Maternal Grandparents Standing to Seeking Primary Custody
Hoover v. Lewis, 2024 WL 1829250 (Pa. Super.) (unreported), allocatur granted Oct. 9, 2024 sub. nom. T.M.H v. J&K.L, appeal docket 23 WAP 2024
In this case, the Pennsylvania Supreme Court will consider grandparent standing to seek custody under Section 5324(3)(iii) of the Child Custody Act, which provides:
The following individuals may file an action under this chapter for any form of physical custody or legal custody:
….
(3) A grandparent of the child who is not in loco parentis to the child:
…
(iii) when one of the following conditions is met:
…
(B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity;
(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.
This case arises from a custody dispute between grandparents, Appellant Lisa Cohen (Paternal Grandmother) and Appellees James and Kim Lewis (Maternal Grandparents) regarding custody of their 13-year-old grandson (the Child). Superior Court summarized the factual background as follows:
The Child was born in 2010 while Mother and Father were still teenagers. Father did not initially acknowledge paternity, and the relationship between the families was antagonistic. Father filed an action in 2011 resulting in an award of partial custody, which he did not exercise consistently.
Between 2010 and 2015, Child and Mother resided in Maternal Grandparents’ home. In 2015, Mother married William Smith (Stepfather). Mother and the Child then moved out of the Maternal Grandparents’ home to live with Stepfather, but they soon returned to live in a doublewide trailer-home located on Maternal Grandparents’ property. The trailer-home was in the Maternal Grandparents’ backyard, but it had a separate street address. Although the Child no longer lived in Maternal Grandparents’ house, he had a bedroom there, and he often slept over. Maternal Grandparents were involved in the Child’s life on a near-daily basis until 2020. They often cooked for him, bathed him, and saw him off to school.
Mother and Father engaged in more custody litigation between 2016 and 2017. Mother was again awarded primary physical custody subject to Father’s partial custody. Father’s exercise of custody continued to be sporadic. Although Paternal Grandmother and Shawn Cohen (Paternal Grandfather) had a good relationship with the Child, Father’s involvement was minimal.
In May 2020, Mother separated from Stepfather. She and the Child left the trailer-home and moved to live near Paternal Grandparents, approximately 30 minutes away. According to Maternal Grandparents, Mother left because they sought to get her help for her suicidal ideations.
At this juncture, the procedural history of this custody case became incredibly convoluted. In July 2020, Maternal Grandparents filed a petition to intervene in the custody case between Mother and Father. Initially, Maternal Grandparents requested “emergency shared legal and physical custody” to “ensure the child’s attendance at counseling, medication, appointments, and school.” See Petition to Intervene/Emergency Custody, filed 7/9/2020, at ¶15. Given the urgent nature of the pleading and the COVID-19 pandemic, the trial court conducted a brief video conference, prior to its evidentiary hearing, with all parties able to participate. At the video conference, Maternal Grandparents clarified that they sought only partial physical custody. See Order of Court, 8/13/2020 (“If th[e] petition is granted, [counsel for Maternal Grandparents] indicated on behalf of her clients that they will be asking for some immediate partial custody rights.”) (emphasis added).
Less than two weeks later, on August 24, 2020, Mother and Father signed a consent agreement granting Paternal Grandmother shared physical and legal custody. Maternal Grandparents were not made aware of this agreement for some time. The August 2020 consent order provided no periods of physical custody to Father, except during holidays.
In October 2020, upon Mother’s request, the trial court continued the hearing on Maternal Grandparents’ petition to intervene. Meanwhile, Maternal Grandparents learned of the August 2020 consent order. Maternal Grandparents then filed a “motion for guardian ad litem/standing/conflict.” Therein, Maternal Grandparents alleged that Mother had limited their contact with the Child, and they raised three challenges. First, Maternal Grandparents sought to have the Child appointed a guardian ad litem. Second, they claimed that Paternal Grandparents lacked standing to be involved in Maternal Grandparents’ bid to intervene in Mother and Father’s custody case; Maternal Grandparents did not allege facts to support their own standing to seek custody. Third, they raised the potential conflict between the court and Shawn Cohen (Paternal Grandfather), a local attorney. The court scheduled the motion for a hearing.
Between October 2020 and April 2021, the litigation was delayed for various reasons. Mother and Maternal Grandparents both changed attorneys (although Mother eventually proceeded pro se). The parties questioned who should be given notice of the pleadings. In December 2020, the trial judge recused himself due to Paternal Grandfather’s involvement in the local bar association. The recusal meant that the matter had to be set before an out-of-county judge.
After several months in limbo, on April 5, 2021, Mother filed for custody modification against Paternal Grandmother. Mother requested the Child be returned to her sole custody. Mother alleged that the Child had not done well in the Paternal Grandparents’ school district; that the Paternal Grandparents had pressured the Child about his studies; that Paternal Grandmother had denied Mother access to the Child and was overly critical of Mother; and that the Child was depressed. When Mother filed her April 2021 modification petition, Maternal Grandparents’ July 2020 action for partial custody was still pending as was their October 2020 request for the appointment of the guardian ad litem. And then the character of this case drastically changed.
On April 30, 2021, Mother committed suicide. On May 11, 2021, Maternal Grandparents filed a “complaint for modification of custody.” Critically, Maternal Grandparents sought custody under new grounds. For the first time, they alleged that had standing to seek primary physical custody and legal custody under 23 Pa.C.S.A. § 5324; alternatively, they alleged standing to seek partial physical custody under 23 Pa.C.S.A. § 5325(1) (pertaining to the death of a parent). See Maternal Grandparents’ Complaint for Modification of Custody, dated 5/11/21, at ¶¶ 18, 19.
On May 14, 2021, the Maternal Grandparents, the Paternal Grandmother, and Father appeared before the court. Paternal Grandmother appeared pro se, but the court permitted Paternal Grandfather to assist in her self-representation. Ostensibly, the hearing was on Maternal Grandparents’ “petition for standing/petition for guardian ad litem/petition to intervene,” according to the title on the transcript of those proceedings. Unfortunately, the trial court did not resolve the discrepancies in the procedural posture of the case before testimony began. In the view of Father’s attorney, the official business before the court on May 14, 2021 was twofold: 1) Maternal Grandparents’ July 2020 petition to intervene for partial custody; and 2) the October 2020 petition for the appointment a guardian ad litem. See N.T., 5/14/21, at 1-2. Counsel for Maternal Grandparents said that the matter concerned standing, the appointment of a guardian ad litem, “as well as a custody schedule for all parties involved.” Id. at 2. It became apparent, however, that Maternal Grandparents wanted to treat their earlier July 2020 petition to intervene as the vehicle to preserve, as timely, their May 2021 action for primary custody. There was no mention of the Maternal Grandparents’ May 2021 complaint, wherein they alleged standing for primary custody and a new basis for partial custody. The court simply said it hoped to have “an interim custody order so that we can see where we are relative to maybe a further full-time custody situation.” See N.T., 5/14/21, at 3. Counsel for Maternal Grandparents then called the first witness.
Starting with the May 2021 hearing, the trial court conducted four days of proceedings over the course of two years. On the first day, the trial court conducted an in camera interview of the Child and Maternal Grandmother testified. The trial court then issued an interim order granting shared physical custody and shared legal custody to Maternal Grandparents for the rest of the summer. The order was silent on standing.7
On August 3, 2021, the hearing resumed where it left off three months prior. The transcript labeled this proceeding as a “custody evidentiary hearing,” but there was no mention of whether the hearing was meant to address either the July 2020 action for partial custody or the May 2021 action for primary custody. In any event, the trial court heard additional testimony from Paternal Aunt, Maternal Grandfather, Father, and Stepfather. At the end of the testimony, with the case still incomplete, the court issued a second interim order. See Second Interim Order of Court, dated 8/6/21.
The second interim order was designed to last through the 2021-2022 school year, if need be. See id.; see also N.T., 8/3/21 at 229-230. The court increased the Maternal Grandparents’ physical custody from shared to primary, so that the Child could return to the school district where he had been enrolled until 2020. The order provided that only Maternal Grandparents and Father would share legal custody. Paternal Grandparents received partial physical custody every Tuesday and Thursday evening and one weekend per month. The second interim order provided that the next hearing date would be scheduled by separate order.
In September 2021, Father (through counsel) and Paternal Grandmother (pro se) petitioned the trial court to vacate the second interim order. Until then, the court had yet to deprive Paternal Grandmother of primary physical custody or legal custody. Evidently, it became apparent to Father and Paternal Grandmother that the trial court meant to resolve not just Maternal Grandparents’ July 2020 petition, but also their May 2021 complaint for primary and legal custody. Father and Paternal Grandmother reiterated that Maternal Grandparents lacked standing under 23 Pa.C.S.A. § 5324. The trial court did not rule on these petitions until the hearing resumed 10 months later, in July 2022.
On July 21, 2022, the hearing began with a discussion about the petitions to vacate the second interim order, which as far as we can tell, had been pending since the previous September. Father and Paternal Grandmother maintained that Maternal Grandparents lacked standing to seek primary custody under 23 Pa.C.S.A. § 5324. See generally N.T., 7/21/23, at 1-5. Maternal Grandparents countered that they stood in loco parentis under Section 5324(2); alternatively, that they had standing under Section 5324(3)(iii)(C), alleging that the Child lived with them for 12 consecutive months and that they their action was timely. Id. at 6-7. The court ruled that Maternal Grandparents had standing under “524(2) or (3),” and then the court proceeded with testimony. Id. at 7.
The trial court heard additional testimony from Paternal Grandparents, Father, and Maternal Grandmother. At the conclusion of this testimony, the court prepared to issue its final order and asked the litigants to file respective proposed findings and a proposed custody order by August 15, 2022. In the meantime, the court issued another interim order, dated July 22, 2022, setting forth the rest of the summer schedule. Maternal Grandparents’ proposal was docketed on August 22, 2022. Paternal Grandmother did not submit a proposal but instead appealed the denial of her request to vacate the interim orders.
While Paternal Grandmother’s appeal was pending, the trial court decided not to issue a final custody order, even though the court apparently recognized that it retained jurisdiction to do so. Instead, the court issued yet another interim custody order, dated August 26, 2022, meant to last the entire 2022-2023 school year. This Court quashed Paternal Grandmother’s appeal as interlocutory in October 2022. The trial court took no further action for another six months, until it conducted a “status conference” on May 23, 2023.
At the status conference, the trial court learned that the Child had been buckling under the weight of the litigation and in the aftermath of Mother’s death. There was a pending truancy matter, the Child had since enrolled in cyber school, and he might be held back a grade. Father did not appear at the status conference. Both sets of Grandparents, each represented by substitute counsel, traded blame and accusations. There had been just one visit between the Child and the Paternal Grandparents for the last 8 months, dating back to September 2022. There was doubt as to whether the recommendation of the guardian ad litem was valid, given his failure to interview the Paternal Grandparents. Even the trial court recognized that the record had gone stale, that a final custody order had to be issued so that the litigants could either appeal or initiate modification proceedings. See generally N.T., 5/23/23, at 1-37.
The court ultimately issued its final custody order and memorandum opinion on June 7, 2023 – two years after the first date of the evidentiary hearing.
Slip op. at 2-11. While acknowledging that Material Grandparents did not meet the technical requirements under 23 Pa.C.S.A. § 5324, the trial court determined that Maternal Grandparents had standing for any form of custody. Superior Court summarized the trial court’s order as follows:
The trial court awarded Maternal Grandparents primary physical custody and shared legal custody. The court awarded Paternal Grandparents partial physical custody, which they could exercise on the fourth full weekend of each month. The court awarded Father shared legal custody and partial physical custody every Tuesday and Thursday evening, and the second full weekend of each month; but the order provided Paternal Grandparents the ability to assume Father’s custody time if he chose not to exercise it. During the summer, the Maternal and Paternal Grandparents would share physical custody.
Slip op. at 11-12. Paternal Grandmother appealed to Superior Court.
Superior Court reversed the trial court and held that Material Grandparents lacked standing because they did not file their action within the requisite timeframe under Section 5324(3)(iii)(C) of the Child Custody Act. The court found that Maternal Grandparents’ filing of the July 2020 “Petition to Intervene/Emergency Custody” did not satisfy or toll the 6 month filing requirement, reasoning that:
Assuming the clock began when Mother and the Child moved in May 2020, Maternal Grandparents would have had to file an action for primary and/or legal custody by November 2020. They did not. They only filed under that ground, and for that type of action, when they brought their complaint in May 2021 – one year after the Child’s removal and six months too late.
Maternal Grandparents maintain that they satisfied the six-month filing requirement when they filed their July 2020 “Petition to Intervene/Emergency Custody.” We recognize that Maternal Grandparents averred in that pleading they stood in loco parentis; and we further note that they requested “emergency shared legal and physical custody of the Child.” See Maternal Grandparents’ Petition to Intervene/Emergency Custody, 7/9/21 at ¶15. Although they did not specify a statutory basis in their petition, the pleading at least suggested standing for any form of custody under Section 5324(2). Perhaps this would have sufficed. But at the ensuing video conference, Maternal Grandparents clarified that they were seeking only “immediate partial custody rights.” See Order of Court, 8/13/20.
Moreover, Maternal Grandparents then abandoned their July 2020 petition when they filed their May 2021 complaint. First, they alleged in the May 2021 complaint that no other custody action was pending. See Maternal Grandparents Complaint for Custody Modification at ¶14. Second, Maternal Grandparents alleged new – and different – grounds for standing. They asserted standing under Section 5324(3)(iii)(C), but not under subsection (2) (relating to in loco parentis status); and they asserted standing for partial custody under Section 5325(1) (pertaining to the death of a parent), but not any other ground under Section 5325(2) or (3). See id. at ¶¶ 18, 19.
Had the trial court conducted an evidentiary hearing on Maternal Grandparents’ July 2020 action for partial custody, prior to Mother’s death, Maternal Grandparents would have likely satisfied Section 5325(3), which contains nearly identical language to Section 5324(3)(iii)(C). Following Mother’s death, Maternal Grandparent’s qualified for partial custody under Section 5325(1). However, an action for partial custody is categorically different than an action for primary custody or legal custody. We conclude that Maternal Grandparents’ action for partial custody under Section 5325 did not toll the timeframe for a primary or legal custody action under Section 5324(3)(iii)(C).
Slip op. at 18-20. Superior Court found that Maternal Grandparents’ also did not satisfy Section 5324(3)(iii)(C)’s requirement that the child to reside with the grandparent for 12 consecutive months prior to the removal of the child by the parent, explaining that:
Thus far, our construction of the statutory timeline under Section 5324(3)(iii)(C) has been based on the assumption that the Child had resided with the Maternal Grandparents until May 2020. However, the record demonstrates that the Child lived separately from Maternal Grandparents from approximately 2015 onward.
Slip op. at 21. Superior Court also rejected Material Grandparents’ argument that they had standing to pursue custody pursuant to § 5324(3)(iii)(B), which grants standing to a grandparent if the child is substantially at risk due to abuse, neglect, drug abuse or incapacity. “Not[ing its] ardent disapproval of how this proceeding was conducted,” Superior Court concluded:
The delays in this case have been unconscionable. Pennsylvania Rule of Procedure 1915.4 provides for the prompt disposition of custody cases. Under Rule 1915.4(c), the hearing shall commence within 90 days of the scheduling order, and the hearings shall be heard on consecutive days or concluded no later than 45 days from the commencement. Under subsection (d), the court shall issue a decision within 15 days after the matter is concluded – or 45 days, if there is a need for an extension. We understand that special relief can be granted under subsection (e), but it seems nearly every time-constraint enumerated in Rule 1915.4 was ignored. Our ire toward these delays is tempered only by our recognition of the COVID-19 judicial emergency, the prior judge’s solemn decision to recuse, and the wisdom to know that no certified record reveals the entire story.
Equally disappointing, the threshold question of standing was largely an afterthought. Much of this litigation could have been avoided. From what we can discern, the only time the court really considered standing was in its final memorandum opinion, wherein the court conceded, after two years of litigation, that Maternal Grandparents were untimely. Despite having knowledge of this dispositive fact since the beginning of the case, the trial court inexplicably did not grant the repeated requests made by Father or Paternal Grandmother to reconsider its standing decision.
The result has been a complete waste of judicial resources, and it has come at a steep cost to everyone involved; not only the financial cost, but also the cost of placing testimony in the record against the Child’s other relatives, which will not be forgotten for some time. Worse yet, these proceedings have had taken a devastating toll on the Child, who had to endure yearslong, acrimonious litigation immediately after losing his Mother under heart-wrenching circumstances. Even if we reached the merits of the trial court’s substantive custody analysis, any decision would be moot because of the delay. Regardless of whether we remanded for further proceedings or affirmed the custody order, the case would immediately be ripe for modification due to the change in circumstances from when the case began to when it ended.
In reaching our disposition, we emphasize that the standing inquiry is a legal question independent of the best-interests considerations. See In Interest of M.R.F., III, 182 A.3d 1050, 1057 (Pa. Super. 2018). We recognize that Maternal Grandparents still have standing for partial physical custody under 23 Pa.C.S.A. § 5325(1), due to Mother’s death. Upon remand, we direct the trial court to consider whether it would be in the Child’s best interests to award Maternal Grandparents partial physical custody. See 23 Pa.C.S.A. § 5328(a) (relating to best interest factors); (c) (relating to grandparent considerations). We are loathe to order further proceedings but recognize the same might be necessary. Grandparents know what is best for the Child. We remind them of the caustic effects that prolonged custody litigation and family infighting have on everyone, and we urge them to work together moving forward.
Slip op. at 25-27.
In dissent, Judge Bowes agreed with the majority’s criticism of the trial court’s three-year delay in resolving the custody dispute, but disagreed that Maternal Grandparents lacked standing to pursue primary custody. The dissent opined that Maternal Grandparents established standing to pursue custody pursuant to § 5324(3)(iii)(B), which does not implicate the six-month period following the child’s removal, concluding that:
Notwithstanding the majority’s contrary conclusion, the record bears out that Father is unconcerned about A.J.L. Father’s involvement with his son has been minimal, and despite receiving at least partial physical custody of the child throughout this litigation, he has declined to exercise custody consistently and frequently failed to attend custody exchanges. Consequently, the 2020 consent order between Mother and Father, which granted Paternal Grandmother shared physical and legal custody, excluded Father from physical custody, except during holidays. Overall, the trial court opined, “Indeed, in some respects it would appear that Father had no relationship with the Child but for the involvement of his parents during their periods of custody.” Trial Court Opinion, 6/7/23, numbered at 11. Indeed, Paternal Grandmother is the sole driving force behind this appeal, as Father neither appealed the at-issue custody order nor bothered to file a brief with this Court.
Likewise, insomuch as harm may transcend physical mistreatment, the record also demonstrates that A.J.L.’s mental health and emotional welfare is substantially at risk due to Father’s apathy. A.J.L. suffers from depression, endures mental health problems which require medication, and has chronic academic issues that risked him being held back a grade. A.J.L.’s mental health concerns were aggravated by both the death of his mother and this extended custody litigation. Significantly, when the parties met to discuss this reality with the trial court, Father neglected to appear at the status conference. Considering A.J.L.’s mental health problems and emotional struggles and the fact that harm manifests in myriad forms, I reject the majority’s foundational premise that Father’s delegation of parenting responsibilities to Paternal Grandmother effectively bars Maternal Grandparents from establishing standing under 5324(3)(iii)(B). In fact, I believe that Father’s reliance upon Paternal Grandmother to satisfy his parental obligations in this situation, where he exercises shared legal custody and periods of physical custody independent from Paternal Grandmother, creates, rather than alleviates, the ongoing possibility of a substantial risk to A.J.L. due to Father’s neglect or incapacity.
We confronted a similar situation in G.A.P., 194 A.3d at 618, where the trial court sustained maternal great-grandparents’ preliminary objection to a paternal grandparent’s petition to intervene in a custody dispute pursuant to § 5324(3)(iii)(b). The maternal great-grandparents had exercised primary physical custody of the seven-year-old child and the father had periods of supervised physical custody. Paternal grandparents sought to intervene because both parents had problems with substance abuse, the father a criminal history, and the father had recently relapsed. Maternal great-grandparents filed a preliminary objection asserting that the child was not substantially at risk because they were exercising primary physical custody. The trial court sustained the objection without a hearing.
In reversing the order, this Court extended the concept of substantial risk to include a theoretical future detriment associated with a parent’s retention of parental rights and concluded that, because the parental rights of the mother and father had not been terminated, the child remained substantially at risk due to parental behaviors. Id. Phrased differently, the G.A.P. Court reasoned, (“[s]ince parental rights have not been terminated or relinquished, it is possible for either parent to seek custody of Child. This possibility creates an ongoing risk to Child.”).
For the same reasons that we reversed the order denying standing in G.A.P., it is irrelevant, herein, that Father shifted his parental responsibilities to Paternal Grandmother. Regardless of that arrangement, Father has maintained his parental rights, and in fact, was awarded both shared legal custody and periods of physical custody independent from Paternal Grandmother, even if he neglects to exercise those rights. In essence, Father’s indifference toward his son places the child substantially at risk. See G.A.P. 194 A.3d at 618; Martinez v. Baxter, 725 A.2d 775 (Pa. Super. 1999) (applying the predecessor to § 5324, and holding, “[w]e will not interpret this statute to deprive grandparents of this privileged status merely because CYS has stepped in before the grandparent has had an opportunity to assert her interest in raising her grandchild”).
Thus, for all the foregoing reasons I respectfully dissent. Rather than reverse the custody order and not only strip Maternal Grandparents of shared legal custody and primary physical custody, but also deprive them of standing to seek anything beyond periods of partial physical custody, I would either affirm the custody order based on the existing record or, at least, remand for the trial court to make a factual assessment regarding Maternal Grandparents’ standing to proceed under § 5324(3)(iii)(B).
Dissent slip op. at 5-9.
The Pennsylvania Supreme Court will consider the following issue:
Do Maternal Grandparents lack standing to seek primary physical custody and primary legal custody of Child, as their standing request is not supported by the standards set forth in 23 Pa.C.S. 5324?