J-A01030-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

A.M.,                                      : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
             v.                            :
                                           :
T.V.                                       :
                                           :
APPEAL OF: A.M.                            : No. 1408 WDA 2014

                     Appeal from the Order July 28, 2014,
                    Court of Common Pleas, Beaver County,
                      Civil Division at No. 10796 of 2009

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED FEBRUARY 12, 2015

        Appellant, A.M. (“Proposed Intervener”), appeals from the trial court’s

order dated July 28, 2014, denying her petition to intervene in this custody

matter between A.M. (“Father”) and T.V. (“Mother”).             The Proposed

Intervener contends that the trial court erred in refusing to grant her

standing to intervene based upon her in loco parentis relationship with S.M.

(“Child”). For the reasons that follow, we reverse the trial court’s order.

        The trial court summarized the relevant factual background of this

case as follows:

             Proposed Intervener resides in Beaver County. She
             is 30 years old and the estranged wife of [Father].
             She began to see and date [Father] in and around
             the summer of 2009 and came to know the [Child] at
             that time.    Proposed Intervener moved into the
             residence with [Father] in January 2010 and married
             him in May of 2010. Proposed Intervener did not
             work and performed the caretaking responsibilities
             for [Child] of whom [Father] had primary custody.
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           [Mother] had limited partial custody in the beginning
           that has increased over time.

           While married, [Father] and Proposed Intervener had
           a second child, who is not the subject of this custody
           action. From January of 2010 through at least the
           summer of 2013, Proposed Intervener was the
           primary caregiver for [Child], and for the child of the
           marriage after that [Child’s] birth.         Proposed
           Intervener testified that she is extremely close with
           [Child] and established a bond with her.

           [Father] testified and confirmed that Proposed
           Intervener did care for both children while he worked
           during the week. He also testified that he was very
           involved in [Child’s] life and took most Fridays off to
           spend time with [Child] and care for her in addition
           to the weekend time that he spent with [Child].

           [Father] testified that the parties separated in the
           summer of 2013 and that Proposed Intervener no
           longer cared for [Child] during the day after that
           time. He stated that either his mother or sister
           watched over and cared for [Child] from the summer
           of 2013 forward. Interestingly, the parties continued
           to live in the same residence after their separation in
           2013 until the end of June, 2014, when the
           relationship became so hostile that [Father] had to
           move to his mother’s residence with [Child].
           [Father] testified that he does not desire Proposed
           Intervener to have a custodial relationship with
           [Child] of his former relationship with [Mother].

Trial Court Opinion, 7/28/2014, at 1-2.

     On July 21, 2014, the trial court conducted an evidentiary hearing on

Proposed   Intervener’s   petition,    receiving   testimony   from   Proposed

Intervener, Father, and Mother.       In an opinion and order dated July 28,

2014, the trial court denied Proposed Intervener’s petition. The trial court




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found that “at first glance, it appears that Proposed Intervener would have

standing on the basis that she did perform parental duties and assumed a

parental status with this [Child] for some period of time.” Id. at 4-5. The

trial court declined to grant standing to intervene, however, for two reasons.

First, citing Morgan v. Weiser, 923 A.2d 1183 (Pa. Super.), appeal denied,

932 A.2d 1289 (Pa. 2007), the trial court determined that “both natural

parents oppose intervention and a custodial relationship by the Proposed

Intervener with the [Child].” Id. at 5 (citing Morgan, 923 A.2d at 1187).

Second, the trial court indicated that intervention was not in the best

interests of Child, since it would “promote the concept that [Child] has two

mothers [and] will, in this [c]ourt’s estimation, only inhibit that renewed

relationship [with Mother] and serve to confuse the [Child].” Id. at 5-6.

      Proposed Intervener filed a timely notice of appeal, raising a single

question for our consideration and determination:

            Once loco parentis status is recognized, can it be
            terminated simply by having both natural parents
            oppose its continuance, especially without taking into
            account the best interest of the child, in particular
            the psychological bond with the person in loco
            parentis?

Proposed Intervener’s Brief at 6.

      Because the order in question relates to a child custody matter, we

apply the following well-established standard of review:

            The scope of review applied by an appellate court to
            a child custody order is of the broadest type; the



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            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 is not supported by competent evidence.
            However, this broad scope of review does not vest
            an appellate court with the duty or privilege of
            making its own independent determination. An
            appellate court may not interfere with the trial
            court's factual conclusions unless they are
            unreasonable in view of the trial court's factual
            findings and thus represent an abuse of discretion.

Jacob v. Shultz-Jacob, 923 A.2d 473, 477 (Pa. Super. 2007); Jackson v.

Beck, 858 A.2d 1250, 1252 (Pa. Super. 2004).

      In J.A.L. v. E.P.H., 682 A.2d 1314, 1318 (Pa. Super. 1996), where

this Court reversed a trial court’s decision to deny in loco parentis status to a

domestic partner, we offered the following insight on intervention in child

custody cases:

            The concept of standing, an element of justiciability,
            is a fundamental one in our jurisprudence:         no
            matter will be adjudicated by our courts unless it is
            brought by a party aggrieved in that his or her rights
            have been invaded or infringed by the matter
            complained of. The purpose of this rule is to ensure
            that cases are presented to the court by one having
            a genuine, and not merely a theoretical, interest in
            the matter. Thus the traditional test for standing is
            that the proponent of the action must have a direct,
            substantial and immediate interest in the matter at
            hand.

            In the area of child custody, 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



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             of the family by those who are merely strangers,
             however well-meaning.

Id. at 1318–19.

       Persons other than the natural parents are considered “third parties” in

custody disputes. Gradwell v. Strausser, 610 A.2d 999, 1001 (Pa. Super.

1992).    Except in dependency proceedings, third parties lack standing to

seek custody as against the natural parents unless they can demonstrate a

prima facie right to custody.       Id. at 1002.   A third party in loco parentis

possesses a prima facie right to custody sufficient to confer standing to

litigate questions of custody of the child for whom he or she has cared.

McDonel v. Sohn, 762 A.2d 1101, 1105 (Pa. Super. 2000); 23 Pa.C.S.A. §

5324(2).1

       Our Supreme Court has defined in loco parentis status as follows:

             The phrase “in loco parentis” refers to a person who
             puts oneself in the situation of a lawful parent by
             assuming 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



1
    § 5324. Standing for any form of physical custody or legal custody.

       The following individuals may file an action under this chapter for
       any form of physical custody or legal custody:

                                *      *      *

             (2) A person who stands in loco parentis to the child.

23 Pa.C.S.A. § 5324(2).


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            parental status, and, second, the         discharge of
            parental duties.

T.B. v. L.R.M., 786 A.2d 913, 917 (Pa. 2001) (citing Commonwealth ex

rel. Morgan v. Smith, 241 A.2d 531, 533 (Pa. 1968)); see also Peters v.

Costello, 586 102, 110, 891 A.2d 705, 710 (Pa. 2005) (“The term in loco

parentis literally means ‘in the place of a parent.’”) (citing Black's Law

Dictionary (7th Ed. 1991) at 791). Moreover,

            The in loco parentis basis for standing recognizes
            that the need to guard the family from intrusions by
            third parties and to protect the rights of the natural
            parent must be tempered by the paramount need to
            protect the child's best interest. Thus, while it is
            presumed that a child's best interest is served by
            maintaining the family's privacy and autonomy, that
            presumption must give way where the child has
            established strong psychological bonds with a person
            who, although not a biological parent, has lived with
            the child and provided care, nurture, and affection,
            assuming in the child's eye a stature like that of a
            parent. Where such a relationship is shown, our
            courts recognize that the child's best interest
            requires that the third party be granted standing so
            as to have the opportunity to litigate fully the issue
            of whether that relationship should be maintained
            even over a natural parent's objections.

T.B., 786 A.2d at 917 (quoting J.A.L., 682 A.2d at 1319-20).          The rights

and liabilities arising out of an in loco parentis relationship are, as the words

imply, exactly the same as between parent and child. Id.

      As this Court has recognized, stepparents may be uniquely qualified to

attain in loco parentis status to their stepchildren.    In J.A.L., Judge Beck




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discussed at some length the issue of stepparents’ standing in custody

disputes:

            Although the requirement of in loco parentis status
            for third parties seeking child custody rights is often
            stated as though it were a rigid rule, it is important
            to view the standard in light of the purpose of
            standing principles generally: to ensure that actions
            are brought only by those with a genuine, substantial
            interest. When so viewed, it is apparent that the
            showing necessary to establish in loco parentis
            status must in fact be flexible and dependent upon
            the particular facts of the case.         Thus, while
            unrelated third parties are only rarely found to stand
            in loco parentis, step-parents, who by living in a
            family setting with the child of a spouse have
            developed a parent-like relationship with the child,
            have often been assumed without discussion to have
            standing to seek a continued relationship with the
            child upon the termination of the relationship
            between the step-parents. Where the issue of a
            step-parent's standing has been directly addressed
            by this court, standing has been found to exist
            because the step-parents stood in loco parentis to
            the child or children in question.

            In addition, we have suggested that where a
            petitioner who is not biologically related to the child
            but has established a parent-like relationship with
            the child seeks not to supplant the natural parent,
            but only to maintain his relationship with the child
            through reasonable visitation or partial custody, his
            burden to establish standing is easier to meet.

            In today's society, where increased mobility,
            changes in social mores and increased individual
            freedom have created a wide spectrum of
            arrangements filling the role of the traditional
            nuclear family, flexibility in the application of
            standing principles is required in order to adapt
            those principles to the interests of each particular
            child. We do not suggest abandonment of the rule



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            that a petitioner for custody who is not biologically
            related to the child in question must prove that a
            parent-like relationship has been forged through the
            parties' conduct. However, we hold that the fact that
            the petitioner lived with the child and the natural
            parent in a family setting, whether a traditional
            family or a nontraditional one, and developed a
            relationship with the child as a result of the
            participation and acquiescence of the natural parent
            must be an important factor in determining whether
            the petitioner has standing.

J.A.L., 682 A.2d at 1320-21 (citations omitted).

      Since this Court decided J.A.L., Pennsylvania appellate courts have

frequently recognized that stepparents stand in loco parentis to their

stepchildren.   S.A. v. C.G.R., 856 A.2d 1248, 1250 (Pa. Super. 2004)

(stepmother “lived with and parented this child since birth, developing her

role as his mother with the participation and acceptance of C.R.”); Liebner

v. Simcox, 834 A.2d 606, 610 (Pa. Super. 2003) (stepfather was in loco

parentis); Bupp v. Bupp, 718 A.2d 1278, (Pa. Super. 1998) (where

stepfather assumed the role of father from the time of child’s birth, including

diapering, feeding, and playing with the child, in loco parentis standing was

established); Karner v. McMahon, 640 A.2d 926, 930 (Pa. Super. 1994)

(“Upon an independent review of the record, we agree with the conclusion of

the trial court that stepfather has assumed primary parental responsibility

for the children since 1989 to the present.”); see also Parton v. Parton,

36 Pa.D. & C.4th 241, 244 (Monroe County, 1996) (stepfather “raised them,

fed them, bathed them, played with them, attended their little league



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J-A01030-15


games, disciplined them and helped them with their homework, all things a

parent would do. He was there for them.”). Most recently, in D.G. v. D.B.,

91 A.3d 706 (Pa. Super. 2014), this Court reaffirmed the basic principle in

J.A.L. that in loco parentis status may be appropriate where the petitioner

“lives with the child and a natural parent as a family unit.” Id. at 709.

      In the present case, based upon the evidence presented, the trial court

determined    that   Potential   Intervener   had   satisfied   the   fundamental

requirements for in loco parentis status as established by our Supreme Court

in T.B., namely that “she did perform parental duties and assumed a

parental status with this [Child] for some period of time.”            Trial Court

Opinion, 7/28/2014, at 4-5.      Our review of the certified record on appeal

reflects that this determination is supported by competent evidence.

Proposed Intervener lived with Father, Child, and (later) the couple’s child as

a family unit from January 2010 until at least the summer of 2013.2 N.T.,

7/21/2014, at 8-22.      Proposed Intervener testified that she was Child’s

primary caretaker during that time period, including up to 98% of the time

spent “in the role of raising” Child, especially since Father worked on

weekdays, spent time working on projects in the garage when at home, and

took frequent business trips. Id. at 10, 20. She also indicated that she was

“extremely bonded” with Child (who called her “mom”) in precisely the same



2
   During this period of time, Child (born in December 2006) was between
three and six years old.


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manner as with her own child.       Id. at 11 (“We have … a parent/child

bond.”).3   Emails from Father predating his separation from Proposed

Intervener thanked her for “raising our children” and “being a good mother”

to Child, and expressed his concern that if they divorced Child “will lose the

woman that has been her mother for all of the life that she can remember.”

Id. at 18-19.

      Father offered conflicting testimony, emphasizing the extent of his

contact with Child (including weeknights and on weekends) and describing

Proposed Intervener as a “mere caretaker.”       N.T., 7/21/2014, at 30-31;

Father’s Brief at 8. Father admitted, however, that his explanation to Child

for the presence of both Mother and Proposed Intervener was that “she had

two moms.” N.T., 7/21/2014, at 31. In sum, the certified record contains

sufficient evidence to support the trial court’s decision that Proposed

Intervener had performed parental duties and assumed a parental status

with Child, and thus established prima facie in loco parentis status.    Trial

Court Opinion, 7/28/2014, at 4-5.

      The trial court nevertheless declined to confer standing on Potential

Intervener for two reasons.    First, the trial court recognized that a third


3
    Proposed Intervener complains that the trial court did not permit her to
introduce evidence of her bond with Child. Proposed Intervener’s Brief at
10. Our review of the record, however, reflects that after some initial
hesitation, the trial court decided to grant “some leeway” and permitted the
introduction of substantially all of the proffered evidence. N.T., 7/14/2014,
at 11-15. Proposed Intervener has not identified any specific evidence the
trial court excluded.


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J-A01030-15


party cannot place herself in loco parentis “in defiance of the parents’

wishes,” Morgan, 923 A.2d at 1187, and noted that here both natural

parents testified they oppose intervention into Child’s custody proceeding.

Trial Court Opinion, 7/28/2014, at 5.    Second, the trial court decided that

intervention by Potential Intervener would not be in Child’s best interests, in

part because “the concept that [Child] has two mothers” would be confusing

to her. Id. at 5-6.

       We cannot agree that either of these reasons constitutes a sufficient

basis for denying standing to Potential Intervener on the facts presented.

While we agree that a third party cannot place herself in loco parentis “in

defiance of the parents’ wishes,” this principle has no application in this

case. In Liebner, this Court emphasized that the “defiance” of the natural

parents must have been to the creation of a parent/child bond with the

third party, rather than with continuation of the relationship once

established (i.e., after the onset of custody litigation). Liebner, 834 A.2d at

610.    Specifically, we held that whether the stepparent has standing

depends upon whether she “lived with the child and the natural parent in a

family setting, irrespective of its traditional or nontraditional composition,

and developed a relationship with the child as a result of the participation

and acquiescence of the natural parent.” Id. We rebuffed any suggested

that in loco parentis relationship, once established, could be lost by a

subsequent change in circumstances, including the eventual separation



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and/or divorce of the natural parent from the petitioning step-parent. Id. at

611 (“We also reject Mother’s argument that even if Michael had obtained in

loco parentis status, such status has been lost by a change in circumstances,

namely the parties’ separation and Mother’s remarriage.”); see also

McDonel, 762 A.2d at 1106 (refusing to apply the “defiance” principle

because “[natural father] initially denied paternity, had little contact with

C.S., and no contact with the [third party petitioners] and so could not have

been an obstruction to the … developing relationship with C.S.”).

      The cases in which standing has been denied by application of the

“defiance” principle all reflect a well-established and clearly expressed

objection/refusal by one or both of the natural parents to the development

of a parent/child relationship from the outset of the petitioner’s relationship

with the child.   In Morgan, we concluded that the child’s legal guardians

never permitted petitioner “to assume parental status or discharge parental

duties.” Morgan, 923 A.2d at 1188. To the contrary, we highlighted that

even petitioner acknowledged that the guardians’ ”long-standing opposition

to [his] exercise of rights toward [child] have been hostile and aggressively

absolute.”   Id. at 1189.   Similarly, in J.F. v. D.B., 897 A.2d 1261 (Pa.

Super. 2006), we reversed a grant of in loco parentis status because “the

facts of this case show unequivocally that Father at no time participated or

acquiesced in gestational carrier’s assuming custody of the triplets.” Id. at

1275 (emphasis in original).    And in B.A. ex rel. v. C.E., 599 A.2d 545



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(Pa. 1999), our Supreme Court reversed a grant of in loco parentis status

since the natural father had consistently opposed the adoption of his child

and had actively sought custody of the child “from shortly after the child was

born until the present.” Id. at 550.

      In this case, the trial court found that both Father and Mother

currently “oppose intervention and a custodial relationship by the Proposed

Intervener.”   Trial Court Opinion, 7/28/2014, at 5.    It made no finding of

fact, however, that either parent4 objected (or expressed any contrary

wishes) to the establishment of a parent/child relationship between Proposed

Intervener and Child.   The above-cited evidence (including the emails and

Father’s own testimony) reflects that Father actively participated in the

formation of a close bond between Proposed Intervener and Child.           See,

e.g., N.T., 7/14/2014, at 18-19, 30. While Mother testified that she never

“intended to relinquish any custodial rights” to Proposed Intervener, id. at

40, she did not offer any basis upon which to conclude that she ever

expressed, either by hostile word, act, or deed, any objection to the

parent/child relationship during the relevant time period.        Even though

Mother, unlike Father, did not actively participate in the development of the



4
  Actions in defiance of the wishes of either natural parent will defeat in loco
parentis status. B.A., 569 A.2d at 550. The consent of one parent to a
parental role for the petitioner is insufficient.     Id. at 551 (Nigro, J.,
concurring) (“The stakes are simply too high and the rights of the non-
consenting parent too substantial to allow one parent to confer in loco
parentis status on a third party.”).


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J-A01030-15


parental relationship now at issue, by her silence she clearly acquiesced to

it.

      This Court has stressed that “[t[he law simply cannot permit a third

party to act contrary to the natural parent’s wishes in obtaining custody and

then benefit from that defiant conduct in a subsequent custody action.”

J.F., 897 A.2d at 1275-76.     Here, however, the evidence in the certified

record does not reflect that Proposed Intervener’s relationship with Child

developed “contrary to the wishes of either natural parent” or as a result of

any “defiant conduct” on her behalf.          Instead Proposed Intervener’s

relationship with Child developed with the participation of Father and the

acquiescence of Mother.     As a result, the trial court erred in refusing to

recognize Proposed Intervener’s in loco parentis status on this basis.

      Finally, the trial court decided that granting in loco parentis standing

to Proposed Intervener would not be in Child’s best interests, both because

it would interfere with Child’s developing relationship with Mother and

because having “two mothers” would be confusing to Child.          Trial Court

Opinion, 7/28/2014, at 5-6.     While the trial court’s attention to the best

interests of the child is certainly appropriate in child custody cases, it was

misplaced at this stage of the proceedings. As our Supreme Court reminded

in T.B., where (as here) the existence of an in loco parentis relationship is

shown, “our courts recognize that the child's best interest requires that the

third party be granted standing so as to have the opportunity to litigate fully



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the issue of whether that relationship should be maintained even over a

natural parent's objections.”    Child’s best interests will be the guiding

principle when the trial court makes its eventual custody decision -- after all

of the parties to these proceedings (including Proposed Intervener) have a

full and fair opportunity to present his or her case for continuing involvement

in Child’s life.

       Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/12/2015




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