J-A14015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    J.K. AND J.K.                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    J.D.                                       :
                                               :
                        Appellant              :   No. 99 WDA 2019

                 Appeal from the Order Entered December 19, 2018
                   In the Court of Common Pleas of Butler County
                       Civil Division at No(s): FC07-90783-C-2

BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 19, 2019

           J.D. (“Father”) appeals from the order entered December 19, 2018, in

the Court of Common Pleas of Butler County, which granted his motion for

reconsideration, but denied his requested relief, by directing that the maternal

grandmother and step-grandfather, J.K. and J.K. (“Grandparents”), retain

standing to pursue partial physical custody of his son, X.D. (“Child”), born in

January 2007.1 After careful review, we affirm.




____________________________________________


1 This order is final and appealable because the trial court entered it after
completing its hearings on the merits, and because it completely resolved the
parties’ pending custody claims. See G.B. v. M.M.B., 670 A.2d 714, 720 (Pa.
Super. 1996).
J-A14015-19


       The instant dispute began on May 20, 2011, when Grandparents filed a

complaint seeking partial physical custody of Child.2 Grandparents asserted

that they had standing to pursue custody of Child based on 23 Pa.C.S. § 5312.

Prior to its repeal,3 Section 5312 provided standing to grandparents to pursue

“reasonable partial custody or visitation rights”4 when the subject grandchild’s

parents “have been separated for six months or more[.]” 23 Pa.C.S. § 5312

(repealed). While the details are not clear from the record, it is undisputed

that Child was born out of wedlock and that Father and K.K. were separated

prior to the filing of the complaint.

       The parties attended a conference before a conciliator on June 10, 2011.

The conciliator issued a report, which the trial court adopted as an interim



____________________________________________


2 The trial court docket indicates that Father and Child’s biological mother,
K.K., commenced a custody proceeding in 2007. The documents pertaining
to that proceeding do not appear in the certified record.

3 Notably, our General Assembly repealed Section 5312 effective January 24,
2011, well before Grandparents filed their complaint. It replaced Section 5312
with a similar provision found at 23 Pa.C.S. § 5325(2). Our Supreme Court
later struck down that provision as unconstitutional in D.P. v. G.J.P., 146
A.3d 204 (Pa. 2016). The General Assembly has since amended Section 5325,
effective July 3, 2018, and a comparable provision no longer exists.

4 The predecessor to our current child custody statute treated “custody” and
“visitation” as distinct awards. See 23 Pa.C.S. § 5302 (defining “visitation”
as “The right to visit a child. The term does not include the right to remove a
child from the custodial parent’s control.”). Our current statute eliminates this
distinction. See 23 Pa.C.S. § 5322(b) (“In a statutory provision other than in
this chapter, when the term ‘visitation’ is used in reference to child custody,
the term may be construed to mean: (1) partial physical custody; (2) shared
physical custody; or (3) supervised physical custody.”).

                                           -2-
J-A14015-19


order on June 16, 2011. Relevant to this appeal, both the report and the

interim order included provisions indicating that Father preserved a challenge

to Grandparents’ standing.         See, e.g., Order, 6/16/11, at 1 (unnumbered

pages) (“It is further ordered that the Father’s right to challenge Maternal

Grandparent[s’] standing in this case is hereby preserved.”).

       Ultimately, the parties reached a custody agreement, which the trial

court entered as an order on September 15, 2011. The order awarded primary

physical custody of Child to Father and awarded partial physical custody to

Grandparents every other Monday from 4:30 p.m. until 8:30 p.m. and on the

fourth Saturday of each month from 10:00 a.m. until 6:00 p.m. The order

also awarded Grandparents one extended weekend of custody during the

summer from Thursday at 6:00 p.m. until Monday at 6:00 p.m. The order

made no mention of legal custody.

       No further activity occurred in this matter until Father filed a pleading

entitled “Motion to Vacate and Dismiss” on September 12, 2018.         Therein,

Father averred that K.K.’s parental rights had been terminated and that his

wife, A.D., adopted Child.5 Father also averred that Grandparents no longer

____________________________________________


5It is important to note that our child custody statute includes the following
provision regarding stepparent adoptions:

       Any rights to seek physical custody or legal custody rights and any
       custody rights that have been granted under section 5324
       (relating to standing for any form of physical custody or legal
       custody) or 5325 (relating to standing for partial physical custody



                                           -3-
J-A14015-19


possessed standing to pursue custody of Child due to the recent amendments

to the Pennsylvania child custody statute at 23 Pa.C.S. § 5325.           In the

alternative, Father contended that allowing Grandparents to maintain partial

physical custody of Child would violate his constitutional rights as a parent, as

set forth by our Supreme Court in D.P., supra.

       The trial court heard argument on October 31, 2018. Subsequently, on

November 21, 2018, the trial court entered an order denying Father’s motion,

on the basis that “severing a relationship established for years between

[Grandparents] and minor child is not in the child’s best interests.” Order,

11/21/18.

       On December 17, 2018, Father presented the trial court with a motion

for reconsideration.6      Therein, Father contended that the court improperly

reached its decision as to Child’s best interest after conducting argument and

without taking any evidence. Father also requested that the court reconsider

its denial of his constitutional and statutory arguments.




____________________________________________


       and supervised physical custody) to a grandparent or great-
       grandparent prior to the adoption of the child by an individual
       other than a stepparent, grandparent or great-grandparent
       shall be automatically terminated upon such adoption.

23 Pa.C.S. § 5326 (emphasis added).

6Father presented the motion for reconsideration in person at motions court.
He did not file the motion until December 20, 2018.


                                           -4-
J-A14015-19


       On December 19, 2018, the trial court entered an order granting

Father’s motion for reconsideration for the purpose of clarifying its decision to

deny the motion to vacate and dismiss. Specifically, the court concluded that

the 2018 amendments to the child custody statute “do not have retroactive

effect” on the 2011 order granting custody to Grandparents. Order, 12/19/18.

The court further concluded that the 2011 order did not affect Father’s

constitutional rights and that Father waived any challenge to Grandparents’

standing by failing to raise the issue in 2011.7 Father timely filed a notice of

appeal on January 17, 2019, along with a concise statement of errors

complained of on appeal.

       Father now raises the following claims for our review:

       1. Whether the trial court committed an error of law by failing to
       find that Father’s state and federal constitutional rights to due


____________________________________________


7 The trial court issued an opinion on February 21, 2019, in which it reached
the same conclusions. The court stated as follows:

             Contrary to his argument, [Father] did not preserve his
       challenge to [Grandparents’] standing in the [September 15,
       2011] order of court. Nor has he, since the issuance of said order,
       raised any objection to [Grandparents’] standing. Therefore, as
       [Father] failed to raise this issue below, it is waived for appellate
       consideration.

             Furthermore, the court does not find that the amendments,
       which became effective on July 3, 2018, are to be applied
       retroactively. Therefore, as the issues raised by [Father] in this
       appeal are of no merit, the court respectfully requests that the
       Order of Court of December 1[9], 2018 be affirmed.

Trial Court Opinion, 2/21/19, at 2.

                                           -5-
J-A14015-19


     process and equal protection were violated by [Grandparents’]
     continued exercise of custody[?]

     2. Whether the trial court committed an error of law by failing to
     find that the 2018 amendments to 23 Pa.C.S. §§ 5324 and 5325
     do not deprive [Grandparents] of standing to continue to exercise
     custodial rights prospectively[?]

     3. Whether the trial court committed an error of law by failing to
     find that a custody litigant must maintain standing throughout the
     exercise of their custodial rights, elsewise the state’s interest in
     exercising [its] parens patriae authority is insufficient to overcome
     the constitutional rights of the child’s parents[?]

     4. Whether the trial court committed an error of law by finding
     that Father had waived these claims (1) because Father expressly
     preserved the right to challenge [Grandparents’] standing in this
     case, and such preservation was expressly ordered by the trial
     court in the first substantive custody order entered with respect
     to [G]randparents by order dated June 15, 2011, and (2) because
     custody litigants must maintain standing throughout their exercise
     of custody, a challenge to that standing is always amenable to
     review if the loss of standing renders the state’s intrusion into a
     family unit unconstitutional[?]

     5. Whether the trial court abused its discretion in its November
     20, 2018, order by making a factual determination as to the best
     interests of the child without hearing any evidence and, therefore,
     failing to consider the factors of 23 Pa.C.S. § 5328, as the
     argument on October 31, 2018, was merely an argument on the
     legal issues raised by Father’s Motion to Vacate and Dismiss[?]

Father’s Brief 2-3 (footnotes and suggested answers omitted).

     Father’s challenge to Grandparents’ standing is a question of law. S.G.

v. J.M.G., 186 A.3d 995, 997 (Pa. Super. 2018), appeal denied, 197 A.3d

1177 (Pa. 2018). Therefore, our standard of review is de novo and our scope

of review is plenary. Id.




                                     -6-
J-A14015-19


      In his issues on appeal combined, Father argues that the trial court erred

by concluding that he waived his challenge to Grandparents’ standing, and by

concluding that the 2018 amendments to the child custody statute did not

deprive Grandparents of standing. Father’s brief at 11-17. He also contends

that Grandparents’ exercise of custody violates his constitutional rights, as

established in D.P., supra. Id. at 8-11. In the alternative, Father contends

that the court erred by making a finding as to Child’s best interests without

conducting an evidentiary hearing and considering the best interest factors

found at 23 Pa.C.S. § 5328(a). Id. at 17-18.

      We conclude that the trial court did not abuse its discretion or commit

an error of law by denying Father’s motion to vacate and dismiss. However,

we do so for reasons other than those advanced by the trial court. See In re

A.J.R.-H., 188 A.3d 1157, 1175-76 (Pa. 2018) (“The ‘right for any reason’

doctrine allows an appellate court to affirm the trial court’s decision on any

basis that is supported by the record.”).

      As noted above, at the time the trial court entered the September 15,

2011 custody order, Section 5325(2) provided grandparents with standing to

seek partial or supervised physical custody of their grandchildren “where the

parents of the child have been separated for a period of at least six months[.]”

23 Pa.C.S. § 5325(2) (prior to amendment). However, our Supreme Court

struck down the portion of Section 5325(2) providing grandparents with

standing in the event of parental separation in D.P., supra. The Court held


                                     -7-
J-A14015-19


that the provision “cannot survive strict scrutiny and, as such, it violates the

fundamental rights of parents safeguarded by the Due Process Clause” of the

federal Constitution. D.P., supra, 146 A.3d at 216 (footnote omitted).

      Following D.P., our General Assembly passed amendments to Section

5325, which eliminated the offending provision. The current version of Section

5325, which took effect on July 3, 2018, provides as follows:

      In addition to situations set forth in section 5324 (relating to
      standing for any form of physical custody or legal custody),
      grandparents and great-grandparents may file an action under
      this chapter for partial physical custody or supervised physical
      custody in the following situations:

            (1) where the parent of the child is deceased, a parent
            or grandparent of the deceased parent may file an
            action under this section;

            (2) where the relationship with the child began either
            with the consent of a parent of the child or under a
            court order and where the parents of the child:

                  (i) have commenced a proceeding for
                  custody; and

                  (ii) do not agree as to whether the
                  grandparents    or   great-grandparents
                  should have custody under this section; or

            (3) when the child has, for a period of at least 12
            consecutive months, resided with the grandparent or
            great-grandparent,     excluding  brief    temporary
            absences of the child from the home, and is removed
            from the home by the parents, an action must be filed
            within six months after the removal of the child from
            the home.

23 Pa.C.S. § 5325.




                                     -8-
J-A14015-19


       Critical to our resolution of this appeal, our Rules of Civil Procedure

direct that a party to a custody proceeding “must raise any question of

jurisdiction of the person or venue, and may raise any question of standing,

by preliminary objection filed within twenty days of service of the pleading to

which objection is made or at the time of hearing, whichever first occurs.”

Pa.R.C.P. 1915.5(a). Our case law clarifies that a trial court may reevaluate

standing past the twenty-day deadline for the filing of preliminary objections.

M.G. v. L.D., 155 A.3d 1083, 1087 n.5 (Pa. Super. 2017), appeal denied, 169

A.3d 522 (Pa. 2017); M.W. v. S.T., 196 A.3d 1065 (Pa. Super. 2018), appeal

denied, 199 A.3d 336 (Pa. 2018). Generally, in order to do so, a party must

demonstrate the existence of a factual change in circumstances, such as “the

termination of parental rights or adoption[.]”8 M.G., 155 A.3d at 1087 n.5.

       Nonetheless, even assuming that a factual change of circumstances

exists in a particular case, the correct procedural vehicle to challenge standing

is a petition for modification of custody. Section 5338(a) of our child custody

statue provides that, “[u]pon petition, a court may modify a custody order to

serve the best interest of the child.” 23 Pa.C.S. § 5338(a). Neither the rules


____________________________________________


8 The panels in M.G. and M.W. reached seemingly inconsistent conclusions
regarding whether a party may raise standing at any time. Compare M.G.,
155 A.3d at 1087 n.5 (“While standing in custody cases may be fluid under
some circumstances, it certainly cannot be asserted at any time.”), with
M.W., 196 A.3d at 1071 (“[O]ur rules permit parties to raise issues related to
standing beyond the 20-day period. . . . [I]t would not make sense to permit
a party to raise standing at any time, but then consider the factual
circumstances as they existed at the time the complaint was filed[.]”).

                                           -9-
J-A14015-19


nor the statute permit a party to file a motion requesting that a trial court

vacate or dismiss an existing custody order. See M.W., 196 A.3d at 1067-69

(addressing a request for dismissal filed prior to the entry of a final order);

D.P., 146 A.3d at 205-07 (same). Accordingly, because Father attempted to

challenge Grandparents’ standing by claiming the amended section 5325

should be applied retroactively to an order entered seven years earlier, it was

proper for the trial court to deny Father’s requested relief.

       Based on the foregoing, we affirm the trial court’s December 19, 2018

order granting Father’s motion for reconsideration, and denying his request to

vacate and dismiss the existing custody order. If Father intends to challenge

the September 15, 2011 custody order, he may do so by filing a petition for

modification requesting sole custody.9

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2019


____________________________________________


9 If the trial court concludes that a factual change of circumstances has
occurred, the court should provide Grandparents with the opportunity to prove
that they retain standing pursuant to any applicable section of our child
custody statute before granting or denying Father’s petition.

                                          - 10 -
