J-S16018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 C.S.,                                     :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
           Appellant                       :
                                           :
                   v.                      :
                                           :
 J.S.,                                     :
                                           :
           Appellee                        :   No. 1993 MDA 2018

             Appeal from the Order Entered November 9, 2018
   In the Court of Common Pleas of Berks County Civil Division at No(s):
                                13-16004


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

MEMORANDUM BY MURRAY, J.:                             FILED APRIL 09, 2019

      In this custody case, C.S. (Father), appeals from the trial court’s

November 9, 2018 order addressing shared custody between Father and J.S.

(Mother). The order directs that the parties’ daughter, (B.S.), who has an

issue with Mother’s boyfriend, (C.L.), consistently attend therapy with a

named    counselor,     and   that   the   parties   comply   with   treatment

recommendations. The order further provides that C.L. may not be present

in Mother’s home during Mother’s periods of physical custody under the

existing custody order entered on April 2, 2015.       Additionally, the order

permits the parties’ son, (L.S.), who does not have an issue with C.L., to have

contact with C.L. if L.S. desires. Since C.L. is not permitted to be present in

Mother’s home during Mother’s periods of physical custody, any such contact

between C.L. and L.S. would have to occur outside of Mother’s home. After

careful review, we affirm.
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       The trial court recounted the factual and procedural history as follows:

       . . . . Suffice it to say that the parties, [Father] and [Mother], are
       the parents of two minor children, L.S. and B.S.[1] For more than
       three years, the parties operated under a custody order entered
       April 2, 2015, providing for shared legal custody, with Mother
       having primary physical custody and Father having physical
       custody on alternating weekends with the possibility of longer
       stretches over summer vacation. On August 24, 2018, during one
       of his full summer weeks with the children, Father filed a Petition
       for Special Relief and a Petition to Modify Custody. Father raised
       concerns of emotional and verbal abuse and general tension in
       Mother’s home, partly to do with the involvement of Mother’s
       boyfriend, [C.L.]; [Father] also indicated the children themselves
       wished to remain with him. Father did not return B.S. to Mother’s
       custody as scheduled.            On an emergency basis in the
       undersigned’s absence, the Honorable James M. Lillis ordered
       Father to return B.S. to Mother and continue following the April 2,
       2015, order. Father instead obtained an Emergency Protection
       from Abuse Order on behalf of B.S. against Mother and [C.L.]; the
       subsequent temporary Protection from Abuse Order was entered
       only against [C.L.]

       After discussion with the parties and counsel in September 2018,
       the undersigned determined it was imperative that B.S. attend
       counseling. The parties were unable to agree on arrangements,
       which delayed the start of counseling. As a result, on November
       8, 2018, the [c]ourt ordered that B.S. “shall consistently attend
       therapy” with a named doctor and that the parties were to comply
       with treatment recommendations. As an incidental matter, the
       [c]ourt further ordered: “[C.L.] may not be present in the home
       during Mother’s periods of custody. [C.L.] may have contact with
       L.S. if requested by L.S.” As is clear from those terms, the order
       keeps Mother’s boyfriend out of the children’s home environment
       but avoids completely preventing the less-troubled child from


____________________________________________


1The record indicates that Mother and Father were married in May 2004. B.S.
was born in October 2004, and L.S. was born in March 2008 (collectively,
Children). Father initiated this action in June 2013, with the filing of a
complaint in custody and divorce. The record is unclear as to whether a
divorce decree has been entered.

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       seeing or talking to Mother’s boyfriend outside the home if the
       child chooses.

Trial Court Opinion, 12/28/18, at 1-2 (emphasis in original).

       On August 24, 2018, Father filed a petition for special relief in custody.

See Petition for Special Relief in Custody, 8/24/18, at 3-6.       This petition

averred that Mother and C.L. were subjecting B.S. to verbal and physical

abuse and requested a temporary custody order awarding Father primary

physical custody of B.S. pending a custody conference. Id. That same day,

Father also filed a petition to modify the custody order of April 2, 2015. See

Petition to Modify Custody Order, 8/24/18, at 4. The petition repeated the

same allegations and requested primary physical custody of B.S. and L.S. Id.

at 4-6.

       On August 27, 2018, the court issued a rule to show cause regarding

the petition for special relief in custody, scheduling an evidentiary hearing for

September 12, 2018. See Rule to Show Cause, 8/27/18, at 1. On August

29, 2018, the court ordered Father to immediately return B.S. to Mother’s

custody and abide by the terms and conditions of the custody order entered

April 2, 2015, pending further order of the court. See Order, 8/29/18, at 1.

       On September 7, 2018, Mother filed a petition for contempt, averring

that Father failed to return B.S. to Mother on August 26, 2018. See Petition

for Contempt, 9/7/18, at 1-2 (unpaginated).2 Mother averred that, following

____________________________________________


2 Mother’s petition for contempt indicates that Mother filed an emergency
petition for custody on August 29, 2018, that was heard the same day. See



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the court’s order directing that B.S. be returned to Mother’s custody, Father

obtained an emergency protection from abuse order (PFA) against Mother and

Mother’s boyfriend on August 30, 2018. Id. at 3. Father then failed to return

B.S. and L.S. to Mother that Monday [September 3, 2018]. Id. On September

4, 2018, Father attempted to obtain a temporary PFA on behalf of both

children against Mother and C.L. Id. at 4. The court issued a PFA order as to

C.L. and specified that this order did not affect custody. Id. Father failed to

return Children that evening, although Children and Youth Services informed

Father that Children could be returned home. Id. at 5. After the initiation of

contempt proceedings, Children were returned to Mother on September 5,

2018. Id. As a result, Mother requested that the court find Father in contempt

and award attorneys’ fees. Id.

       That same day, the court issued a rule to show cause for an evidentiary

hearing regarding Father’s petition for special relief. See Rule Returnable,

9/7/18, at 1. On September 9, 2018, Mother filed an answer to Father’s

petition for special relief, denying many of Father’s averments. See Answer

to Plaintiff’s Petition for Special Relief, 9/9/18, at 1-5.




____________________________________________


Petition for Contempt, 9/7/18, at 2 (unpaginated). While the emergency
petition is not in the certified record, Mother avers that the court’s order of
August 29, 2018, compelling Father to return B.S. to Mother, was a result of
this petition. Id.



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       On October 22, 2018, Mother filed a petition seeking to re-list the

matter.3 See Petition to Re-List, 10/22/18, at 1-2 (unpaginated). Mother

averred that at the September 13, 2018 hearing on Mother’s contempt

petition, the court made clear that B.S. should be placed in counseling

immediately, but while counsel for both parties discussed counseling, Father

fired his attorney.     Id.    Mother and Father were unable to agree upon a

counseling provider, and no proposed order was submitted.               Id.   Mother

requested that the court enter an order re-listing the matter to resolve the

issue and for counseling to begin as soon as possible. Id.

       On October 23, 2018, the court issued a rule returnable scheduling an

evidentiary hearing for November 7, 2018. See Rule Returnable, 10/23/18,

at 1. On November 5, 2018, Father filed an answer to the petition to re-list,

requesting that the court deny and dismiss Mother’s petition to re-list and

enter an order for counseling for B.S. to begin immediately with the consent

of both parties. See Answer to Petition to Relist, 11/5/18, at 1-3.

       It appears that on November 7, 2018, the date of the hearing scheduled

on Mother’s petition to re-list, no testimony or evidence was taken, and all

discussion took place off the record. The court read the order into the record,

____________________________________________


3 It is unclear what, exactly, Mother was requesting to re-list. Based upon the
wording of the request, it appears Mother was attempting to have her petition
for contempt re-listed. She averred that discussions regarding her petition as
well as counseling for B.S. were held in court on September 13, 2018, but
Father fired his attorney before an order could be entered. In Father’s answer
to the petition to re-list, he cited both his petition for special relief and Mother’s
petition for contempt.

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and Father made a general objection. See N.T., 11/7/18, at 1-2. A written

copy of this order was then entered into the record on November 9, 2018.

Father timely filed a notice of appeal and a statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

      On appeal, Father raises the following issues for review:

      A. Whether the trial court erred and abused its discretion in
      granting C.L., a third party, partial custody of L.C.S., the minor
      child, without consideration of the factors set forth in 23 Pa.C.S.
      § 5328 to determine whether it was in the best interests of the
      child?

      B. Whether the trial court erred and abused its discretion in
      granting C.L., a third party, partial custody of L.C.S., the minor
      child, as C.L. has no standing in this matter?

      C. Whether the trial court erred and abused its discretion by failing
      to consider the safety conditions affecting the child when granting
      partial custody to C.L., who has been indicated for child abuse?

      D. Whether the trial court erred and abused its discretion by
      modifying a custody order without having a petition before it?

      E. Whether the trial court erred and abused its discretion by not
      allowing a full and fair hearing on the record?

Father’s Brief at 7-8 (unnecessary capitalization and suggested answers

omitted).

      Prior to reviewing the merits of Father’s issues, we must determine

whether we have jurisdiction. See In re W.H., 25 A.3d 330, 334 (Pa. Super.

2011). Mother contends that Father’s appeal should be quashed because it is

not taken from a final order, nor is the November 9, 2018 order interlocutory

and appealable as of right or permission, or a collateral order, but rather, an



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unappealable interlocutory order. Id.; see also Pa.R.A.P. 311, Pa.R.A.P. 312,

Pa.R.A.P. 341; Mother’s Brief at 8.         Father counters that the order is

appealable under the collateral order doctrine because it “addresses [the

custody rights of] a third party inserted into the action.” Father’s Brief at 2-

3.

      When determining whether a custody order is final and appealable, we

look to G.B. v. M.M.B., 670 A.2d 714 (Pa. Super. 1994) (en banc). In that

case, an en banc panel of this Court held, “a custody order will be considered

final and appealable only if it is both: 1) entered after the court has completed

its hearings on the merits; and 2) intended by the court to constitute a

complete resolution of the custody claims pending between the parties.” G.B.,

670 A.2d at 720. Here, the trial court had completed its rulings on Father’s

petition for special relief and petition for modification by resolving them in the

November 9, 2018, order following off-record discussions between the parties

and counsel at the November 7, 2018, hearing.

      The trial court stated:

      After discussion with the parties and counsel in September 2018,
      the undersigned determined it was imperative that B.S. attend
      counseling. The parties were unable to agree on arrangements,
      which delayed the start of counseling. As a result, on November
      8, 2018, the [c]ourt ordered that B.S. “shall consistently attend
      therapy” with a named doctor and that the parties were to comply
      with treatment recommendations. As an incidental matter, the
      [c]ourt further ordered: “[C.L.] may not be present in the home
      during Mother’s periods of custody. [C.L.] may have contact with
      L.S. if requested by L.S.” As is clear from those terms, the order
      keeps Mother’s boyfriend out of the children’s home environment
      but avoids completely preventing the less-troubled child from


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J-S16018-19


      seeing or talking to Mother’s boyfriend outside the home if the
      child chooses . . . . the [c]ourt finds it difficult to elaborate any
      further on the simple fact that the order on appeal does not award
      any form of custody.

Trial Court Opinion, 12/28/18, at 2.

      Neither the trial court order nor its opinion contemplates any further

hearings or rulings on Father’s petition for special relief or his petition to

modify the existing April 2, 2015 order. In fact, in the November 9, 2018

order, the trial court merely refined Mother’s exercise of her physical custody

by placing a restriction on C.L.’s presence, based on the allegations in Father’s

petitions and the parties’ discussions regarding how to resolve B.S.’s issue

with C.L. through counseling.

      Thus, we find that the trial court entered its order within the scope of

G.B., after it had decided that no hearing on the special relief and modification

petitions was necessary, and that it intended the November 9, 2018 order,

which refined the parties’ agreed-upon April 2, 2015 custody order, to be a

complete resolution of the parties’ custody issues. The trial court notes that

its order addresses the Children’s contact with Mother’s boyfriend, and does

not award custody. See Trial Court Opinion, 12/28/18, at 2-3. The trial court

“respectfully recommends that its order be affirmed.” Id.

      Consistent with the foregoing, the trial court intended its order to be a

final order, and addressed the merits of Father’s issues on appeal.

Accordingly, under G.B., we find the order on appeal to be final and

appealable, and proceed to address the merits of Father’s issues.



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      “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: [enumerating sixteen factors].” M.O. v. J.T.R., 85 A.3d 1058,

1062 (Pa. Super. 2014). The custody statute delineates the different types of

custody that may be awarded in the best interests of the child, and the court

may modify a custody order to serve the best interest of the child. Id.

      In M.O., the parties resolved a discrete issue pertaining to vacation

custody time and transportation, and whether the father was required to be

off from work while the children stayed with him, with limited testimony taken

in chambers; the trial court then issued an order without examination of the

sixteen statutory factors. Id. at 1060. Mother appealed, arguing that the

court erred in refusing to expressly consider each of the sixteen factors in

making its decision, and in failing to provide rationale for its decision. Id. at

1061. On appeal, this Court rejected the mother’s argument, noting that the

court had made no award of custody, or even changed the amount of custodial

time either party had with the children, but addressed a subsidiary issue;

accordingly, we found that the court was not bound to address the sixteen

statutory factors or its reasons for the award. Id. at 1062-63. This Court

narrowed the holding of M.O. in A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014),

finding that M.O. was applicable only to cases in which custody was not

directly modified. Id. at 824 n.4.




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      Instantly, Father characterizes the November 9, 2018, order as a

modification of the custody April 2, 2015 order, granting partial physical

custody to C.L. See Father’s Brief at 2-3, 17-19. As we discuss, infra, Father’s

characterization of the order is not accurate, and because Father’s issues are

intertwined, we address them together.

      The trial court explained:

      [The Child Custody Statute] defines legal custody as “[t]he right
      to make major decisions on behalf of the child, including, but not
      limited to, medical, religious and educational decisions,” and
      physical custody as “[t]he actual physical possession and control
      of a child.” 23 Pa.C.S.A. § 5322. The order in question does not
      give [C.L.] the right to make any decisions concerning L.S., nor
      does it give him physical control. It concerns only contact, a word
      that appears nowhere in the custody definitions, and it does not
      give Mother’s boyfriend any right to such contact.

Trial Court Opinion, 12/28/18, at 1-2.

      Father raises additional arguments in his attempt to assert that the trial

court awarded C.L. some form of custody.        See Father’s Brief at 17.    He

contends that “contact” is the enactment of custody, as it is impossible to have

any form of physical custody without contact.      Id. at 18-19.   Father cites

Commonwealth ex rel. Zaffarano v. Genaro, 455 A.2d 1180 (Pa. 1983),

a case in which grandparents sought visitation and temporary custody rights

prior to the enactment of our current custody statute, and M.G. v. L.D., 155

A.3d 1083 (Pa. Super. 2017), a case in which an incarcerated mother

requested visitation and telephone contact with her daughter and where the

maternal grandfather requested partial physical custody of the child. Id.



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      Initially, we note that visitation, as referenced in Zaffarano, no longer

exists in the current custody statute. See Zaffarano, 455 A.2d 1180, 1182

n.5 (Pa. 1983) (citing Scott v. Scott, 368 A.2d 288, 291 (Pa. Super. 1976)

(Spaeth, J., concurring and noting that Pennsylvania recognizes three possible

custodial arrangements, “custody,” “partial custody,” and “visitation”). The

current child custody statute does not provide for visitation, but notes that in

statutory provisions other than 23 Pa.C.S.A. § 5321, et seq., when the

term visitation is used in reference to child custody, the term may be

construed to mean partial physical custody, shared physical custody, or

supervised physical custody. See 23 Pa.C.S.A. § 5322 (emphasis added). In

the Child Custody Statute, those terms are defined in the following manner:

      “Partial physical custody.” The right to assume physical
      custody of the child for less than a majority of the time.

      “Physical custody.” The actual physical possession and control
      of a child.

      …

      “Shared physical custody.” The right of more than one
      individual to assume physical custody of the child, each having
      significant periods of physical custodial time with the child.

Id. Visitation is not prescribed by the statute. See 23 Pa.C.S.A. § 5323.

Rather, a person who has standing, i.e. a parent, a person who stands in loco

parentis to the child, or a grandparent of the child under certain conditions,

may petition for custody and be awarded various forms of physical custody




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including partial and shared physical custody. See 23 Pa.C.S.A. § 5324, see

also 23 Pa.C.S.A. § 5325.

      While Father attempts to argue that visitation is “equated and

recognized” as a form of physical custody, the case he cites to support his

assertion is inapplicable. See Father’s Brief at 20. In M.G., the biological

mother of a child requested visitation while incarcerated in prison. M.G., 155

A.3d at 1093. In a footnote, this Court recognized that the Child Custody Act

no longer identifies visitation as a form of custody, and noted that the term is

“equated” with partial physical custody.       Id. at n.10.     The panel further

observed that Mother used the term in its literal sense: a prison visitation.

Id. Ultimately, the Court addressed mother’s claims based upon standards

for prison visits, stating that the trial court is “limited to a determination of

the number of visits and perhaps some contacts through telephone calls and

written correspondence . . . Prison visit requests involve additional factors

unique to that scenario that courts must consider in evaluating the

overarching best interests of the child.” Id. at 1094 (quoting D.R.C. v. J.A.Z.,

31 A.3d 677 (Pa. 2011)). In this context, our Court has found that visitation

is no longer an available remedy in the Child Custody statute. See S.T. v.

R.W., 192 A.3d 1155, 1166 (Pa. Super. 2018).            Regardless, the analysis

regarding prison visitation is not applicable to this case, as C.L. is not a parent,

nor is he incarcerated.

      As discussed above, the order entered on November 9, 2018, did not

grant C.L. partial physical custody. C.L. is not a party with standing to request

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custody, C.L. did not file for custody or a custody modification, and C.L. was

not granted custody. The order does not grant C.L. any rights but, instead,

limits Mother’s custody by providing that C.L. may not be present in the home

during Mother’s custodial periods, and that L.S. may have contact with C.L. if

L.S. wants. S.T., 192 A.3d at 1166; 23 Pa.C.S.A. §§ 5322-5323.

      Nor does the November 9, 2018 order modify the existing April 2, 2015

order. Father filed a petition to modify custody in August 2018, but his petition

was not granted; instead, the court ordered Father to return B.S. to Mother

and to follow the April 2, 2015 custody order. Rather than doing so, Father

obtained Protection From Abuse orders on B.S.’s behalf, first against Mother

and C.L., and then solely against C.L. When Mother again sought the return

of B.S., the parties has discussions in chambers without formal testimony or

a hearing. This situation is analogous to M.O. in that the court did not modify

custody, but clarified discrete, subsidiary issues that arose under the April 2,

2015 custody order: namely, B.S.’s attendance at counseling, C.L.’s status

during Mother’s periods of custody, and L.S.’s contact with C.L. See M.O., 85

A.3d at 1062-63; cf. A.V., 87 A.3d at 824 n.4. Accordingly, the trial court

was neither required to discuss the sixteen custody factors, nor to delineate

its reasoning on the record. Id.




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       For these reasons, we find no merit to Father’s issues, and affirm the

trial court’s November 9, 2018 order.4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/09/2019




____________________________________________


4 In Father’s brief and reply brief on appeal, Father requests this Court to order
a change in jurisdiction from Berks County, but he has not properly developed
this request. Thus, we deny the request without prejudice for Father to raise
it in the trial court in future proceedings.

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