J-A07030-19

                                 2019 PA Super 145


 R.L.                                      :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 M.A.,                                     :
                                           :
                     Appellant             :   No. 2740 EDA 2018

              Appeal from the Order Entered August 28, 2018
   In the Court of Common Pleas of Lehigh County Civil Division at No(s):
                              2018-FC-0597


BEFORE:      OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY DUBOW, J.:                                    FILED MAY 03, 2019

        Appellant, M.A., who is the biological mother of V.L. (“Child”), appeals

from the August 28, 2018 Order, which awarded shared legal and physical

custody of Child to Appellant and R.L., Child’s non-biological mother and

Appellant’s former paramour. Upon careful review, we affirm.

        The relevant factual and procedural history is as follows. Appellant and

R.L. were involved in a committed romantic relationship in 2012 when they

made a decision together to conceive Child by impregnating Appellant via

artificial insemination using sperm from R.L.’s brother. The couple planned

and prepared for Child’s birth together, including decorating a nursery and

shopping for baby supplies.       R.L. was present at Child’s birth, R.L. chose

Child’s first name, and the couple decided together to give Child R.L.’s

surname. Soon after Child’s birth, the couple broke up.




____________________________________
* Former Justice specially assigned to the Superior Court.
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       Under an informal agreement, Child lived with Appellant and spent every

other weekend with R.L. until June 2014, when Appellant and R.L. agreed to

share 50/50 custody of Child. Child spent alternating weeks with Appellant

and R.L. until an incident in February 2018, when R.L. called the daycare

where Appellant worked and Child attended. R.L. complained that Appellant

was having too much contact with Child, including taking Child off the

premises during the day. As a result of the phone call, Appellant stopped the

weekly custody rotation.

       On May 10, 2018, R.L. filed a Complaint for Custody of then-5-year-old

Child. On June 29, 2018, after a hearing, the trial court granted R.L. “in loco

parentis” status, and therefore standing, to pursue any form of physical or

legal custody of Child pursuant to 23 Pa.C.S. § 5324(2).1 On August 23, 2018,

after a pre-trial conference, the trial court held a custody hearing.


____________________________________________


1 “The term in loco parentis literally means in the place of a parent.” M.L.S.
v. T.H.-S., 195 A.3d 265, 267 (Pa. Super. 2018) (citation and quotation
omitted). Section 5324, inter alia, grants standing to file an action for any
form of custody to “[a] parent of the child” or “[a] person who stands in loco
parentis to the child[.]” 23 Pa.C.S. §§ 5324(1), (2). We acknowledge that
the trial court’s June 29, 2018 Order did not grant R.L. standing to pursue
custody as a parent pursuant to Section 5324(1) despite the Custody
Complaint averring: 1) R.L. and Appellant planned to conceive Child together
and they were involved in an intimate relationship prior to, during, and after
Child’s birth; 2) Child has been living with R.L. every other week for most of
his life; 3) Child calls R.L. Mother and they have a parent/child bond; and 4)
R.L. has acted as a parent to Child for Child’s entire life. See Order, 6/29/18;
Custody Complaint, 5/10/18, at ¶¶ 4, 5. Rather, the Order only granted R.L
standing to pursue custody in loco parentis pursuant to Section 5324(2). R.L.



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       On August 28, 2018, the trial court awarded Appellant and R.L. shared

legal and physical custody of Child, and, inter alia, ordered Child to spend

alternating weeks with Appellant and R.L. On the same day, the trial court

issued a Memorandum of Factors, which reviewed and made findings

regarding the 23 Pa.C.S. § 5328 Custody Factors.           This timely appeal

followed.2
____________________________________________


failed to challenge this Order. Accordingly, we are constrained to review this
case pursuant to R.L.’s in loco parentis, or third party, status.

We recognize that our Supreme Court has recently declined to expand the
definition of the term “parent” under Section 5324(1) in a case where a
biological mother’s same-sex unmarried former partner sought standing as a
“parent,” when the former partner did not jointly participate in the child’s
conception and hold the child out as her own. See C.G. v. J.H., 193 A.3d
891, 906 (Pa. 2018). The Court recognized that Section 5324 does not define
the term parent and acknowledged, “the reality of the evolving concept of
what comprises a family cannot be overlooked.” Id. at 900. However, bound
by the trial court’s findings that the former partner did not intend to conceive
the Child, the Court concluded, “this case does not provide this Court with a
factual basis on which to further expand the definition of the term parent
under Section 5324(1).” Id. at 906.

Here, R.L. did intend to conceive Child and did hold Child out as her own.
Nevertheless, even though this case might provide a factual basis on which to
expand the definition of the term “parent” under Section 5324(1), that issue
is not before us and, as stated above, we are constrained to review this case
treating R.L. as a third party rather than a parent. We, however, agree with
the Supreme Court that the evolving nature of family relationships requires
the appellate courts to re-examine the definition of “parent” under Section
5324(1).

2 The instant appeal is a children’s fast track case. When Appellant filed a
Notice of Appeal, she failed to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and Pa.R.A.P. 905(a)(2) or
provide notice of the appeal to the trial court judge pursuant to Pa.R.A.P.
906(a)(2). When the trial court learned of the appeal on October 2, 2018, the



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       Appellant raises the following issues on appeal:

          [1.]   Has the [nonparent] litigant met her burden of proof
                 under [23 Pa.C.S. § 5327(b)] by presenting clear and
                 convincing evidence that [nonparent] should have the
                 same amount of physical custodial time as a parent in a
                 case where the parent seeks primary physical custody of
                 the child?

          [2.]   Did the Court err as a matter of law when it awarded
                 equal physical custodial time to a parent and [nonparent]
                 after weighing all relevant factors evenly between the
                 parties in its Memorandum and Opinion?

Appellant’s Brief at 3.

       The Child Custody Act, 23 Pa.C.S. §§ 5321-5340, governs all custody

proceedings commenced after January 24, 2011. E.D. v. M.P., 33 A.3d 73,


____________________________________________


court ordered Appellant to file a Concise Statement of Matters Complained of
on Appeal within seven days. On October 10, 2018, Appellant filed a Concise
Statement of Matters Complained of on Appeal. On October 22, 2018, the
trial court filed a Pa.R.A.P. 1925(a) Opinion. Because Appellant failed to
comply with Pa.R.A.P 1925(a)(2)(i) and Pa.R.A.P. 905(a)(2), Appellant’s
Notice of Appeal is defective. See In re K.T.E.L., 983 A.d 745, 747 (Pa.
Super. 2009) (holding that the failure of an appellant in a children's fast track
case to file contemporaneously a concise statement with the notice of appeal
pursuant to rules 905(a)(2) and 1925(a)(2), will result in a defective notice of
appeal and the disposition of the defective notice of appeal will then be decided
on a case by case basis). However, as Appellant’s procedural misstep has not
prejudiced the other party and does not impede our review of the matter, we
decline to quash or dismiss this appeal for noncompliance. See id. See also
Coffman v. Kline, 167 A.3d 772, 776 (Pa. Super. 2017), appeal
denied, 182 A.3d 433 (Pa. 2018) (observing that when an appellant fails to
serve the notice of appeal on the trial court judge per Rule 906(a)(2), this
Court has discretion to take any appropriate action).




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77 (Pa. Super. 2011). The Custody Act requires a trial court to consider all of

the Section 5328(a) best interests factors when “ordering any form of

custody.” 23 Pa.C.S. § 5328(a). A trial court must “delineate the reasons for

its decision when making an award of custody either on the record or in a

written opinion.” S.W.D. v. S.A.R., 96 A.3d 396, 401 (Pa. Super. 2014). See

also 23 Pa.C.S. § 5323(a) and (d). However, “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).

       “The paramount concern in child custody cases is the best interests of

the child.” C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018). “The best-interests

standard, decided on a case-by-case basis, considers all factors which

legitimately have an effect upon the child's physical, intellectual, moral and

spiritual well-being.” M.J.N. v. J.K., 169 A.3d 108, 112 (Pa. Super. 2017).

       This Court reviews a custody determination for an abuse of discretion.

In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We will not find an abuse

of discretion “merely because a reviewing court would have reached a different

conclusion.” Id. (citation omitted). Rather, “[a]ppellate courts will find a trial

court abuses its discretion if, in reaching a conclusion, it overrides or

misapplies the law, or the record shows that the trial court's judgment was

either manifestly unreasonable or the product of partiality, prejudice, bias or

ill will.” Id.


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      Further, when this Court reviews a trial court’s “best interests” analysis

in custody matters, our scope of review is broad, but we are “bound by

findings supported in the record, and may reject conclusions drawn by the

trial court only if they involve an error of law, or are unreasonable in light of

the sustainable findings of the trial court.” Saintz v. Rinker, 902 A.2d 509,

512 (Pa. Super. 2006) (quotation and citation omitted). Importantly, “[o]n

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.” K.T. v. L.S., 118 A.3d 1136, 1159 (Pa. Super.

2015) (citation omitted). We can only interfere where the “custody order is

manifestly unreasonable as shown by the evidence of record.” Saintz, 902

A.2d at 512 (citation omitted).

      In her first issue, Appellant avers that R.L., the non-biological mother,

did not present clear and convincing evidence that she should have equal

custodial time as Appellant, the biological mother. Appellant’s Brief at 6-7.

Appellant argues that 23 Pa.C.S. § 5327 requires a trial court to apply a

presumption in favor of a “biological parent” as opposed to a “nonparent

litigant” and that R.L. did not meet her burden of proof to overcome the

presumption in favor of Appellant. Id. at 7. Appellant argues that the “scale

was already tipped hard” to Appellant before the trial and that it was R.L.’s

burden as a nonparent litigant to “tip the scale in favor of [R.L.]” rather than

“tip the scale only to equal” in order to obtain shared physical custody with


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equal custodial time. Id. Finally, Appellant asserts that the trial court erred

when it considered the previous informal custody arrangement between

Appellant and R.L as dispositive evidence in determining whether R.L. met her

burden of proof. Id. For the following reasons, Appellant is not entitled to

relief.

          The parent has a prima facie right to custody, “which will be forfeited

only if convincing reasons appear that the child’s best interest will be served

by an award to the third party.” V.B. v. J.E.B., 55 A.3d 1193, 1199 (Pa.

Super. 2012) (quoting Charles v. Stehlik, 744 A.2d 1255, 1258 (Pa. 2000)).

Section 5327 of the Custody Act pertains to cases “concerning primary

physical custody” and provides that, “[i]n any action regarding the custody of

the child between a parent of the child and a nonparent, there shall be a

presumption that custody shall be awarded to the parent. The presumption

in favor of the parent may be rebutted by clear and convincing evidence.” 23

Pa.C.S. § 5327(b). This Court has defined clear and convincing evidence “as

presenting evidence that is so clear, direct, weighty, and convincing so as to

enable the trier of fact to come to a clear conviction, without hesitation, of the

truth of the precise facts in issue.” M.J.S. v. B.B. v. B.B., 172 A.3d 651, 660

(Pa. Super. 2017) (citations and internal quotation marks omitted).

          Accordingly, “even before the proceedings start, the evidentiary scale is

tipped, and tipped hard, to the biological parents’ side.” V.B., 55 A.3d at 1199

(quoting Charles, 744 A.2d at 1258).           When making a decision to award


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J-A07030-19


primary physical custody to a nonparent, the trial court must “hear all

evidence relevant to the child's best interest, and then, decide whether the

evidence on behalf of the third party is weighty enough to bring the scale up

to even, and down on the third party’s side.” Id. (quoting McDonel v. Sohn,

762 A.2d 1101, 1107 (Pa. Super. 2000)).

      These principles do not preclude an award of custody to the nonparent

but simply instruct the trial court that the nonparent bears the burden of

production and the burden of persuasion and that the nonparent’s burden is

heavy. Jones v. Jones, 884 A.2d 915, 918 (Pa. Super. 2005). It is well

settled, “[w]hile this Commonwealth places great importance on biological

ties, it does not do so to the extent that the biological parent’s right to custody

will trump the best interests of the child. In all custody matters, our primary

concern is, and must continue to be, the well-being of the most fragile human

participant—that of the minor child.” Charles, 744 A.2d at 1259. “Once it is

established that someone who is not the biological parent is in loco

parentis, that person does not need to establish that the biological

parent is unfit, but instead must establish by clear and convincing evidence

that it is in the best interests of the children to maintain that relationship or

be with that person.” Jones, 884 A.2d at 917 (emphasis in original).

      The crux of Appellant’s first argument is that R.L. failed to present clear

and convincing evidence to rebut the statutory presumption in favor of




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awarding primary physical custody to Appellant as opposed to R.L. Appellant’s

Brief at 7-8.

      Instantly, R.L. filed a Custody Complaint seeking shared physical and

legal custody, to memorialize the informal custody agreement that had been

in place between her and Appellant for several years. In response, Appellant

stated on the record that she was seeking primary physical custody. N.T.

Custody Hearing, 10/16/18, at 100-01. The trial court recognized a statutory

presumption in favor of Appellant but made a finding that “R.L. rebutted that

presumption by evidence that was so clear and convincing based upon the

undisputed decisions regarding custody that the parties had made together

both prior to and following their separation.” See Trial Court Opinion, filed

10/22/10, at 6.   The trial court found R.L.’s testimony to be credible that

Appellant and R.L. had an informal agreement to share physical custody of

Child on a weekly rotation from June 2014 until February 2018. Id. at 7. The

trial court made a finding that Child had been thriving in this 50-50 custody

arrangement for 70% of his life, and that the only reason Appellant

discontinued the week-to-week arrangement was because Appellant was

upset when R.L. contacted Appellant’s place of employment.        Id. at 7-8.

Accordingly, the trial court found that the “evidence and testimony was clear,

direct, weighty, and convincing” that “the scale was tipped to even between

R.L. and [Appellant]” and Child’s “best interest had been served for the

majority of his life by implementing the week-to-week physical custody.” Id.


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at 7, 11. Based on these findings, which are supported in the record, the trial

court awarded shared physical and legal custody of Child to R.L. and Appellant.

      Appellant argues that the court applied the incorrect burden when it only

required R.L. to present clear and convincing evidence to “tip the scale only

to equal” rather than “tip the scale in favor of [R.L.]” prior to awarding shared

physical custody. Id. at 10. The trial court opined:

      The parents have a prima facie right to custody, which will be
      forfeited only if convincing reasons appear that the child’s best
      interest will be served by an award to the third party. Thus, even
      before the proceedings start, the evidentiary scale is tipped, and
      tipped hard, to the biological parents’ side. In a case of shared
      physical custody, this [c]ourt views the scale analogy as placing
      the burden on the non-biological parent to tip that scale to equal.
      It is not believed that the burden was for the non-biological parent
      to tip the scare down farther than equal, as that may we result in
      an award of primary physical custody to the non-biological
      parent[.]

Trial Court Opinion, filed 10/22/18, at 5-6. We agree.

      Indeed, this Court has long required a trial court to “decide whether the

evidence on behalf of the third party is weighty enough to bring the scale up

to even, and down on the third party’s side” prior to awarding primary

physical custody to a nonparent.     See V.B., 55 A.3d at 1199.       See also

Charles, 744 A.2d 1255 (upholding award of primary physical custody to

stepfather instead of father following mother’s death); McDonel, 762 A.2d at

1107 (upholding award of primary physical custody to maternal aunt and uncle

instead of father following mother’s death); Jones, 884 A.2d at 918

(upholding award of primary physical custody to non-biological mother of



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J-A07030-19



children born to same-sex partners by artificial insemination).        However,

Appellant has failed to cite any legal authority that requires a third party to

tip the scale in their favor prior to awarding shared physical custody. Our

precedent merely requires the scale to tip to the third party’s side prior to

awarding primary physical custody to the third party and, thus, we find no

error in the trial court’s finding that, in this case, when the scale was “tipped

to even,” an award of shared legal custody was in Child’s best interest.

      Finally, Appellant argues that the “previous informal arrangement

between the parties should not be dispositive in determining whether [R.L.]

met her burden” and challenges the weight that the trial court placed on this

evidence. Appellant’s Brief at 11. The trial court engaged in an analysis of

the Section 5328 custody factors and the record supports the trial court’s

findings. As stated above, on issues of credibility and weight of the evidence,

we defer to the findings of the trial judge.    See K.T., 118 A.3d at 1159.

Accordingly, we find no error.

      The trial court applied the statutory presumption in favor of Appellant,

found that clear and convincing evidence rebutted that presumption, found

that shared physical and legal custody was in Child’s best interest, and

awarded shared physical and legal custody to Appellant and R.L. The record

supports the trial court’s findings. Accordingly, Appellant is not entitled to

relief on her first issue.




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      In her second issue, Appellant avers that the trial court erred in

awarding shared physical custody when the trial court determined that all of

the Section 5328 factors weighed evenly between the parties because the

court is required to apply a presumption in favor of Appellant. Appellant’s

Brief at 12-17. Appellant further argues that the record is devoid of evidence

that she is unable to care for Child. Id. at 16.

      Appellant fails to cite any authority to support her bald assertion that,

because of the statutory presumption in favor of a parent, if all of the Section

5328 factors are equal, then a parent should automatically get primary

physical custody of a child instead of a third party.     On the contrary, in a

custody dispute, the best-interests standard is decided on a case-by-case

basis and “considers all factors which legitimately have an effect upon the

child's physical, intellectual, moral and spiritual well-being.” M.J.N., 169 A.3d

at 112.

          Once the trial court granted R.L. in loco parentis status, R.L. did not

need to establish that Appellant was “unfit” or deficient in any of the Section

5328 custody factors; R.L. merely needed to establish that it was in Child’s

best interest to maintain a relationship with her. See Jones, 884 A.2d 917.

Accordingly, Appellant’s second issue lacks merit.

      The trial court engaged in an analysis of the Section 5328 custody

factors, applied the statutory presumption in favor of Appellant, found that

clear and convincing evidence rebutted that presumption, found that shared


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physical and legal custody was in Child’s best interest, and awarded shared

physical and legal custody to Appellant and R.L. The record supports the trial

court’s findings. Accordingly, we find no error.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/19




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