Child Custody, Visitation & Relocation


cild custodyThe trial court erred in granting primary physical custody to child’s grandmother because its best interest analysis was contrary to precedent, failed to apply the presumption in favor of father in §5327(b) and improperly imposed the burden of proof on father.

Child lived with mother at grandmother’s house for the first five years of his life. Father had partial physical custody on alternating weekends pursuant to an informal custody arrangement. In 2015, mother informed father that she was entering an inpatient detoxification program and asked him to assume custody of the child. Father took the child and petitioned for primary physical custody. The trial court ordered compulsory custody mediation and father filed an emergency petition alleging that mother continued the use of illicit drugs. The trial court granted the emergency petition, awarded father temporary physical custody, and scheduled a hearing. A week after father’s petition was granted, grandmother filed an emergency petition requesting primary physical custody and alleging that she stood in loco parentis since the child’s birth. The trial court granted grandmother’s petition to intervene, rescinded its interim custody order in favor of father and granted emergency custody to grandmother. The trial court failed to rule on father’s motion for reconsideration of the issue of grandmother’s standing. The court eventually awarded all three parties shared legal custody, primary physical custody to grandmother and partial physical custody to father. Father appealed.

Father argued that trial court erred in granting special relief to grandmother without a hearing. His assertion was undeveloped because he did not cite to any authority other than rule 1915.13 which did not establish any specific procedure or require a court to schedule a hearing before special relief was awarded. Additionally, father never alleged a lack of notice as to grandmother’s petition.

Father asserted that trial court erred in concluding that grandmother stood in loco parentis and that she lacked standing to pursue custody. While the trial court neglected to articulate the basis for grandmother’s standing to pursue custody, grandmother consistently asserted she stood in loco parentis and the trial court obviously found that grandmother had attained that status. The court disagreed with father’s contention that grandmother’s involvement fell short of assuming or discharging a parental relationship because she shared parental responsibilities with mother. The court noted that the fact that grandmother shared responsibilities with mother was irrelevant since the record clearly showed that grandmother assumed an enduring role that much more significant than a frequent caretaker. She fed, bathed and entertained the child daily, attended doctors’ appointment, took him to school and provided financial support.

The trial court treated the custodial roles of mother and grandmother collectively and found that ten of the 16 factors weighed in favor of granting primary physical custody to grandmother. Five factors were inapplicable and one factor was neutral. The court noted that the trial court should have weighed the merits of father’s and grandmother’s positions independently from that of mother and that its manipulation of mother’s influence on the best interest analysis constituted reversible error.

Additionally, the trial court failed to apply the presumption in favor of father in §5327(b), improperly imposed the burden of proof on father and misconstrued the procedural posture of the case as stemming from a petition to modify an existing child custody order.

Reference: M.J.S. v. B.B., PICS Case No. 17-1669 (Pa. Super. Oct. 17, 2017) Bowes, J., Digest of Recent Opinion, Pennsylvania Law Weekly, 40 PLW 1034, Tuesday, November 4, 2017


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