J-A19027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.L.R. AND K.A.R.                                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellants

                       v.

R.V., K.M., C.L.V., AND T.A.V.

                            Appellee                   No. 612 EDA 2016


                     Appeal from the Order January 29, 2016
             In the Court of Common Pleas of Northampton County
                Civil Division at No(s): No. C-48-CV-2014-10175


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                             FILED OCTOBER 17, 2016

S.L.R. (“Maternal Grandmother”) and K.A.R. (“Maternal Step-Grandfather”)

(collectively, “the Appellants”) appeal from the January 29, 2016 custody

order in the Court of Common Pleas of Northampton County which denied

their custody complaint for primary physical and shared legal custody of the

minor male child, N.R.V., born in February of 2006 (“Child”). We affirm in

part, reverse in part, and remand in accordance with the following

memorandum.

        In its opinion accompanying the subject order, the trial court set forth

factual findings, which the testimonial evidence supports. As such, we adopt



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A19027-16



them herein.      See Trial Court Opinion, 1/29/16, at 4-8.   For purposes of

background, we summarize the following factual and procedural history.

       R.V. (“Father”) and Y.M. (“Mother”) separated when Child was

approximately seventeen months old, and they subsequently divorced. N.T.,

8/12/15, at 54. At the time of their separation, Father and Mother resided

in Macungie, in Lehigh County. Trial Court Opinion, 1/29/16, at 5, ¶ 7. In

2009, the Lehigh County Court of Common Pleas awarded Child’s parents

shared legal custody, Mother primary physical custody, and Father partial

physical custody. Custody Complaint, 10/22/14, at Exhibit A.

       Mother died on July 27, 2011, following a brief illness.   Trial Court

Opinion, 1/29/16, at 5, ¶ 11. At the time of her death, she was married to

K.M. (“Stepfather”), and she continued to live in Lehigh County. Id. at ¶ 10.

Child resided with Stepfather during the 2011-2012 school year, when he

attended kindergarten. Id. at ¶ 13. During that period of time, but on a

date unspecified in the record, custody litigation commenced between Father

and Stepfather in Lehigh County.1 On August 20, 2012, the Lehigh County

Court of Common Pleas issued an agreed-upon order granting Father and

____________________________________________


1
  In November of 2011, the Appellants filed a custody complaint in the
Lehigh County Court of Common Pleas against Father and Stepfather,
wherein they requested partial physical custody.          Custody Complaint,
10/22/14, at Exhibit B. In December of 2012, the court dismissed the
Appellants’ action for failure to request a trial within 180 days pursuant to
Pennsylvania Rule of Civil Procedure 1915.4(b) (Listing Trials Before the
Court). Id. at Exhibit C.



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Stepfather shared legal custody, Father primary physical custody, and

Stepfather partial physical custody. Custody Complaint, 10/22/14, at Exhibit

E. By that time, Father had remarried and was living in Sellersville, in Bucks

County.

       On December 17, 2013, C.L.V. (“Paternal Uncle”), and his wife, T.A.V.

(“Paternal Aunt”) (collectively, “the Custodians”), who reside in Bethlehem,

in Northampton County, filed a custody action in the Lehigh County Court of

Common Pleas against Father and Stepfather, wherein they requested

primary physical custody. The parties entered into a written stipulation and

agreement that granted Father and the Custodians shared legal custody, the

Custodians primary physical custody, and Father partial physical custody

pursuant to a schedule set forth therein.        Further, partial physical custody

was granted to the remaining parties, upon mutual agreement, and not

pursuant to a set schedule.2 On March 24, 2014, the court entered an order

incorporating the written stipulation and agreement between the parties

(“Lehigh County order”). In addition, the court relinquished jurisdiction of

the custody action “to Northampton County, or any other county which

becomes the home county of the minor child.”                 Custody Complaint,

10/22/14, at Exhibits J-K.


____________________________________________


2
 By that time, in addition to Stepfather, the remaining parties included the
additional defendants, E.R.V. (“Paternal Grandfather”) and L.B.V. (“Paternal
Grandmother”). The Appellants were not defendants in the action.



                                           -3-
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       On October 22, 2014, the Appellants, who resided in Alburtis, in

Lehigh County, initiated a custody action in the Northampton County Court

of Common Pleas against Father and Stepfather, wherein they requested

primary physical and shared legal custody.                The Appellants served the

Custodians with the complaint as interested parties. The Custodians filed a

petition for intervention and confirmation of custody on January 7, 2015. On

January 22, 2015, the Appellants filed preliminary objections to the petition,

wherein they asserted that the Custodians did not establish a claim for

custody, “as any prior [o]rders entered were without proper standing[] and

without proper notice to” the Appellants. Preliminary Objections, 1/22/15,

at ¶ 16.    On February 11, 2015, the Custodians filed an answer and new

matter wherein they requested that the court affirm the Lehigh County

order.

       A custody trial occurred on July 15, August 11-12, and September 14,

2015.3 The Appellants testified on their own behalf, and they presented the

testimony     of   Ronald    J.   Esteve,      a   licensed   psychologist   whom   the

Northampton County custody master appointed to perform co-parenting

counseling; and Officer William Stanton, a police officer with the Bethlehem

Township Police Department.           Father testified on his own behalf, and he


____________________________________________


3
  Importantly, at the beginning of the trial, Stepfather withdrew his request
for continuing contact with Child, and counsel stipulated to his withdrawal
from the case. N.T., 8/11/15, at 5-6.



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presented the testimony of Luke Roan, the cub master of Child’s Cub Scouts;

and Melissa O’Donnell, Child’s Cub Scouts den leader.         The Custodians

testified on their own behalf, and they presented the testimony of Jenna

Zsilavecz, Child’s third grade teacher; T.T., Child’s maternal aunt; and Gloria

Velazquez, a licensed clinical social worker who provided counseling to Child.

In addition, Child testified in camera in the presence of the parties’ counsel

and the Guardian ad litem (“GAL”).

       By order dated January 29, 2016, and entered on February 1, 2016,

the trial court denied the Appellants’ request for primary physical and shared

legal custody. Further, the court affirmed the custody arrangement set forth

in the Lehigh County order. In addition, the court directed that, “it is not in

the best interests of the child that [the Appellants] be granted partial

physical custody. However, visitation[4] shall occur as agreed by the parties,

and absent countervailing concerns threatening the emotional or physical

well-being of the child, the [ ] [C]ustodians are encouraged to grant [the

Appellants] liberal contact with the child.” Order, 1/29/16, at 21 (emphasis

added).     The Appellants timely filed a notice of appeal and a concise

____________________________________________


4
 We observe that the Child Custody Act (“Act”), 23 Pa.C.S.A. §§ 5321-5340,
does not use the term “visitation.” See 23 Pa.C.S.A. § 5322(a). Rather, the
Act identifies the relevant terms as “partial physical custody,” “shared
physical custody,” and “supervised physical custody.” Id. Therefore, we
construe the term “visitation” in the subject order to mean partial physical
custody.




                                           -5-
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statement of errors complained of on appeal pursuant to Pennsylvania Rule

of Appellate Procedure 1925(a)(2)(i) and (b).

      On appeal, the Appellants present the following issues for our review:

      I. Did the trial court abuse its discretion: by failing to recognize
      the Appellant[s’] [ ] “in local parentis” status; by denying the
      Appellant[s’] [ ] petition for custody and by failing to award the
      Appellant[s] [ ], at minimum, regular custodial periods?

      II. Did the trial court abuse its discretion: by granting custody of
      the subject child to the [Custodians] where they had failed to
      establish “in loco parentis” status; by failing to address
      procedural irregularities and inadequacies in the interim
      pleadings, including notice requirements to the Appellant[s] [ ];
      and by failing to consider the relevant pleadings including the
      Appellant[s’] [ ] preliminary objections?

      III. Did the trial court abuse its discretion: by failing to apply
      appropriate weight to the testimony of the court appointed co-
      parent counselor, Dr. Ronald Esteve; and by applying undue
      reliance and weight upon the findings and report of the Guardian
      ad litem?

Appellants’ brief at 27.

      Our scope and standard of review in custody matters is as follows.

      In reviewing a custody order, our scope is of the broadest type
      and our standard is abuse of discretion.         We must accept
      findings of the trial court that are supported by competent
      evidence of record, as our role does not include making
      independent factual determinations. In addition, with regard to
      issues of credibility and weight of the evidence, we must defer to
      the presiding trial judge who viewed and assessed the witnesses
      first-hand. However, we are not bound by the trial court's
      deductions or inferences from its factual findings. Ultimately,
      the test is whether the trial court’s conclusions are
      unreasonable as shown by the evidence of record. We
      may reject the conclusions of the trial court only if they involve
      an error of law, or are unreasonable in light of the sustainable
      findings of the trial court.

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

(emphasis added).

         Further, we have stated the following.

         [T]he discretion that a trial court employs in custody matters
         should be accorded the utmost respect, given the special nature
         of the proceeding and the lasting impact the result will have on
         the lives of the parties concerned. Indeed, the knowledge
         gained by a trial court in observing witnesses in a custody
         proceeding cannot adequately be imparted to an appellate court
         by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006), quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

         The primary concern in any custody case is the best interests of the

child.     The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual well-being. Saintz v. Rinker, 902

A.2d 509, 512 (Pa. Super. 2006), citing Arnold v. Arnold, 847 A.2d 674,

677 (Pa. Super. 2004).

         Initially, we note that, “[f]or purposes of a custody dispute, persons

other than the natural parents are considered ‘third parties.’” McDonel v.

Sohn, 762 A.2d 1101, 1105 (Pa. Super. 2000), appeal denied, 782 A.2d 547

(Pa. 2000).      The courts of this Commonwealth have long maintained a

“stringent test” for standing in third-party custodial matters because, in

part, natural parents have a strong right “to raise their children as they see

fit” without intrusion from parties who have no prima facie right to custody.

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J-A19027-16


T.B. v. L.R.M., 786 A.2d 913, 916 (Pa. 2001) (citations omitted); J.A.L. v.

E.P.H., 682 A.2d 1314, 1319 (Pa. Super. 1996) (citations omitted).

Cognizable     rights   to   custody arise       where   the    legislature   specifically

authorizes the cause of action, or under the common law doctrine of in loco

parentis.5 T.B., supra; J.A.L., supra.

       In the underlying custody action, the Appellants asserted that they

had standing to seek primary physical and shared legal custody pursuant to

the following statutory provisions of the Act:

       § 5324. Standing for any form of physical custody or legal
       custody.

       The following individuals may file an action under this chapter for any
       form of physical custody or legal custody:

                                           ...


           (2) A person who stands in loco parentis to the child.

           (3) A grandparent of the child who is not in loco parentis
           to the child:

              (i) whose relationship with the child began either
              with the consent of a parent of the child or under a
              court order;

              (ii) who assumes or is willing                   to   assume
              responsibility for the child; and

              (iii) when one of the following conditions is met:

____________________________________________


5
  We note that the Act, supra, became effective on January 24, 2011. The
relevant provision of the Act incorporates the common law doctrine of in loco
parentis. See 23 Pa.C.S.A. § 5324(2).



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              (A) the child has been determined to be a
              dependent child under 42 Pa.C.S. Ch. 63
              (relating to juvenile matters);

              (B) the child is substantially at risk due to
              parental abuse, neglect, drug or alcohol abuse
              or incapacity; or

              (C) The child has for a period of at least 12
              consecutive   months,     resided   with   the
              grandparent,    excluding    brief   temporary
              absences of the child from the home, and is
              removed from the home by the parents, in
              which case the action must be filed within six
              months after the removal of the child from the
              home.

23 Pa.C.S.A. § 5324(2)-(3).

    In the alternative, the Appellants asserted that they had standing to

seek partial physical custody pursuant to the following statutory provision:

      § 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 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).

      In their first issue on appeal, the Appellants argue only that they

stand in loco parentis to Child, and, therefore, that the court abused its



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discretion in concluding that they did not have standing to seek primary

physical and shared legal custody. As such, we do not consider whether the

Appellants have standing pursuant to Section 5324(3).

      “The phrase ‘in loco parentis’ refers to a person who puts oneself in

the situation of a lawful parent by assuming the obligations incident to the

parental relationship without going through the formality of a legal

adoption.” T.B., supra.

      The status of in loco parentis embodies two ideas; first, the
      assumption of a parental status, and, second, the discharge of
      parental duties. The rights and liabilities arising out of an in
      loco parentis relationship are, as the words imply, exactly the
      same as between parent and child. The third party in this type
      of relationship, however, can[ ]not place himself in loco parentis
      in defiance of the parents’ wishes and the parent/child
      relationship.

Id. at 916-917 (citations omitted).

     The Appellants argue that the record evidence demonstrates that they

satisfied the foregoing two-part test for in loco parentis status. They state

as follows.

      First, the Maternal Grandparents had assumed parental status of
      the minor child. The minor child resided with the Maternal
      Grandparents for a period of three months, and in addition the
      Maternal Grandparents cared for the child like a parent, for
      sustained periods of time throughout his life. The Maternal
      Grandparents have been very involved in the minor child’s life
      and have assumed parental duties.           Second, [] Father
      discharged his parental duties as he essentially relied on others
      to care for the minor child and take care of the minor child’s
      needs in particular the Maternal Grandparents. As testified to,
      the Maternal Grandparents would have the child overnight, take
      the child to school, and then pick up the child for the night at
      their home, even while the child was supposedly living with the

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J-A19027-16


      Father in Sellersville and Maternal Grandparents           lived   in
      Macungie, approximately 45 minutes apart.

Appellants’ brief at 41-42 (citations to reproduced record omitted).          They

continue by stating that, “[i]t was not until [] Father, without notice to the

Maternal Grandparents, turned custody of the child over, first to his parents,

the Paternal Grandparents, and then to his brother and sister-in-law, [] that

the Maternal Grandparents’ role became diminished.” Id. at 42 (citation to

reproduced record omitted).

     In determining that the Appellants failed to establish standing in loco

parentis, the trial court explained as follows in its opinion accompanying the

subject order.

      The evidence demonstrates that for periods during the child’s
      life, [the Appellants] provided regular childcare assistance to
      Mother, Father[,] and [Stepfather]. However, with the exception
      of [the Appellants]’ testimony that the child lived with them
      during the three (3) month period when Mother was sick and
      hospitalized, the court finds that [the Appellants]’ role over the
      course of the child’s life has not been parental, but rather that of
      a childcare provider to assist the child’s custodian.

Trial Court Opinion, 1/29/16, at 9.

     Maternal Grandmother testified on cross-examination that, from 2008

through sometime in 2011, she assisted in Child’s care during the day when

Mother worked. N.T., 8/12/15, at 148. She testified that she did not see

Child from February of 2011 until April of 2011, because Mother “was upset

with me.”   Id.   Maternal Grandmother testified that Mother informed her

that she was hospitalized on April 28, 2011, where Mother remained until


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her death on July 27, 2011. N.T., 8/11/15, at 45. She testified that, during

that time-period, Child “stayed with us.” Id.

      During the year following Mother’s death, when Child resided with

Stepfather, Maternal Grandmother testified that she transported Child to and

from kindergarten, volunteered in his kindergarten class, and she assisted

with his care. N.T., 8/11/15, at 48, 52. She testified that Child then went

to   live   with   Father    in   Sellersville,    and   subsequently   with   Paternal

Grandparents in Bethlehem, during which time she continued to see Child on

a regular basis. Id. at 52-53. Maternal Grandmother testified that, by the

fall of 2014, when Child was living with the Custodians, she saw Child less.

Id. at 54-55. She testified that Paternal Aunt told her “on the phone . . .

that we wouldn’t be getting regular visitation with [Child].            And she also

said, when we did ask for visitation, that we weren’t in the [c]ourt [o]rder

and she did not have to give us any visitation.”6 Id. at 55.

      Upon careful review, we conclude that Maternal Grandmother’s

testimony supports the trial court’s finding that the Appellants’ role in Child’s

life was not parental. Rather, the evidence demonstrates that the Appellants

assisted Mother, Father, and Stepfather in his care. Id. at 43-44. As such,

____________________________________________


6
  However, the trial court found that the Custodians “ensure that the child
regularly visits the [Appellants], typically every Thursday from 3:30pm to
8:00pm, and one weekend overnight a month.”             Trial Court Opinion,
1/29/16, at 7, ¶ 25 (citations to record omitted). Paternal Uncle’s testimony
supports the court’s finding.



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the trial court did not abuse its discretion in failing to confer in loco parentis

standing upon the Appellants.       See Argenio v. Fenton, 703 A.2d 1042,

1044 (Pa. Super. 1997) (holding that the grandmother “acted as no more

than a care-taker, in effect, a baby-sitter for the child, albeit a frequent

care[-]taker[,]” and that this is not enough to confer in loco parentis status).

Therefore, we reject the Appellants’ argument that the trial court abused its

discretion in denying them primary physical and shared legal custody. With

respect to their argument regarding partial physical custody, we address it

infra.

         In their second issue, the Appellants argue that the trial court abused

its discretion in conferring in loco parentis status upon the Custodians. Their

argument relates solely to the Lehigh County custody litigation initiated by

the Custodians. The Appellants argue that the Custodians did not stand in

loco parentis to Child at the time they filed their custody complaint because

Child then “clearly still resided with the Paternal Grandparents and Father. .

. .” Appellants’ brief at 44. In addition, they argue that they were not given

notice of the Custodians’ custody action under Pa.R.C.P. 1915.15. As such,

the Appellants argue that the Lehigh County order was entered in violation

of Section 5324, supra.

         In its opinion accompanying the subject order, the trial court stated as

follows.

         This [c]ourt is not the proper place to litigate the trajectory of
         th[e] custody matter through the Lehigh County court system.

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       The only matters properly before this court are the standing of
       the parties to this action, and the best interests of the child.

       Moreover, the order granting primary physical custody to the
       [Custodians] was entered with the consent of Father, who at all
       times throughout the child’s life, has maintained his right[] to
       physical and legal custody of the child, and who is the child’s
       natural parent.[7] Thus, it is of no consequence to this [c]ourt
       whether or not the legal process of the Lehigh County
       proceeding that led to the current custody order was flawed,
       because[,] if this matter had not preceded in the [Lehigh
       County] [C]ourt [of Common Pleas], Father would have the
       unfettered right to determine who could or could not have access
       to his son or participate in his care and custody.

       Finally, the record before this [c]ourt demonstrates that had [the
       Appellants] been given notice of the December 2013 litigation
       and participated in the same, they would not have been able to
       establish standing to seek primary physical custody for failure to
       stand in loco parentis. The only possible difference in the
       outcome of the case that could have arisen from their
       participation would have been an award of partial physical
       custody, and their right to the same is presently before this
       [c]ourt . . . .

Trial Court Opinion, 1/29/16, at 10-11. Upon thorough review, the record

supports the court’s factual findings, and its conclusions are reasonable in

light of those findings.      As such, we conclude that the Appellants’ second

issue is without merit.



____________________________________________


7
  Father testified that, when the Custodians filed their custody action in
Lehigh County in December 2013, he “thought about what would be the best
for [Child] as far as that situation when it was presented to me. . . . I had
to get [Child] in a loving home first and foremost; in a home that [Child]
would feel at home in, safe in, and [the Custodians] could provide a very
good structure for my son.” N.T., 8/11/15, at 155.



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      In their third issue, the Appellants argue that the trial court abused its

discretion by failing to apply the appropriate weight to the testimony of Dr.

Esteve, the psychologist appointed by the Northampton County custody

master on November 14, 2014 to perform co-parenting counseling.             The

Appellants assert that Dr. Esteve testified the Custodians were not

cooperative with him, and Paternal Uncle was “hostile.” Appellants’ brief at

46.

      It is well-established that we defer to the trial court on issues

regarding weight of the evidence.      See C.R.F. v. S.E.F., supra.        Upon

review of the testimonial evidence in this case, we conclude that the

Appellants’ argument has no merit.

      By way of background, Dr. Esteve described his goal in co-parenting

counseling in this case as assisting the adults “to appreciate how important

all of these [adult] relationships are [to Child]. And if they were going to

truly help this child, they would help him love the other adults in these

relationships.” N.T., 7/15/15, at 64. To that end, Dr. Esteve met with the

Appellants, the Custodians, and Father. Id. at 7. In addition, he met with

Child. Id. However, Dr. Esteve testified that the Custodians failed to bring

Child to a follow-up appointment after Child’s visit with the Appellants during

Christmas of 2014. N.T., 7/15/15, at 10-11. He testified as follows.

      Q. [W]hy was it important for you to see [Child] . . . ?

      A. I was very strongly advocating prior to help all the parties to
      find a way to give [Child] an opportunity to spend time with all

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       of them. And of course that would include the grandparents.
       There seemed to be at least some implication that that had
       been, in itself, disturbing or distressing for [Child], so it would be
       very appropriate for me to meet with him after the fact to hear
       directly from him.

Id. at 11-12.

       Dr. Esteve testified that he contacted Gloria Velazquez, Child’s

counselor, “because I thought she might be able to give me further insight

into [Child]. . . .   Also, to assure her that I didn’t want her to be concerned

that this would in any way be a duplication of services and that my role with

[Child] would be much different than hers.”        Id. at 29-30.    However, Dr.

Esteve testified that Ms. Velazquez “seemed reluctant” about him seeing

Child because “she was fearful that it was a duplication of services” for

Child.8 Id. at 30-31.

       With respect to their assertion that Paternal Uncle was “hostile” to Dr.

Esteve, Paternal Uncle testified on cross-examination by the Appellants’

counsel as follows.

       Q. [Y]ou heard Dr. Esteve’s testimony that you became agitated
       during one of those sessions; is that right?

____________________________________________


8
  Indeed, Ms. Velazquez, a licensed social worker, testified that Paternal
Aunt contacted her in September of 2013, for counseling of Child with
respect to family and bereavement issues. N.T., 9/14/15, at 203-205. She
testified that she first met with Child in the fall of 2013, at which time Child
suffered from anger, depression, and sadness.            Id. at 204, 207. Ms.
Velazquez testified that Child struggled with bereavement especially during
Christmas of 2014; therefore, she advised Paternal Aunt that it was
inappropriate for him to meet with Dr. Esteve at that time. Id. at 214, 216.



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      A. According to him.

      Q. Well, what happened, according to you?

      A. [H]e had his agenda as to what he believed the issues to be,
      which was to have the [Appellants] get . . . more substantial
      time with [Child]. And he sort of turned the conversation over to
      myself, at which point he asked me what did I think. And I told
      him what I thought. [ ] I thought that the [Appellants] are
      getting adequate time up to this point, if not as much or more
      than any other family member.

      And he didn’t, I guess, like either the tamper [sic] of my
      response and/or the fact that I was questioning the direction of
      the conversation. He wanted to push it in. And I just asked him
      at that point in time if this is supposed to be an open forum to
      debate, then maybe you should tell me what the answer is that
      you’d like to hear and I can tell you what it is. I guess he didn’t
      like that response.

N.T., 9/14/15, at 117-118.

      Based on the foregoing testimonial evidence, and upon thorough

review of the totality of the record evidence, we discern no abuse of

discretion by the trial court in failing to weigh Dr. Esteve’s testimony in favor

of the Appellants in fashioning its custody order. Moreover, the trial court

did not appoint Dr. Esteve; rather, the custody master appointed him. In

addition, he was not appointed to perform a custody evaluation, but to

provide co-parenting counseling.       Therefore, we reject the Appellants’

argument that the trial court failed to weigh his testimony properly in issuing

the subject order.




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       Next, the Appellants argue that the trial court abused its discretion by

relying upon the findings and report of the GAL.9 The crux of their argument

is that the court erred in appointing the GAL.        They rely on this Court’s

decision in Moorman v. Tingle, 467 A.2d 359 (Pa. Super. 1983) in

asserting that the appointment of a GAL “is necessary only when the child’s

interests may be adversely affected.” Appellants’ brief at 48. They assert as

follows.

       Thus, it necessarily follows that the services of a [GAL] are
       unnecessary in a custody action between the parties such as
       here because, no matter how bitter or contentious the custody
       fight may be, and irrespective of whether the parties disagree as
       to what constitutes the child’s best interest, all are nonetheless
       seeking to advance the child’s best interest.

Id.



____________________________________________


9
    The trial court agreed with the GAL’s conclusion that Maternal
Grandmother “is entitled to an important role in [Child’s] life, but legally it is
not equal to that occupied by the [Custodians] and his Father, and she must
accept their ultimate authority over decision[s] as other members of the
family do, without the constant conflict.” Trial Court Opinion, 1/29/16, at 19
(citation to record omitted). Specifically, the trial court found as follows.

       The [c]ourt shares the GAL’s concerns about [Maternal
       Grandmother’s] ability to accept boundaries and to focus on her
       role as a grandparent rather than seeking to be yet another
       parental figure in the child’s life, which has already been so
       mired by a significant number of people moving in and out of
       that role.

Id. at 20. Based upon our thorough review of the testimonial evidence, we
discern no abuse of discretion by the court in this regard.



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       In the alternative, the Appellants argue that the trial court abused its

discretion by permitting the GAL to act in a role contrary to Rule 1915.11-

2(a), which provides that “[t]he [GAL] shall not act as the child’s counsel or

represent the child’s legal interests.” Pa.R.C.P. 1915.11-2(a). Specifically,

they argue that the GAL overstepped its “statutorily prescribed boundaries”

by conducting cross-examination of the witnesses. Appellants’ brief at 50;

see also Pa.R.C.P. 1915.11-2, Note, (stating, “23 Pa.C.S. § 5334 is

suspended in so far as it . . . (3) provides the [GAL] the right to examine,

cross-examine, present witnesses and present evidence on behalf of the

child. . . .”)

      The record reveals the trial court, on the record in open court on

August 11, 2015, issued an order stating that, “based upon a finding of

appointment of a [GAL] is necessary to assist the [c]ourt in determining the

best interest of the child in this matter,” and then made the appointment

pursuant to Pa.R.C.P. 1915.11-2.      N.T., 8/11/15, at 32-34.    Further, the

record reveals that the GAL cross-examined the witnesses that testified on

the final day of the hearing, September 14, 2015.        Notably, neither the

Appellants’ counsel nor counsel for any of the other parties objected to the

appointment of the GAL.      Id. at 22, 28-29, 32-36.    Likewise, neither the

Appellants’ counsel nor any other counsel objected to the GAL’s cross-

examination of the witnesses during the hearing on September 14, 2015. As

such, the Appellants have waived this issue on appeal. See In re S.C.B.,


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990 A.2d 762, 767 (Pa. Super. 2010) (quoting Thompson v. Thompson,

963 A.2d 474, 475–476 (Pa. Super. 2008)) (“In order to preserve an issue

for appellate review, a party must make a timely and specific objection at

the appropriate stage of the proceedings before the trial court.       Failure to

timely object to a basic and fundamental error will result in waiver of that

issue.”)

      Lastly, the Appellants argue that the trial court abused its discretion by

failing to award them any time with Child, “except as dictated by” the

Custodians. Appellants’ brief at 51. We are constrained to agree.

      Initially, the trial court concluded that the Appellants have standing to

seek partial physical custody pursuant to Section 5325(1), supra.           In its

opinion accompanying the subject order, the court thoroughly considered the

requisite list of enumerated factors set forth in Section 5328(a). See J.R.M.

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

that trial courts are required to consider “[a]ll of the factors listed in section

5328(a) . . . when entering a custody order”).

      The court recognized that, “the [Appellants] are entitled to an

important role in [Child’s] life. They are important simply by virtue of their

consistent presence in his life as his grandparents, and the [c]ourt agrees

that they should be given reasonable access to the child.”            Trial Court

Opinion, 1/29/16, at 20. However, in considering Section 5328(a)(4), the

need for stability and continuity in the child’s education, family life and


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J-A19027-16


community life, the court found that Child’s “best interests would not be

served by the rigors of having a regularly scheduled, court-ordered custodial

period under the care of the [Appellants].” Id. at 13. The court explained

as follows.

      As his grandparents, the [Appellants] are well-positioned to
      provide the child with a kind of love and familial connection that
      is unique to their place in his life. However, given the child’s
      age, the fullness of the structure, affection[,] and support he
      gets from the [Custodians], and the demands of his own
      schedule, the [c]ourt believes that if the child were to be
      beholden to a visitation schedule with the [Appellants], that
      would only put a strain on his educational and community life.
      Certainly, it is in the best interests of the child, insofar as his
      family life, to maintain a healthy relationship with the
      [Appellants], but that should be monitored and scheduled at the
      discretion of [the Custodians].

Id. at 13-14.

      We observe that, contrary to the Appellants’ assertion, the record

supports the court’s finding that the Custodians grant them time with Child

on a regular basis. See Trial Court Opinion, 1/29/16, at 7, ¶ 25 (citations to

record omitted). Nevertheless, in light of the testimonial evidence that Child

is in counseling for family and bereavement issues, we conclude that it was

contrary to his best interests to have the scheduling of visits with the

Appellants based solely upon the discretion of the Custodians rather than on

an established partial physical custody schedule set forth by court order.

      In   addition,   we   observe   Paternal   Aunt’s   testimony   on    direct

examination as follows.




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       Q. Did you believe that you could work with the [Appellants] to
       get a pattern where everybody can spend some time and share
       their lives with [Child]?

       A. No.

                                           ...

       Q. What would you like to see the [c]ourt do that you believe is
       in [Child’s] best interest?

       A. We would just like everybody to work together for [Child].

                                           ...

       Q. Do you believe that you can work out schedules for
       everybody so that everyone can have some time to share with
       the [Child]?[10]

       A. I have been for a year. And the only person that wasn’t
       happy were [sic] the [Appellants]. And that’s why we’re here.

N.T., 9/14/15, at 319-320.          Based on Paternal Aunt’s testimony that the

Appellants were dissatisfied with the time she granted them with Child,

which then resulted in the underlying custody action, we conclude that it was

unreasonable for the court to place the partial custody schedule in her and

Paternal Uncle’s discretion.

       Accordingly, we reverse the subject order insofar as it does not

establish a partial physical custody schedule for the Appellants. We remand

____________________________________________


10
   The record reveals that, in addition to the Appellants, the Custodians
permit the following relatives of Mother to spend time with Child: T.T.,
Child’s maternal aunt; A., Child’s half-sister, who is Mother’s twenty-four-
year-old daughter; and N.T., Maternal Grandmother’s ex-husband, who is
the Child’s maternal grandfather. N.T., 9/14/, at 44, 57-59.



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this matter to the trial court to consider, in timely fashion, a partial physical

custody schedule for the Appellants that will serve Child’s best interests.

Thereafter, the court shall enter a new order affirming the custody

arrangement set forth in the Lehigh County order and granting the

Appellants partial physical custody pursuant to a set schedule.

      Order affirmed in part, and reversed in part.        Case remanded for

further proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2016




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