J-S36014-19

                                   2019 PA Super 355


    S.R.G.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    D.D.G.                                     :   No. 313 MDA 2019

                Appeal from the Order Entered January 16, 2019
                In the Court of Common Pleas of Dauphin County
                   Domestic Relations at No(s): 0267 DR 2018


BEFORE:      PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.*

OPINION BY PANELLA, P.J.:                           FILED DECEMBER 10, 2019

        The trial court denied S.R.G.’s (“Grandmother”) petition seeking child

support payments from D.D.G. (“Grandfather”) for their daughter’s child.

Grandmother argues the trial court erred in denying her petition as

Grandfather has an extensive history of relentlessly litigating his claims for

custody of the child. While the trial court found that Grandmother made a

compelling argument, it ultimately concluded that the parties did not

aggressively assert their custody claims against child’s parents; rather, the

court concluded that the parties “stepped into the parental void” caused by

child’s parents. After careful review, we can find no error of law in the trial

court’s conclusions, and therefore affirm.



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*   Retired Senior Judge assigned to the Superior Court.
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       Prior to their pending divorce, the parties were granted legal and

primary physical custody of the child through an agreed custody order. The

parties’ daughter, the child’s mother, has a history of mental illness and the

parties agree that she is not capable of raising the child. The parties also agree

that the child’s father has never been involved in child’s life, and is currently

serving a lengthy prison sentence. However, neither of the child’s parents’

parental rights have ever been terminated or relinquished.1

       After Grandfather filed for divorce from Grandmother, and Grandmother

relocated to Florida, the parties agreed to numerous modifications to their

custody agreement. Ultimately, the agreement provided for a split schedule

of primary physical custody whereby Grandfather exercises partial physical

custody of child during summers, spring break, and a two-week period during

the fall. Grandmother exercises primary physical custody at all other times.

Grandmother had sole legal custody of the child, however grandparents later

entered an agreed order providing they would share legal custody, with

Grandfather having sole decision-making authority on health and education

issues (though not religion) during his period of physical custody only.


____________________________________________


1 Child’s mother and father have been granted visitation rights, as agreed to
by grandparents, in the custody agreements. It does not appear that father
has ever exercised this right. Mother has spent brief periods of time living with
grandparents and the child, and subsequently Grandfather and child,
intermittently over the years.




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       As noted, Grandmother subsequently sought child support payments

from Grandfather. Whether a third party2 may be held liable for child support

to another third party is a question of law, which we review de novo. See A.S.

v. I.S., 130 A.3d 763, 768 (Pa. 2015).

       Pennsylvania law is clear that parents of a child have a duty to support

that child. See 23 Pa.C.S.A. § 4321(2). On the other hand, there is no explicit

statutory requirement that a grandparent has any duty to support a

grandchild. See id.

       Grandmother claims Grandfather has a legal duty to pay child support

to her for their grandchild since grandparents stand in loco parentis to the

child. Grandmother asserts grandparents have taken proactive steps to

establish themselves as the legal parents of the child and that mother and

father have never, and never will, assume parental duties.

       Initially, we have previously held that in loco parentis status alone is

insufficient   to   create    a    support     obligation   for   a   nonparent.   See

Commonwealth ex rel. McNutt v. McNutt, 496 A.2d 816, 817 (Pa. Super.

1985).

       If we were to hold that a stepparent acting in loco parentis would
       be held liable for support even after the dissolution of the marriage
       then all persons who gratuitously assume parental duties for a
       time could be held legally responsible for a child's support. It is
       not uncommon for a grandparent, an aunt or uncle or an older
____________________________________________


2“Persons other than natural or biological parents are deemed to be ‘third
parties’ for purposes of custody disputes.” Cardamone v. Elshoff, 659 A.2d
575, 579-80 (Pa. Super. 1995) (citations omitted).

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      sibling to assume responsibilities for parenting when the natural
      parents are absent. These acts of generosity should not be
      discouraged by creating a law which would require anyone who
      begins such a relationship to continue financial support until the
      child is eighteen years old.

Id.

      Acknowledging this precedent, Grandmother cites to the Pennsylvania

Supreme Court decision in A.S., for the proposition that a duty of child support

can arise where a nonparent has taken “affirmative steps to act as a legal

parent so that he or she must be treated as a legal parent.” See Appellant’s

Brief, at 12.

      In A.S., the child’s stepfather “haled a fit [biological mother] into court,

repeatedly litigating to achieve the same legal and physical custodial rights as

would naturally accrue to any biological parent.” Id., at 770. The court

described the case as not a typical one “of a stepparent who has grown to love

his stepchildren and wants to maintain a post-separation relationship with

them.” Id. Instead, the stepfather “ha[d] litigated and obtained full legal and

physical custody rights, and ha[d] also asserted those parental rights to

prevent a competent biological mother from relocating with her children.” Id.

      Our Supreme Court held that, because the stepfather had “taken

sufficient affirmative steps legally to obtain parental rights,” he “should share

in parental obligations, such as paying child support.” Id., at 770-71. Our

Supreme Court added, “[e]quity prohibits [the] [s]tepfather from disavowing




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his parental status to avoid a support obligation to the children he so

vigorously sought to parent.” Id., at 771.

      Here, the trial court distinguished A.S. from the circumstances in this

case. The court found that there was no evidence that the parties had ever

taken any affirmative steps to be parents of the child; rather, it found the

record could not support a finding that the child thinks of the parties as

anything other than his grandparents.

      Further, the court found that the parties’ claims for custody have not

been aggressive or hostile to the rights of the child’s parents:

      Both grandparents initially became full time de facto custodians of
      [the child] shortly after his birth due to the parents’ inability to
      fulfill their parental roles. Grandparents continued to act as [the
      child’s] de facto custodians for the next nineteen months before
      they formally initiated a custody action. Though the record
      supplied by the parties does not directly address why
      grandparents sought formal custody rights when they did, such
      would have become necessary at some point in order for them to
      legally act on [the child’s] behalf (for instance, to obtain medical
      care for him and enroll in him in school). What is clear, however,
      is that grandparents never sought court-ordered custody in an
      effort to assert custodial rights as against either or both parents.
      They never affirmatively, assertively, aggressively or otherwise
      sought out a parental role. Instead, they gratuitously and
      generously filled the parental void. This is a fundamental
      distinction between this situation and that in A.S. The Supreme
      Court in A.S. went out of its way to stress the somewhat litigiously
      aggressive posture by stepfather in “relentless pursuit” of full
      parental rights “at the cost of interfering with the rights of a fit
      parent.” The grandparents in this case are fundamentally acting
      as grandparents, not as parents, and have never sought to usurp
      the parental rights of mother and father.

Trial Court Opinion, 2/15/19, at 9-10.




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      We agree with the trial court that the circumstances of this case present

a close call. On the one hand, as the trial court notes, neither party has sought

to usurp the parental rights of the child’s mother and father. On the other

hand, Grandfather has sought, and been awarded, periods of physical and

partial legal custody of the child.

      Despite this, we also agree with the trial court that the circumstances

presented by this case are readily distinguishable from A.S. The third party

stepfather in A.S. did not fall into the category of a third party who merely

desired a continuing post-separation relationship with his stepchildren. See

A.S., 130 A.3d 763, 770. Rather, the Court observed that the stepfather had

“insisted upon and became a full parent in every sense of that concept,” and

had done so at the expense of a fit natural parent. Id.

      Here, Grandfather has not insisted upon or become a full parent to the

child, but rather gratuitously assumed the burdens of custody. Furthermore,

the record supports the trial court’s determination that Grandfather is merely

a grandparent who desires to maintain a relationship with his grandchild.

Finally, Grandfather has not asserted custody rights against a fit biological

parent, but rather another third party. There is simply no statutory

authorization presently in Pennsylvania extending the duty of child support

between two third parties, where neither party has adopted the child, and the




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J-S36014-19


natural parents have not had their parental rights terminated. 3 Under these

circumstances, we cannot conclude the trial court erred in denying

Grandmother’s petition.

        Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/10/2019




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3   Such a question is matter for the legislature, not the courts, to decide.

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