Child Custody, Visitation & Relocation

Grandparents Awarded Primary Custody Of Grandchildren Over Father

Despite the statutory presumption in favor of the child’s natural father, the clear and convincing evidence rebutted the presumption and led the court to conclude that it was in the minor child’s best interest to maintain an order granting primary custody to his grandparents, who had cared for the child most of his life. The court recommended affirmance.

            Plaintiffs are the grandparents of a minor child named J.M. Both J.M and his half-brother lived with the plaintiffs for a majority of their lives. In 2014, plaintiffs filed for a custody complaint seeking sole legal and physical custody of J.M. They named the natural mother in the suit but did not name father, as he was not known to them at the time. Father learned of the suit, successfully intervened and sought legal and physical custody of J.M. The court granted plaintiffs primary physical custody while also granting father certain partial physical rights. The court then denied father’s subsequent petition to modify custody. Father filed an appeal, prompting the court’s opinion. He argued that the court erred in ruling that plaintiffs, third-party custodians, should retain primary physical custody of the child where the presumption of custody in favor of natural father was not properly considered. In any case regarding the custody of a child between a parents and a non-parent, there shall be a presumption that custody shall be awarded to the parent, the court explained, citing 23 Pa.C.S. 5327(b). However, while Pennsylvania places great importance on biological ties, it does not do so to the extent that the biological parent’s right to custody will trump the best interests of the child. In all custody matters, the court’s primary concern is the well-being of a minor child. Here, the court applied the factors set forth in 23 Pa.C.S. 5328 factors and found that both parties were able to perform parental duties on behalf of J.M. Father had discharged those duties in a satisfactory manner during the limited period he had exercised physical custody. However, plaintiffs had raised J.M. and his half-brother, their biological grandson, as siblings. As a result, J.M. had formed strong emotional bonds with his half-brother and grandparents, who had provided him with care, nurture, affection and financial support for nearly his entire life. As of the date of the ruling, J.M. had never spent more than three months at a time with father. Moreover, J.M. expressed a preference to live primarily with his grandparents in Pennsylvania rather than with his father in Ohio. Uprooting the child from his home, his school, his support network or family and friends and separating him from his half-brother could prove detrimental to his emotional well-being, the court reasoned. The court found J.M.’s need for stability, his sibling relationships and his well-reasoned preference for grandparents’ home to be convincing in awarding primary physical custody to plaintiffs. We recognize the statutory presumption in favor of father but find that the clear and convincing evidence rebutted that presumption and that maintaining the current custody order was in J.M.’s best interest, the court wrote.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 44 PLW 39, Tuesday, January 12, 2021, Machling v. McCollins, PICS Case No. 20-1366 (C.P. Carbon, October 23,2020)

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