Markhorst, T. v. Ruskuski, B.

• Court: Superior Court of Pennsylvania
• Decided: July 1, 2026
• Docket: 268 MDA 2026
• Status: Unpublished
• Author: Bowes

Opinion

J-S21001-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

TODD MARKHORST : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRITTANY ANNE RUSKUSKI : : : No. 268 MDA 2026 APPEAL OF: CHRISTOPHER AND : AMBER MAYO :

Appeal from the Order Entered February 4, 2026 In the Court of Common Pleas of Columbia County Civil Division at No(s): 2021-CV-0000325-CU

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.: FILED: JULY 1, 2026

Christopher and Amber Mayo (“Adoptive Parents”) appeal from the order

denying their petition to reinstate their intervenor status to seek modification

of the custody order pertaining to L.R.1 We affirm.

By way of background, Brittany Anne Ruskuski (“Mother”) gave birth to

L.R. in March of 2021. Although Todd Markhorst (“Father”) was aware that

Mother had become pregnant, he did not know of L.R.’s birth because when

the parties broke up, Mother advised Father she was going to get an abortion

and then ceased all communication. Shortly after L.R.’s birth, Mother placed

her in the custody of Adoptive Parents, who filed a report of intent to adopt

L.R. on March 17, 2021. Thereafter, Mother executed a consent to adoption. ____________________________________________

1 While Adoptive Parents refer to the minor child as L.C.M., we utilize “L.R.”

because that is what appears in the record. J-S21001-26

Upon learning of L.R.’s birth, Father filed a complaint against Mother on

April 19, 2021, seeking sole physical and legal custody. Since Mother would

not name Father as the biological father, he had to prove his paternity through

DNA testing, which he did. Adoptive Parents filed a petition to intervene on

September 17, 2021. While the custody matter proceeded, L.R. remained in

the custody of Adoptive Parents, who moved to Tennessee.2 The custody

special master listed Adoptive Parents as a party, but as of June 22, 2023, no

formal ruling on their petition to intervene had taken place. Relying in part

upon K.W. v. S.L., 157 A.3d 498 (Pa.Super. 2017), the court dismissed their

petition to intervene. See Opinion, 6/22/23, at 3-4. The next day, the court

entered an order directing Adoptive Parents to transfer physical custody of

L.R. to Father by July 2, 2023. In light of the fact that L.R. had been in

Adoptive Parents’ custody for her entire two-year life, the court encouraged

Father to maintain contact with them but left it to his discretion. Although

Adoptive Parents timely appealed the order dismissing their petition to

intervene to this Court, it was discontinued shortly thereafter at their request.

Nearly two years later, on May 30, 2025, Adoptive Parents moved to

reinstate their intervenor or party status so that they could file a petition to

modify the 2023 custody order. According to the motion, Father had initially

permitted Adoptive Parents to have weekend visits with L.R., but stopped

them in March 2025 and advised Adoptive Parents that they would have no

____________________________________________

2 Mother did not participate in the custody matter.

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further contact with L.R. Adoptive Parents assailed the dismissal of their

petition to intervene and Father’s failure to join them as parties to the custody

suit. For context, they filed the motion sub judice so they could seek a custody

modification granting them visitation rights. Father submitted an answer

asking the court to dismiss the motion and Adoptive Parents authored a reply.

On February 4, 2026, the trial court denied their motion.

This appeal followed. Despite being designated a children’s fast track

appeal, Adoptive Parents did not file their concise statement with their notice

of appeal. See Pa.R.A.P. 1925(a)(i) (“The concise statement of errors

complained of on appeal shall be filed and served with the notice of appeal.”).

One day after Adoptive Parents filed their late statement, the trial court

authored a Rule 1925(a)(2)(ii) opinion. Therein, it explained that it lacked

guidance from Appellants regarding what challenges they sought to raise on

appeal because it had not received a concise statement. In support of its

decision to deny the motion, the court referred us to its June 22, 2023 opinion

regarding Adoptive Parents’ right to intervene. The court further opined that

because the matter was litigated in 2023, they should not be able to continue

to lodge legal attacks to Father’s custody of L.R.

In this Court, Adoptive Parents have raised four issues for our

consideration:

(1) Whether the trial court abused its discretion and/or committed an error of law by holding that [Adoptive Parents] were not joined as indispensable parties to the custody action, pursuant to Pa.R.Civ.P. 1915.6(a)(1), when they were mistakenly added to the action as “Appellants” in

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the September 27, 2021 interim order that became a final order.

(2) Whether the trial court abused its discretion and/or committed an error of law by holding that Father did not waive the issue of [Adoptive Parents]’ standing when he failed to file exceptions to the trial court’s June 14, 2022 interim order that became a final order.

(3) Whether the trial court abused its discretion and/or committed an error of law when, despite the fact that [Adoptive Parents] were mandatorily joined as parties and Father waived the issue of standing, it dismissed [Adoptive Parents] from the custody action and ordered the transfer of custody of the minor child to Father in the order dated June 22, 2023.

(4) Whether the trial court abused its discretion and/or committed an error of law by denying [Adoptive Parents]’ motion to reinstate party/intervenor status and petition to modify custody in the order dated February 4, 2026?

Adoptive Parents’ brief at 4 (cleaned up).

Preliminarily, we dispel the trial court’s contention that Adoptive Parents

are barred from requesting to be reinstated as an intervenor or party to the

custody action.3 This Court has routinely rejected application of the doctrine ____________________________________________

3 The court referenced the doctrine of res judicata, which we have summarized

thusly:

Res judicata bars the relitigation of issues that either were raised or could have been raised in the prior proceeding. . . .

For res judicata to apply, there must be four common elements between the two actions: (1) identity of the thing sued upon; (2) identity of the cause of action; (3) identity of the parties; (4) identity of the capacity of the parties. When examining these elements, a court may consider whether the factual allegations of both actions are the same, whether the same evidence is (Footnote Continued Next Page)

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of res judicata in custody matters because it is “a special creature. Unlike

other actions which have a clear beginning, middle, and end, custody orders

may be repeatedly modified.”4 K.D. v. E.D., 267 A.3d 1215, 1224 (Pa.Super.

2021) (cleaned up). While we reject the trial court’s invocation of this

doctrine, we may still affirm the trial court’s order denying Adoptive Parents’

motion on any valid basis supported by the record. See D.G. v. D.B., 91 A.3d

706, 712 (Pa.Super. 2014) (cleaned up).

Adoptive Parents argue that they should have been joined as parties at

the outset of Father’s custody complaint because, at the time, they had

physical custody of L.R. See Adoptive Parents’ brief at 9-10 (citing Pa.R.Civ.P.

1915.6(a)(1)). In light of their status as a party, they contend that prior

counsel’s petition to intervene was “redundant” and “moot.” Id. at 10. Even

so, they contend that Father waived any challenge to their standing as

necessary to prove each action and whether both actions seek compensation for the same damages. Res judicata may bar a second action based upon the same transaction even if additional grounds for relief are presented.

Khalil v. Cole, 240 A.3d 996, 1001–02 (Pa.Super. 2020) (cleaned up).

4 In that vein, we note that the doctrine of collateral estoppel also would not

apply because of the fluid nature of custody matters. See M.W. v. S.T., 196 A.3d 1065, 1071 (Pa.Super. 2018) (“It would not make sense to permit a party to raise standing at any time, but then consider the factual circumstances as they existed at the time the complaint was filed for such fluid child custody cases. Accordingly, we hold the trial court did not err in considering the circumstances as they were at the time the petition to dismiss was filed when determining standing.” (cleaned up); accord T.M.H. v. J.L., 334 A.3d 860, 861 (Pa. 2025) (ordering, inter alia, a new custody hearing “to make a fresh assessment of standing”).

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intervenors by not objecting, and that this “precluded the trial court from

dismissing [their] motion to intervene[.]” Id. at 11 (cleaned up). Ultimately,

Adoptive Parents ask us to remand for the trial court to consider the merits of

Adoptive Parents’ request to have visitation rights because they should have

earlier been made a party to the action or granted intervenor status. Id. at

13-14.

We consider these issues mindful of the fact that “threshold issues of

standing are questions of law; thus, our standard of review is de novo and our

scope of review is plenary.” M.W. v. S.T., 196 A.3d 1065, 1069 (Pa.Super.

2018) (cleaned up). Our Rules of Civil Procedure provide that if a non-parent

party has custody of the child, they must be joined as a party pursuant to Rule

1915.6(a)(1), which provides:

If the court learns from the pleadings or any other source that a parent whose parental rights have not been previously terminated or a person who has physical custody of the child is not a party to the action, it shall order that the person be joined as a party. Such person shall be served with a copy of all prior pleadings and notice of the joinder substantially in the form prescribed by Rule 1915.16(a).

Pa.R.Civ.P. 1915.6(a)(1) (emphasis added). Physical custody is defined as

“the actual physical possession and control of a child[.]” Pa.R.Civ.P. 1915.1.

Critically, party status alone does not grant to third parties the right to seek

custody. We have explained:

Although such a person may file a counterclaim for custody, partial custody[,] or visitation, these provisions do not grant a party standing to seek custody, where such standing would not otherwise exist. Thus[,] although a person who has physical

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custody of a child who is the subject of a custody dispute must be joined as a party to the action, it remains that this third party lacks standing to seek custody as against a natural parent unless there is a prima facie right to custody.

Van Coutren v. Wells, 633 A.2d 1214, 1216 (Pa.Super. 1993) (cleaned up,

emphasis in original). As is relevant here, a third party may establish standing

“by virtue of the parties’ conduct, as in cases where a third party . . . has

stood in loco parentis[.]” J.A.L. v. E.P.H., 682 A.2d 1314, 1319 (Pa.Super.

1996) (cleaned up).

The term in loco parentis literally means in the place of a parent. A person stands in loco parentis with respect to a child when he or she assumes the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of in loco parentis embodies two ideas; first, the assumption of a parental status, and, second, the discharge of parental duties. Critical to our discussion here, in loco parentis status cannot be achieved without the consent and knowledge of, and in disregard of, the wishes of a parent.

K.W., 157 A.3d at 504–05 (cleaned up).

Furthermore, “in child custody cases, the concept of standing is fluid[.]”

E.A. v. E.C., 259 A.3d 497, 501 (Pa.Super. 2021) (cleaned up). Therefore,

principles of standing have been applied with particular scrupulousness because they serve a dual purpose: not only to protect the interest of the court system by assuring that actions are litigated by appropriate parties, but also to prevent intrusion into the protected domain of the family by those who are merely strangers, however well-meaning.

M.W., 196 A.3d at 1069 (cleaned up). Finally:

It is important to recognize that in this context, the term prima facie right to custody means only that the party has a colorable claim to custody of the child. The existence of such a colorable claim to custody grants standing only. In other words, it allows the party to maintain an action to seek vindication of his or her

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claimed rights. A finding of a prima facie right sufficient to establish standing does not affect that party’s evidentiary burden: in order to be granted full or partial custody, he or she must still establish that such would be in the best interest of the child under the standards applicable to third parties.

J.A.L., 682 A.2d at 1319 (cleaned up).

Presently, Adoptive Parents want to be able to file a motion to modify

custody in order to secure enforceable visitation rights. In light of the

foregoing, regardless of whether Adoptive Parents should have been joined as

parties at the time Father initiated the custody litigation because they then

had custody of L.R., the salient question is whether Adoptive Parents have

standing to seek a custody modification.

To determine whether they established a prima facie right to custody,

the trial court was required to assess the circumstances before it in 2025 when

Adoptive Parents filed the motion sub judice. See M.W., 196 A.3d at 1071

(noting that “this Court has re-evaluated a party’s standing following a factual

change in circumstances, i.e., the termination of parental rights or adoption”

because “it would not make sense to permit a party to raise standing at any

time, but then consider the factual circumstances as they existed at the time

the complaint was filed for such fluid child custody cases” (cleaned up));

accord E.A., 259 A.3d at 504 (“[W]hile Maternal Grandmother may have had

standing based upon the parents’ disagreement prior to Father's death, the

factual circumstances subsequently changed. The trial court erred in failing to

consider that change of circumstances when determining whether Maternal

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Grandmother had standing [as a grandparent] to pursue custody pursuant to

[23 Pa.C.S] § 5325(2) at this junction.”).

We stress that we are not unsympathetic to Adoptive Parents’

complaints surrounding prior counsel’s stewardship of this case or Father’s

unilateral termination of their visitation arrangement. Nor are we blind to the

vital role they played for the first two years of L.R.’s life. Nevertheless, the

record bears out that the circumstances changed significantly between the

filing of their 2021 petition to intervene and the instant motion to reinstate

intervenor or party status. As noted above, when Father filed his complaint

for custody, Adoptive Parents had sole custody of L.R. When Adoptive Parents

filed the 2025 motion, Father had exercised sole custody for approximately

two years. Additionally, although Adoptive Parents had been permitted to see

L.R. on weekends during that period, it had been several weeks since Adoptive

Parents had visited L.R.

Plainly, at the time Adoptive Parents filed the motion to reinstate, they

were not acting in loco parentis so as to support filing a motion to modify

custody as intervenors because they were neither discharging parental duties

nor assuming the role of a parent for L.R.5 Based on the foregoing, we ____________________________________________

5 We note that Adoptive Parents also could not have been deemed to be acting

in loco parentis at the time they initially sought to intervene. Father immediately filed for custody upon learning of L.R.’s birth. When Mother refused to name him as the biological father, he obtained genetic testing and continued to pursue sole physical and legal custody of his daughter. While Adoptive Parents cared for L.R. during the pendency of the early stages of this (Footnote Continued Next Page)

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conclude that the trial court did not err in dismissing the motion sub judice

because Adoptive Parents could not establish a prima facie right to custody.

Accordingly, we affirm the trial court’s order.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 7/1/2026

case and at the behest of Mother, it is axiomatic that “a third party cannot place himself in loco parentis in defiance of the parents’ wishes and the parent/child relationship.” K.W., 157 A.3d at 506 (cleaned up).

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