J-A18015-17
                             2017 PA Super 327




M.J.S.                                          IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellant

                        v.

B.B.

                        v.
                                                     No. 37 WDA 2017
B.B.


               Appeal from the Order Dated December 6, 2016
              In the Court of Common Pleas of Clearfield County
                    Civil Division at No(s): 2015-1290-CD


BEFORE: BOWES, LAZARUS, AND OTT, JJ.

OPINION BY BOWES, J.:                            FILED OCTOBER 17, 2017

       M.J.S. (“Father”) appeals the trial court order entered on December 6,

2016, wherein the trial court awarded primary physical custody of his son,

L.M.S., to the maternal grandmother, B.B. (“Grandmother”).             Father

challenges Grandmother’s standing to pursue custody, assails the trial

court’s miscomprehension of the procedural posture of the case, and

complains that the court ignored the statutory presumption favoring parents

over third parties. As we agree with the latter two contentions, we reverse

and remand for further proceedings.

       L.M.S. was born during January 2010 of Father’s relationship with

B.M.B. (“Mother”).    For the first five years of L.M.S.’s life, he lived with
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Mother at Grandmother’s home in Clearfield County, Pennsylvania. Father,

who   resides    approximately   one-hour   away    in   Dubois,   Pennsylvania,

exercised partial physical custody of his son on alternating weekends

pursuant to an informal custody arrangement.

      On August 19, 2015, Mother informed Father through an intermediary

that she intended to enroll in an inpatient detoxification program at DuBois

Regional Medical Center and that Father should assume custody of their son.

Father took physical custody of L.M.S., and approximately one week later,

he filed a petition for primary physical custody. The trial court scheduled a

custody conference for September 22, 2015, and on September 25, 2015, it

ordered that Mother and Father each pay $250.00 for compulsory custody

mediation.

      In   the   interim,   Father   enrolled   then-five-year-old   L.M.S.   in

kindergarten in the school district near his residence, and filed an

emergency petition alleging that Mother continued to abuse illicit drugs.

Father asserted that the purpose of the emergency petition was “to ensure

that the child is protected and remains in school until such time as a hearing

can be held.” Emergency Petition for Special Relief, 9/15/15, at 2. The trial

court granted the emergency petition summarily, awarded Father temporary

physical custody, and scheduled a hearing on the petition for October 5,

2015. Mother failed to respond to either the emergency petition or Father’s

petition for primary physical custody.

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     On September 23, 2015, Grandmother filed an emergency petition to

intervene wherein she requested primary physical custody of L.M.S.

Grandmother invoked 23 Pa.C.S. § 5324 as the basis to pursue legal and

physical custody of her grandson.     Grandmother asserted that she “has

always been the primary caretaker . . . [and] has provided for all of the

financial, emotional and physical needs of the child.”      Petition for Special

Relief, 9/23/15, at 2. Essentially, Grandmother asserted that she has stood

in loco parentis since the child’s birth. The trial court immediately granted

Grandmother’s petition to intervene, rescinded its interim custody order in

favor of Father, and awarded Grandmother emergency custody of L.M.S.

pending the hearings on the parties’ dueling petitions for emergency relief.

The trial court neglected to state its basis for finding that Grandmother had

standing to pursue primary custody, and it failed to rule upon Father’s

ensuing motion for reconsideration of the standing issue.

     The court ultimately denied Father’s emergency petition for special

relief and entered a temporary order directing that Grandmother maintain

primary physical custody of L.M.S. subject to Father’s periods of partial

custody.    The court directed that Grandmother join the compulsory

mediation process and amended its prior order so that responsibility for the

$500.00 mediation fee would be shared equally among the three parties.

     On March 11, 2016, the trial court held a custody trial on Father’s

petition for primary custody.     Father testified on his own behalf and

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presented the testimony of his step-father, fiancée, and future father-in-law.

Mother testified and called L.M.S.’s kindergarten teacher to the stand to

discuss the child’s progress in the Clearfield School District.        Grandmother

testified on her own behalf. The trial court conducted an in camera interview

with L.M.S. off the record.

       Approximately nine months after the hearing, on December 6, 2016,

the trial court entered a final order and opinion awarding all three parties

shared legal custody, granting Grandmother primary physical custody, and

providing Father periods of partial physical custody.1 Mother was awarded

undesignated      periods     of   physical    custody   to   be   exercised   during

Grandmother’s primary custody.

       This timely appeal followed. Father filed a concise statement of errors

complained of appeal pursuant to Pa.R.A.P. 1925(b). He raised five issues,

which he reiterates on appeal as follows:

       I.   I. Whether the Trial Court abused its discretion in granting
       Grandmother Emergency Leave to Intervene and Emergency
       Custody?
____________________________________________


1 We disapprove of the trial court’s nine-month delay in issuing its opinion
and order resolving the child custody litigation. Our Supreme Court has
directed that courts set cases involving child custody for expedited
disposition. We understand that some custody matters require post-hearing
briefs and additional arguments. Likewise, we recognize the limitations of a
trial court’s flexibility in scheduling. However, the nine-month lag between
the custody hearing and final disposition is unacceptable. See In re T.S.M.,
71 A.2d 251, at 261 n.21 (Pa. 2013) (“The repeated delays in the courts
below are not fully explained and are unacceptable”).



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      II.   Whether the Trial Court erred as a matter of law in finding
      that Grandmother had standing pursuant to 23 Pa.C.S. § 5324?

      III. Whether the Trial Court abused its discretion in finding
      that the factors set forth in 23 Pa.C.S. § 5328 favored a
      placement of primary physical custody with Grandmother?

      IV.    Whether the Trial Court erred as a matter of law in finding
      that Father had a burden to sustain, where 23 Pa.C.S. § 5327(b)
      clearly states that there is a presumption custody should be with
      a parent over a third party and therefore, Grandmother had the
      burden of proof?

      V.    Whether the Trial Court abused its discretion in finding
      that Grandmother met her heavy burden of proof to overcome
      the presumption set forth in 23 Pa.C.S. § 5327(b)?

Father’s brief at 10-11.

      At the outset, we address Father’s challenge to Grandmother’s

standing. This argument implicates the first two issues that Father raises in

his statement of questions involved. We address those issues seriatim.

      As a threshold contention, Father asserts that the trial court engaged

in ex parte review of Grandmother’s emergency petition to intervene and

assume physical custody.          While artless in its presentation, Father’s

argument essentially assails the trial court’s grant of special relief to

Grandmother without a hearing.         Oblivious to the irony of his contention,

considering the fact that the trial court previously granted him special relief

in the identical manner, Father implies that the trial court was required to

schedule   a   hearing     on   the   emergency   petition   prior   to   awarding

Grandmother emergency custody.

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      Father’s claim fails for at least two reasons.     First, he neglects to

support his legal argument with citation to any authority beyond Pa.R.C.P.

1915.13, the rule governing special relief.          Thus, the assertion is

underdeveloped.    Moreover, contrary to Father’s posturing, Rule 1915.13

does not establish any specific procedure for the trial court to impose

temporary special relief and, critically, it certainly does not require that the

trial court schedule a hearing or listen to argument before special relief is

awarded. Indeed, pursuant to Rule 1915.13, the court may grant relief sua

sponte. See Pa.R.C.P. 1915.13 (“At any time after commencement of the

action, the court may on application or its own motion grant appropriate

interim of special relief[, including] the award of temporary legal or physical

custody[.]”).

      Instantly, we observe that Father does not assert that he was not

provided notice of the emergency petition or that Grandmother had an

extrajudicial communication with the trial court. To the contrary, the record

confirms that Grandmother filed the emergency petition with the trial court

and upon review of the allegations in the petition, the trial court granted

interim relief as sanctioned by Rule 1915.13. Accordingly, for both of the

foregoing reasons, we reject Father’s bare assertion that the trial court erred

in granting what he styled as ex parte relief.

      Next, Father argues that the trial court erred in concluding that

Grandmother stood in loco parentis to L.M.S. and that, absent that

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designation, Grandmother cannot establish the statutory grounds for

standing to pursue custody of L.M.S. For the following reasons, we disagree.

     We review the trial court’s determination of standing de novo, and our

scope of review is plenary.       K.L. v. S.L., 157 A.3d 498, 504 (Pa.Super.

2017) (“Threshold issues of standing are questions of law; thus, our

standard of review is de novo and our scope of review is plenary.”).

     The Child Custody Law provides the following individuals standing to

pursue any form of physical custody or legal custody:

     (1) A parent of the child.

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

     (3) A grandparent of the child who is not in loco parentis to the
     child:

        (i) whose relationship with the child began either with the
        consent of a parent of the child or under a court order

        (ii) who assumes or is willing to assume responsibility for the
        child; and

        (iii) when one of the following conditions is met:

          (A) the child has been determined to be a dependent child
          under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);

          (B) the child is substantially at risk due to parental abuse,
          neglect, drug or alcohol abuse or incapacity; or

          (C) the child has, for a period of at least 12 consecutive
          months, resided with the grandparent, excluding brief
          temporary absences of the child from the home, and is
          removed from the home by the parents, in which case the
          action must be filed within six months after the removal of
          the child from the home.

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23 Pa.C.S. § 5324.

      While Father accurately highlights that the trial court neglected to

expressly articulate the statutory basis of Grandmother’s standing to pursue

custody of L.M.S., Grandmother consistently asserted that she stood in loco

parentis to her grandson.     Moreover, it is evident from the trial court’s

acceptance of Grandmother’s assertions in the petition to intervene and its

analysis of the best-interest factors relating to the performance of parental

duties, that it found that Grandmother attained in loco parentis status.

Specifically, without confronting the standing issue directly, the court

determined, “Evidence presented at the [c]ustody [t]rial indicated . . .

Grandmother performed all of the parental duties for [L.M.S.’s] daily

routines and insured the care of the [c]hild since birth.” Trial Court Opinion,

12/6/16,   at   2.    Accordingly,   we    examine    Father’s   challenge   to

Grandmother’s standing pursuant to the in loco parentis proviso of §

5324(2).

      As we recently reiterated in K.W., supra, at 504-505, “The term in

loco parentis literally means ‘in the place of a parent.’” (quoting Peters v.

Costello, 891 A.2d 705, 710 (Pa. 2005)). There are two components to in

loco parentis standing: (1) “the assumption of parental status[;] and [(2)]

“the discharge of parental duties.” Id at 505. As it relates to this aspect of

Father’s complaint, we highlight that, “in loco parentis status cannot be



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achieved without the consent and knowledge of, and in disregard of, the

wishes of a parent.” (quoting E.W. v. T.S., 916 A.2d 1197, 1205 (Pa.

2007)).

      Father argues that Grandmother’s relationship with L.M.S. did not

amount to in loco parentis standing.     The crux of this contention is that,

although L.M.S. resided in Grandmother’s home            for his entire    life,

Grandmother shared parental responsibilities with Mother. Thus, he asserts

that Grandmother’s involvement with her grandson falls short of either (1)

assuming a parental relationship or (2) discharging parental duties. Again,

we disagree.

      First, the fact that Grandmother shared with Mother the responsibility

of raising L.M.S. is irrelevant. Indeed, in D.G. v. D.B., 91 A.3d 706, 709

(Pa.Super. 2014), this Court recognized, “[w]hen a party asserting in loco

parentis status lives with the child and a natural parent as a family unit, our

courts have held that the party has standing.” To be clear, this is not a case

where Grandmother was essentially a glorified baby-sitter. To the contrary,

the certified record established that, by satisfying L.M.S.’s daily physical,

emotional, and financial needs for his entire life, Grandmother assumed an

enduring role that was much more significant than a frequent caretaker.

Compare the facts of the instant case with Argenio v. Fenton, 703 A.2d

1042 (Pa.Super. 1997), where this Court denied in loco parentis status to a

grandparent who merely provided daily child care.          Thus, contrary to

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Father’s assertions, the evidence demonstrating that Grandmother shared

parental      responsibilities   with   Mother    when   they   lived   together   in

Grandmother’s home militates in favor of in loco parentis status rather than

against it.    See T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001) (former partner

stood in loco parentis because she shared day-to-day child rearing

responsibilities with biological mother, co-owned the family residence, and

maintained exclusive responsibility for child when biological mother was

away from home).          In sum, Pennsylvania jurisprudence simply does not

support the contention that Grandmother was required to assume the role of

L.M.S.’s sole parental figure in order to attain in loco parentis status.

      Moreover, the record supports the trial court’s determination. One of

the primary considerations in determining in loco parentis status is the effect

of the third-party relationship upon the child’s best interest.              As our

Supreme Court explained,

      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., supra, 917.




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      Instantly, Grandmother, Mother, and L.M.S. lived together five years

as an intact family unit and Grandmother either shared or assumed sole

parenting responsibility for the entirety of the child’s life. Moreover, Mother

and Grandmother both testified that they shared parenting responsibilities.

N.T., 10/5/15 (Vol. 1), at 29-30, N.T., 3/11/16, at 137. Furthermore, as it

relates to day-to-day child rearing, the certified record confirms that

Grandmother fed, bathed, and entertained L.M.S. daily, attended doctors’

appointments, and transported him to kindergarten class in Clearfield. N.T.,

3/11/16,   at   136-139,   154-155.      Grandmother      also   assisted   L.M.S.

financially, and she has consistently been a stabilizing force in the child’s life

and ensured his safety. Id. at 139-140, 154.

      As a final component of the standing issues, we observe that Father

does not specifically assert that Grandmother was precluded from assuming

in loco parentis status in contravention of his wishes. Nevertheless, he cited

that legal principle in brief. To the extent that we can interpret his reference

as leveling the assertion implicitly, no relief is due.   Stated plainly, Father

failed to oppose Grandmother’s assumption of parental duties. Instead, he

allowed Grandmother to share the parental responsibilities with Mother.

Father not only declined to protest Grandmother’s emergent role, he did not

attempt to intercede in Grandmother’s assumption of parental duties, and he

failed to perform any parental obligations beyond exercising partial physical

custody. Through his own inaction, Father acquiesced to the development of

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the in loco parentis relationship between Grandmother and L.M.S.           As the

certified record confirms that Grandmother shouldered at least a shared role

of carrying out the day-to-day care of L.M.S. with Father’s implicit approval,

it belies the inference that she assumed parental status in defiance of

Father’s wishes.     Stated another way, by failing to act while Grandmother

raised his son, Father acted in a manner consistent with his consent to her in

loco parentis status.      See In re C.M.S., 884 A.2d 1284 (Pa.Super. 2005)

(birth father demonstrated consent by failing to be involved in child’s life for

one year).      As Grandmother stood in loco parentis to L.M.S., she had

standing to pursue custody pursuant to § 5324(2).2

       Having found that the trial court did not err in concluding that

Grandmother stood in loco parentis, we next address Father’s substantive

complaints.     We review the trial court’s custody order for an abuse of

discretion. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014). We defer

to the trial court’s factual findings that are supported by the record and its

credibility determinations.        Id.    This Court will accept the trial court’s
____________________________________________


2 Assuming, arguendo, that Grandmother failed to attain in loco parentis
status, she has standing to pursue custody of L.M.S. pursuant to 23 Pa.C.S.
§ 5324(3)(i-iii)(B), insofar as her relationship with L.M.S. began with Mother
and Father’s consent, she has assumed responsibility for L.M.S. since birth,
and Mother’s chronic drug abuse placed L.M.S. substantially at risk.
Although Father complains that Grandmother never alleged that her
grandson was at risk due to Mother’s substance abuse, the certified record is
replete with evidence of Mother’s struggle with drug addiction and
Grandmother’s efforts to act as a stabilizing force against its harmful effects.



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conclusion unless it is tantamount to legal error or unreasonable in light of

the factual findings. Id.

      In awarding primary custody to Grandmother, the trial court reviewed

the following best interest factors to consider when awarding any form of

custody:

      (a) Factors. – In ordering any form of custody, the court shall
      determine the best interest of the child by considering all
      relevant factors, giving weighted consideration to those factors
      which affect the safety of the child, including the following:

        (1) Which party is more likely to encourage and permit
        frequent and continuing contact between the child and another
        party.

        (2) The present and past abuse committed by a party or
        member of the party’s household, whether there is a
        continued risk of harm to the child or an abused party and
        which party can better provide adequate physical safeguards
        and supervision of the child.

        (2.1) The information set forth in section 5329.1(a)(1) and (2)
        (relating to consideration of child abuse and involvement with
        protective services).

        (3) The parental duties performed by each party on behalf of
        the child.

        (4) The need for stability and continuity in the child’s
        education, family life and community life.

        (5) The availability of extended family.

        (6) The child’s sibling relationships.

        (7) The well-reasoned preference of the child, based on the
        child's maturity and judgment.




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        (8) The attempts of a parent to turn the child against the
        other parent, except in cases of domestic violence where
        reasonable safety measures are necessary to protect the child
        from harm.

        (9) Which party is more likely to maintain a loving, stable,
        consistent and nurturing relationship with the child adequate
        for the child's emotional needs.

        (10) Which party is more likely to attend to the daily physical,
        emotional, developmental, educational and special needs of
        the child.

        (11) The proximity of the residences of the parties.

        (12) Each party’s availability to care for the child or ability to
        make appropriate child-care arrangements.

        (13) The level of conflict between the parties and the
        willingness and ability of the parties to cooperate with one
        another. A party’s effort to protect a child from abuse by
        another party is not evidence of unwillingness or inability to
        cooperate with that party.

        (14) The history of drug or alcohol abuse of a party or
        member of a party’s household.

        (15) The mental and physical condition of a party or member
        of a party’s household.

        (16) Any other relevant factor.

23 Pa.C.S. § 5328(a).

      In weighing the enumerated factors, the trial court treated the

custodial roles of Grandmother and Mother collectively.           Bolstered by

Mother’s contribution, the trial court found that all but six factors weighed in

favor of granting Grandmother primary physical custody.              The court

determined that factors two, eight, nine, eleven, and fourteen were

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inapplicable. Factor thirteen, relating to the conflict among the parties, was

deemed neutral.     None of the court’s considerations militated in favor of

Father.

      Father challenges the legitimacy of the trial court’s analysis of the

statutory best-interest factors.   This argument has three components, the

court: (1) failed to differentiate between Mother and Grandmother in

considering the § 5328(a) factors; (2) neglected to apply the statutory

presumption in favor of a parent over a third party pursuant to § 5327; and

(3) misconstrued the procedural posture of the custody litigation and placed

the burden of proof upon Father to “convince the Court that the benefits of

the proposed modification are in the best interest of Child.”      Trial Court

Opinion and Order, 12/6/16, at 10. Both Mother and Grandmother ignored

the court’s misapplication of the applicable framework and failed to confront

any of these errors directly in their respective briefs. As explained infra, we

agree with Father on all three accounts and conclude that the trial court’s

missteps are tantamount to reversible error.

      First, we observe that the trial court erred in employing a wholesale

consideration of the collective roles of Mother and Grandmother. The instant

custody   dispute   is   between    Father    and   Grandmother,   who    filed

countervailing custody petitions. Mother transferred custody to Father and

then neglected to assert her custody rights.        She merely acquiesced in

Grandmother’s intervention and supported her claim for primary physical

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custody of L.M.S.      Thus, in considering the relevant statutory factors in

determining L.M.S.’s best interests, the trial court was required to weigh the

merits of Father and Grandmother’s positons independently from that of

Mother.

      We concede that the trial court was free to consider Mother’s presence

in Grandmother’s home in addressing factors two, five, twelve, fourteen,

fifteen and sixteen.    These considerations would inure to Grandmother’s

benefit as to the factors concerning Mother’s existing relationship with

L.M.S., and her availability to perform child care, and ostensibly, the catchall

of any relevant factor under § 5328(a)(16).         However, the trial court

included Mother in its consideration of the factors that favored Grandmother,

but omitted her role in the household if it hindered Grandmother’s claim.

For example, the court’s reflection upon Mother’s history of substance abuse

and her mental and physical health would necessarily militate in favor of

Father.   We find that the trial court’s manipulation of Mother’s influence

upon its best interest analysis constitutes reversible error.   Upon remand,

the trial court is directed to limit its consideration of Mother’s presence in

Grandmother’s home to the specific factors where her presence is relevant,

and to account for her influence whether it inures to Grandmother’s benefit

or to Grandmother’s detriment.




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      Next, we address Father’s claim assailing the trial court’s assessment

of the proper burden of proof and evidentiary presumption.            The Child

Custody Law provides as follows:

      5327. Presumption in cases concerning primary physical custody

      (a) Between parents.--In any action regarding the custody of the
      child between the parents of the child, there shall be no
      presumption that custody should be awarded to a particular
      parent.

      (b) Between a parent and third party.--In any action regarding
      the custody of the child between a parent of the child and a
      nonparent, there shall be a presumption that custody shall be
      awarded to the parent. The presumption in favor of the parent
      may be rebutted by clear and convincing evidence.

      (c) Between third parties.--In any action regarding the custody
      of the child between a nonparent and another nonparent, there
      shall be no presumption that custody should be awarded to a
      particular party.

23 Pa.C.S. § 5327.

      Instantly, the trial court undeniably ignored the presumption favoring

Father over Grandmother pursuant to § 5327(b).             The presumption is

rebuttable by clear and convincing evidence, which we have defined as

presenting evidence “that is so clear, direct, weighty, and convincing so as

to enable the trier of fact to come to a clear conviction, without hesitation, of

the truth of the precise facts in issue.” V.B. v. J.E.B., 55 A.3d 1193, 1199

(Pa.Super. 2012) (quoting In re B.C., 36 A.3d 601, 605–606 (Pa.Super.

2012)).




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      Preliminarily, we observe that the fact that Grandmother attained

standing through in loco parentis status does not alter her role as a third-

party challenger to Father’s request for primary physical custody.            As

suggested by our Supreme Court’s discussion in T.B., supra, in loco

parentis status merely provides a third party an opportunity to establish that

maintaining that relationship supersedes the birth parent’s opposition. The

High Court observed, “Where [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 the issue

of whether that relationship should be maintained even over a natural

parent's objections.”   Id. at 917 (emphasis added).       Significantly, neither

the Supreme Court’s discussion in T.B. nor the text of § 5327(b) indicates

that in loco parentis status effectively places a third-party on equal footing

with a birth parent. To the contrary, § 5327 provides that the presumption

applies “[i]n any action regarding the custody of a child between a parent of

the child and a nonparent[.]” 23 Pa.C.S. § 5327(b) (emphasis added). If

our legislature desired to carve an exception to the presumption when the

nonparent attained in loco parentis status, it could have done so; however, it

did not. Thus, for all of the foregoing reasons, the trial court erred in failing

to apply the presumption in Father’s favor pursuant to § 5327(b).

      Moreover, in addition to ignoring the rebuttable presumption in favor

of Father, the trial court exacerbated that mistake by improperly saddling

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Father with the burden of proof.     Our ensconced principles of custody law

provide that where, as here, the trial court is required to fashion the initial

award of primary physical custody, both parents stand on equal footing and

neither bears the burden of proof. Collins v. Collins, 897 A.2d 466, 472

(Pa.Super. 2006) (“In the absence of a pre-existing custody order, both

parents stand on equal footing, sharing the burden of production and

persuasion”); see also 23 Pa.C.S. § 5327(a) (no presumptions between

parents).

      Instantly, the trial court misconstrued the procedural posture of this

case as stemming from a petition to modify an existing child custody order

and explicitly imposed the burden of proof upon Father. However, there was

neither a formal custody arrangement between Mother and Father, nor a

final custody order based upon the requisite best-interests analysis.          In

reality, Father initiated this custody litigation by filing a petition for primary

physical custody.

      We observe that the trial court’s misapprehension of the procedural

posture is understandable insofar as Father did not commence the custody

proceedings by filing a verified custody complaint as required by Pa.R.C.P.

1915.3., a procedural misstep which Mother and Grandmother failed to

challenge. However, notwithstanding Father’s procedurally-incorrect request

for primary physical custody, the fact remains that the parties have never

been subject to a final custody order, and therefore, Mother and Father

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continue to stand on equal footing as to demonstrating their son’s best

interests pursuant to § 5328(a). See Collins, supra. Father’s error did not

alter the nature of the custody litigation.

      In sum, the trial court’s best-interest analysis is contrary to at least

three entrenched principles of our custody jurisprudence.      Accordingly, we

reverse the order awarding Grandmother primary physical custody of L.M.S.

and remand the matter for a best-interests determination that conforms with

the Child Custody Law and prevailing precedent. While Father entreats that

this Court decide the case on its merits and award him primary physical

custody, we decline to analyze the relevant statutory best-interests factors

in the first instance.       Although this Court has engaged in merits

determinations based upon the certified record in limited situations where

the outcome is obvious, such is not the case herein. Contrary to Father’s

protestations, it is not clear from the certified record that the presumption in

his favor is insurmountable in light of the testimony that Grandmother either

performed or shared all aspects of raising L.M.S. since birth. If accepted as

true, these allegations could form the clear and convincing evidence required

to rebut the statutory presumption. We leave that determination to the trial

court, who is the ultimate arbiter of fact.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.




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J-A18015-17



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2017




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