J-S33045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

W. AND J.M.                                    IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

R.B.

                         Appellant                   No. 2 WDA 2016


              Appeal from the Order Entered December 11, 2015
               In the Court of Common Pleas of Beaver County
                      Civil Division at No(s): 10385-2015


BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                          FILED MAY 17, 2016

       Appellant, R.B. (“Mother”), appeals from the order entered in the

Beaver County Court of Common Pleas, which granted Appellees, W. and

J.M. (“Paternal Grandparents”), partial physical custody of Child, A.M. We

affirm.

       The relevant facts and procedural history of this case are as follows.

Mother and Father had Child in 2010; they never married. Following Child’s

birth, Mother, Father, and Child lived with Paternal Grandparents for several

months until Mother and Father ended their relationship.          The court

subsequently entered a temporary custody order on September 15, 2014,

which granted Mother primary physical custody and Father partial physical

custody, subject to Paternal Grandmother’s supervision due to Father’s drug

___________________________

*Former Justice specially assigned to the Superior Court.
J-S33045-16


addiction problems.     Father unexpectedly died on February 18, 2015, and

Mother prevented Paternal Grandparents from seeing Child.

      On March 30, 2015, Paternal Grandparents filed a petition for partial

physical custody or visitation, and the court conducted a pre-hearing

conference on April 21, 2015. The court entered a proposed order on April

29, 2015, which granted Paternal Grandparents partial physical custody and

shared legal custody with Mother. Mother filed exceptions on May 19, 2015.

The court conducted custody hearings on October 14, 2015, and December

3, 2015. The court entered an order on December 11, 2015, which granted

partial physical custody to Paternal Grandparents and sole legal custody to

Mother.       Specifically, the order permits Paternal Grandparents to have

physical custody of Child on the 3rd weekend of every month, one day before

or   after    Thanksgiving,   Christmas,   and   Child’s   birthday,   and   seven

consecutive days during the summer if Paternal Grandparents have plans for

“substantial travel,” or two 3-day periods during the summer if there are no

plans for travel.    On December 31, 2015, Mother timely filed a notice of

appeal and a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(a)(2)(i).

      Mother raises the following issues for our review:

             WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
             FAILING TO ADEQUATELY ADDRESS ALL CUSTODY
             FACTORS PURSUANT TO 23 PA.C.S. § 5328(A).

             WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY
             NOMINALLY AWARDING [MOTHER] SOLE LEGAL CUSTODY,

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         BUT    EFFECTIVELY     AWARDING     [PATERNAL]
         GRANDPARENTS SHARED LEGAL CUSTODY, FOR WHICH
         THE  COURT   ITSELF  ACKNOWLEDGED   [PATERNAL]
         GRANDPARENTS DID NOT HAVE STANDING.

         WHETHER THE TRIAL COURT ERRED IN FAILING TO
         COMPLY WITH PRECEDENT SET BY TROXEL V.
         GRANVILLE AND HILLER V. FAUSEY.

         WHETHER   THE  TRIAL  COURT    ERRED IN              ITS
         CONSIDERATION OF MOTHER’S ENCOURAGING                THE
         GRANDPARENT-GRANDCHILD RELATIONSHIP.

         WHETHER THE TRIAL COURT ERRED IN GRANTING MORE
         EXTENSIVE   CUSTODY   RIGHTS  THAN  HAD   BEEN
         PREVIOUSLY ESTABLISHED.

(Mother’s Brief at 4).

      In her issues combined, Mother argues Paternal Grandparents should

not have been awarded partial physical custody of Child. Mother states the

court’s analysis failed to consider all of the custody factors in Section

5328(a), and improperly elevated the factors in 23 Pa.C.S.A. § 5328(c).

Mother claims the court’s order permitting Paternal Grandparents to have

custody of Child for seven consecutive days during the summer effectively

awards them legal custody of Child. Mother asserts that permitting Paternal

Grandparents to take Child somewhere that requires “substantial travel”

unduly fringes upon Mother’s rights as a fit parent, as it allows Paternal

Grandparents to make decisions regarding Child’s care and control without

Mother’s consent. Mother also contends the court’s order failed to comply

with Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49

(2000) and Hiller v. Fausey, 588 Pa. 342, 904 A.2d 875 (2006), which

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J-S33045-16


held, respectively, that parents have a fundamental right to make decisions

for their children, and that grandparents’ relationships with grandchildren do

not outweigh this fundamental right.           Mother alleges the court also

improperly used her encouragement of Paternal Grandparents’ relationship

with Child to sever Mother’s right to the care, custody and control of Child.

Mother maintains it was in error for the court to grant Paternal Grandparents

more extensive custody rights than were previously established.            Mother

concludes we should vacate the trial court’s custody order and remand with

instructions to dismiss Paternal Grandparents’ complaint. We disagree.

      In custody cases, the relevant scope and standard of review are as

follows:

           [T]he appellate court is not bound by the deductions or
           inferences made by the trial court from its findings of fact,
           nor must the reviewing court accept a finding that has no
           competent evidence to support it…. However, this broad
           scope of review does not vest in the reviewing court the
           duty or the privilege of making its own independent
           determination…. Thus, an appellate court is empowered to
           determine whether the trial court’s incontrovertible factual
           findings support its factual conclusions, but it may not
           interfere with those conclusions unless they are
           unreasonable in view of the trial court’s factual findings;
           and thus, represent a gross abuse of discretion.

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (quoting

Bovard v. Baker, 775 A.2d 835, 838 (Pa.Super. 2001)).             “On issues of

credibility and weight of the evidence, we defer to the findings of the trial

judge who has had the opportunity to observe the proceedings and

demeanor of the witnesses.” R.M.G., Jr., supra.

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J-S33045-16


          The parties cannot dictate the amount of weight the trial
          court places on the evidence. Rather, the paramount
          concern of the trial court is the best interest of the child.
          Appellate interference is unwarranted if the trial court’s
          consideration of the best interest of the child was careful
          and thorough, and we are unable to find any abuse of
          discretion.

Id. (quoting S.M. v. J.M., 811 A.2d 621, 623 (Pa.Super. 2002)). “Indeed,

our admittedly circumscribed standard of review does not preclude this Court

from finding that a trial court abused its discretion in fashioning a custody

order. While prudence dictates that we exercise our authority sparingly, we

are not powerless to rectify a manifestly unreasonable custody order.” V.B.

v. J.E.B., 55 A.3d 1193, 1200 (Pa.Super. 2012).        “Ultimately, the test is

‘whether the trial court’s conclusions are unreasonable as shown by the

evidence of record.’”   Ketterer v. Seifert, 902 A.2d 533, 539 (Pa.Super.

2006) (quoting Dranko v. Dranko, 824 A.2d 1215, 1219 (Pa.Super.

2003)).

     The statutory presumption favoring an award of custody to parents

over third-parties is not applicable to the current case because Paternal

Grandparents seek only partial physical custody of Child. See 23 Pa.C.S.A.

§ 5327(b) (setting forth presumption in cases concerning primary physical

custody). The Child Custody Act (“Act”) provides:

          § 5325. Standing for partial physical custody and
          supervised physical custody

          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

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J-S33045-16


        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[.]

23 Pa.C.S.A. § 5325(1). The Act further provides:

        § 5328. Factors to consider when awarding 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)
           (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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J-S33045-16


          (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.

                               *    *    *

       (c) Grandparents and great-grandparents.—

          (1) In ordering partial physical custody or supervised
          physical custody to a party who has standing under
          section 5325(1) or (2) (relating to standing for partial
          physical custody and supervised physical custody), the
          court shall consider the following:

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

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J-S33045-16



                       (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.A. § 5328(a), (c)(1). Thus, when deciding an award of custody,

the court must conduct a thorough analysis of the best interests of the child

based on the factors set forth in the Act.                 E.D. v. M.P., 33 A.3d 73

(Pa.Super. 2011). “All of the factors listed in [S]ection 5328(a) are required

to be considered by the trial court when entering a custody order.” J.R.M.

v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (emphasis in original).

Nevertheless, “there is no required amount of detail for the trial court’s

explanation; all that is required is that the enumerated factors are

considered and that the custody decision is based on those considerations.”

M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013), appeal denied, 620

Pa. 710, 68 A.3d 909 (2013).

        Further, “in the recent past, grandparents have assumed increased

roles   in     their   grandchildren’s       lives   and   our   cumulative   experience

demonstrates the many potential benefits of strong inter-generational ties.”

Hiller, supra at 360, 902 A.2d at 886. Thus:

             While acknowledging the general benefits of these
             relationships, we cannot conclude that such a benefit
             always accrues in cases where grandparents force their
             way into grandchildren’s lives through the courts, contrary
             to the decision of a fit parent. In contrast, however, we

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J-S33045-16


         refuse to close our minds to the possibility that in
         some instances a court may overturn even the
         decision of a fit parent to exclude a grandparent
         from a grandchild’s life, especially where the
         grandparent’s child is deceased and the grandparent
         relationship is longstanding and significant to the
         grandchild.

Id. at 360, 904 A.2d at 886-87 (internal footnote omitted) (emphasis

added). See also Commonwealth ex. rel. Goodman v. Dratch, 159 A.2d

70, 71 (Pa.Super. 1960) (stating: “Unless there [is] some compelling

reason, we do not believe that a grandchild should be denied visitation to his

grandparents”). Moreover, permitting partial physical custody of a child to

grandparents upon the death of the child’s parent does not violate the

surviving parent’s fundamental right to direct the care, custody, and control

of the child.    See Hiller, supra (affirming custody order that gave

grandparents partial physical custody, including one week during summer

vacation).

      Additionally, in the context of custody proceedings, “[h]ostilities

between the [parties] are relevant only insofar as they constitute a threat to

the child or affect the child’s welfare.” Nancy E.M. v. Kenneth D.M., 462

A.2d 1386, 1388 (Pa.Super. 1983). Importantly:

         A custodial parent’s suspicion of or animosity towards
         another parent or third party seeking visitation should not
         alone warrant denial of visitation; otherwise the custodial
         parent could always effectively deny visitation simply by
         testifying to suspicion or animosity. Instead of deferring to
         suspicion or animosity, the hearing judge must try to
         determine whether there is any basis for these feelings.
         Stated more broadly, the judge must appraise whether

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J-S33045-16


         the relationship between the disputing parties has
         an adverse effect on the child.

                                   *     *      *

         Except under unusual circumstances, no child should be
         cut off entirely from one side of [her] family. [V]isits with
         a grandparent are often a precious part of a child’s
         experience and there are benefits which devolve upon the
         grandchild from the relationship with [her] grandparents
         which [she] cannot derive from any other relationship. If
         animosities continue between the parties, and result in
         adverse [e]ffects on [the child]…, a visitation order
         may be revised, even to the extent of retracting visitation.

Commonwealth ex. rel. Williams v. Miller, 385 A.2d 992, 995 (Pa.Super.

1978) (internal citations omitted) (emphasis added) (reversing trial court

order denying maternal grandmother visitation with grandchild following

mother’s death; maternal grandmother offered sufficient reasons why

visitation with child for one weekend each month would serve child’s best

interests; record did not support trial court’s finding that maternal

grandmother     abandoned      mother;       father’s   “mistrust”   of   maternal

grandmother was not valid reason for denying her visitation; trial court

failed to provide sufficient consideration to unusual facts of case; and if

enforcing visitation away from child’s home presents harmful effects on

child, then trial court may specify place and conditions of visitation).

      Instantly, the trial court concluded:

         [Mother] first argues that the [c]ourt abused its discretion
         in failing to adequately address all custody factors.
         [Mother] states that the [c]ourt must address each of the
         listed sixteen (16) factors in 23 Pa.C.S.A. § 5328(a) in
         awarding any form of physical custody. While the [c]ourt

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          agrees that the court must consider all of the factors
          listed in § 5328(a) that are relevant, this [c]ourt does not
          agree that it must specifically address all sixteen factors in
          the [December 11, 20151] Opinion. The statute provides:
          “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…[.]” 23 Pa.C.S.A. §
          5328(a) (emphasis added).          The statute and judicial
          precedent require the court to consider the factors, but not
          to discuss each factor in detail in the [December 11, 2015]
          Opinion. [See J.R.M., supra at 653] (stating “all of the
          factors listed in section 5328(a) are required to be
          considered by the trial court”).         This [c]ourt…briefly
          addressed the relevant factors in the [December 11, 2015]
          Opinion, in addition to discussing the factors listed in
          section 5328(c) in detail, with respect to grandparents
          seeking custody. By way of example, the hearing revealed
          no evidence by either party that [Child] has ever been
          abused. The [c]ourt did not consider that factor but, since
          it was not relevant to the [c]ourt’s determination, it was
          not necessary to address it in the [December 11, 2015]
          Opinion. Likewise, the [c]ourt did not hear evidence as to
          sibling relationships, preference of the five year old
          [Child], attempts by any party to turn [Child] against
          another party, nor any history of drug and alcohol abuse
          by either of the parties.

          [Mother] next argues that the [c]ourt abused its discretion
          by nominally awarding [Mother] sole legal custody, but
          effectively awarding [Paternal Grandparents] shared legal
          custody in the Order. This [c]ourt cannot agree with this
          accusation. The [December 11, 2015] Opinion and Order
          made clear that [Mother] is to have sole legal custody and
          shall have the exclusive right to make all major decisions
          affecting [Child].   However, [Mother] argues that by
          granting [Paternal Grandparents] the ability to travel with
          [Child], the court has effectively nullified [Mother’s] sole
          legal custody. To support this contention, [Mother] relies
____________________________________________


1
  A copy of the court’s December 11, 2015 custody order and opinion is
attached for reference.



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       on a Superior Court case which discussed how legal
       custody affects travel decisions. See M.P. v. M.P., 54
       A.3d 950 (Pa.Super. 2012). This case is distinguishable
       from the facts at bar, though. In M.P. v. M.P., a mother
       had sole legal custody of her child, and the father had
       visitation rights; the problem arose when the mother
       sought to take the child to Ecuador for a vacation and the
       father disagreed. Id. at 954. The court found that it was
       improper for the lower court to prohibit the mother from
       traveling to Ecuador with her child because she had sole
       legal custody, meaning she had the “final authority to
       make decisions regardless of whether the other parent
       agrees or disagrees.”        Id. [Mother] argues that, as
       discussed in M.P. v. M.P., the current Order interferes
       with [Mother’s] grant of sole legal custody. This reasoning
       stretches the holding of M.P. v. M.P. further than this
       [c]ourt is inclined to follow.

       In the current Order, [Paternal Grandparents] are granted
       either seven consecutive days, or two sets of three
       consecutive days in the summer time, depending on the
       amount of travel required. In order to receive this time,
       [Paternal Grandparents] must notify [Mother] by March
       15, of the days they desire to exercise custody and where
       they plan to travel to. [Paternal Grandparents] must also
       provide a means of communication between [Mother] and
       [Child] at all times when they are exercising custody of
       [Child]. Unlike the Order in M.P. v. M.P., the Order here
       does not restrict [Mother’s] ability to make travel plans
       with [Child]. Like all other major decisions that will affect
       [Child], [Mother] is permitted to take [Child] to any
       location that [Mother] pleases, and does not have to
       answer to [Paternal Grandparents] when doing so. The
       only restrictions placed on [Mother] are to comply with the
       Order.    Furthermore, the present Order provides that
       [Mother] will have advanced notice of the dates and
       locations where [Paternal Grandparents] plan to travel to,
       if anywhere. And, [Mother] will always be provided with a
       means of contact with [Child]. This [c]ourt does not
       believe that this nullifies [Mother’s] sole legal custody.
       [Mother] still has the right to make all major decisions
       affecting [Child] without taking into consideration [Paternal
       Grandparents’] opinions. Finally, by requiring [Paternal
       Grandparents] to reveal their travel plans no later than

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J-S33045-16


       March 15 of each year, [M]other has more than enough
       time to request relief from the [c]ourt if the parties cannot
       reach agreement on [Paternal Grandparents’] vacation
       plans.

       [Mother] further argues that the [c]ourt erred in failing to
       comply with judicial precedent, namely [Troxel, supra]
       and [Hiller, supra]. [Mother] argues that the [c]ourt
       failed to give proper weight to the presumption that a fit
       parent will act in the best interest of…her child. [See
       Troxel, supra at 69, 120 S.Ct. at 2062, 147 L.Ed.2d at
       ___]. The [c]ourt specifically found that [Mother] is a fit-
       parent and that the [c]ourt believes she will act in [Child’s]
       best interest. However, as discussed at length in the
       [December 11, 2015] Opinion, [Mother] has allowed the
       bond with [Paternal Grandparents] to grow over the course
       of [Child’s] life, and [Child] deserves to maintain that bond
       now that her father has passed. Because [Mother] is a fit-
       parent, this [c]ourt granted her sole legal custody and
       awarded [Paternal Grandparents] a maximum of thirty-one
       (31) overnight visits out of every three hundred and sixty-
       five (365) days. This [c]ourt specifically found that [Child]
       has had similar contact with [Paternal Grandparents] since
       her birth. This [c]ourt also found that pursuant to 23
       Pa.C.S.A. § 5328(c)(2), this award does not interfere with
       the parent-child relationship, as [Mother] still maintains
       sole legal custody and will maintain primary physical
       custody of [Child] over ninety (90) percent of the time.
       The [c]ourt does not believe this counters the precedent
       established in Troxel or Hiller, but rather permits
       [Paternal Grandparents] to spend a limited amount of time
       with their grandchild, as they have done throughout
       [Child’s] life.

       [Mother] next argues that the [c]ourt erred in its
       consideration of [Mother’s] encouragement of the
       grandparent-grandchild relationship. [Mother] alleges that
       choosing [Paternal Grandparents] as supervisors for
       Father’s partial custody rights should not be a factor for
       the court to rely on in granting [Paternal Grandparents]
       custody. This [c]ourt disagrees. [Paternal Grandparents]
       have been trusted with the safe-keeping of [Child] for
       visitation throughout her life.     As indicated in the
       [December 11, 2015] Opinion, there is no evidence to

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        suggest that either party poses a risk of harm to [Child’s]
        well-being.      Furthermore, [Paternal Grandparents]
        supervising the Father’s custody is not the only reason this
        [c]ourt granted [Paternal Grandparents] custody rights. In
        fact, the [c]ourt noted that [Child’s] relationship with
        [Paternal Grandparents] extended beyond a mere
        supervisory role between the Father and [Child]. [Child]
        has maintained a close relationship with [Paternal
        Grandparents] throughout her life, with and without the
        presence of her Father in [Paternal Grandparents’] home.
        [Child] continued visitation to [Paternal Grandparents’]
        home, with [M]other’s consent, for periods when Father
        was incarcerated. The [c]ourt finds this to be an adequate
        reason to grant [Paternal Grandparents] partial custody
        rights pursuant to § 5328(c)(1), requiring the court to
        consider “the amount of personal contact between the
        child and the party prior to the filing of the action.” 23
        Pa.C.S.A. § 5328(c)[(1)(i)].

        Finally, [Mother] argues that the [c]ourt erred in granting
        more extensive custody rights than had been established
        previously. Specifically, [Mother] argues that she has
        never consented to [Paternal Grandparents] taking
        extensive travel periods with [Child]. This [c]ourt knows
        of no authority, and [Mother] cites to no authority that
        requires a court deciding custody to grant only identical
        time to that which has been historically granted by
        [M]other.     Rather…the “paramount concern [in child
        custody cases] is the best interest of the child.” McMillen
        v. McMillen, 602 A.2d 845, [846] (Pa. 1992). After
        considering all of the testimony, this [c]ourt finds that the
        Order is in the best interests of [Child], which includes the
        grant of one seven-day, or two three-day vacations with
        [Paternal Grandparents] in the summer. Testimony at trial
        established that [Child] and [Mother] have vacationed with
        [Paternal Grandparents] in the past.          Thus, because
        [Child] has enjoyed extensive time with [Paternal
        Grandparents] throughout her life, the [c]ourt finds the
        grant of vacation time will merely be a continuation of the
        already established relationship, and is not an abuse of the
        [c]ourt’s discretion.

(Trial Court Rule 1925 Opinion, filed January 19, 2016, at 3-8) (emphasis in


                                   - 14 -
J-S33045-16


original). The record supports the court’s conclusions. Therefore, we affirm

the court’s order granting Paternal Grandparents partial physical custody of

Child.

         Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2016




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                                                                                    Circulated 05/03/2016 01:07 PM




                 IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY,
                                   PENNSYLVANIA
                                CIVIL DIVISION -- LAW


' W.        cu,cl TM. ,
                   Plaintiffs

           vs.                                                                 No. 10385 of2015
                                                                                                    ~· . :

   'R. ·5.,
                   De fondant


                           MEMORANDUM OPINION AND ORDER


McBRIDE, P.J.


           This matter comes before the Court following Defendant's filing of Exceptions to

the Proposed Order dated April 29, 2015. Hearing was held in this child custody case,

over the period of two days, on October 14, 2015, and on December 3, 2015. After

considering all of the evidence and testimony presented at hearing, this Court finds clear

and convincing evidence that a grant of partial physical custody to the Plaintiffs as

described in the following Order is in the best interest of the child and does not unduly

infringe upon the Defendant-mother's           fundamental right to parent her child as she sees

fit.

       The relevant procedural history of this case is as follows. Mother,        ·-p,. ·5.       e(now

       '"R. F.        ;), and father,   'B.   M.            (now deceased), are the parents of one

minor child,                        age five, born on .               2010. The Plaintiffs, , I
                                                                                                  W.
cu1 d      T. /vf .     are the parents of    'B ,   NI .      :, and the paternal grandparents of the

child. The mother and father were never married and the child has always been in the
mother's primary care. Prior to his death, the father had filed for, and received, partial

custody rights to the child under a Temporary Order dated September 15, 2014. Under

the Order, all of the partial custody rights the father received required supervision by the

Plaintiff-grandmother, due to the father's drug addiction problems. Before any additional

custody hearings took place, the father died on February 18, 2015.             Following the

untimely passing of their son, the Plaintiff-grandparents         filed a Petition to Initiate

Complaint for Grandparent's Rights on March 30, 2015.           In response to the Petition, on

April 29th, 2015, the Court entered a Proposed Order.            In the Order, the Plaintiff-

grandparents were granted partial custody rights and shared legal custody with the

Defendant-mother.      The Order granted the Plaintiff-grandparents custody of the child

every third weekend from 6:00 p.m. Friday to 3:00 p.m. Sunday. Additionally, the Order

allotted the Plaintiff-grandparents    a period of five hours either one day before or one day

after Thanksgiving, Christmas, and the minor's birthday; and four consecutive days with

the minor during the summer months. It is to that Order which the Defendant-mother has

filed Exceptions.

    Specifically, the Defendant-mother objects to both the grant of shared legal custody

with the Plaintiff-grandparents;      and to the time, manner and conditions of the partial

physical custody with the Plaintiff-grandparents. The Defendant-mother submits that the

Court and Custody Hearing Officer erred in granting shared legal custody to the

Grandparents.    To this exception, the Court adamantly agrees. As the following Order

reflects, the mother shall have sole legal custody of the child and has the exclusive right

to make all major decisions affecting the minor, including, but not limited to medical,

religious, and educational decisions.       The Court agrees with the Defendant-mother's
position that the granting of shared legal custody was in error and unduly infringed on the

mother's fundamental rights as a fit parent under the laws of the United States and

Pennsylvania.   See e.g. Troxel v. Granville, 530 U.S. 57 (2000); Hiller v. Fausey, 904

A.2d 875 (Pa. 2006).        However, with regard to the rest of Defendant-mother's

Exceptions, this Court cannot agree in whole, and finds that partial custody with the

Plaintiff-grandparents is appropriate in this case.

    The initial inquiry in third-party custody petitions is whether the party filing has

standing. See R.T. v. J.T., 2015 WL 6828144, at 7 (Pa. Super. Ct. 2015). The Plaintiff-

grandparents initiated their petition after the passing of their son, the minor's father,

asserting standing under 23 Pa.C.S.A. § 5325(1). The Plaintiff-grandparents also argued

that standing was proper due to their significant contact with the child since her birth. The

statute at issues provides "where the parent of the child is deceased, a parent or

grandparent of the deceased parent may file an action." 23 Pa.C.S.A. § 5325(1).

Defendant-mother filed no objections to the Plaintiff-grandparents' standing, and the

statutory requirements have been met, thus standing is proper in this case.

   When standing requirements are met, the Court must then consider all statutorily

required factors. When discussing the factors pursuant to §5328(a), this Court finds that

both parties are likely to encourage and permit frequent contact between the child and the

other party; neither party presents a risk of harm to the child; both parties can and will

provide for the child to have a stable educational, family and community life; and both

parties can meet the child's emotional needs. The parties do not live far from one another,

and the parties have historically shown their ability to cooperate with each other in
addressing the child's needs.    For grandparents seeking partial physical custody, the

statute provides:

    §5328.      Factorsto Consider when Awarding Custody

    (c) Grandparentsand great-grandparents.-

        (1)    In ordering partial physical custody or supervised physical custody to a
               party who has standing under section 5325(1) or (2) (relating to standing
               for partial physical custody and supervised physical custody), the court
               shall consider the following:

                (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.A §5328(c)(l). Judicial precedent expands on this law and provides that where

the matter concerns custody or visitation, the "paramount concern is the best interest of

the child." McMillen v. McMillen, 602 A.2d 845, St.J.(D '.(Pa. 1992). Moreover,
                                                                      .         ''this is

equally true in cases involving whether grandparent visitation rights should be awarded."

Norris v. Tearney, 619 A.2d 339, 340 (Pa.Super. 1993). In determining what is in the

child's best interest, the goal of the court is "to foster those relationships which will be

meaningful for the child, while protecting the child from situations which would have a

harmful effect." Com. ex rel. Za(farano v. Genaro, 455 A.2d 1180, 1182 (Pa. 1983). The

Court must consider the child's "physical, intellectual, emotional, and spiritual well-

being" and perform a "child-centered analysis" when crafting its order.

Douglas v. Wright, 801 A.2d 586, 591 (Pa.Super. 2002).
        At hearing, both parties presented testimony        seeking to establish what they

believed to be in the child's best interest. Addressing the three factors in order, this Court

finds the best interest of the child is best served by awarding partial physical custody with

the Plaintiff-grandparents as specified in the following Order.

        Starting with the first factor, the Court finds the child has maintained a significant

amount of personal contact with the Plaintiff-grandparents        since her birth. Testimony

and evidence from both parties shows that the child has maintained a close relationship

with her paternal grandparents since the time of her birth. The parties dispute whether

the child ever actually lived under the grandparents' roof during any point in her life, but

they both agree that the child has stayed overnight in the grandparents' home on many

occasions. In fact, the Defendant-mother agreed to allow the child's father to have

custody visits on the condition that the Plaintiff-grandparents supervised all visits. Both

parties agreed at that time that the grandparents could provide a safe and loving

atmosphere for the child, while she spent time with her natural father. The child has a

bedroom at the Plaintiff-grandparents' home, and testimony provides that the child

maintains close ties with extended family who live near the Plaintiffs.

       While this Court acknowledges that there were periods of time when the child had

little-to-no contact with the Plaintiff-grandparents, those appeared to be isolated incidents

that did not result from the grandparents' direct actions. Rather, when the child's father

was alive, the mother distanced herself from him for short periods, which in tum, caused

some gaps in visitation with the grandparents. At no time did the Plaintiff-grandparents

go more than six months without seeing the child, though. However, both parties agree

that even when the child did not see her father due to his incarceration, the child still
continued having some visitation with the Plaintiff-grandparents         at the Defendant-

mother's   discretion.   This supports the idea that the child's relationship with the

grandparents extended beyond a mere supervisory role between the father and the child.

        Moving to the second factor, this Court finds that this Order does not interfere

with the parent-child relationship.   The mother will maintain sole legal custody and have

the right to make all major decisions in the child's life, including school, medical and

religious decisions.     The mother will also maintain the right to determine which

extracurricular activities the child participates in, and the grandparents will cooperate

fully with those choices when the child is in their custody. Further, the Order provides a

maximum of thirty-one (31) overnight visits with the Plaintiff-grandparents out of every

three hundred and sixty-five (365) days. This Court finds that the Plaintiff-grandparents

have enjoyed similar contact with the child since her birth and this does not interfere with

the child's relationship with her mother.     The testimony at hearing from both parties

supports this finding, as both parties agreed that the child has stayed overnight with her

grandparents on occasion throughout the span of her life.

       Finally, this Court finds that this Order is in the best interests of the child.

Testimony at hearing showed that Defendant-mother is, and has always been, a fit parent

who looks out for the best interest of her child. This has been shown by the mother

permitting the child to see her father, when he was alive, despite his drug addiction. The

mother recognized the importance of the child's relationship with her father and allowed

the child's relationship with her father to foster, so long as he was under the supervision

of the Plaintiff-grandparents. Mother's actions operate as a double-edged sword. They

prove, on the one hand, that the mother is a fit parent who always looks out for the best
interest and safety of her child, but on the other hand, they are also proof of the bond that

has developed over the last five years between the child and the Plaintiff-grandparents.

The child is important in her grandparents'          lives, and they are important in her life,

perhaps even more so now that the child's father has passed.

           While this Court has no doubt that the Defendant-mother will permit contact

between Plaintiff-grandparents       and the child, this Court also has no doubt that the

Plaintiffs were acting out of nothing but concern for their relationship with their

grandchild when they filed their petition within two months of their son passing. Neither

party established that the other party posed a risk of harm to the child's well-being.

Likewise, neither party's credibility is at issue in this case. All of this evidence together

leads this Court to the conclusion that the best interest of the child in this case is to

maintain partial custody with the Plaintiff-grandparents as outlined in the Order. It is this

Court's prayer that these parties re-establish their former good relationship for the child's

benefit.

           In summary, this Court makes the following specific findings:

           (I) The child has maintained a close, personal relationship with her paternal

              grandparents from the time of her birth until the present.

           (2) This award does not unduly infringe upon the mother's fundamental right to

              parent her child as she sees fit. The child will spend a limited time with her

              grandparents, as she has experience previously in her life.

           (3) This award is in the best interest of the child. While the mother is a fit parent,

              the mother has allowed this bond to grow with the grandparents during the
           child's life, and the child deserves to maintain that bond now that her father

          has passed.

   After review of the evidence and testimony presented at hearing, this Court finds that

the Proposed Order is in the minor's best interest. Therefore, it is hereby ORDERED and

DIRECTED as follows.
                    IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY
                                     PENNSYLVANIA
                                  CIVIL DIVISION -- LAW


·     W.     ttvi    d T. M .
                       Plaintiffs

                       vs.                                            No. 10385 of2015

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                       Defendant                                                                0
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                                          ORDER

McBRIDE, P.J.


     AND NOW, to wit, in accordance with the foregoing Opinion, IT IS HEREBY
ORDERED AND DIRECTED as follows:


 I.          CUSTODY:

        A.    Phvsical custody of the minor, ' A . M · J       shall be granted to the
mother, . 'R . 'B .    ( Cf?· F )     with partial custody rights vested in the paternal
grandparents,   W. a. rd J.: M .      i , according to the following schedule and
conditions.                   ·

       B.       The mother shall have sole legal custody, which shall include the right to
make major decisions affecting the best interests of the child, including, but not limited to
medical, religious and educational decisions.

II.          SHARED CUSTODY:

             A.       WEEKENDS AND WEEKDAYS:

          i.   Beginning Friday, December 18, 2015, and the third weekend of every
month thereafter, the paternal grandparents shall be granted partial custody of the minor
from 6:00 p.m. Friday to 3:00 p.m. Sunday. The third weekend shall be determined by the
third Friday of each month Transportation of the minor shall be shared by the parties in
that the person beginning their/her custody period shall retrieve the minor from the other
party.
         ii.     The paternal grandparents are granted additional time as agreed upon by
the parties acting in the best interest of the minor.

        111.   If during their periods of partial custody paternal grandparents will require
the services of a babysitter, they are to return the child to Mother's care, after notifying
her of their conflicting schedule.


        B.     HOLIDAYS

               i.     The paternal grandparents shall be granted partial custody of the
minor either one day before or one day after the holiday of Thanksgiving, Christmas, and
the minor's birthday for a period of five hours. Exact days and times shall be agreed upon
by the parties acting in the best interest of the minor. Transportation of the minor shall be
shared by the parties in that the person beginning their/her custody period shall retrieve
the minor from the other party.

ALL HOLIDAY PARTIAL CUSTODY RIGHTS SHALL SUPERSEDE ANY OTHER
PARTIAL CUSTODY RIGHTS HEREIN GRANTED.

        C.     SUMMER AND/OR SCHOOL VACATION:

              i.     Beginning in the summer of 2016, the paternal grandparents are
granted seven consecutive days of partial custody with the minor during the summer
months (June, July, and August). In order to receive the grant of seven consecutive days,
the following conditions must be complied with:

                           1) The paternal grandparents must have plans at a location
                              requiring substantial travel (for example, Disney, the beach,
                              out-of-state locations, etc.).

                           2) The paternal grandparents shall notify the mother by March
                              15 of the exact seven days they desire to exercise custody
                              and where they plan to travel to.                          ·

                           3) The paternal grandparents must provide a means of
                              communication between the mother and the child at all
                              times.

                           4) The vacation is not to be combined with the third weekend
                              of any month.

              ii.     If the paternal grandparents do not plan a trip that requires
substantial travel arrangements, they shall receive two separate, three consecutive days of
partial custody with the minor during the summer months (June, July, and August). The
two three-day vacations must meet the following conditions:
                            1) The paternal grandparents shall notify the mother by March
                               15 of both of the exact sets of three-days they desire to
                               exercise custody and where they plan to travel to, if
                               anywhere.

                            2) The paternal grandparents must provide a means of
                               communication between the mother and the child at all
                               times.

                            3) The vacations are not to be combined with the third
                               weekend of any month.

                    iii. The paternal grandparents may exercise either option (i) or option
                         (ii) for vacation, but may not exercise both.


III.     SPECIAL INSTRUCTIONS AND CONDITIONS:

          A.     When the child is in the custody of the paternal grandparents, they shall
  ensure the minor's attendance in all extra-curricular activities as decided by mother.

         B.     The paternal grandparents must provide a means of communication
  between the mother and child at all times when she is in their care.

          C.     The paternal grandparents shall notify the mother immediately of any
  event or activity that could reasonably be expected to be a significant concern to the
  mother.

          D.      If any party seeks to relocate from their/her current residence, that party
  shall follow the procedures set forth at 23 Pa. C.S.A. § 5337 prior the relocation.

         E.      The rules listed in the Appendix to this Order are to be followed by all the
 parties as part of this Order.



                                               BY THE COURT,




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