Child Custody, Visitation & Relocation

TRIAL COURT SHOULD HAVE ALLOWED PARENTS’ REQUEST TO INTERVEIW CHILDREN ON GRANDPARENTS’ VISITATION REQUEST

Trial court abused discretion in adopting hearing officer’s report recommending granting grandparent supervised physical custody where hearing officer failed to address statutory custody factors and denied parent’s request to have children testify as to their wishes regarding grandparent’s request. Order of the trial court vacated, case remanded.

Mother M.F. appealed from the trial court’s order adopting a report and recommendation of a hearing officer recommending that grandmother K.B. be granted visitation rights with her minor twin grandchildren. Grandmother filed a complaint for visitation rights with her minor grandchildren, who were 12 years old at the time. The children were born to mother and to father P.B., grandmother’s son, who had passed away several years prior.

During the hearing, mother requested to allow her children to testify in camera, arguing that the hearing officer was statutorily required to consider the “well-reasoned preferences” of the children, who were nearly 13 years old by the time of the hearing. The hearing officer denied mother’s request and filed a report recommending that grandmother be granted a two-hour visitation period once per month.

Mother filed exceptions to the hearing officer’s report, arguing that the hearing officer erred or abused her discretion in failing to consider the children’s well-reasoned preferences. The trial court denied mother’s exceptions and adopted the hearing officers  report, finding that the hearing officer had considered all the statutory factors based on what had been presented at the hearing.

On appeal, mother reiterated her argument that the hearing officer abused her discretion in failing to consider the well-reasoned preferences of the children, based on their maturity and judgment. Mother argued that the trial court should have remanded the matter to allow the children to testify as to their wishes regarding grandmother’s petition.

The court noted that although grandmother’s petition sought visitation, Pennsylvania law no longer recognized awards of visitation. Instead, the court found that grandmother appeared to be seeking supervised physical custody. The court therefore held that the hearing officer was required to consider the 16 statutory custody factors along with three custody factors pertaining to grandparents seeking supervised physical custody.

The court rejected the trial court’s determination that the hearing officer considered the appropriate statutory factors in recommending granting grandmother supervised physical custody, nothing that the hearing officer’s report made no reference to the applicable statutory custody factors. The court further ruled that the trial court erred in denying mother’s exceptions based on mother request to have her children testify as to their wishes regarding grandmother’s petition. The court accordingly vacated the trial order’s adopting the hearing officer’s report and recommendation and remanded for the trial court to conduct an independent assessment of the relevant statutory custody factors, after allowing the children to have an opportunity to testify as to their wishes.

Ref: Digests of Recent Opinions, Pennsylvania Law Weekly, 4 PLW 267, Tuesday, March 23, 2021, K.B. v. M.F., PICS Case No. 21-0307 (Pa. Super, March 11, 2021)

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