J-A04044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.S. AND D.S.,                                  IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellants

                     v.

S.D. AND M.S.,

                          Appellees

                     v.

G.L.S. II,

                          Appellee

                     v.

S.D.,

                          Appellee

                     v.

M.S.,

                          Appellee                  No. 1480 WDA 2013


                     Appeal from the Order August 15, 2013
               In the Court of Common Pleas of Clearfield County
                      Civil Division at No(s): 2012-309--CD


BEFORE: BOWES, WECHT, and STABILE, JJ.

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

        R.S. and D.S., (collectively “Appellants”) appeal the order granting a

petition filed by S.D. (“Mother”) to dismiss Appellants’ custody complaint and
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vacate the concomitant custody order concerning Appellants’ putative

grandson, C.S. After careful review, we reverse and remand.

      C.S. was born during March 2009, while Mother was engaged in a

sexual relationship with Appellants’ son, Putative Father.     N.T., 5/2/13, at

41. The couple resided together and Putative Father assisted Mother during

the delivery, identified himself as the birth father on C.S.’s birth certificate,

and subsequently executed an acknowledgement of paternity. Id. at 50-51.

Mother, Putative Father, and C.S. remained together as a family for

approximately two and one-half years.          While the family was intact,

Appellants interacted frequently with C.S. and developed a strong bond.

C.S. refers to Appellants as “Grammy and Pappy.”           Id. at 56.    Mother

testified during the hearing that Appellants visited C.S. periodically at Mother

and Putative Father’s home, and at other occasions, the family would visit

Appellants’ home. Id. at 41. In fact, she explained that C.S. spent portions

of “mostly every weekend” with Appellants. Id.

      However, Mother and Putative Father’s romantic relationship began to

dissolve, and the parties separated during August or September of 2011. At

some point thereafter, Mother relocated temporarily to Florida without C.S.

Id. at 23-24.    With assistance from Putative Father and a paternal aunt,

Appellants acted as C.S.’s caretakers during Mother’s sojourn. Id. at 23, 25,

42-43. Mother returned to Pennsylvania during November 2011, and briefly

reconciled with Putative Father.    Id. at 24-25.   However, on February 26,


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2012, the couple separated permanently. Id. at 42. Appellants participated

in the custody exchanges between Mother and Putative Father and acted as

intermediaries when hostilities erupted.      Id. at 44-45.      Significantly,

throughout this period, Mother acquiesced to Appellants’ interaction with

C.S. as the child’s grandparents and never disclosed to Appellants that she

doubted C.S.’s parentage.

     Acting pro se, Appellants filed their complaint for custody of their then-

nearly-three-year-old grandchild on March 1, 2012. The complaint identified

Appellants as grandparents, Mother and Putative Father as parents, and

indicated that C.S. was born out of wedlock.       Mother did not challenge

Appellants’ ability to pursue custody.   Instead, on May 16, 2012, she and

Appellants agreed to a custody order awarding Mother and Putative Father

shared legal custody of C.S. and granting Mother primary physical custody.

The order granted Appellants partial physical custody of C.S. on Tuesdays

and Thursdays from 10:00 a.m. until 6:00 p.m., and, on alternating

weekends, it extended overnight physical custody between Friday afternoons

and Sunday evenings.

     The May 16, 2012 order anticipated that the parties would not petition

the court for further proceedings for six months.     Nevertheless, less than

one month after the court entered the order outlining the parties’

agreement, Mother filed a petition to modify the custody arrangement based

upon the results of a privately-obtained DNA test report that concluded that


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the probability of paternity of another man, G.L.S., II, was 99.99997%.

Significantly, Mother not only failed to challenge Appellants’ standing at that

juncture, she agreed to a second custody order dated July 18, 2012, which

was nearly identical to its predecessor except that it removed Appellants’

periods of partial physical custody on Tuesdays. That order, which included

another six-month proviso, did not reference Mother’s private DNA report.

        Three months later, on October 17, 2012, Mother filed a second

petition for modification. Again, Mother failed to challenge Appellants’ ability

to maintain their custody action. Instead, this time she requested to modify

the custody order based upon Appellants’ alleged improper supervision of

C.S. during their custodial periods.    Specifically, due to her concerns for

C.S.’s safety, Mother desired to terminate Appellants’ partial custody entirely

or reduce it to supervised visitation on Thursday evenings and alternating

weekends.

        Before the trial court entered an order disposing of Mother’s second

petition to modify the custody agreement, Mother filed an emergency

petition reiterating identical assertions that she leveled in the October 2012

petition to modify.     Although Mother did not assert any challenge to

Appellants’ standing, her petition characterized Appellants’ relationship with

C.S. as “non-biological family.” Petition for Emergency Custody, 11/29/12,

at 1.    On December 14, 2012, the trial court dismissed Mother’s second

petition for modification and directed the parties to continue to follow the


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custody arrangement that the parties’ assented to in the July 18, 2012

order.      Similarly,   following    an       evidentiary   hearing,   the   trial   court

subsequently dismissed Mother’s petition for emergency custody.1

       Meanwhile, on December 19, 2012, the trial court entered an order in

a parallel custody dispute among Mother, Putative Father, and G.L.S., II,

wherein the parties to that case granted to G.L.S., II periods of physical

custody one evening per week and overnight custody on alternating Friday

evenings.    The custody rights were contingent upon court-ordered genetic

testing confirming that G.L.S., II is C.S.’s biological father.               Trial Court

Order, 12/19/12, at 1.        Significantly, the accord provided that the newly-

awarded custody rights “shall not interfere with the directives set forth in

[the] July 18, 2012 [order] entered [in the case-at-bar.]” Id. at 2. The trial

court eventually established the paternity of G.L.S., II, and, as discussed

infra, it ultimately consolidated G.L.S., II’s litigation into the present case.

       Thereafter, on February 1, 2013, Mother filed another petition for

emergency custody.           Identifying Appellants as “legalized family,” this

petition alleged that Appellants permitted C.S. to play near dangerous

physical conditions in their household. See Petition for Emergency Custody,

2/1/13, at 1, 2. Based on these allegations, Mother reiterated her request

____________________________________________


1
   The trial court also found Mother in contempt “for [f]ailure to [c]omply
with [the] Court’s Order of July 1[8], 2012[,]” but it declined to impose any
sanctions. Trial Court Order, 2/1/13, at 1.



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to modify the custody accord in order to terminate Appellants’ custodial

rights. Id. at 2. The trial court eventually suspended Appellants’ custodial

rights for eleven days.       When the trial court reinstated custodial rights, it

reduced the custodial periods to Thursdays from 10:00 a.m. until 6:00 p.m.,

and Saturdays and Sundays from 10:00 a.m. until 6:00 p.m. on alternate

weekends.

       While the serial emergency petition was pending, on February 20,

2013, Mother filed a third petition to modify the custody agreement. At that

time, Mother first leveled the complaint that she did not have enough

custodial time with C.S. in light of the additional periods of physical custody

exercised by G.L.S., II and his parents.         The trial court did not reduce

Appellants’ custodial periods based upon this petition. In actuality, as noted

supra, the court revised the custody order following the evidentiary hearing

regarding Mother’s second petition for emergency custody.

       Appellants obtained counsel and filed a petition for reconsideration of

the March 11, 2013 order reinstating Appellants’ custody rights subject to

the reduced custodial periods.2 Mother retained counsel on March 28, 2013.

After G.L.S., II successfully petitioned to have his custody suit against

____________________________________________


2
    Even though the August 16, 2013 order denied Appellants’ motion for
reconsideration of the trial court’s March 11, 2013 order reducing Appellants’
custodial period, the merits of that order are not before this Court because
Appellants’ motion to reconsider did not toll the appeal period and Appellants
failed to appeal that order within thirty days.



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Mother and Putative Father consolidated with the instant custody litigation,

Mother, for the first time in the year-long custody dispute, attacked

Appellants’ standing to pursue physical custody of then-four-year-old C.S.

      Specifically, on April 8, 2013, Mother filed a motion to dismiss/motion

to vacate.    Mother sought to dismiss Appellants’ March 1, 2012 custody

complaint that formed the genesis of this litigation and to vacate all of the

custody orders that flowed from that complaint.          The crux of Mother’s

argument was that since Putative Father was not C.S.’s birth parent,

Appellants lacked standing to pursue custody of C.S. pursuant to 23 Pa.C.S.

§ 5324.   Appellants countered that Mother was estopped from challenging

standing because she misled them to believe that Putative Father was the

birth father. Accordingly, they asserted that their custodial rights should not

be subject to divestiture.

      Rejecting Appellants’ contention that Mother was estopped from

terminating their custodial rights, the trial court found that Mother’s

revelation effectively denied Appellants standing to defend their custody

rights. This timely appeal followed.

      Appellants present two questions for our review:

            I. Whether the trial court erred when it failed to estop
      [Mother] from terminating the visitation and custody rights of
      the appellants.

            II.  Whether the trial court erred when it failed to
      recognize that the best interests of the child were served by
      continued visitation and custody with the Appellants, the only
      Grandparents the child has ever known since birth.

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Appellants’ brief at 7.3

       We review the trial court’s decision for an abuse of discretion. Kellogg

v. Kellogg, 646 A.2d 1246, 1250 (Pa.Super. 1994) (“Once the trial court

determination is made [as to standing], it will be reviewed by this court in

the same manner that we review any such determination, that is, under an

abuse of discretion or error of law standard.”). We recently reiterated the

pertinent principles as follows:

       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.

              ....
____________________________________________


3
  As we grant relief based upon Appellants’ first issue, we need not address
their second argument. We observe, however, that the Child Custody Law
does not require trial courts to consider a child’s best interest pursuant to 23
Pa.C.S. § 5328(a) when determining a party’s standing to file a custody
complaint.

While the issue of standing does not implicate a best-interest analysis, the
trial court should engage in a complete best-interest analysis under section
5328(a) prior to altering the custody schedule. Even though the trial court
terminated the then-existing physical custody arrangement without engaging
in a best-interest analysis, the inquiry is warranted prior to re-instating the
terms of the custody schedule outlined in the March 11, 2013 order. To be
clear, however, the trial court’s best-interest analysis does not negate
Appellants’ standing to pursue custody of C.S.



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

D.G. v. D.B., 91 A.3d 706 (Pa.Super. 2014) (quoting J.A.L. v. E.P.H., 682

A.2d 1314, 1318 (1996)) (internal quotations and citations omitted).

       At the outset, we observe that Mother’s challenge to Appellants’

standing is waived because Mother did not raise it as early as possible.4

Instantly, Mother challenged Appellants’ standing thirteen months after

Appellants filed their March 2012 custody complaint. In Kellogg, supra, we

held   that    Pa.R.C.P.    1915.5(a),         regarding   preliminary   objections   to

jurisdiction or venue in custody actions, implicitly encompassed objections to

____________________________________________


4
   Despite the learned dissent’s protestations to the contrary, we do not
address this issue sua sponte. The issue was raised implicitly in Appellants’
immediate response to Mother’s motion to dismiss/motion to vacate, and it
remains an aspect of their estoppel argument. Specifically, Appellants
countered Mother’s motion by asserting that she was estopped, based upon
her actions and inaction, from challenging their standing to pursue their
custody rights. The ten-month delay between the date that Mother obtained
the results of a DNA test and the date that she finally wielded those results
against Appellants’ right to standing is an innate component of Appellants’
estoppel claim. For example, during the ten-month delay, Mother filed at
least four motions or petitions to modify the custody arrangement to which
she had originally assented; however, none of those filings gave Appellants
notice of her intention to object to their standing based on the results of the
DNA tests that she had obtained.           As Appellants’ estoppel argument
necessarily subsumes Mother’s ten-month delay, we reject the distinguished
dissent’s suggestion that the issue is beyond our review.




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standing.5 We explained, “a standing challenge should be raised within the

time period set forth in Rule 1915.5 so as to give a defendant notice of the

other party’s intention to object to the action on this ground.” Id. at 1250.

We continued, “Since resolution of the standing issue has the potential to

control the outcome of the entire case without the court ever reaching the

merits, it is important that the issue be raised as early as possible.” Id.

       Kellogg, which predates our current custody statute, involved a

custody    dispute     between      two    third-party   litigants.   The   maternal

grandparent, who stood in loco parentis to the two children, objected to the

lack of standing of the father’s first wife, who had no genetic or legal

relationship with the children. In relevant part, we found that objections to

standing should be asserted at the earliest date between either the custody

hearing or within twenty days of service of the custody complaint. However,

recognizing that Rule 1915.5 provides that preliminary objections under that

rule shall not delay the custody proceedings, we concluded that, “The

custody hearing should proceed as scheduled despite the filing of a

preliminary objection based on lack of standing.”           Id. The Kellogg Court

____________________________________________


5
    Pursuant to Pa.R.C.P. 1915.5(a), “A party 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. No
other pleading shall be required, but if one is filed it shall not delay the
hearing.”




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continued, “Once a hearing has commenced, a trial court may make the

standing determination at any time, depending on the particular facts and

circumstances before it.” Id.

      We also observe that, notwithstanding Mother’s obligation to comply

with Rule 1915.5(a) in challenging Appellants’ standing to file the custody

complaint, in some instances standing in custody cases is fluid due to a

change in circumstances. While our case law does not address whether a

party’s standing to file a custody complaint is subject to re-evaluation during

a custody proceeding, our discussion in Kellogg illustrates that it is

appropriate to consider standing during the pendency of the custody

proceedings even though it is a threshold issue.        Additionally, in other

situations, this Court has re-evaluated a party’s standing following a change

in circumstances, such as when a parent whose rights have been terminated

seeks custody or visitation as a third party. See In re D.M., 995 A.2d 371,

375-76   (Pa.Super.   2010)     (mother   whose   parental   rights   had   been

terminated could have standing as third-party to seek custody); Morgan v.

Weiser, 932 A.2d 1183, 1186-87 (Pa.Super. 2007) (biological father whose

parental rights had been terminated could only seek custody or visitation if

he could establish standing as a third party); McNamara v. Thomas, 741

A.2d 778, 781 (Pa.Super. 1999) (biological mother could attempt to

demonstrate third-party standing after death of adoptive parent).




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      In light of our position in Kellogg and our instant recognition that

standing in custody cases can be asserted at various times in some

situations, we decline to apply Rule 1915.5(a) mechanically and find waiver

simply because Mother raised her assertion beyond the periods set forth in

that rule.   Instead, we review Mother’s actions to determine whether she

acted diligently in invoking the results of the subsequent DNA test to

challenge Appellants’ standing to pursue custody as grandparents. We find

that she did not.

      Herein, Mother claimed that she suspected that Putative Father was

not C.S.’s birth father and that she advised him of her doubts. While Mother

could not prove her suspicions that Appellants were not genetic relatives of

C.S. until she obtained the results of DNA testing, that does not excuse

Mother’s protracted delay once she acquired the DNA results during the

ongoing custody proceedings. Mother obtained the results of a private DNA

test during June 2012; however, she did not assert her standing challenge

until April 2013, ten months later. Rather than assert a standing challenge

immediately after receiving confirmation, Mother filed additional pleadings

seeking to reduce Appellants’ custodial rights for various reasons unrelated

to standing. Thus, even acknowledging the fluidity of Appellants’ standing in

this custody case, we find that Mother’s failure to raise the standing

challenge as early as possible is fatal.     The continued delay not only

deprived Appellants of notice that Mother intended to object to their partial


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custody rights due to a purported lack of standing, but it also reinforced

their reliance on Mother’s initial representation that they were C.S.’s

grandparents.    Consequently, we find the trial court erred in granting

Mother’s motion to dismiss/motion to vacate.

      Alternatively, we conclude that Mother’s actions and representations

regarding C.S.’s parentage and her silence in agreeing to the initial custody

order awarding Appellants’ partial physical custody of C.S. were grounds

under the doctrine of equitable estoppel to preclude her from challenging

Appellants’ standing at this juncture. Our reasoning follows.

      Appellants argue that Mother is precluded from challenging their

standing based upon the doctrines of judicial estoppel, equitable estoppel,

and unclean hands.       In rejecting Appellants’ invocation of the three

divergent principles of judicial estoppel, equitable estoppel, and unclean

hands, the trial court addressed all of the arguments under the rubric of

paternity by estoppel and concluded that estoppel was inapplicable herein

because Appellants acted as grandparents rather than parents.           Relying

upon case law addressing the related, but distinct, doctrine of paternity by

estoppel, which is codified at 23 Pa.C.S. § 5102, the trial court concluded

that the rationale behind the application of estoppel in paternity actions

between parents does not extend to Appellants as grandparents.              The

impetus for that doctrine is the public policy in favor of children being secure

in knowing the identity of their parents and in favor of preventing children


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from suffering the potentially damaging trauma associated with the

realization that the father they have known all their lives is not, in fact, their

father.     As Appellants are not C.S.’s father, the trial court found that

paternity    by estoppel was inapplicable       and that    Mother’s revelation

effectively denied Appellants standing to defend their custody rights. For the

reasons delineated below, we find that the trial court erred.

      Primarily, we observe that Appellants’ reliance upon judicial estoppel is

misplaced.    In In re S.A.J., 838 A.2d 616, 620 (Pa. 2003), our Supreme

Court defined judicial estoppel and explained its application. “As a general

rule, a party to an action is estopped from assuming a position inconsistent

with his or her assertion in a previous action, if his or her contention was

successfully maintained.” The High Court iterated, “the purpose of judicial

estoppel is ‘to uphold the integrity of the courts by ‘preventing parties from

abusing the judicial process by changing positions as the moment requires.’”

Id. at 621 (quoting Trowbridge v. Scranton Artificial Limb Company,

747 A.2d 862, 865 (Pa. 2000)) (select internal quotations omitted).

      As judicial estoppel relates only to a party involved in a second or

subsequent proceeding, it is self-evident that judicial estoppel is inapplicable

where, as here, the dispute in which the doctrine is invoked is the first action

between the parties, and the party against whom the doctrine is being

invoked did not raise an inconsistent position in any other litigation. Stated

simply, no previous proceeding exists wherein Appellants could establish


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that Mother successfully assumed a position that is inconsistent with her

current stance. While we recognize the crux of Appellants’ argument, i.e.,

that Mother previously treated them as the child’s grandparents but

currently disputes that relationship, the procedural posture of this case

precludes the application of judicial estoppel.        Accordingly, Appellants’

reliance on the doctrine of judicial estoppel is inapt herein.6

         Moreover, since Appellants failed to develop any legal argument

regarding the trial court’s refusal to apply the doctrine of unclean hands,

that issue is waived.       See In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super.

2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa.Super. 2010)) (“[W]here

an appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue in any other meaningful

fashion capable of review, that claim is waived.”). Thus, that argument also

fails.

         Nevertheless, while Appellants’ reliance upon the doctrines of judicial

estoppel and unclean hands is unavailing, we find that Mother is equitably

estopped from terminating Appellants’ custodial rights. Equitable estoppel is

____________________________________________


6
   To be clear, unlike the related but distinct doctrine of collateral estoppel,
which protects the finality of judgments, judicial estoppel does not require a
final adjudication. It is sufficient for the application of judicial estoppel that
a party successfully raised an inconsistent position in a different proceeding,
even if a final adjudication was never entered. In re Adoption of S.A.J.,
838 A.2d 616, 623 n.4 (Pa. 2003). Herein, Appellants failed to demonstrate
that Mother raised an inconsistent position during any other proceeding.



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founded on fairness and applies completely independently of any prior

judicial decisions.   See Everett v. Anglemeyer, 625 A.2d 1252, 1255

(Pa.Super. 1993) (“Equitable estoppel . . . refers to estoppel created by a

party's conduct and has nothing to do with a prior judicial determination.”).

In contrast to the trial court’s perspective that jurisprudence precludes the

application of equitable estoppel in the case at bar, our review of the case

law   did   not   reveal   a   single   case     that   addressed   a   non-biological

grandparent’s ability to invoke equitable estoppel against a birth parent who

not only actively misled them to believe the child was their grandchild, but

also consented to the exercise of custodial rights.           Indeed, the paternity

cases that the trial court relies upon do not confront the instant scenario to

any extent.

      Unlike paternity by estoppel, which estops a father from disclaiming

paternity due to his prior conduct, in part, to protect the child from the

trauma associated with the revelation, equitable estoppel binds a party to

the implications created by their words, deeds or representations. In L.S.K.

v. H.A.N., 813 A.2d 872, 877 (Pa.Super. 2002), we explained,

      Equitable estoppel applies to prevent a party from assuming a
      position or asserting a right to another's disadvantage
      inconsistent with a position previously taken.         Equitable
      estoppel, reduced to its essence, is a doctrine of fundamental
      fairness designed to preclude a party from depriving another of a
      reasonable expectation when the party inducing the expectation
      albeit gratuitously knew or should have known that the other
      would rely upon that conduct to his detriment.

Id. (citations and quotation marks omitted).

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       With this principle in mind, we detail the following evidence regarding

estoppel.7      Herein, Mother represented over a two-year period that

Appellants were C.S.’s birth grandparents. Although Mother suspected from

the outset that Putative Father was not C.S’s birth parent, she identified him

as   the     father   on    the   child’s      birth     certificate     and        executed    an

acknowledgement of paternity that identified him as C.S.’s father. Similarly,

her actions encouraged Appellants to fashion and maintain a grandparent-

child relationship with C.S.

       Moreover, after Appellants initiated this custody litigation, Mother not

only failed to immediately challenge their status as grandparents, but she

also twice agreed to custody orders assenting to their right to exercise

periods of physical custody of C.S. Then, having conceded that right, she

mounted a largely unsuccessful campaign to erode the terms of the custody

arrangement. First, she invoked the results of the privately-obtained DNA

test as a basis to modify the custody agreement.                       However, rather than

challenge     Appellants’    standing    or     assail    their   ability      to    maintain    a

grandparent-child relationship with C.S., she consented to a second, slightly

less arduous custody arrangement.              Over the next seven months, Mother

filed four more petitions seeking to reduce Appellants’ periods of partial
____________________________________________


7
  Since Mother’s actions and representations throughout the history of this
case are gleaned primarily from the list of docket entries and Mother’s
pleadings, they are not subject to inference or supposition. Stated simply,
the filings speak for themselves.



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custody. None of the petitions leveled a challenge to Appellants’ standing,

and all but one were founded upon Mother’s purported concerns about

Appellants’ alleged lack of proper supervision.         As the trial court did not

share    Mother’s   apprehensions,    the     custody    arrangement    continued

principally unchanged from the July 18, 2012 custody agreement, except for

the brief eleven-day suspension and the removal of the overnight portion of

the weekend visits.

        The trial court ignores Mother’s inaction and consent to Appellants’

custody rights in declining to apply equitable estoppel to prevent Mother

from invoking the results of a paternity test to strip Appellants of their

custody rights.     Mother misled Appellants into believing that they were

paternal grandparents.     Appellants have always held themselves out as

C.S.’s grandparents, and with Mother’s express consent and endorsement,

they have exercised legitimate, court-ordered custodial rights as C.S.’s

grandparents since May of 2012.

        Mother’s actions and representations regarding C.S.’s parentage for

the first two years of the child’s life and her silence in agreeing to the initial

custody order induced Appellants to believe that C.S. was their grandchild.

Appellants relied upon Mother’s representations and omissions to their

detriment, and would be severely prejudiced if Mother were permitted to

invoke the results of the genetic testing at this point in order to deny their




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beneficial relationship with C.S. Thus, we conclude that the trial court erred

in holding that equitable estoppel was inapplicable.

      Having found that Mother is equitably estopped from challenging

Appellants’ status as grandparents, we observe that Appellants attained

standing to pursue partial custody of C.S. pursuant to 23 Pa.C.S. § 5325(2),

relating to grandparent’s standing for partial custody, during August of

2012, six months after Mother and Appellants’ son, Putative Father,

separated permanently.    While Appellants’ initial custody complaint sought

primary custody of C.S., all of the custody orders that flowed from the

custody complaint and the precise custody rights that Appellants are fighting

to retain on appeal relate to partial physical custody under section 5325(2)

of the Child Custody Law, which provides as follows:

      Section 5325(2) of the Child Custody Law 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:

            ....

      (2) where the parents of the child have been separated for a
      period of at least six months or have commenced and continued
      a proceeding to dissolve their marriage[.]

23 Pa.C.S. § 5325(2). In L.A.L. v. V.D., 72 A.3d 690 (Pa.Super. 2013), this

Court recently addressed case law under § 5325(2)’s predecessor statute,




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§ 5312, to confirm that standing under § 5325 extends to grandparents of

children who were born out of wedlock.

      Accordingly, to the extent that Mother’s standing challenge is not

waived, which it is, we find that the doctrine of equitable estoppel applies to

preclude Mother from challenging Appellants’ standing to maintain partial

physical custody of C.S., and we hold that the trial court erred in granting

Mother’s motion to dismiss/motion to vacate. Thus, for all of the foregoing

reasons, we reverse that order and direct the trial court to reinstate the

March 11, 2013 order granting Appellants periods of partial custody subject

to the trial court’s best-interest analysis pursuant to § 5328(a).

      Order reversed.      Matter remanded with directions.          Jurisdiction

relinquished.

      Judge Wecht joins the Memorandum.

      Judge Stabile files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/2015




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