J.A22035/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


K.T. AND M.R.T.,                            :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellants        :
                                            :
                    v.                      :
                                            :
                                            :
L.S. F/K/A L.R.,                            :
                                            :
                                            :     No. 433 MDA 2014


                Appeal from the Order Entered February 14, 2014
                  In the Court of Common Pleas of York County
                    Civil Division No(s).: 2013-FC-001604-03

BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 16, 2014

                                                                         order

entered in the York County Court of Common Pleas dismissing their

complaint for partial physical custody of their grandchildren, K.A.T., born in
                                                     1
                                                         We vacate and remand.

        Grandparents are the parents of natural father, D.T., who is deceased.

On September 6, 2013, Grandparents filed a complaint seeking partial

physical custody of Grandchildren. A detailed recitation of the facts is not



*
    Former Justice specially assigned to the Superior Court.
1
 Our review of the record did not reveal the month in which Grandchildren
were born.
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necessary for our disposition.        Grandparents have standing to file a

complaint for partial physical custody of Grandchildren.       See 23 Pa.C.S. §

5325(1).

      On October 4, 2013, the court entered an interim order for custody

pending trial which provided Grandparents with periods of partial physical

custody.    Interim Order for Custody, 10/4/13, at 3-6.        The court held a



partial physical custody. This timely appeal followed. Grandparents filed a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2). The trial court filed a Pa.R.A.P. 1925(a) opinion.

      Grandparents raise the following issues for our review:

           [1]. Whether the trial court committed an abuse of
           discretion or an error of law by failing to conduct a detailed
           child custody analysis in entering its opinion and order as
           required by both statutory law, specifically 23 Pa.C.S. §
           5328(c), and appellate case law?

           [2]. Whether the trial court committed an abuse of
           discretion or an error of law by repeatedly allowing the
           admission of evidence (over objections) of criminal and
           motor vehicle offenses not enumerated in 23 Pa.C.S. §
           5329 and which were not otherwise admissible under the
           Rules of Evidence?

           [3]. Whether the trial court committed an abuse of
           discretion or an error of law by failing to grant
           [Grandparents] any rights of partial physical custody
           whatsoever which severed all ties between [Grandchildren]

           contravention of long-standing appellate case law as well
           as the purpose and intent of 23 Pa.C.S. § 5325?




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           [4]. Whether the trial court committed an abuse of
           discretion or an error of law by focusing its analysis of the
           evidence exclusively on the apparent conflict between the
           biological mother and paternal grandmother and failing to
           perform the detailed analysis required under 23 Pa.C.S. §
           5328(c)(1) when standing exists because the biological
           father is deceased (23 Pa.C.S. § 5325(a)) and
           [Grandparents] sought relief under 23 Pa.C.S. § 5328?

           [5]. Whether the trial court committed an error of law or
           abused its discretion by sua sponte raising a constitutional
           issue regarding whether the legislature exceeded its
           authority to adopt the Custody Statute?
                           2



        In their first issue, Grandparents argue the trial court erred by failing

to conduct a detailed child custody analysis pursuant to 23 Pa.C.S. §

5328(a). Id. at 20. We agree.

        This Court has stated:

              In reviewing a custody order, our scope is of the
           broadest type and our standard is abuse of discretion. We
           must accept findings of the trial court that are supported
           by competent evidence of record, as our role does not
           include making independent factual determinations. In
           addition, with regard to issues of credibility and weight of
           the evidence, we must defer to the presiding trial judge
           who viewed and assessed the witnesses first-hand.

           or inferences from its factual findings. Ultimately, the test
                                                            reasonable as
           shown by the evidence of record. We may reject the
           conclusions of the trial court only if they involve an error of
           law, or are unreasonable in light of the sustainable findings
           of the trial court.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).

2
    For ease of disposition, we have changed the order of the issues.



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        Initially, we observe that in any custody case decided under the Child



child. See 23 Pa.C.S. §§ 5328(a), 5338(a).        In L.A.L. v. V.D., 72 A.3d 690

(Pa. Super. 2013), this Court held that in a custody action initiated by a

grandparent, the court must consider the statutory factors in determining

the best interests of the child. Id. at 695.

          Section 5328(c)(1) of the Child Custody Act requires a
          court consider the following factors when awarding custody
          to grandparents and great-grandparents:

                (i) the amount of personal contact between the child
          and the party prior to the filing of the action;

                 (ii) whether the award interferes with any parent-
          child relationship; and

                   (iii) whether the award is in the best interest of the
          child.

          23 Pa.C.S. § 5328(c)(1)(i)-(iii).   Section 5328(a)
          provides a non-exhaustive list of factors that courts
          must consider when determining the best interest of
          the child, including:

                    (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

             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.[3]

3
    In 2012, Section 5328 was amended to add a factor at subsection (a)(2.1)




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

                 (4) The need for stability and continuity in the


                 (5) The availability of extended family.



                 (7) The well-reasoned preference of the child,


                 (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


                 (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.


           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
                                            effort to protect a child
           from abuse by another party is not evidence of
           unwillingness or inability to cooperate with that party.



consideration of child abuse and involvement with protectiv
Pa.C.S. § 5328(a)(2.1)




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                   (14) The history of drug or alcohol abuse of a


                   (15) The mental and physical condition of a party


                   (16) Any other relevant factor.

          23 Pa.C.S. § 5328(a)(1)-(16).

Id. at 695-96 (emphasis added).

      In L.A.L., the trial court did not conduct an analysis of the statutory

factors because it determined that the paternal grandparents did not have

standing to seek partial custody.      Id. at 691.      This Court held that the



not evince a thorough analysis of all relevant factors, we cannot conclude

                                                                         Id. at 696.



remanded for the trial court to hold a hearing to consider the best interests

of the child in light of the statutory factors. Id.

      Instantly,   following   the    hearing,    the    trial   court    dismissed



opined:

             We have reviewed our Decision and feel no need
          presently to elaborate further. As the issues are styled,
          we would take the opportunity to offer some generalized
          comments and observations.       Simply put, this Judge
          believes that the legislature has unduly encroached
          upon the judiciary and the way Judges are to perform
          their responsibilities. To state the issues of error as
          failing to conduct a detailed child custody analysis as


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         required misdirects the focus away from the sole
         question of what is in the best interests of children.

                                 *    *    *

               Perhaps in hindsight, this      Judge    should    have
         declared outright in this case that
         not be considered . . . .

Trial Ct. Op., 3/24/14, at 2-3, 5 (emphasis added).

      The court did not consider the statutory factors under Section 5328(a),

finding the legislature

erred as a matter of law in not considering the custody factors as set forth in

Sections 5328(a) and (c) of the Act in entering its order.       See L.A.L., 72

A.3d at 695-96; C.R.F. 45 A.3d at 443. Therefore, we vacate the order and



light of the statutory factors. The court is directed to enter an order within

sixty days.



remaining issues.4


4

admission of evidence (over objections) of criminal and motor vehicle
offenses not enumerated in 23 Pa.C.S. § 5329 and which were not otherwise


its opinion related to [the conflict between Grandmother and the mother]
and it used this factor to deny Grandparents any custodial time with their
                  Id. at 36, 37. The trial court stated, when rendering its

                                                                 e
reversible error, an evidentiary ruling must be both erroneous and



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     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2014




                                       A.J.B. v. M.P.B., 945 A.2d 744, 751
(Pa. Super. 2008). Instantly, because we are vacating the order and
remanding for the trial court to consider the best interests of the children
based upon the statutory factors, it would be premature to address this
evidentiary claim.



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