order dated October 4, 2013 and entered

October 7, 2013, the court issued an interim custody order granting sole

legal and primary physical custody of Children to Mother. The court awarded

Paternal Grandparents the following periods of partial physical custody,

beginning with a “phase-in” schedule:6 (1) Friday, September 27, 2013,

from 5:30-7:30 p.m., in York County, with Mother present; (2) Saturday,

September 28, 2013, from 9:30 a.m. until 12:00 p.m., in York County, with

Mother present; (3) December 27-29, 2013, at Paternal Grandmother’s

home in Erie County, phasing out Mother’s presence during the scheduled

visits; and (4) two weekends between January 1, 2014 and June 1, 2014, in ____________________________________________

5 Paternal Grandparents previously filed a joint petition for partial custody in Erie County but withdrew that petition to refile in York County. Paternal Grandparents have standing to seek partial custody pursuant to 23 Pa.C.S.A. § 5325(1) (stating where parent of child is deceased, parent or grandparent of deceased parent may file action of partial physical custody or supervised physical custody). 6 The parties live approximately 5½ hours away.

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York County. The interim custody order provided the following regular

schedule of partial physical custody thereafter: (1) three weeks over the

summer (one week in June, July, and August) in the summer of 2014 and

each following summer; (2) two weekends each in the fall and spring to

occur in York County; (3) four overnight periods during Children’s Christmas

break, between December 27th through December 31st each year; and (4)

any other times agreed to by the parties. The interim custody order also

included a provision for Skype communication between Children and

Paternal Grandparents to occur each Sunday at 7:00 p.m., beginning on

October 6, 2013.

After Paternal Grandparents commenced their custody action, Mother’s

Husband started proceedings to adopt Children. The court initially granted

the adoption, but Paternal Grandparents intervened on or around November

4, 2013, when they learned of the proceedings. Because Mother and

Mother’s Husband failed to notify Paternal Grandparents about the adoption

proceedings, the court vacated the adoption decree.7

The court held a custody trial on February 10, 2014. At the start of

trial, the court announced it was the first custody trial the court had presided

over in approximately five years. The court expressed dissatisfaction with

7 At the time of trial, Mother’s Husband testified he planned to re-commence the adoption proceedings once the custody proceedings were resolved.

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the legislature’s enactment of the Custody Act since the court had last

presided over a custody trial. The court stated:

Frankly, I’m not sure how I want to do this. But since this is the first custody trial that I have to sit on—fortunately, the other cases assigned to me have been resolved by agreements.

That being so, I think it fair to counsel to advise them that I did sit and try and figure out when the last custody trial I had and I think it was about five years ago having other assignments in the interim.

And during that period of time, the legislature enacted a big comprehensive custody act, bunch of stuff that they did. They determined that they needed to help the courts in deciding these cases by telling them what factors they have to consider in determining what the best interest of the child or children is.

Honestly, I’ve taken a look at the statute. I have personal reservations as to whether the legislature can tell me how to make a decision. But I’m told that’s the way we do it.

So counsel should be on the alert that I haven’t studied these things. I haven’t gone and looked and figured out whatever. So touch base on those things that you think are important to decide what is in the best interest[s] of these children.

(N.T. Trial, 2/10/14, at 11-12; R.R. at 9a).

Paternal Grandmother testified, inter alia, as follows.8 Mother moved

into her home when K.A.T. was approximately two months old. Paternal

Grandmother and Mother had a nice relationship while Mother lived with her

and W.B. During this time, Mother wrote Paternal Grandmother and W.B. a ____________________________________________

8 (See id. at 14-74; R.R. at 10a-40a.)

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“thank you” card expressing gratitude for their kindness and generosity, as

well as a Valentine’s Day card.9 Mother also wrote Paternal Grandmother a

“get well” card after Paternal Grandmother had surgery. On February 7,

2008, Mother executed an “authorization for treatment of a minor” form,

which gave Paternal Grandmother and W.B. authority to accompany K.A.T.

to doctor’s appointments and to consent to K.A.T.’s medical examinations

and/or treatment.

Mother moved out in January 2009. When Mother and Father split

custody of Children, Father was living with Paternal Grandmother, so

9 The “thank you” card states:

I wanted to find a thank you card filled with all the words that I feel. But then I found this card & knew it was perfect [because] it’s in this card that I can write down my own feelings with all of my own words.

[Paternal Grandmother and W.B.,]

Everything you guys do and have done for me (& [K.A.T.]) is so appreciated. I hope that eventually I can help you the way that you’ve helped me. You’ve dealt with my bullshit and helped me on my feet—and for that I’m truly grateful. I’ve never met two other people who are so willing to help others. You’ve given me so much & much of that isn’t what money can buy. You’ve taught me lessons that I won’t forget & shown me love that I will always remember. I thank you both for all that you do. Thank you for everything.

[Mother].

(Paternal Grandparents’ Exhibit 3).

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Children stayed at Paternal Grandmother and W.B.’s home during Father’s

periods of physical custody. Paternal Grandmother testified Mother refused

to let Paternal Grandparents communicate with Children when they lived in

Hawaii. Paternal Grandmother explained Mother threatened Father while in

Hawaii that if Father disclosed Mother’s phone number to Paternal

Grandparents, or allowed anyone else on the phone line during Father’s

phone calls with Children, that Mother would disconnect the call. Mother

also “un-friended” Paternal Grandmother on Facebook.

Paternal Grandmother testified that Mother failed to tell Father when

she moved from Hawaii to Clymer, New York. In February 2012, Father

learned that Mother was in Clymer, and when Father confronted Mother

about moving from Hawaii, Mother claimed she was back in town for a short

time on vacation. Paternal Grandmother explained Mother agreed Father

could visit Children once during this “vacation” period. Paternal

Grandmother testified that Father visited Children again in July 2012, when

Father discovered through Maternal Grandmother that Mother was still living

with Children in Clymer. In August 2012, Father returned to Clymer to visit

Children again, but Mother had already moved away.

Following Father’s sudden death in February 2013, Paternal

Grandmother hired a private investigator to locate Mother and Children.

When the private investigator discovered Mother had an address in

Wisconsin, Paternal Grandmother hired a second private investigator in

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Wisconsin. Ultimately, Paternal Grandmother located Mother and Children in

York County, Pennsylvania. Upon finding Mother and Children, Paternal

Grandparents served Mother with the custody complaint.

Paternal Grandmother testified that Mother was uncooperative with the

terms of the interim custody order. With respect to the court-ordered Skype

conversations, Paternal Grandmother said Mother claimed her camera was

broken, so Paternal Grandparents could not actually see Children during the

calls. Paternal Grandmother’s son, S.T. (“Children’s Uncle”), offered to fix

Mother’s camera free-of-charge, but Mother refused the offer. Paternal

Grandmother testified that if she called Mother to speak with Children

outside of the court-ordered Skype timeframe, Mother would not answer the

phone or she would state it was not a good time or tell Paternal

Grandmother to wait until the court-ordered timeframe to speak with

Children.

Paternal Grandmother testified that Paternal Grandparents’ first visit

with Children under the interim custody order was a success. The visit took

place at an arcade, and Children recognized Paternal Grandparents right

away. Paternal Grandmother also spoke highly of Paternal Grandparents’

visit with Children over the Christmas holiday. Paternal Grandmother had a

Christmas party at her home with Children’s extended family. Paternal

Grandparents, their significant others, and Children’s paternal aunts, uncles,

cousins, and other relatives attended. Children made glow bugs, balloons,

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made a Christmas gift for Mother, and played with their cousins. Children

also participated in a balloon launch to honor Father’s memory. Children’s

great-aunt gave Children a memory box containing a small toy soldier and

Father’s dog tags. Mother later discarded the toy soldier, claiming it

promoted violence.

While the interim custody order was in place, Paternal Grandmother

sent Children Captain America and Superman action figures. Paternal

Grandmother testified Mother also discarded these action figures as “too

violent,” even though Mother permitted Children to dress-up as Superman

and Batman for Halloween.

Paternal Grandmother admits she has rheumatoid arthritis. Paternal

Grandmother denied having any health issues which would impede her

ability to care for Children. Paternal Grandmother and W.B. both smoke

cigarettes but do not smoke around Children. Paternal Grandmother

admitted she was charged with passing a bad check in 2012 and with theft

of services in 2009.10 Paternal Grandmother did not explain the details of

these charges.

Paternal Grandmother is currently employed with Interim Health Care

for the past four years. Prior to her employment with Interim Health Care, ____________________________________________

10 Counsel for Paternal Grandparents objected to the admission of testimony concerning these criminal charges. The court overruled the objection as relevant to Children’s best interests. Paternal Grandparents challenge this evidentiary ruling in their third issue on appeal.

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Paternal Grandmother owned a daycare which she operated out of her

home. Children were enrolled in the daycare when Father was at work

during his periods of physical custody (when Father and Mother had split

custody). Father paid Paternal Grandmother approximately $14.00 or

$15.00 each week as his “co-pay” for the daycare services. Paternal

Grandmother said Father paid her to babysit K.A.T. even when Mother had

been living with Paternal Grandmother and W.B.

Paternal Grandmother intervened with the adoption proceedings

because she does not want Mother’s Husband to adopt Children. Paternal

Grandmother said Mother’s Husband uses military-style discipline with

Children. Paternal Grandmother also expressed concerns that Mother’s

Husband is racist, based on his Facebook posts related to “racial stuff and

Nazi stuff.”11

Paternal Grandmother requested the court to enlarge Paternal

Grandparents’ periods of partial physical custody under the interim custody

order. Paternal Grandmother sought three weekends each in the fall and

spring to occur in Erie County so that Children’s extended family can see

Children. Paternal Grandmother suggested the parties could meet at a half-

way point to exchange custody. Paternal Grandmother also sought two

weeks’ custody in June, July, and August. Paternal Grandmother explained ____________________________________________

11 The Facebook rants were keenly distressing to Paternal Grandmother because W.B. is African-American.

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that she has an amicable relationship with Paternal Grandfather, and they

agreed that during Paternal Grandparents’ periods of partial physical

custody, Children will stay overnight at Paternal Grandmother and W.B.’s

home; Paternal Grandfather will see Children during the daytime.

Paternal Grandfather testified, inter alia, as follows.12 Paternal

Grandfather has a good relationship with Paternal Grandmother. Paternal

Grandfather goes to Paternal Grandmother’s house during the court-ordered

timeframe for Skype calls with Children. Paternal Grandfather echoed

Paternal Grandmother’s testimony regarding the successful first visit with

Children under the interim custody order. Paternal Grandfather said

Children remembered him when Paternal Grandfather first saw them at the

arcade. Paternal Grandfather had a great interaction with Children at the

Christmas visit as well. Children asked Paternal Grandfather to teach them

guitar. Paternal Grandfather admitted he had a problem with alcohol abuse

in the past that worsened after Father’s death. Paternal Grandfather

currently attends Alcoholics Anonymous meetings twice each week and does

not consume alcohol. Paternal Grandfather last consumed alcohol on

December 21, 2013. When confronted with a recent picture of himself

holding a beverage can, Paternal Grandfather described the beverage

12 (See N.T., 2/10/14, at 75-93; R.R. at 41a-50a.)

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pictured as a “Genny NA”; the “NA” stands for non-alcoholic.13 Paternal

Grandfather smokes cigarettes, but he does not do so in front of or around

Paternal Grandfather is unemployed due to a 1996 work-related oil

field injury that required multiple surgeries. Paternal Grandfather currently

collects social security disability and has no residual effects from the injury

which would impair his ability to care for Children. Paternal Grandfather

discussed a custody schedule with Paternal Grandmother and echoed

Paternal Grandmother’s request for additional time with Children. Paternal

Grandfather confirmed Paternal Grandmother’s statement that Children

would sleep at Paternal Grandmother and W.B.’s home during Paternal

Grandparents’ periods of partial physical custody. Paternal Grandfather

indicated that he will travel with Paternal Grandmother to York County to

visit Children if the court permits Paternal Grandparents to exercise partial

physical custody; they will obtain separate rooms in the same hotel.

Paternal Grandfather indicated he did not call Mother to speak with

Children while they were in Hawaii because Mother threatened to disconnect

her phone and disappear with Children if anyone from Father’s family

contacted her. Paternal Grandfather said Father did not disclose Mother’s

phone number to his family members in fear of losing Children. Paternal ____________________________________________

13 The Genesee Brewing Company website confirms that “Genny NA” is a non-alcoholic beer. See http://www.geneseebeer.com/beer/genesee-na/.

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Grandfather asked Maternal Grandmother for Mother’s address, but Maternal

Grandmother would not disclose it. Maternal Grandmother gave Paternal

Grandfather a ride home once. Maternal Grandmother asked where Father

was and told Paternal Grandfather that she knew where Children were

residing. Father happened to be at Paternal Grandfather’s home at that

moment. Father then had a discussion with Maternal Grandmother outside

of Paternal Grandfather’s presence, after which Father left Paternal

Grandfather’s home with Maternal Grandmother to see Children.14

Laurie Rogan, the first private investigator Paternal Grandmother

hired, testified via telephone, inter alia, as follows.15 Paternal Grandmother

hired her in March 2013 to locate Mother and Children. Ms. Rogan’s initial

investigation led her to believe Mother and Children were residing in

Wisconsin. Paternal Grandmother subsequently hired a private investigator

in Wisconsin, who determined that Mother and Children had lived there but

moved. Ms. Rogan subsequently sent a United States Postal Service

ancillary service request to obtain Mother’s forwarding address, which

provided Mother’s current location in York County, Pennsylvania.

14 Paternal Grandfather did not elaborate on the details of this event, but additional testimony at trial indicated that Father’s interaction with Maternal Grandmother took place while Mother was living with Children in Clymer, New York, shortly before she moved to Wisconsin in August 2012. 15 (See N.T., 2/10/14, at 94-105; R.R. at 51a-56a.)

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Children’s Uncle testified, inter alia, as follows.16 Children’s Uncle

offered to fix Mother’s computer for no charge so the Skype visual

technology would work. During Children’s visit over the Christmas holiday,

Children recognized Children’s Uncle and jumped into his arms. Children’s

Uncle played guitar with Children, and they built toys. Children’s Uncle

observed that Children seemed very happy during their visit with Father’s

family over Christmas. Children’s Uncle did not contact Mother when she

lived in Hawaii with Children because Father told him that if anyone from his

family were to call Mother, she would hang up the phone. Children’s Uncle

has attempted to contact Mother on Facebook in the past, but he cannot find

her name; so Children’s Uncle believes Mother “blocked” him.

W.B. testified, inter alia, as follows.17 W.B. is Paternal Grandmother’s

significant other. W.B. has known Children since they were babies; Children

call W.B. “poppy.” W.B. loves Children as if they are his biological

grandchildren; W.B. gets along very well with Children. Mother lived with

K.A.T. in Paternal Grandmother and W.B.’s home. W.B. and Mother were

mostly friendly during that timeframe.

In June 2010, the Commonwealth charged W.B. with harassment due

16 (See id. at 105-116; R.R. at 56a-61a.) 17 (Id. at 116-135; R.R. at 61a-71a.)

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to a physical altercation with a neighbor;18 the neighbor had pulled into

W.B.’s driveway, continually revved his engine, and refused to exit W.B.’s

property. The Commonwealth also charged the neighbor in relation to the

incident. The neighbor no longer lives in W.B.’s neighborhood. W.B. did not

recall a charge against him for trespass by a motor vehicle.

W.B. is currently disabled due to multiple degenerative discs. W.B.

receives social security disability. W.B. does not drink alcohol.

W.B. attended the first visit between Paternal Grandparents and

Children under the interim custody order. Children remembered W.B. and

called him “poppy.” The second visit with Children under the interim

custody order took place on September 28, 2013, at a park. W.B. also

attended that visit and played tag with Children, at great physical cost. At

the Christmas visit at Paternal Grandmother and W.B.’s home, Children were

excited and appeared to have lots of fun. Children made Mother pictures of

reindeer as a Christmas gift.

W.B. denied he smoked marijuana in his home when Mother lived

there. W.B. also denied driving by Mother’s place of employment after

Mother had moved out of his home. Following W.B.’s testimony, Paternal

Grandparents rested their case.

18 Counsel for Paternal Grandparents objected to testimony concerning this harassment charge, but the court overruled the objection as relevant to Children’s best interests.

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Mother testified, inter alia, as follows.19 Mother moved out of Maternal

Grandmother’s home in December 2007 and moved into Paternal

Grandmother and W.B.’s home at that time. Mother lived with Paternal

Grandmother and W.B. with K.A.T. until December 2008. Mother’s

relationship with Paternal Grandmother was good at first. Over the course

of Mother’s stay at Paternal Grandmother and W.B.’s home, Mother’s

relationship with Paternal Grandmother worsened. Mother felt like nothing

she did was good enough while living in Paternal Grandmother’s home.

Mother said Paternal Grandmother had strict rules. For example, Paternal

Grandmother would not allow Mother to talk on the phone or go to the

grocery store without Paternal Grandmother’s permission. Mother claimed

Paternal Grandmother told Mother that if she wanted to move out, Mother

would have to leave K.A.T. with Paternal Grandmother and W.B.

Mother conceded that she let Paternal Grandmother watch K.A.T. while

Mother worked; Mother enrolled K.A.T. in Paternal Grandmother’s home

daycare. Mother said she paid Paternal Grandmother for her daycare

services using government assistance. Mother paid Paternal Grandmother

every other week; Father paid Paternal Grandmother on the alternating

19 (Id. at 136-209; R.R. at 71a-108a.)

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weeks.20 Mother claimed Paternal Grandmother forced her to commit

welfare fraud; Mother alleged she ultimately had to repay the government as

a result.21

Mother claimed she also had difficulties with W.B. while living in his

home. Mother said she initially liked W.B. but is now “terrified” of him.

Mother observed W.B. smoke marijuana in the home. Mother claimed she

once overheard W.B. talking about a drug deal, and W.B. threatened to kill

Mother if she told anyone what she had heard. Mother said she could not

escape from Paternal Grandmother and W.B.’s home because they allegedly

had video surveillance around the home and trained guard dogs.

When confronted with the letters Mother wrote to Paternal

Grandmother and W.B. while living in their home, Mother claimed she was

grateful to have a roof over her head. Mother testified: “I know how to

count my blessings regardless of how bad something can be, and I did not

want to make [Paternal Grandmother and W.B.] mad.” (N.T., 2/10/14, at

182; R.R. at 94a).

Mother said she had an okay relationship with Paternal Grandfather.

According to Mother, Paternal Grandfather drank a lot.

20 Mother claimed she had receipts for each payment she made to Paternal Grandmother, but she did not present those receipts at trial. 21 Mother presented no evidence at trial to substantiate these allegations.

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Mother testified that she attempted to contact Father at basic training

to inform him she planned to move out of Paternal Grandmother and W.B.’s

home with K.A.T. Mother’s attempts to reach Father at basic training were

unsuccessful. Mother left in the middle of the night in December 2008 and

moved in with a co-worker with K.A.T.; Mother was pregnant with K.W.R. at

that time. Father returned home from basic training for a break around

January 2009. Mother met with Father at that time and brought K.A.T. to

their meeting. Mother claimed Father “kidnapped” K.A.T. for a week and

refused to return K.A.T. to Mother’s care until Mother’s relative threatened

Father that he would lose his military career if he did not return K.A.T.

Mother admitted she did not report the alleged kidnapping to any

authorities.

In early 2009, Mother and Father split physical custody of K.A.T. on a

50/50 basis. Mother gave birth to K.W.R. in March 2009. Once K.W.R.

reached six months’ old, Mother and Father split physical custody of K.W.R.

on a 50/50 basis as well. Mother said Father did not utilize all of his

custodial time with Children under the shared custody arrangement. Mother

conceded that Paternal Grandparents might have spent time with Children

during Father’s periods of physical custody, though she was uncertain where

Father lived at this time.

Mother began a relationship with D.S. in April 2009, and they married

in May 2010. Mother admitted that Father took custody of Children for two

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weeks while she was in Hawaii to marry.22 Mother and Father agreed that

Mother could take Children to live in Hawaii with Mother and Mother’s

Husband if Mother agreed to release Father from his child support obligation.

The agreement provided that Father would get custody of Children during

the summertime, holidays, and have unlimited communication with Children

through phone calls and social media. Mother also agreed the custody

arrangement would revert to 50/50 custody if Mother moved back to Erie

County.

Mother moved with Children and Mother’s Husband to Hawaii in

September 2010. Mother said Father called only once every four to six

months while she lived in Hawaii with Children. Father did not send Children

cards while they lived in Hawaii. Mother admitted she told Father not to

disclose her phone number to others, but she did not recall threatening to

run away with Children if Father gave out her number. Mother said Father

did not utilize all of his custody time with Children in the summer because

Father anticipated deployment overseas.

Mother, Children, and Mother’s Husband relocated from Hawaii to

Clymer, New York in November 2011. Mother stayed in New York until

August 2012, when she moved with Children and Mother’s Husband to

22 Counsel for Paternal Grandparents suggested that Father took custody of Children for six weeks while Mother was in Hawaii to marry; Mother denied this proposition.

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Wisconsin.23 Mother claimed she told Father about her return to New York,

and she permitted Father to see Children. Mother said her stay in New York

was only temporary, to use up Mother’s Husband’s vacation time from the

Army. Mother admitted she told Husband she was only in New York on

vacation. Mother conceded she did not immediately tell Father she was back

from Hawaii for good. Mother denied that she was hiding from Father or

Father’s family while she moved around the country.

Mother, Children, and Mother’s Husband moved to Wisconsin in August

2012, when Mother’s Husband started school. After the move to Wisconsin,

Mother claimed she had problems with her phone which necessitated a new

phone number. Mother did not tell Father her new phone number. Mother

23 Mother admitted she was angry with Maternal Grandmother for bringing Father to see Children in New York the night before Mother and Children moved to Wisconsin. Counsel for Paternal Grandparents had the following exchange with Mother regarding this incident:

[Counsel]: [I]f I ask [Maternal Grandmother] whether she brought [Father] to Clymer, New York, because she thought it was wrong for you to be hiding these kids from him, she’s going to tell me that I’m full of crap and that didn’t happen?

[Mother]: Good luck. My mom is a pistol. Good luck.

[Counsel]: You were angry with your mother, weren’t you, because of what she did?

[Mother]: Yeah.

(N.T., 2/10/14, at 192; R.R. at 99a).

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claimed Father still could have contacted Mother through Facebook, if he

wanted to reach her. When Father died in the automobile accident in

February 2013, Mother was living with Children and Mother’s Husband in

Wisconsin. Mother did not attend the funeral because of the cost of travel.

Additionally, Mother claimed Children did not really know Father and

regarded Father as the “guy with the cool tattoo.” After Father’s death,

some of his family reached out to Mother’s Husband through Facebook,

asking to see Children. Mother denied their request, stating Father’s family

had not previously made any effort to see Children. Paternal Grandmother

tried to contact Mother to discuss Father’s life insurance policy, but Mother

did not want to work with Paternal Grandmother.

Mother testified that Children’s behavior has changed since entry of

the interim custody order. Mother claimed Children now need counseling

because they are wetting the bed and having nightmares. Mother insisted

Children’s emotional issues did not begin until after entry of the interim

custody order. Mother said Children hate the Skype calls, and the calls are

terrible. Mother contended Children have nightmares because of the Skype

calls. Mother tried to fix her phone to allow use of the visual technology, but

her efforts were unsuccessful. Mother testified that Children’s first visit with

Paternal Grandparents under the interim custody order was terrible.

Children did not recognize Paternal Grandparents and Children hid behind

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Mother’s leg when they saw Paternal Grandparents. Mother claimed she had

bruises on her leg from Children squeezing her so tight.

Mother would not permit Children to play with the action figure toys

Paternal Grandparents sent Children because Mother said that the toys

promote violence. Mother threw away candy Paternal Grandparents sent

Children because Mother thinks candy is bad for Children. Mother

complained Children returned home, from the Christmas visit with Paternal

Grandparents, smelling like cigarettes and were sick and exhausted after

this visit.

Mother denied Paternal Grandmother’s request to speak with Children

on the phone outside of the court-ordered Skype timeframe because Mother

said Children are too busy. Children participate in martial arts classes two to

four days each week. Mother does not want Paternal Grandparents to have

any custody of Children whatsoever because she thinks Paternal

Grandparents are horrible people. Mother admitted that she once filed an

abuse report against Paternal Grandmother, which Children and Youth

Services ruled “unfounded.”

Mother’s Husband testified, inter alia, as follows.24 Mother’s Husband

has a good relationship with Children. Prior to Father’s death, Mother’s

Husband was on good terms with Father. Mother’s Husband gave his phone

24 (Id. at 210-229; R.R. at 108a-118a.)

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number to Father in case Father was unable to reach Mother. Mother’s

Husband said Father did not exercise his holiday time with Children while

they lived in Hawaii. Father called Children only five or six times while they

were in Hawaii.

Mother’s Husband said that during Children’s first visit with Paternal

Grandparents under the interim custody order, Children seemed

uncomfortable. Mother’s Husband denied that Children ran into Paternal

Grandparents’ arms at the first visit. Children called Paternal Grandmother

“nana” only after she repeated that word to Children multiple times.

Children are not excited to participate in the Skype calls. Mother’s Husband

has tried to fix the visual technology for the Skype calls but to no avail.

Mother’s Husband initially denied posting racist and Nazi-type

comments on Facebook. Mother’s Husband said he is not a racist or a Nazi.

Upon further questioning, Mother’s Husband admitted he posted a response

to a friend’s comment on Facebook on August 11, 2011, stating: “We need

to start a fucking chapter of the KKK or Nazi or something. I refuse to live

in a town with anything but whites.” (Id. at 227; R.R. at 117a.) Mother’s

Husband said this post “was a joke because [my friend was talking] about all

of the niggers moving here because there is lots of them.” (Id. at 227-28;

R.R. at 117a.) Mother’s Husband said he was not serious. Mother’s

Husband admitted he had a conversation with a friend on Facebook on

February 15, 2013, in which Mother’s Husband said: “I want to go nigger

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hunting.” (Id. at 224; R.R. at 115a.) Mother’s Husband defended this

comment as follows: “…I was angry. But nigger by definition is an ignorant

person. It does not mean anybody of color.” (Id. at 228; R.R. at 117a.)

Mother’s Husband said he has African-American friends. Mother’s

Husband could not recall posting a picture of Hitler to his Facebook page,

stating: “Hail to Hitler. We should all be like him.” (Id.) Mother’s Husband

explained that when he was in the Army he would shave his head and people

would call him Hitler because his last name is German, so if Mother’s

Husband did post a picture of Hitler, it was meant as a joke. Mother’s

Husband conceded that on October 18, 2013, he posted: “…I won’t stop until

they get nothing because that’s what they deserve[,]” in reference to

Paternal Grandparents and the current custody action. (Id. at 226; R.R. at

116a.) Mother’s Husband’s Facebook post referencing Paternal

Grandparents continued that during Paternal Grandparents’ last visit with

Children, Mother’s Husband believed Paternal Grandparents were high on

pain pills.

Mother’s Husband said he disciplines Children using exercise. Mother’s

Husband makes Children do squats, leg lifts, and other forms of exercise as

punishment. Children learn a similar discipline in their Hapkido marital arts

classes. Mother’s Husband said Mother did not throw away the action figure

toys Paternal Grandparents sent Children; Mother stored the action figures

in the laundry room because Mother and Mother’s Husband do not allow

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Children to play with toys that promote violence. Mother’s Husband said

Children’s behavior has changed since the start of the custody proceedings.

Children sleep in Mother and Mother’s Husband bed more frequently and

have nightmares. Children are currently in counseling.

Mother’s Husband tried to adopt Children. Paternal Grandparents

intervened, which caused the court to vacate the adoption decree. Mother’s

Husband still plans to adopt Children after these custody proceedings are

resolved.

Mr. Dennis Lagan is a private investigator whom Mother hired for

purposes of the custody proceedings. Mr. Lagan testified, inter alia, as

follows.25 Mother hired Mr. Lagan to conduct background investigations on

Paternal Grandparents, W.B., and any other relatives with whom Children

might have contact.26 Mr. Lagan discovered the following criminal records.

In October 2009, the Commonwealth charged Paternal Grandmother with

theft of services; Paternal Grandmother pled guilty in November 2009, paid

a fine, $250.00 in restitution, and costs. In 2012, Paternal Grandmother

pled guilty to a traffic violation. Later in 2012, the Commonwealth charged

25 (Id. at 229-241; R.R. at 118a-124a.) 26 Counsel for Paternal Grandparents objected to testimony/evidence concerning criminal records, but the court overruled the objection as relevant to Children’s best interests.

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Paternal Grandmother with bad checks; the disposition was guilty.27 Also in

2012, the Commonwealth charged Paternal Grandmother with operating a

vehicle without required financial responsibility; that charge was dismissed.

In 2013, Paternal Grandmother pled guilty to speeding (71 mph in a 55 mph

zone).

Mr. Lagan did not discover any criminal history, bankruptcies, tax

liens, or judgments against Paternal Grandfather. Mr. Lagan found one child

support action against Paternal Grandfather from 1998.

Mr. Lagan discovered that the Commonwealth charged W.B. with

trespass by a motor vehicle in 2008; W.B. pled guilty to this offense and

paid a fine and costs. In 2010, the Commonwealth charged W.B. with

harassment due to a physical altercation; W.B. pled guilty to this offense in

July 2010 and paid a fine and costs.

27 Mr. Lagan shared no factual basis for the theft of services, traffic violation, and bad checks convictions. Mr. Lagan also could not determine whether the convictions were summary offenses or misdemeanor offenses. Additionally, counsel for Paternal Grandparents confronted Mr. Lagan with a print-out from the Pennsylvania State Police dated May 15, 2012, which showed that Paternal Grandmother had no criminal record. Mr. Lagan explained that the Pennsylvania State Police records are generally based on fingerprinting; Mr. Lagan suggested Paternal Grandmother might not have been fingerprinted for her crimes. Mr. Lagan indicated that the Pennsylvania State Police records might be different than the records accessed through the Unified Judicial System Portal. Neither the Pennsylvania State Police record nor the Unified Judicial System Portal record pertaining to Paternal Grandmother’s convictions is part of the certified record on appeal.

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Maternal Grandmother testified, inter alia, as follows.28 Maternal

Grandmother’s relationship with Mother is currently fine, though they have

had their “ups and downs” over the years. Maternal Grandmother would not

permit Mother and Father to live together when Mother gave birth to K.A.T.

because they were unmarried, so Mother moved in with Father at Paternal

Grandmother and W.B.’s home. Mother became distraught living with

Paternal Grandmother and W.B., so Mother moved out.

When Mother and Father shared custody of Children, Maternal

Grandmother described the custodial arrangement as “horrible.” Maternal

Grandmother said Children had no set routine because they were always

back and forth between homes. Maternal Grandmother said Father did not

always show up for his periods of physical custody.

Maternal Grandmother said she drove Father to see Children in New

York on March 20, 2012, but Father did not get out of the car. Maternal

Grandmother indicated Father already knew Mother was living with Children

in New York when this incident took place. Maternal Grandmother admitted

Mother was upset that Maternal Grandmother brought him to see Children

on this date. Maternal Grandmother said she spoke to Father again on

August 18, 2012 and informed Father that Mother and Mother’s Husband

planned to move to Wisconsin with Children. Maternal Grandmother told

28 (Id. at 241-257; R.R. at 124a-132a.)

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Father it might be the last opportunity to see Children for a while, but Father

said he did not want to see Children.29 Maternal Grandmother denied that

anyone from Father’s family had ever contacted her, asking for Mother’s

phone number or address. Maternal Grandmother believes Mother’s

Husband is a great man who is good with Children and is giving Children a

good life.

Mr. Wilson L. Richardson teaches Children Hapkido,30 a martial arts

class, two to three days each week. Mr. Richardson testified, inter alia, as

follows.31 Mr. Richardson said Mother and Mother’s Husband attend the

classes and watch Children more frequently than most parents do. Children

are doing well in the class.

Keiton Lyle Westfall testified, inter alia, as follows.32 Mr. Westfall is

Father’s second cousin. Mr. Westfall and Father did not spend much time

together, but they always conversed when they saw each other. In speaking

29 There is some inconsistency in the testimony as to whether Maternal Grandmother drove Father to see Children on March 20, 2012, or on August 18, 2012, shortly before Mother and Children moved to Wisconsin with Mother’s Husband. 30 Hapkido is a self-defense based curriculum that also teaches Children the discipline of exercise. 31 (Id. at 257-261; R.R. at 132a-134a.) 32 (Id. at 262-265; R.R. at 134a-136a.)

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with Father, Mr. Westfall did not recall Father ever being distraught about

Children or discussing a search for Children.

After Mr. Westfall’s testimony, Mother rested her case. The court

instructed counsel to address in closing arguments the statutory factors

relating to grandparent custodial rights as well as the two or three year

period in which Paternal Grandparents had no contact with Children.

Regarding the lack of contact, the court stated: “And, of course, the effect

of—assuming parent withholds the children from grandparents, and frankly it

makes no difference whether it is hiding them or just simply saying you can’t

see them, it is the time lag that I’m concerned about.” (Id. at 267; R.R. at

137a.) The court explained that it planned to make a decision immediately

following closing arguments so that the parties could leave the courtroom

informed of the result.

Following closing argument, the court explained its custody decision as

follows:

Now, before we had this most recent legislation, the test was actually pretty direct and somewhat simple. Upon the death of a child, the parents of the deceased child may seek reasonable partial custody to an unmarried child upon a finding that partial custody would be in the best interest of the child and would not interfere with the parent-child relationship.

Court decisions instruct that the court must consider the amount of personal contact between the parents, the grandparents, and the child or children.

The purpose of allowing partial custody under this is not to replace a parent with a grandparent as a primary

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caregiver. And essentially what the cases were saying is natural biological parent trumps grandparent for primary physical custody, period.

But as it relates to partial physical custody, that was to continue a healthy relationship with grandparents if that was in the child’s best interest and would not interfere with the parent’s relationship. And the statute was then apparently replaced by this new one with these factors.

And I’m sorry. I have to say this. When I started reviewing the code when I got this assignment, my first reaction was the legislature has embarked upon an unconstitutional encroachment of the court’s authority. They are telling us what we must consider to make a decision.

I’m not sure—the example came to mind is for example if the legislature said we’re going to control fat people. So anybody who makes a personal injury claim in an automobile accident case, you’ve got to consider whether they are fat or not. Now what the heck does that have to do with somebody’s injuries? And some of the factors, I’m sorry, that I have reviewed I’m shaking my head saying what the heck does this have to do with the best interest of the children? Oh, it controls the conduct of the adults because the adults can’t act like adults. So we’ll dictate how the adults will act and call it in the best interest of the children.

I’m tempted to just rule, [Paternal Grandparents’ counsel], because I know you are a competent, qualified, good practitioner in the area of family law that this is all unconstitutional because it infringes upon my authority to make a decision. Any I may find the case that I will do that.

But nevertheless, the legislature has enacted these factors. You addressed them. Now, as [Mother’s counsel] pointed out, there is no testimony on some of the stuff because it doesn’t exist. All right. So we pass over those and we look at the factors and we do so with the understanding that grandparents have the burden of proof in these areas.

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There is a curious circumstance that comes to mind. If a biological parent—I’m not saying that’s the case here. But if a biological parent intentionally creates conflict and estrangement with that biological parent’s former in-laws, do they get punished for what they did by saying we’re going to ignore the conflict because biological parent created it and we’re still going to give partial physical custody to grandparents knowing there is an irreconcilable conflict and then say you live with it? I don’t think that is in the best interest of the children.

Which brings me back to finally all well and good, here are the factors you[,] that you consider. How do you consider them? Who caused what? That is part of the equation. That is part of the discussion. I guess as I get more educated in this area, I’ll answer that question for myself.

But the facts are that I would find from the testimony there is contact between [Paternal Grandmother] and there has been literally no contact with [Paternal Grandfather]. And he’s—I don’t mean to be disrespectful to you. You’re sort of the passenger sitting in the car and your former wife is driving it. And in whichever direction she ends, that’s where you’re going. That’s another circumstance.

We have divorced grandparents involved with significant others living in separate households, both of them are Plaintiffs. And yet they solved the apparent problem of splitting time with them by their own agreement that if they get partial physical custody, the kids are going to stay overnight with [P]aternal [G]randmother and [P]aternal [G]randfather will come and pick them up and be with them during the day while [Paternal Grandmother] works. That doesn’t sound like it has…much court supervision at all, but nobody is asking me to get involved in that because they’ve agreed. So I don’t have the dilemma of saying let me figure out…how to split time with grandfather, grandmother, Skype calls. He goes over to her place, and they participate in these Skype calls.

That’s another thing. I’m sorry. This micromanaging contacts over the phone and Skype and all that stuff, you just can’t be all things to all people. And from the

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evidence, I do accept [M]other’s testimony that these Skype calls are upsetting. They are an interruption of their routine. And I can appreciate that.

How do you have a conversation with a 4-year-old? Hi. How are you? Tell me what you did today. What do you think of the Middle East situation? Four-year-olds don’t have conversations with people in most instances. They report. I played. I like the puzzle. I like my bat. I like the ball. I watched the Muppets. They are not on [TV] anymore or whatever, whoever.

But 6-year-olds are starting to have conversations. They are going to school. They are in kindergarten, first grade. This Skype technology, I heard the evidence. And I heard, oh yeah, we’ll get you the right device and this will all work. Mom refused that. But then she doesn’t apparently know how to use her phone to make it work. But then I heard testimony that it doesn’t work for group calls with phones.

And I will tell you what my concern was when I heard all of that testimony and there was I believe you said you could get up to ten people on a call if you’re on a computer. Ma’am, in my judgment, that is overload. You get ten people yammering at a 4-year-old, all visual, all seeing, all that. To me, I can’t comprehend how that would impact a 4-year-old.[33]

All right. Where am I? Well, I’m analyzing the evidence in front of me. There is no question there is a conflict between the two. I’m calling them households even though I know [Paternal Grandparents have] two households. Conflict between the households.

One thing that I will tell you struck me and was concerning to me, [M]other’s current husband has been described as a ____________________________________________

33 No testimony established that Paternal Grandparents placed or intended to place ten people on the Skype calls while the interim custody order was in effect. Rather, testimony explained that the “group call” function on Skype allows up to ten people to participate on a call.

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good father, doing a good job, accepting of these children. And he stepped up to adopt these children and apparently, according to evidence, had got an order allowing him to adopt the children. And [Paternal G]randparents couldn’t just let that go. They had to go in and undo that to get it vacated. To what end?

And my reaction was real simple to that. They stuck their nose in that situation and probably they should have stayed the hell out of it. Their—I can’t say daughter-in- law but their son’s paramour and their grandchildren are in a stable family, legally married, doing the right thing to adopt these boys. And [Mother’s Husband] steps up and for whatever reasons, you undid it. I don’t believe that could possibly be considered a best interest for your grandchildren in any way, shape, or form.

Yes, I read the section. One notation. I do agree [Mother’s counsel] referred [to] grandparent considerations under the 5328 subsection, but you said as well as the other general factors.

If I am compelled to use the factors that the legislature set up, I’m not looking beyond what the statute says.

And the statute says grandparents factors. Fine. If I’m told I have to use those factors, I’m not going back and looking at general factors because I don’t think I should anyway be compelled to.

But the bottom line is this. There is a conflict between [Paternal G]randmother and [M]other. Who created it? Even if I say [M]other, still is a fact. Now I don’t necessarily believe that [M]other created the conflict.

And even if she did and her perception is wrong, what is the old saying[,] perception becomes reality[,] is reality. Now, what am I to do with that, say [M]other you have got to make it up with your former paramour’s mother? Gee, I’m sure that will work. Wait a minute, counseling. We’ll make you spend money for counseling to heal this rift.

Well, [Paternal G]randmother is in Erie. Excuse me. [Corry], close to Erie.—

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* * *

Corry. And [Mother] is in Hanover. How is that going to work? Oh, let’s make everybody drive three hours to get at a middle point and find some counselor to talk to these people for an hour and send them back on their way. That will give them a lot of time to think while they are driving back and forth. That is not going to work.

So bottom line is this. Right or wrongly, I don’t believe that the conflict between [M]other and [P]aternal [G]randmother can be fixed. And I don’t think, therefore, it is in the best interest to trump [M]other’s decision not to give access to grandparents simply because grandparents want to establish a relationship with their grandchildren. I don’t see any need. Mother needs no help. She has a new husband. He’s doing good by her. They are stable, adding to their family.[34] So I’m not going to interfere with her decision.

She is [C]hildren’s mother. And I don’t see any reason, even considering all of these factors that I’m supposed to think about, to conclude that [C]hildren would be better or it would be in their best interest to be compelled to spend regulated time with grandparents, nor for that matter have dictated times for contact on the phone.

So having said all of that, the bottom line order is this.

ORDER

AND NOW, to wit, this 10th day of February, 2014, the complaint for custody filed by [Paternal Grandparents] is dismissed. We will enter no order of partial physical custody.

34 Mother was pregnant at the time of the custody trial.

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(Id. at 289-298; R.R. at 148a-152a.)35

On March 7, 2014, Paternal Grandparents timely filed a notice of

appeal and concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i). Paternal Grandparents raised four issues in their

concise statement challenging: (1) the court’s decision to sever all ties

between Children and their Paternal Grandparents’ ancestry; (2) the court’s

admission of evidence of criminal and motor vehicle offenses; (3) the court’s

failure to consider the Custody Act’s statutory factors and to conduct a

detailed analysis; and (4) the court’s exclusive focus on the conflict between

Mother and Paternal Grandparents. On March 24, 2014, the court issued a

responsive Pa.R.A.P. 1925(a) opinion. In its opinion, the court stated:

We have reviewed our Decision and feel no need presently to elaborate further. As the issues are styled, we would take the opportunity to offer some generalized comments and observations. Simply put, this Judge believes that the legislature has unduly encroached upon the judiciary and the way Judges are to perform their responsibilities. To state the issues of error as failing to conduct a detailed child custody analysis as required misdirects the focus away from the sole question of what is in the best interests of children. …

Since it is unlikely a litigant would directly challenge “the factors” (23 Pa.C.S. 5328), in the context of the issues ____________________________________________

35 Prior to trial, the parties had filed motions for contempt. Mother filed for contempt, alleging Paternal Grandparents had smoked in front of Children. Paternal Grandparents filed for contempt based on Mother’s alleged interference with the visual capabilities of the Skype calls. The court denied both petitions for contempt at the conclusion of trial, finding insufficient evidence to substantiate either claim.

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styled, it is hoped this appeal may address the threshold question[:] can the legislature do what this law purports to do? The development of custody law, as is so with the common-law, was unquestionably within the province of the judiciary. An absolute preclusion from primary custody when a parent moved in the paramour[,] evolved to a more precise consideration of what is the effect of such a meretricious relationship on children. While the judiciary may have struggled with shifting social [mores], the Courts never lost focus that the paramount question was and always will be[,] what is in the best interest of children.

This is not a new challenge for the Courts. When called upon, it has been decided by the Superior Court that legislation is not the end all be all. In considering a natural parent’s petition to resume custody of his or her children, the best interest of the child standard was applicable rather than the clear necessity standard as set out in the Juvenile Act (42 Pa.C.S.A. 6301 et seq.).

Perhaps in hindsight, this Judge should have declared outright in this case that “the factors” would not be considered and thus pre[v]ented the precise question being asked now. What we did do is consider the evidence and arguments presented by the litigants and to the best of our human ability decide what was in the best interest of these two boys. We do not think we were wrong in the result or how we got there.

(Rule 1925(a) Opinion, filed March 24, 2014, at 2-5) (some internal citations

omitted).

On September 16, 2014, this Court vacated and remanded the matter,

based on the trial court’s failure to utilize the requisite statutory factors in

making its determination. Specifically, this Court instructed the trial court to

consider upon remand the sixteen general statutory “best interest” factors

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applicable when making any order of custody (see 23 Pa.C.S.A. § 5328(a))

and the three statutory custody factors pertaining to grandparents and

great-grandparents (see 23 Pa.C.S.A. § 5328(c)(1)). Based on its

disposition, this Court declined to address the merits of any of Paternal

Grandparents’ issues.

On November 6, 2014, the trial court issued its remand decision. The

trial court’s remand decision provides no facts or procedural history of the

case. The remand decision initially references the closing arguments of

counsel and incorporates by reference the court’s on-the-record discussion

at the conclusion of the custody trial. The court’s remand decision

continues, in its entirety and without any discussion of legal authority

whatsoever, as follows:

We then reference the grandparents’ factors in Section 5328(c)(1) of the Child Custody Act. We consider the three subsections as follows: (i) none for approximately 3 years; (ii) interference would result to the parent/child relationship as it did when grandparents intervened in a finalized adoption by Mother’s current husband resulting in the adoption being undone and still pending at the time of this custody trial; (iii) awarding custody to grandparents would not be in the best interest of the children. The analysis however, does not end there and we continue to consider the 16 factors set forth at pages 4-6 of the Superior Court Opinion. We will address each factor ad seriatum.

Factor 1: Neither party is more likely to encourage and promote frequent and continuing contact.

Factor 2: There exists no risk of physical harm to the children, though efforts to influence a child’s thinking may possibly create emotional stress.

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Factor 3: Grandparents have performed no parental duties for at least three years, while Mother has.

Factor 4: Grandparents are unnecessary to provide stability and continuity in [Children’s] education, family life and community life as circumstances present at trial. Mother provides for those.

Factor 5: Grandparents (and others) are the extended family, 5½ travel hours away. Mother’s current husband completes the traditional family unit of husband and wife and children. There is no evidence they need help from any outside source.

Factor 6: There is no reason to believe [C]hildren’s relationship is anything but good and at the time of trial a third sibling was expected. We fail to see how grandparents add anything to the sibling relationships.

Factor 7: There was no evidence presented as to the well-reasoned preference of [C]hildren.

Factor 8: Not applicable.

Factor 9: Mother is more likely to maintain a loving, stable, consistent and nurturing relationship “adequate” for [C]hildren’s emotional needs.

Factor 10: Mother is more likely to attend to the daily, physical, emotional, developmental, educational and special needs of [C]hildren. Need it be stated, Grandparents are 5½ hours away.

Factor 11: The parties [live] at least 5½ travel hours apart.

Factor 12: While each party may have the ability to make appropriate child-care arrangements and be “available,” as written, we do not believe this subsection permits us to rewrite the statute to address quality of care. However, see factor 9.

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Factor 13: There exists a high level of conflict between the parties, more so with [Paternal Grandmother] than with [Paternal Grandfather]. While the parties may state a willingness to cooperate, we are unpersuaded that there exists the ability to cooperate.

Factor 14: While there was evidence presented about past drug and alcohol use/abuse, adequate evidence of present circumstances is lacking.

Factor 15: While [Paternal G]randfather may have some difficulties getting around, there is no evidence that any party or household member is mentally impaired or physically incapable.

Factor 16: No other relevant factors exist of significance.

Following then the directive to properly consider [Children’s] best interest in light of the statutory factors, we have done so. To answer this question we have balanced each factor singularly and in toto in each to the other and as each may apply to the underlying circumstances presented. Considering then the evidence presented as to the subject matter of each factor and further considering the arguments of counsel, we do conclude that it is not in the best interests of these children to be compelled by court order to spend times of partial physical custody with [Paternal] Grandparents. An appropriate Order dismissing [Paternal G]randparents’ complaint follows hereinafter.

(Remand Decision, filed November 6, 2014, at 1-4). Paternal Grandparents

timely filed a notice of appeal and Rule 1925(a)(2)(i) statement on

December 5, 2014. On December 17, 2014, the trial court issued a

supplemental opinion, commenting only on its evidentiary rulings concerning

the criminal offenses of Paternal Grandmother and W.B. (See Supplemental

Rule 1925(a) Opinion, filed December 17, 2014, at 1-2.)

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Paternal Grandparents raise the following issues for our review:

WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION OR AN ERROR OF LAW BY FAILING TO PROPERLY ANALYZE THE CUSTODY FACTORS SET FORTH IN 23 PA.C.S. § 5328(a) AND (c) OF THE CUSTODY ACT, AS AMENDED, ON REMAND, AS DIRECTED BY THE SUPERIOR COURT OF PENNSYLVANIA WHEN THE TRIAL COURT MERELY ENGAGED IN A CURSORY AND PERFUNCTORY ANALYSIS RATHER THAN THOROUGHLY EXAMINING AND CONSIDERING ALL FACTORS AS SET FORTH IN § 5328(a) AND (c), AND IN ACCORDANCE WITH THE STANDARD OF WHAT IS IN CHILDREN’S BEST INTERESTS?

WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION OR AN ERROR OF LAW IN FAILING TO GRANT PATERNAL GRANDPARENTS ANY RIGHTS OF PARTIAL PHYSICAL CUSTODY, WHICH, IN EFFECT, CUTS CHILDREN OFF FROM THEIR PATERNAL ANCESTRY AND IS CONTRARY TO THE BEST INTEREST[S] OF CHILDREN AND IS IN CONTRAVENTION OF WELL-SETTLED CASE LAW AND THE PURPOSE OF 23 PA.C.S. § 5325?

WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION OR AN ERROR OF LAW BY REPEATEDLY ALLOWING THE ADMISSION OF EVIDENCE (OVER OBJECTIONS) OF CRIMINAL AND MOTOR VEHICLE OFFENSES NOT ENUMERATED IN 23 PA.C.S. § 5329 AND WHICH WERE NOT OTHERWISE ADMISSIBLE UNDER THE RULES OF EVIDENCE?

(Paternal Grandparents’ Brief at 4).

For purposes of disposition, we combine Paternal Grandparents’ first

and second issues. Paternal Grandparents argue the legislature recognized

a beneficial relationship between children and their grandparents when it

gave grandparents standing under 23 Pa.C.S.A. § 5325, in the event of a

parent’s death. Paternal Grandparents assert the trial court wholly ignored

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the importance of their role in Children’s lives. Paternal Grandparents

contend the court’s custody decision effectively severed all ancestral ties

between Children and Father’s family because Mother and Mother’s Husband

have made clear they will not permit Paternal Grandparents to have any

contact or communication with Children in the future.

Paternal Grandparents also argue that the court’s decision following

remand fails to set forth a detailed analysis to support the court’s decision to

deny Paternal Grandparents any contact with Children. With respect to the

trial court’s initial consideration of the grandparent factors (see 23 Pa.C.S.A.

§ 5328(c)(1)), under Section 5328(c)(1)(i) (amount of contact between child

and grandparent prior to filing of custody action), Paternal Grandparents

assert the court merely stated Paternal Grandparents have not had contact

with Children for approximately three years. Paternal Grandparents aver the

court ignored their substantial contact with Children prior to the custody

action, where K.A.T. resided with Paternal Grandmother and W.B. for one

year and Paternal Grandparents provided care for both Children when

Mother and Father shared physical custody after their separation in 2009.

Paternal Grandparents claim their lack of contact with Children in recent

years stemmed from Mother’s repeated moves and refusal to inform Paternal

Grandparents of her contact information and whereabouts. Paternal

Grandparents stress how they needed to hire a private investigator to locate

Mother and Children after Father’s death.

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Under Section 5328(c)(1)(ii) (whether custody award interferes with

parent-child relationship), Paternal Grandparents complain the trial court

improperly focused on Paternal Grandparents’ intervention with the adoption

proceedings by Mother’s Husband. Paternal Grandparents insist the trial

court blamed them for asserting their rights under the adoption statute to

provide testimony regarding whether Mother’s Husband would be an

appropriate adoptive parent. Paternal Grandparents maintain that Mother’s

and Mother’s Husband’s failure to notify Paternal Grandparents about the

adoption proceedings (which resulted in the court vacating the adoption

decree) deprived Paternal Grandparents of an opportunity to participate in

the determination of whether adoption by Mother’s Husband would serve

Children’s best interests. Paternal Grandparents suggest their intervention

in the adoption proceedings was especially necessary in light of Mother’s

Husband’s inflammatory racist comments on Facebook.

Regarding Section 5328(c)(1)(iii) (whether custody award is in best

interest of child), Paternal Grandparents recite the court’s entire analysis of

this factor as follows: “awarding custody to grandparents would not be in the

best interest of children.” Paternal Grandparents contend the “best interest

of the child” determination is the polestar criterion in custody cases, and the

court’s bare assertion is woefully inadequate.

Paternal Grandparents proclaim the court was also required to analyze

all of the sixteen statutory custody factors under Section 5328(a). Paternal

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Grandparents highlight the trial court’s initial remarks on the record that it

would not consider the sixteen custody factors and would consider only the

three factors related to grandparents seeking custody. When compelled to

do so by this Court, the trial court mentioned the sixteen factors in its

remand decision but provided no detail or analysis of the factors, and no

references to the record. Paternal Grandparents maintain the court’s

decision after remand falls far short of a thorough analysis.

Paternal Grandparents further suggest the record does not support the

court’s conclusory statements as to certain factors.36 For example, Paternal

Grandparents suggest that factor one (which party is more likely to

encourage and permit frequent and continuing contact between child and

another party) actually favors Paternal Grandparents, as Mother admitted

she will not permit Paternal Grandparents to see Children; the court

erroneously concluded this factor favored neither party. Regarding factor

three (parental duties performed by each party on behalf of child), the court

concluded Paternal Grandparents performed no parental duties for three

years, but Paternal Grandparents maintain the court ignored Mother’s ____________________________________________

36 The court determined there was no evidence presented relevant to the court’s analysis of factor 2 (present and past abuse committed by party or member of party’s household), factor 7 (well-reasoned preference of child), factor 14 (history of drug or alcohol abuse of party or member of party’s household), and factor 15 (mental and physical condition of party or member of party’s household). The court did not mention factor 2.1 (related to child abuse and involvement with protective services) in its decision following remand.

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repeated moves and efforts to exclude Paternal Grandparents from

Children’s lives as well as Paternal Grandparents’ efforts to locate Mother

and Children. As to factor four (need for stability and continuity in child’s

education, family life and community life), the court said Paternal

Grandparents were “unnecessary” for Children’s stability and continuity.

Paternal Grandparents aver the amount of custodial time awarded to

Paternal Grandparents under the interim custody order does not disrupt

Children’s lives, and the court failed to consider any benefit to Paternal

Grandparents’ involvement in Children’s lives.

Paternal Grandparents contend the court also ignored evidence of

Children’s extended family on Father’s side, who reside in Erie County

(relative to factor five), when the court simply concluded: “Mother’s current

husband completes the traditional family unit of husband and wife and

children. There is no evidence they need help from any outside source.”

Paternal Grandparents explain the court indicated that Paternal

Grandparents add nothing to Children’s sibling relationships (relative to

factor six); Paternal Grandparents submit this factor is inapplicable in the

context of a case where grandparents seek only partial physical custody.

Regarding factor eight (attempts of parent to turn child against other

parent), the court concluded this factor was inapplicable, but Paternal

Grandparents suggest the record is replete with examples of Mother’s efforts

to turn Children against them by excluding Paternal Grandparents from

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Children’s lives. With respect to factor nine (which party is more likely to

maintain loving, stable, consistent and nurturing relationship with child

adequate for child’s emotional needs), Paternal Grandparents contend both

parties demonstrated adequate parenting skills, but the court inexplicitly

determined factor nine favored Mother, without consideration of Paternal

Grandparents’ loving relationship with Children. In deliberation of factor ten

(which party is more likely to attend to daily physical, emotional,

developmental, educational and special needs of child), Paternal

Grandparents complain the court failed to consider Paternal Grandparents’

ability to care for Children during their periods of partial physical custody.

Instead, the court focused on the distance between the parties. Paternal

Grandparents claim the trial court impermissibly relied primarily on the

distance between the parties in its discussion of three of the sixteen

factors,37 when distance is relevant only to factor eleven. Even as to factor

eleven (proximity of residences of parties), Paternal Grandparents insist

their request for partial physical custody as dictated under the interim

custody order is reasonable in light of the distance between the parties.

Concerning factor twelve (each party’s availability to care for child or

ability to make appropriate child-care arrangements), Paternal Grandparents

claim this factor is neutral because Paternal Grandparents will be available to ____________________________________________

37 The court mentioned the distance between the parties’ residences in its consideration of factors five, ten, and eleven.

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care for Children during their periods of partial physical custody and have

already agreed to a joint schedule during those periods.38 Paternal

Grandparents aver the court erroneously concluded that no party to this

custody action has the ability to cooperate (relative to factor thirteen). To

the contrary, Paternal Grandparents declare that they have been cooperative

with Mother, but Mother remains uncooperative with Paternal Grandparents,

in an effort to keep them away from Children.

Regarding factor sixteen (any other relevant factor), the court said no

other relevant factors of significance exist. Paternal Grandparents submit

the court ignored, inter alia, Mother’s unsubstantiated allegations that

Paternal Grandparents’ conduct during the interim custody order caused

Children to suffer emotional harm and behavioral issues, Mother’s and

Mother’s Husband’s outright refusal to permit Paternal Grandparents any

contact with Children whatsoever, Mother’s efforts to exclude Paternal

Grandparents from Children’s lives over the years preceding the current

custody action, and Mother’s Husband’s racially derogatory comments on

Facebook. Paternal Grandparents conclude the trial court’s remand decision

is severely deficient and unsupported by the record, and this Court must

reverse the trial court’s custody decision and award Paternal Grandparents ____________________________________________

38 The trial court conceded that both parties might have the ability to make appropriate child-care arrangements and be “available,” but then the court referred back to its analysis of factor nine, favoring Mother. (See Remand Decision, filed November 6, 2014, at 3.)

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partial custody in accordance with the terms of the interim custody order. 39

We agree.

In custody cases, the relevant scope and standard of review are as

[T]he appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it…. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination…. Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (quoting

Bovard v. Baker, 775 A.2d 835, 838 (Pa.Super. 2001)). “On issues of

credibility and weight of the evidence, we defer to the findings of the trial

judge who has had the opportunity to observe the proceedings and

demeanor of the witnesses.” R.M.G., Jr., supra.

The parties cannot dictate the amount of weight the trial court places on the evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court’s consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion. ____________________________________________

39 At the custody trial, Paternal Grandparents asked for additional custodial time with Children, but on appeal they seek only the custodial time awarded under the interim custody order. (See Paternal Grandparents’ Brief at 65.)

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Id. (quoting S.M. v. J.M., 811 A.2d 621, 623 (Pa.Super. 2002)). “Indeed,

our admittedly circumscribed standard of review does not preclude this Court

from finding that a trial court abused its discretion in fashioning a custody

order. While prudence dictates that we exercise our authority sparingly, we

are not powerless to rectify a manifestly unreasonable custody order.” V.B.

v. J.E.B., 55 A.3d 1193, 1200 (Pa.Super. 2012). “Ultimately, the test is

‘whether the trial court’s conclusions are unreasonable as shown by the

evidence of record.’” Ketterer v. Seifert, 902 A.2d 533, 539 (Pa.Super.

2006) (quoting Dranko v. Dranko, 824 A.2d 1215, 1219 (Pa.Super.

2003)).

The statutory presumption favoring an award of custody to parents

over third-parties is not applicable to the current case because Paternal

Grandparents seek only partial physical custody of Children. See 23

Pa.C.S.A. § 5327(b) (setting forth presumption in cases concerning primary

physical custody). The Child Custody Act (“Act”) provides:

§ 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:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

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(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) (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

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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.

(c) Grandparents and great-grandparents.—

(1) In ordering partial physical custody or supervised physical custody to a party who has standing under section 5325(1) or (2) (relating to standing for partial physical custody and supervised physical custody), the court shall consider the following:

(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.A. § 5328(a), (c)(1). Thus, when deciding an award of custody,

the court must conduct a thorough analysis of the best interests of the child

based on the factors set forth in the Act. E.D. v. M.P., 33 A.3d 73

(Pa.Super. 2011). “All of the factors listed in [S]ection 5328(a) are required

to be considered by the trial court when entering a custody order.” J.R.M.

v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (emphasis in original).

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Nevertheless, “there is no required amount of detail for the trial court’s

explanation; all that is required is that the enumerated factors are

considered and that the custody decision is based on those considerations.”

M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013), appeal denied, 620

Pa. 710, 68 A.3d 909 (2013).

Further, “in the recent past, grandparents have assumed increased

roles in their grandchildren’s lives and our cumulative experience

demonstrates the many potential benefits of strong inter-generational ties.”

Hiller v. Fausey, 588 Pa. 342, 360, 902 A.2d 875, 886 (2006), cert.

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

While acknowledging the general benefits of these relationships, we cannot conclude that such a benefit always accrues in cases where grandparents force their way into grandchildren’s lives through the courts, contrary to the decision of a fit parent. In contrast, however, we refuse to close our minds to the possibility that in some instances a court may overturn even the decision of a fit parent to exclude a grandparent from a grandchild’s life, especially where the grandparent’s child is deceased and the grandparent relationship is longstanding and significant to the grandchild.

Id. at 360, 904 A.2d at 886-87 (internal footnote omitted) (emphasis

added). See also Commonwealth ex. rel. Goodman v. Dratch, 159 A.2d

70, 71 (Pa.Super. 1960) (stating: “Unless there [is] some compelling

reason, we do not believe that a grandchild should be denied visitation to his

grandparents”).

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Additionally, in the context of custody proceedings, “[h]ostilities

between the [parties] are relevant only insofar as they constitute a threat to

the child or affect the child’s welfare.” Nancy E.M. v. Kenneth D.M., 462

A.2d 1386, 1388 (Pa.Super. 1983). Importantly:

A custodial parent’s suspicion of or animosity towards another parent or third party seeking visitation should not alone warrant denial of visitation; otherwise the custodial parent could always effectively deny visitation simply by testifying to suspicion or animosity. Instead of deferring to suspicion or animosity, the hearing judge must try to determine whether there is any basis for these feelings. Stated more broadly, the judge must appraise whether the relationship between the disputing parties has an adverse effect on the child.

Except under unusual circumstances, no child should be cut off entirely from one side of [his or her] family. [V]isits with a grandparent are often a precious part of a child’s experience and there are benefits which devolve upon the grandchild from the relationship with his grandparents which he cannot derive from any other relationship. If animosities continue between the parties, and result in adverse [e]ffects on [the child]…, a visitation order may be revised, even to the extent of retracting visitation.

Commonwealth ex. rel. Williams v. Miller, 385 A.2d 992, 995 (Pa.Super.

1978) (internal citations omitted) (emphasis added) (reversing trial court

order denying maternal grandmother visitation with grandchild following

mother’s death; maternal grandmother offered sufficient reasons why

visitation with child for one weekend each month would serve child’s best

interests; record did not support trial court’s finding that maternal

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grandmother abandoned mother; father’s “mistrust” of maternal

grandmother was not valid reason for denying her visitation; trial court

failed to provide sufficient consideration to unusual facts of case; and if

enforcing visitation away from child’s home presents harmful effects on

child, then trial court may specify place and conditions of visitation). See

also Johnson v. Diesinger, 589 A.2d 1160 (Pa.Super. 1991) (explaining

how rivalry between parents and grandparents for child’s affection can be

devastating; when animosity exists, appropriate inquiry is not where to place

blame, but how does animosity affect best interests of children).

Instantly, the court announced at the start of the custody trial that it

had not presided over a custody trial in the past five years, and the court

was dissatisfied with the legislature’s enactment of the Act since the court

had last presided over a custody trial. (See N.T., 2/10/12, at 12; R.R. at

9a) (stating: “I have personal reservations as to whether the legislature can

tell me how to make a decision”). Following the conclusion of closing

arguments, the court again expressed disdain with the Act. (See id. at 290-

91; R.R. at 148a-149a) (stating: “I’m tempted to just rule…that this is all

unconstitutional because it infringes upon my authority to make a decision”).

During the court’s on-the-record remarks, the court acknowledged the

existence of the statutory factors at Sections 5328(a) and 5328(c)(1), but

went on to state that it would consider only the statutory factors pertaining

to grandparents’ rights. (Id. at 295; R.R. at 151a) (stating: “If I am

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compelled to use the factors that the legislature set up, I’m not looking

beyond what the statute says. And the statute says grandparents factors.

Fine. If I’m told I have to use those factors, I’m not going back and looking

at general factors because I don’t think I should anyway be compelled to”).

At the conclusion of trial, the court dismissed Paternal Grandparents’

custody complaint, awarding them no periods of partial physical custody.

After Paternal Grandparents filed their notice of appeal, the trial court

issued a Rule 1925(a) opinion, once again expressing contempt with the Act

as “unduly encroach[ing] upon the judiciary and the way [j]udges are to

perform their responsibilities.” (Rule 1925(a) Opinion at 2). In its opinion,

the trial court declined to analyze any of the factors set forth in Section

5328(a) or Section 5328(c)(1). Instead, the court simply concluded: “What

we did do is consider the evidence and arguments presented by the litigants

and to the best of our human ability decide what was in the best interest of

these two boys. We do not think we were wrong in the result or how we got

there.” (Id. at 5).

On September 16, 2014, this Court vacated and remanded the matter,

based on the trial court’s failure to utilize the requisite statutory factors in

making its determination. Specifically, this Court instructed the trial court to

consider upon remand the general statutory “best interest” custody factors

set forth at Section 5328(a) and the three statutory custody factors

pertaining to grandparents at Section 5328(c)(1).

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On November 6, 2014, the trial court issued its decision after remand.

Significantly, the trial court’s remand decision provides no facts or

procedural history of the case. (See Remand Decision at 1-4.) Similarly

absent from the court’s decision after remand are any express credibility

determinations.40 The court also supplies no law whatsoever. (See Remand

Decision at 1-4.) Rather, the court issues mere conclusory statements as to

each factor under Section 5328(a) and Section 5328(c)(1). (See id.) Our

review of the court’s decision after remand leaves questionable whether the

court engaged in a thoughtful analysis of, and gave due consideration to,

each relevant factor, where the court offered no facts of record or analysis to

support its conclusions. See M.J.M., supra; J.R.M., supra; E.D., supra.

The court’s decision after remand appears to pay mere lip service to this

Court’s remand directive. Under these circumstances, the trial court’s

remand decision is deficient. See M.J.M., supra; J.R.M., supra; E.D.,

supra.

More importantly, many of the trial court’s conclusory statements do

not accurately reflect the evidence presented at trial. For example, the

court’s bald statement regarding Section 5328(c)(1)(i), that Paternal

Grandparents have had no contact with Children for approximately three ____________________________________________

40 The sole reference to a party’s credibility determination appears in the midst of the court’s on-the-record remarks at the conclusion of trial, where the court accepted as true Mother’s testimony that the Skype calls were upsetting to Children. (See N.T., 2/10/14, at 293; R.R. at 150a.)

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years (see Remand Decision at 1), lacks necessary context. Specifically, the

court ignores, inter alia, the following evidence: (1) Mother and K.A.T. lived

with Paternal Grandmother and W.B. for one year; (2) Paternal

Grandparents spent substantial time with Children when Mother and Father

shared physical custody; (3) Mother repeatedly moved around the country

and refused to disclose (or to permit Father to disclose) her contact

information to Paternal Grandparents; and (4) Paternal Grandparents had to

hire a private investigator to locate Mother and Children in the aftermath of

Father’s death. The court similarly ignores this evidence concerning its

finding at Section 5328(a)(3) (parental duties performed by each party on

behalf of child), where the court simply states: “Grandparents have

performed no parental duties for at least three years, while Mother has.”

(Remand Decision at 2).

Under Section 5328(a)(1) (which party is more likely to encourage and

permit frequent and continuing contact between child and another party),

the trial court found this factor favored neither party. (See Remand

Decision at 2.) Nevertheless, the record discloses that this factor favors

Paternal Grandparents, as the evidence presented at trial shows they have

made efforts to cooperate with Mother during the pendency of the interim

custody order. Conversely, Mother and Mother’s Husband demonstrated

their opinion that Paternal Grandparents are “horrible,” and testified that

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they will not permit Paternal Grandparents to have any contact with Children

in the future (presumably, unless compelled to do so by court order).

Regarding Section 5328(a)(9) (which party is more likely to maintain

loving, stable, consistent and nurturing relationship with child adequate for

child’s emotional needs), Section 5328(a)(10) (which party is more likely to

attend to daily physical, emotional, developmental, educational and special

needs of child), and Section 5328(a)(12) (each party’s availability to care for

child or ability to make appropriate child-care arrangements), the trial court

announced, with little or no explanation, that each of these factors favored

Mother. (See Remand Decision at 3.) Significantly, the trial court made no

factual findings concerning Paternal Grandparents’ ability to care for and

support Children during their periods of partial physical custody. (See id.)

Nothing in the record suggests Paternal Grandparents are unable to or would

have difficulty providing care for Children. Paternal Grandmother and

Paternal Grandfather want to be part of Children’s lives and have amicably

worked out a schedule regarding the care for Children during their periods of

partial physical custody.

Further, the court’s decision following remand focuses on certain

factors, to the detriment of other relevant factors. For example, the court

placed great emphasis on the distance between the parties, which the court

mentioned in its consideration of factors five, ten, and eleven. (Id. at 2-3.)

We fail to see how proximity is relevant to factor five (availability of

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extended family) and factor ten (which party is more likely to attend to daily

physical, emotional, developmental, educational and special needs of child),

in the context of Paternal Grandparents’ request for limited partial physical

custody of Children.41 Compare Durning v. Balent/Kurdilla, 19 A.3d

1125 (Pa.Super. 2011) (explaining that award of shared physical custody of

school-aged child of parents who do not live in geographical proximity to

each other is contrary to child’s need for continuity at home and at school).

As well, the court relied heavily on the conflict between the parties,

determining the conflict could not be resolved. (See N.T., 2/10/14, at 295-

97; R.R. at 151a-152a) (stating: “So bottom line is this. Right or wrongly, I

don’t believe that the conflict between [M]other and [P]aternal

[G]randmother can be fixed”); (see also Remand Decision at 3) (regarding

analysis of Section 5328(a)(13), stating: “While the parties may state a

willingness to cooperate, we are unpersuaded that there exists the ability to

cooperate”). Absent from the court’s remarks, however, is an appropriate

analysis of why the conflict exists and why it adversely affects Children. See

Johnson, supra; Nancy E.M., supra; Miller, supra.

The court also seemed to base its decision largely on Paternal

Grandparents’ unwelcome intervention with the adoption proceedings. (See

N.T., 2/10/14, at 294-95; R.R. at 150a-151a) (stating: “And my reaction

41 Maternal Grandmother also lives in Erie County, Pennsylvania.

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was real simple to that. They stuck their nose in that situation and probably

they should have stayed the hell out of it”); (see also Remand Decision at

1) (regarding analysis of Section 5328(c)(1)(ii), stating: “interference would

result to the parent/child relationship as it did when grandparents intervened

in a finalized adoption by Mother’s current husband resulting in the adoption

being undone and still pending at the time of this custody trial”). The court’s

comments are shocking in light of some of the disturbing testimony about

Mother’s Husband’s gravely inappropriate posts on Facebook (which he

admitted writing), especially where W.B. is African-American.

The court failed to consider, however, the important contribution

Paternal Grandparents can make in Children’s lives, particularly since their

Father’s death. With respect to Section 5328(a)(4) (need for stability and

continuity in child’s education, family life and community life), the court

coldly stated: “Grandparents are unnecessary to provide stability and

continuity in the child’s education, family life and community life as

circumstances present at trial. Mother provides for those.” (Id. at 2.)

Concerning Section 5328(a)(5) (availability of extended family), the court

explained: “Grandparents (and others) are the extended family, 5½ travel

hours away. Mother’s current husband completes the traditional family unit

of husband and wife and children. There is no evidence they need help from

any outside source.” (Id.) The court’s conclusory statements discount the

significant benefits Children can reap from Paternal Grandparents, who can

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provide Children ties to their deceased Father. See Hiller, supra; Nancy

E.M., supra. Additionally, the court disregarded evidence of Father’s

extended family living near Paternal Grandparents; Children could interact

with Father’s relatives during Paternal Grandparents’ periods of partial

physical custody.

Based on this record, we cannot agree that the court made a reasoned

decision based on the evidence presented, particularly in light of

Pennsylvania’s strong public policy favoring grandparent involvement in a

child’s life. See Hiller, supra; Miller, supra; Dratch, supra. See also

V.B., supra; Ketterer, supra. Therefore, we are compelled to reverse the

trial court’s decision to deny Paternal Grandparents’ request for partial

physical custody of Children, and remand for the court to enter the interim

custody order dated October 4, 2013 and entered October 7, 2013, as a final

order.

In their third issue, Paternal Grandparents acknowledge that in making

a custody determination, a court must consider whether a party seeking

custody poses a threat of harm to the child based on certain enumerated

prior criminal convictions. Paternal Grandparents explain that 23 Pa.C.S.A.

§ 5329(a) lists thirty-two enumerated offenses for the court to consider

when making this assessment. Paternal Grandparents emphasize that the

statute enumerates only misdemeanor and felony offenses and does not list

any summary offenses. Paternal Grandparents maintain that under Section

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5330, one party who has obtained information about a criminal charge filed

against the other party may move for a temporary custody order or

modification of an existing custody order (pending a hearing), but only

where the other party has been charged with an offense under Section

5329(a). Read together, Paternal Grandparents contend the legislature

limited the relevance of criminal convictions to only those offenses

enumerated in Section 5329(a), in awarding custody. Paternal

Grandparents argue that, even where a party seeking custody has a criminal

conviction for an enumerated offense, the court is not precluded from

granting that party custody; instead, the court shall consider the party’s

conduct relative to the offense to determine whether the party poses a

threat of harm to the child. Only when a parent has been convicted of

murder of the other parent can the court deny custody without considering

threat of harm (see 23 Pa.C.S.A. § 5329(b)).

Paternal Grandparents stress that none of the offenses considered by

the court are enumerated offenses under Section 5329(a). Paternal

Grandparents submit the court improperly allowed testimony (over their

objections) concerning Paternal Grandmother’s and W.B.’s respective

criminal histories, absent any prior convictions under Section 5329(a).

Paternal Grandparents acknowledge that the court stated in its supplemental

opinion that if it erred in admitting such testimony, the error was harmless.

Paternal Grandparents suggest the court’s improper admission of prior

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offenses played a part in the court’s determination as to the high level of

conflict between the parties, where the record shows Mother used Paternal

Grandmother’s and W.B.’s respective criminal histories to bolster Mother’s

position that the court should deny Paternal Grandparents any custodial time

with Children. Paternal Grandparents conclude the court’s evidentiary ruling

was erroneous. We agree.

Generally, our standard of review concerning evidentiary rulings is as

The admission or exclusion of evidence is within the sound discretion of the trial court, and in reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law A trial court has wide discretion in ruling on the relevancy of evidence and its ruling will not be reversed absent an abuse of discretion.

B.K. v. J.K., 823 A.2d 987, 991-92 (Pa.Super. 2003) (internal citations

Section 5329 of the Act provides, in pertinent part:

§ 5329. Consideration of criminal conviction

(a) Offenses.−Where a party seeks any form of custody, the court shall consider whether that party or member of that party’s household has been convicted of or has pleaded guilty or no contest to any of the offenses in this section or an offense in another jurisdiction substantially equivalent to any of the offenses in this section. The court shall consider such conduct and determine that the party does not pose a threat of harm to the child before making any order of custody to that parent when considering the following offenses:

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18 Pa.C.S. Ch. 25 (relating to criminal homicide).

18 Pa.C.S. § 2702 (relating to aggravated assault).

18 Pa.C.S. § 2706 (relating to terroristic threats).

18 Pa.C.S. § 2709.1 (relating to stalking).

18 Pa.C.S. § 2901 (relating to kidnapping).

18 Pa.C.S. § 2902 (relating to unlawful restraint).

18 Pa.C.S. § 2903 (relating to false imprisonment).

18 Pa.C.S. § 2910 (relating to luring a child into a motor vehicle or structure).

18 Pa.C.S. § 3121 (relating to rape).

18 Pa.C.S. § 3122.1 (relating to statutory sexual assault).

18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse).

18 Pa.C.S. § 3124.1 (relating to sexual assault).

18 Pa.C.S. § 3125 (relating to aggravated indecent assault).

18 Pa.C.S. § 3126 (relating to indecent assault).

18 Pa.C.S. § 3127 (relating to indecent exposure).

18 Pa.C.S. § 3129 (relating to sexual intercourse with animal).

18 Pa.C.S. § 3130 (relating to conduct relating to sex offenders).

18 Pa.C.S. § 3301 (relating to arson and related offenses).

18 Pa.C.S. § 4302 (relating to incest).

18 Pa.C.S. § 4303 (relating to concealing death of child).

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18 Pa.C.S. § 4304 (relating to endangering welfare of children).

18 Pa.C.S. § 4305 (relating to dealing in infant children).

18 Pa.C.S. § 5902(b) (relating to prostitution and related offenses).

18 Pa.C.S. § 5903(c) or (d) (relating to obscene and other sexual materials and performances).

18 Pa.C.S. § 6301 (relating to corruption of minors).

18 Pa.C.S. § 6312 (relating to sexual abuse of children).

18 Pa.C.S. § 6318 (relating to unlawful contact with minor).

18 Pa.C.S. § 6320 (relating to sexual exploitation of children).

Section 6114 (relating to contempt for violation of order or agreement).

The former 75 Pa.C.S. § 3731 (relating to driving under influence of alcohol or controlled substance).

75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol or utilizing drugs).

Section 13(a)(1) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to the extent that it prohibits the manufacture, sale or delivery, holding, offering for sale or possession of any controlled substance or other drug or device.

(b) Parent convicted of murder.—No court shall award custody, partial custody or supervised physical custody to a parent who has been convicted of murder under 18 Pa.C.S. § 2502(a) (relating to murder) of the other parent of the child who is the subject of the order unless the child is of suitable age and consents to the order.

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(c) Initial evaluation.—At the initial in-person contact with the court, the judge, conference officer or other appointed individual shall perform an initial evaluation to determine whether the party or household member who committed an offense under subsection (a) poses a threat to the child and whether counseling is necessary. The initial evaluation shall not be conducted by a mental health professional. After the initial evaluation, the court may order further evaluation or counseling by a mental health professional if the court determines it is necessary.

23 Pa.C.S.A. § 5329(a)-(c) (internal footnote omitted). Section 5330 of the

Act states:

§ 5330. Consideration of criminal charge

(a) Expedited hearing.—A party who has obtained information under 42 Pa.C.S. § 1904 (relating to availability of criminal charge information in child custody proceedings) or otherwise about a charge filed against the other party for an offense listed under section 5329(a) (relating to consideration of criminal conviction) may move for a temporary custody order or modification of an existing custody order. The court shall hold the hearing under this subsection in an expeditious manner.

(b) Risk of harm.—In evaluating any request under subsection(a), the court shall consider whether the party who is or has been charged with an offense set forth in section 5329(a) poses a risk of physical, emotional or psychological harm to the child.

(c) No prejudice.—Failure to either apply for information under 42 Pa.C.S. § 1904 or act under this section shall not prejudice any party in a custody proceeding.

23 Pa.C.S.A. § 5330. “The plain language of the statute reveals the obvious

intent of the Legislature to ensure that custody is not being provided to a

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[party] whose past criminal behavior presents a present threat of harm to

the child.” Ramer v. Ramer, 914 A.2d 894, 900-01 (Pa.Super. 2006).42

Instantly, during Paternal Grandmother’s cross-examination, Mother’s

counsel sought to elicit testimony from Paternal Grandmother concerning a

bad check charge in 2012 and a theft of services charge in 2009. Counsel

for Paternal Grandparents objected. (See N.T., 2/10/14, at 69-70; R.R. at

38a.) Mother’s counsel responded: “[W]e are looking at what is in the best

interest of the children. And [Paternal Grandmother] is up here basically

indicating that she is a wonderful grandparent and we’re just showing her

history.” (Id. at 70; R.R. at 38a.) Mother’s counsel further stated that the

testimony was relevant under Section 5328(a)(16) (any other relevant

factor). (Id.) The court overruled Paternal Grandparents’ objection on this

basis. (Id.) During W.B.’s cross-examination, Mother’s counsel sought to

elicit testimony from W.B. concerning a harassment charge in 2010. (Id. at

129; R.R. at 68a.) Counsel for Paternal Grandparents objected, specifically

stating that harassment is not an enumerated offense under Section 5329, ____________________________________________

42 This Court decided Ramer in the context of 23 Pa.C.S.A. § 5303(b) (repealed by 2010, Nov. 23, P.L. 1106, No. 112, § 1, effective January 24, 2011; re-codified at 23 Pa.C.S.A. § 5323, 5328-5330). Section 5303(b) provided similar language to the current Section 5329(a), stating: “If a parent has been convicted of or has pleaded guilty or no contest to an offense as set forth below, the court shall consider such criminal conduct and determine that the parent does not pose a threat of harm to the child before making an order of custody, partial custody or visitation to that parent[.]” 23 Pa.C.S.A. § 5303(b) (repealed). That statute listed only fourteen relevant convictions. See id.

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and is therefore irrelevant to the custody proceeding. (Id.) Mother’s

counsel responded: “It is absolutely relevant. We’re talking about the best

interest of these children. These children will be in the home where this

gentleman lives. Absolutely.” (Id.) Mother’s counsel conceded Mother was

not seeking an evaluation under Section 5329, but “[w]e’re just talking

about his character. It is about what is in the best interest of the children

and the people around the children, Your Honor.” (Id. at 130; R.R. at 68a.)

The court overruled Paternal Grandparents’ objection.

During Mr. Lagan’s direct-examination, Mother’s counsel sought to

elicit testimony concerning Mr. Lagan’s background investigations on

Paternal Grandparents and W.B. (Id. at 230; R.R. at 118a.) Counsel for

Paternal Grandparents again objected, explaining that Sections 5329 and

5330 specifically enumerate and discuss criminal convictions which are

relevant in a custody proceeding; counsel also stated any criminal

convictions pertaining to Paternal Grandparents or W.B., which are not

enumerated under the statute, are irrelevant. (Id.) Mother’s counsel

responded as follows: “This matter is what is in the best interest of the

children which includes what each party has in their background, what they

do every day, what type of person they are, and whether or not they should

be around children. It is absolutely relevant.” (Id.) The court then had the

following exchange with Mother’s counsel:

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[THE COURT]: But isn’t it limited by the legislature moving into this area by defining certain specific offenses?

[MOTHER’S COUNSEL]: Your Honor, I believe the 5329 section as well as 5330 is to determine who should have an evaluation to see if they are at risk of harm to the children to be able to have any custody at all. We’re certainly not representing that [Mr. Lagan’s] going to give us information to say that [Paternal Grandmother] has any 5329 offenses.

She has other offenses. We’re not saying that she should have—well, she should have no contact at all just based on these offenses.

We’re not asking that she receive an evaluation. We’re just simply speaking to the type of person who [is] around the children.

[THE COURT]: Are you saying this to me, for example, if a criminal background check reveals a person who has retail thefts, bad checks, forgeries, that somehow may impact on their character?

[MOTHER’S COUNSEL]: Essentially, Your Honor, yes. However, not to prove they will…commit those offenses again but whether or not they should be around children.

[THE COURT]: The children.

[MOTHER’S COUNSEL]: Correct.

[THE COURT]: I’ll allow it. Objection is overruled.

(Id. at 231-233; R.R. at 119a-120a.) Subsequently, Mr. Lagan testified that

he discovered Paternal Grandmother pled guilty to theft of services in

October 2009, a traffic violation in 2012, and speeding in 2013. Mr. Lagan

said Paternal Grandmother had another conviction for bad checks in 2012

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with a disposition of guilty.43 Mr. Lagan also found that W.B. pled guilty to

trespass by motor vehicle in 2008, and harassment in 2010. (Id. at 233-

35; R.R. at 120a-121a.) Mr. Lagan provided little to no detail concerning

the factual bases for any of these offenses. Mr. Lagan also did not indicate

the grading of any of the offenses.44 (Id.)

Section 5329 makes clear the type of criminal convictions the

legislature deemed relevant for purposes of making an award of custody, by

specifically enumerating only those crimes which evidence a threat of harm

to the child. See 23 Pa.C.S.A. § 5329(a); Ramer, supra. The parties

agree that none of Paternal Grandmother’s or W.B.’s prior criminal

convictions or motor vehicle offenses are listed in Section 5329(a). The

record is unclear whether any of the offenses at issue were graded higher

than summary offenses. In an effort to circumvent Section 5329, Mother’s

counsel attempted to obtain admission of the criminal offenses as relevant

generally to Section 5328(a)(16), which permits the court to consider “any

other relevant factor,” and the over-arching “best interests” analysis. We

cannot agree that the court’s admission of evidence concerning Paternal

Grandmother’s and W.B.’s criminal histories was proper under ____________________________________________

43 Mr. Lagan also indicated Paternal Grandmother was charged with operating a vehicle without required financial responsibility in 2012, but that charge was dismissed. 44 The investigatory report(s) on which Mr. Lagan relied at trial are not included in the certified record.

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subsection(a)(16), where the Act expressly delineates those criminal

convictions which are relevant to a custody determination, and the offenses

at issue are not among those listed. See 23 Pa.C.S.A. § 5329(a). See also

Pa.R.E. 401 (explaining evidence is relevant if it has any tendency to make

fact more or less probable than it would be without evidence; and fact is of

consequence in determining action); Johns v. Cioci, 865 A.2d 931

(Pa.Super. 2004) (explaining that unless it is shown that parent’s conduct

has had harmful effect on child, that conduct should be given little weight in

custody determinations); Vicki N. v. Josephine N., 649 A.2d 709

(Pa.Super. 1994) (stating party’s past conduct is not relevant to custody

proceeding unless it will produce ongoing negative effect on child’s welfare);

Commonwealth ex rel. Gorto v. Gorto, 444 A.2d 1299 (Pa.Super. 1982)

(stating primary concern in custody matters lies not with past but with

present and future; facts as of time of trial are foundation for court’s

determination; past conduct is not relevant unless it will produce ongoing

negative effect on child’s welfare).

Moreover, under the doctrine of ejusdem generis, the court cannot

consider other criminal offenses under the general language of Section

5328(a)(16), where the Act expressly delineates those criminal convictions

which the legislature deemed relevant to a custody determination, and the

offenses at issue are not among those listed. See generally McClellan v.

Health Maintenance Organization of Pennsylvania, 546 Pa. 463, 473,

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686 A.2d 801, 806 (1996) (explaining: “[u]nder our statutory construction

doctrine [of] ejusdem generis (“of the same kind or class”), where general

words follow the enumeration of particular classes of persons or things, the

general words will be construed as applicable only to persons or things of the

same general nature or class as those enumerated. When the opposite

sequence is found, i.e., specific words follow general ones,…the doctrine is

equally applicable, and restricts application of the general term to things

that are similar to those enumerated”). Mother cites no law to the

contrary.45 Therefore, the court erred by admitting into evidence Paternal

Grandmother and W.B.’s previous offenses, which fell outside of Section

5329.46 See B.K., supra.

Accordingly, we reverse the trial court’s decision to deny Paternal

Grandparents’ request for partial physical custody and remand for the trial

court to enter immediately as a final order, the interim custody order dated

October 4, 2013 and entered October 7, 2013. Mother must fix the Skype

feature on her cell phone or home computer to allow visual capabilities ____________________________________________

45 Instead, Mother relies on generic legal principles stating that criminal convictions are reasonably probative as to the reputation of an individual and have impact upon assessing a person’s character. (See Mother’s Brief at 51-54.) 46 In its supplemental trial court opinion, the court indicated that to the extent the court improperly admitted the evidence at issue, the error was harmless. (See Supplemental Rule 1925(a) Opinion at 1-2.) In the event that this matter might proceed to a new custody trial at some point in the future, the trial court’s harmless error analysis would be immaterial.

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within thirty (30) days of this disposition. Alternatively, the parties could

consider using FaceTime to communicate.

Order reversed; case remanded with instructions. Jurisdiction is

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/28/2015

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