R.S. v. S.D. & M.S. v. G.L.S. v. S.D. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.S. AND D.S., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
S.D. AND M.S.,
Appellees
v.
G.L.S. II,
Appellee
v.
S.D.,
Appellee
v.
M.S.,
Appellee No. 1480 WDA 2013
Appeal from the Order August 15, 2013
In the Court of Common Pleas of Clearfield County
Civil Division at No(s): 2012-309--CD
BEFORE: BOWES, WECHT, and STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 12, 2015
R.S. and D.S., (collectively “Appellants”) appeal the order granting a
petition filed by S.D. (“Mother”) to dismiss Appellants’ custody complaint and
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vacate the concomitant custody order concerning Appellants’ putative
grandson, C.S. After careful review, we reverse and remand.
C.S. was born during March 2009, while Mother was engaged in a
sexual relationship with Appellants’ son, Putative Father. N.T., 5/2/13, at
41. The couple resided together and Putative Father assisted Mother during
the delivery, identified himself as the birth father on C.S.’s birth certificate,
and subsequently executed an acknowledgement of paternity. Id. at 50-51.
Mother, Putative Father, and C.S. remained together as a family for
approximately two and one-half years. While the family was intact,
Appellants interacted frequently with C.S. and developed a strong bond.
C.S. refers to Appellants as “Grammy and Pappy.” Id. at 56. Mother
testified during the hearing that Appellants visited C.S. periodically at Mother
and Putative Father’s home, and at other occasions, the family would visit
Appellants’ home. Id. at 41. In fact, she explained that C.S. spent portions
of “mostly every weekend” with Appellants. Id.
However, Mother and Putative Father’s romantic relationship began to
dissolve, and the parties separated during August or September of 2011. At
some point thereafter, Mother relocated temporarily to Florida without C.S.
Id. at 23-24. With assistance from Putative Father and a paternal aunt,
Appellants acted as C.S.’s caretakers during Mother’s sojourn. Id. at 23, 25,
42-43. Mother returned to Pennsylvania during November 2011, and briefly
reconciled with Putative Father. Id. at 24-25. However, on February 26,
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2012, the couple separated permanently. Id. at 42. Appellants participated
in the custody exchanges between Mother and Putative Father and acted as
intermediaries when hostilities erupted. Id. at 44-45. Significantly,
throughout this period, Mother acquiesced to Appellants’ interaction with
C.S. as the child’s grandparents and never disclosed to Appellants that she
doubted C.S.’s parentage.
Acting pro se, Appellants filed their complaint for custody of their then-
nearly-three-year-old grandchild on March 1, 2012. The complaint identified
Appellants as grandparents, Mother and Putative Father as parents, and
indicated that C.S. was born out of wedlock. Mother did not challenge
Appellants’ ability to pursue custody. Instead, on May 16, 2012, she and
Appellants agreed to a custody order awarding Mother and Putative Father
shared legal custody of C.S. and granting Mother primary physical custody.
The order granted Appellants partial physical custody of C.S. on Tuesdays
and Thursdays from 10:00 a.m. until 6:00 p.m., and, on alternating
weekends, it extended overnight physical custody between Friday afternoons
and Sunday evenings.
The May 16, 2012 order anticipated that the parties would not petition
the court for further proceedings for six months. Nevertheless, less than
one month after the court entered the order outlining the parties’
agreement, Mother filed a petition to modify the custody arrangement based
upon the results of a privately-obtained DNA test report that concluded that
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the probability of paternity of another man, G.L.S., II, was 99.99997%.
Significantly, Mother not only failed to challenge Appellants’ standing at that
juncture, she agreed to a second custody order dated July 18, 2012, which
was nearly identical to its predecessor except that it removed Appellants’
periods of partial physical custody on Tuesdays. That order, which included
another six-month proviso, did not reference Mother’s private DNA report.
Three months later, on October 17, 2012, Mother filed a second
petition for modification. Again, Mother failed to challenge Appellants’ ability
to maintain their custody action. Instead, this time she requested to modify
the custody order based upon Appellants’ alleged improper supervision of
C.S. during their custodial periods. Specifically, due to her concerns for
C.S.’s safety, Mother desired to terminate Appellants’ partial custody entirely
or reduce it to supervised visitation on Thursday evenings and alternating
weekends.
Before the trial court entered an order disposing of Mother’s second
petition to modify the custody agreement, Mother filed an emergency
petition reiterating identical assertions that she leveled in the October 2012
petition to modify. Although Mother did not assert any challenge to
Appellants’ standing, her petition characterized Appellants’ relationship with
C.S. as “non-biological family.” Petition for Emergency Custody, 11/29/12,
at 1. On December 14, 2012, the trial court dismissed Mother’s second
petition for modification and directed the parties to continue to follow the
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custody arrangement that the parties’ assented to in the July 18, 2012
order. Similarly, following an evidentiary hearing, the trial court
subsequently dismissed Mother’s petition for emergency custody.1
Meanwhile, on December 19, 2012, the trial court entered an order in
a parallel custody dispute among Mother, Putative Father, and G.L.S., II,
wherein the parties to that case granted to G.L.S., II periods of physical
custody one evening per week and overnight custody on alternating Friday
evenings. The custody rights were contingent upon court-ordered genetic
testing confirming that G.L.S., II is C.S.’s biological father. Trial Court
Order, 12/19/12, at 1. Significantly, the accord provided that the newly-
awarded custody rights “shall not interfere with the directives set forth in
[the] July 18, 2012 [order] entered [in the case-at-bar.]” Id. at 2. The trial
court eventually established the paternity of G.L.S., II, and, as discussed
infra, it ultimately consolidated G.L.S., II’s litigation into the present case.
Thereafter, on February 1, 2013, Mother filed another petition for
emergency custody. Identifying Appellants as “legalized family,” this
petition alleged that Appellants permitted C.S. to play near dangerous
physical conditions in their household. See Petition for Emergency Custody,
2/1/13, at 1, 2. Based on these allegations, Mother reiterated her request
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1
The trial court also found Mother in contempt “for [f]ailure to [c]omply
with [the] Court’s Order of July 1[8], 2012[,]” but it declined to impose any
sanctions. Trial Court Order, 2/1/13, at 1.
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to modify the custody accord in order to terminate Appellants’ custodial
rights. Id. at 2. The trial court eventually suspended Appellants’ custodial
rights for eleven days. When the trial court reinstated custodial rights, it
reduced the custodial periods to Thursdays from 10:00 a.m. until 6:00 p.m.,
and Saturdays and Sundays from 10:00 a.m. until 6:00 p.m. on alternate
weekends.
While the serial emergency petition was pending, on February 20,
2013, Mother filed a third petition to modify the custody agreement. At that
time, Mother first leveled the complaint that she did not have enough
custodial time with C.S. in light of the additional periods of physical custody
exercised by G.L.S., II and his parents. The trial court did not reduce
Appellants’ custodial periods based upon this petition. In actuality, as noted
supra, the court revised the custody order following the evidentiary hearing
regarding Mother’s second petition for emergency custody.
Appellants obtained counsel and filed a petition for reconsideration of
the March 11, 2013 order reinstating Appellants’ custody rights subject to
the reduced custodial periods.2 Mother retained counsel on March 28, 2013.
After G.L.S., II successfully petitioned to have his custody suit against
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2
Even though the August 16, 2013 order denied Appellants’ motion for
reconsideration of the trial court’s March 11, 2013 order reducing Appellants’
custodial period, the merits of that order are not before this Court because
Appellants’ motion to reconsider did not toll the appeal period and Appellants
failed to appeal that order within thirty days.
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Mother and Putative Father consolidated with the instant custody litigation,
Mother, for the first time in the year-long custody dispute, attacked
Appellants’ standing to pursue physical custody of then-four-year-old C.S.
Specifically, on April 8, 2013, Mother filed a motion to dismiss/motion
to vacate. Mother sought to dismiss Appellants’ March 1, 2012 custody
complaint that formed the genesis of this litigation and to vacate all of the
custody orders that flowed from that complaint. The crux of Mother’s
argument was that since Putative Father was not C.S.’s birth parent,
Appellants lacked standing to pursue custody of C.S. pursuant to 23 Pa.C.S.
§ 5324. Appellants countered that Mother was estopped from challenging
standing because she misled them to believe that Putative Father was the
birth father. Accordingly, they asserted that their custodial rights should not
be subject to divestiture.
Rejecting Appellants’ contention that Mother was estopped from
terminating their custodial rights, the trial court found that Mother’s
revelation effectively denied Appellants standing to defend their custody
rights. This timely appeal followed.
Appellants present two questions for our review:
I. Whether the trial court erred when it failed to estop
[Mother] from terminating the visitation and custody rights of
the appellants.
II. Whether the trial court erred when it failed to
recognize that the best interests of the child were served by
continued visitation and custody with the Appellants, the only
Grandparents the child has ever known since birth.
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Appellants’ brief at 7.3
We review the trial court’s decision for an abuse of discretion. Kellogg
v. Kellogg, 646 A.2d 1246, 1250 (Pa.Super. 1994) (“Once the trial court
determination is made [as to standing], it will be reviewed by this court in
the same manner that we review any such determination, that is, under an
abuse of discretion or error of law standard.”). We recently reiterated the
pertinent principles as follows:
The concept of standing, an element of justiciability, is a
fundamental one in our jurisprudence: no matter will be
adjudicated by our courts unless it is brought by a party
aggrieved in that his or her rights have been invaded or
infringed by the matter complained of. The purpose of this rule
is to ensure that cases are presented to the court by one having
a genuine, and not merely a theoretical, interest in the matter.
Thus the traditional test for standing is that the proponent of the
action must have a direct, substantial and immediate interest in
the matter at hand.
....
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3
As we grant relief based upon Appellants’ first issue, we need not address
their second argument. We observe, however, that the Child Custody Law
does not require trial courts to consider a child’s best interest pursuant to 23
Pa.C.S. § 5328(a) when determining a party’s standing to file a custody
complaint.
While the issue of standing does not implicate a best-interest analysis, the
trial court should engage in a complete best-interest analysis under section
5328(a) prior to altering the custody schedule. Even though the trial court
terminated the then-existing physical custody arrangement without engaging
in a best-interest analysis, the inquiry is warranted prior to re-instating the
terms of the custody schedule outlined in the March 11, 2013 order. To be
clear, however, the trial court’s best-interest analysis does not negate
Appellants’ standing to pursue custody of C.S.
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In the area of child custody, principles of standing have been
applied with particular scrupulousness because they serve a dual
purpose: not only to protect the interest of the court system by
assuring that actions are litigated by appropriate parties, but also
to prevent intrusion into the protected domain of the family by
those who are merely strangers, however well-meaning.
D.G. v. D.B., 91 A.3d 706 (Pa.Super. 2014) (quoting J.A.L. v. E.P.H., 682
A.2d 1314, 1318 (1996)) (internal quotations and citations omitted).
At the outset, we observe that Mother’s challenge to Appellants’
standing is waived because Mother did not raise it as early as possible.4
Instantly, Mother challenged Appellants’ standing thirteen months after
Appellants filed their March 2012 custody complaint. In Kellogg, supra, we
held that Pa.R.C.P. 1915.5(a), regarding preliminary objections to
jurisdiction or venue in custody actions, implicitly encompassed objections to
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4
Despite the learned dissent’s protestations to the contrary, we do not
address this issue sua sponte. The issue was raised implicitly in Appellants’
immediate response to Mother’s motion to dismiss/motion to vacate, and it
remains an aspect of their estoppel argument. Specifically, Appellants
countered Mother’s motion by asserting that she was estopped, based upon
her actions and inaction, from challenging their standing to pursue their
custody rights. The ten-month delay between the date that Mother obtained
the results of a DNA test and the date that she finally wielded those results
against Appellants’ right to standing is an innate component of Appellants’
estoppel claim. For example, during the ten-month delay, Mother filed at
least four motions or petitions to modify the custody arrangement to which
she had originally assented; however, none of those filings gave Appellants
notice of her intention to object to their standing based on the results of the
DNA tests that she had obtained. As Appellants’ estoppel argument
necessarily subsumes Mother’s ten-month delay, we reject the distinguished
dissent’s suggestion that the issue is beyond our review.
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standing.5 We explained, “a standing challenge should be raised within the
time period set forth in Rule 1915.5 so as to give a defendant notice of the
other party’s intention to object to the action on this ground.” Id. at 1250.
We continued, “Since resolution of the standing issue has the potential to
control the outcome of the entire case without the court ever reaching the
merits, it is important that the issue be raised as early as possible.” Id.
Kellogg, which predates our current custody statute, involved a
custody dispute between two third-party litigants. The maternal
grandparent, who stood in loco parentis to the two children, objected to the
lack of standing of the father’s first wife, who had no genetic or legal
relationship with the children. In relevant part, we found that objections to
standing should be asserted at the earliest date between either the custody
hearing or within twenty days of service of the custody complaint. However,
recognizing that Rule 1915.5 provides that preliminary objections under that
rule shall not delay the custody proceedings, we concluded that, “The
custody hearing should proceed as scheduled despite the filing of a
preliminary objection based on lack of standing.” Id. The Kellogg Court
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5
Pursuant to Pa.R.C.P. 1915.5(a), “A party must raise any question of
jurisdiction of the person or venue, and may raise any question of standing,
by preliminary objection filed within twenty days of service of the pleading to
which objection is made or at the time of hearing, whichever first occurs. No
other pleading shall be required, but if one is filed it shall not delay the
hearing.”
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continued, “Once a hearing has commenced, a trial court may make the
standing determination at any time, depending on the particular facts and
circumstances before it.” Id.
We also observe that, notwithstanding Mother’s obligation to comply
with Rule 1915.5(a) in challenging Appellants’ standing to file the custody
complaint, in some instances standing in custody cases is fluid due to a
change in circumstances. While our case law does not address whether a
party’s standing to file a custody complaint is subject to re-evaluation during
a custody proceeding, our discussion in Kellogg illustrates that it is
appropriate to consider standing during the pendency of the custody
proceedings even though it is a threshold issue. Additionally, in other
situations, this Court has re-evaluated a party’s standing following a change
in circumstances, such as when a parent whose rights have been terminated
seeks custody or visitation as a third party. See In re D.M., 995 A.2d 371,
375-76 (Pa.Super. 2010) (mother whose parental rights had been
terminated could have standing as third-party to seek custody); Morgan v.
Weiser, 932 A.2d 1183, 1186-87 (Pa.Super. 2007) (biological father whose
parental rights had been terminated could only seek custody or visitation if
he could establish standing as a third party); McNamara v. Thomas, 741
A.2d 778, 781 (Pa.Super. 1999) (biological mother could attempt to
demonstrate third-party standing after death of adoptive parent).
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In light of our position in Kellogg and our instant recognition that
standing in custody cases can be asserted at various times in some
situations, we decline to apply Rule 1915.5(a) mechanically and find waiver
simply because Mother raised her assertion beyond the periods set forth in
that rule. Instead, we review Mother’s actions to determine whether she
acted diligently in invoking the results of the subsequent DNA test to
challenge Appellants’ standing to pursue custody as grandparents. We find
that she did not.
Herein, Mother claimed that she suspected that Putative Father was
not C.S.’s birth father and that she advised him of her doubts. While Mother
could not prove her suspicions that Appellants were not genetic relatives of
C.S. until she obtained the results of DNA testing, that does not excuse
Mother’s protracted delay once she acquired the DNA results during the
ongoing custody proceedings. Mother obtained the results of a private DNA
test during June 2012; however, she did not assert her standing challenge
until April 2013, ten months later. Rather than assert a standing challenge
immediately after receiving confirmation, Mother filed additional pleadings
seeking to reduce Appellants’ custodial rights for various reasons unrelated
to standing. Thus, even acknowledging the fluidity of Appellants’ standing in
this custody case, we find that Mother’s failure to raise the standing
challenge as early as possible is fatal. The continued delay not only
deprived Appellants of notice that Mother intended to object to their partial
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custody rights due to a purported lack of standing, but it also reinforced
their reliance on Mother’s initial representation that they were C.S.’s
grandparents. Consequently, we find the trial court erred in granting
Mother’s motion to dismiss/motion to vacate.
Alternatively, we conclude that Mother’s actions and representations
regarding C.S.’s parentage and her silence in agreeing to the initial custody
order awarding Appellants’ partial physical custody of C.S. were grounds
under the doctrine of equitable estoppel to preclude her from challenging
Appellants’ standing at this juncture. Our reasoning follows.
Appellants argue that Mother is precluded from challenging their
standing based upon the doctrines of judicial estoppel, equitable estoppel,
and unclean hands. In rejecting Appellants’ invocation of the three
divergent principles of judicial estoppel, equitable estoppel, and unclean
hands, the trial court addressed all of the arguments under the rubric of
paternity by estoppel and concluded that estoppel was inapplicable herein
because Appellants acted as grandparents rather than parents. Relying
upon case law addressing the related, but distinct, doctrine of paternity by
estoppel, which is codified at 23 Pa.C.S. § 5102, the trial court concluded
that the rationale behind the application of estoppel in paternity actions
between parents does not extend to Appellants as grandparents. The
impetus for that doctrine is the public policy in favor of children being secure
in knowing the identity of their parents and in favor of preventing children
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from suffering the potentially damaging trauma associated with the
realization that the father they have known all their lives is not, in fact, their
father. As Appellants are not C.S.’s father, the trial court found that
paternity by estoppel was inapplicable and that Mother’s revelation
effectively denied Appellants standing to defend their custody rights. For the
reasons delineated below, we find that the trial court erred.
Primarily, we observe that Appellants’ reliance upon judicial estoppel is
misplaced. In In re S.A.J., 838 A.2d 616, 620 (Pa. 2003), our Supreme
Court defined judicial estoppel and explained its application. “As a general
rule, a party to an action is estopped from assuming a position inconsistent
with his or her assertion in a previous action, if his or her contention was
successfully maintained.” The High Court iterated, “the purpose of judicial
estoppel is ‘to uphold the integrity of the courts by ‘preventing parties from
abusing the judicial process by changing positions as the moment requires.’”
Id. at 621 (quoting Trowbridge v. Scranton Artificial Limb Company,
747 A.2d 862, 865 (Pa. 2000)) (select internal quotations omitted).
As judicial estoppel relates only to a party involved in a second or
subsequent proceeding, it is self-evident that judicial estoppel is inapplicable
where, as here, the dispute in which the doctrine is invoked is the first action
between the parties, and the party against whom the doctrine is being
invoked did not raise an inconsistent position in any other litigation. Stated
simply, no previous proceeding exists wherein Appellants could establish
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that Mother successfully assumed a position that is inconsistent with her
current stance. While we recognize the crux of Appellants’ argument, i.e.,
that Mother previously treated them as the child’s grandparents but
currently disputes that relationship, the procedural posture of this case
precludes the application of judicial estoppel. Accordingly, Appellants’
reliance on the doctrine of judicial estoppel is inapt herein.6
Moreover, since Appellants failed to develop any legal argument
regarding the trial court’s refusal to apply the doctrine of unclean hands,
that issue is waived. See In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super.
2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa.Super. 2010)) (“[W]here
an appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.”). Thus, that argument also
fails.
Nevertheless, while Appellants’ reliance upon the doctrines of judicial
estoppel and unclean hands is unavailing, we find that Mother is equitably
estopped from terminating Appellants’ custodial rights. Equitable estoppel is
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6
To be clear, unlike the related but distinct doctrine of collateral estoppel,
which protects the finality of judgments, judicial estoppel does not require a
final adjudication. It is sufficient for the application of judicial estoppel that
a party successfully raised an inconsistent position in a different proceeding,
even if a final adjudication was never entered. In re Adoption of S.A.J.,
838 A.2d 616, 623 n.4 (Pa. 2003). Herein, Appellants failed to demonstrate
that Mother raised an inconsistent position during any other proceeding.
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founded on fairness and applies completely independently of any prior
judicial decisions. See Everett v. Anglemeyer, 625 A.2d 1252, 1255
(Pa.Super. 1993) (“Equitable estoppel . . . refers to estoppel created by a
party's conduct and has nothing to do with a prior judicial determination.”).
In contrast to the trial court’s perspective that jurisprudence precludes the
application of equitable estoppel in the case at bar, our review of the case
law did not reveal a single case that addressed a non-biological
grandparent’s ability to invoke equitable estoppel against a birth parent who
not only actively misled them to believe the child was their grandchild, but
also consented to the exercise of custodial rights. Indeed, the paternity
cases that the trial court relies upon do not confront the instant scenario to
any extent.
Unlike paternity by estoppel, which estops a father from disclaiming
paternity due to his prior conduct, in part, to protect the child from the
trauma associated with the revelation, equitable estoppel binds a party to
the implications created by their words, deeds or representations. In L.S.K.
v. H.A.N., 813 A.2d 872, 877 (Pa.Super. 2002), we explained,
Equitable estoppel applies to prevent a party from assuming a
position or asserting a right to another's disadvantage
inconsistent with a position previously taken. Equitable
estoppel, reduced to its essence, is a doctrine of fundamental
fairness designed to preclude a party from depriving another of a
reasonable expectation when the party inducing the expectation
albeit gratuitously knew or should have known that the other
would rely upon that conduct to his detriment.
Id. (citations and quotation marks omitted).
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With this principle in mind, we detail the following evidence regarding
estoppel.7 Herein, Mother represented over a two-year period that
Appellants were C.S.’s birth grandparents. Although Mother suspected from
the outset that Putative Father was not C.S’s birth parent, she identified him
as the father on the child’s birth certificate and executed an
acknowledgement of paternity that identified him as C.S.’s father. Similarly,
her actions encouraged Appellants to fashion and maintain a grandparent-
child relationship with C.S.
Moreover, after Appellants initiated this custody litigation, Mother not
only failed to immediately challenge their status as grandparents, but she
also twice agreed to custody orders assenting to their right to exercise
periods of physical custody of C.S. Then, having conceded that right, she
mounted a largely unsuccessful campaign to erode the terms of the custody
arrangement. First, she invoked the results of the privately-obtained DNA
test as a basis to modify the custody agreement. However, rather than
challenge Appellants’ standing or assail their ability to maintain a
grandparent-child relationship with C.S., she consented to a second, slightly
less arduous custody arrangement. Over the next seven months, Mother
filed four more petitions seeking to reduce Appellants’ periods of partial
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7
Since Mother’s actions and representations throughout the history of this
case are gleaned primarily from the list of docket entries and Mother’s
pleadings, they are not subject to inference or supposition. Stated simply,
the filings speak for themselves.
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custody. None of the petitions leveled a challenge to Appellants’ standing,
and all but one were founded upon Mother’s purported concerns about
Appellants’ alleged lack of proper supervision. As the trial court did not
share Mother’s apprehensions, the custody arrangement continued
principally unchanged from the July 18, 2012 custody agreement, except for
the brief eleven-day suspension and the removal of the overnight portion of
the weekend visits.
The trial court ignores Mother’s inaction and consent to Appellants’
custody rights in declining to apply equitable estoppel to prevent Mother
from invoking the results of a paternity test to strip Appellants of their
custody rights. Mother misled Appellants into believing that they were
paternal grandparents. Appellants have always held themselves out as
C.S.’s grandparents, and with Mother’s express consent and endorsement,
they have exercised legitimate, court-ordered custodial rights as C.S.’s
grandparents since May of 2012.
Mother’s actions and representations regarding C.S.’s parentage for
the first two years of the child’s life and her silence in agreeing to the initial
custody order induced Appellants to believe that C.S. was their grandchild.
Appellants relied upon Mother’s representations and omissions to their
detriment, and would be severely prejudiced if Mother were permitted to
invoke the results of the genetic testing at this point in order to deny their
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beneficial relationship with C.S. Thus, we conclude that the trial court erred
in holding that equitable estoppel was inapplicable.
Having found that Mother is equitably estopped from challenging
Appellants’ status as grandparents, we observe that Appellants attained
standing to pursue partial custody of C.S. pursuant to 23 Pa.C.S. § 5325(2),
relating to grandparent’s standing for partial custody, during August of
2012, six months after Mother and Appellants’ son, Putative Father,
separated permanently. While Appellants’ initial custody complaint sought
primary custody of C.S., all of the custody orders that flowed from the
custody complaint and the precise custody rights that Appellants are fighting
to retain on appeal relate to partial physical custody under section 5325(2)
of the Child Custody Law, which provides as follows:
Section 5325(2) of the Child Custody Law provides as follows:
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:
....
(2) where the parents of the child have been separated for a
period of at least six months or have commenced and continued
a proceeding to dissolve their marriage[.]
23 Pa.C.S. § 5325(2). In L.A.L. v. V.D., 72 A.3d 690 (Pa.Super. 2013), this
Court recently addressed case law under § 5325(2)’s predecessor statute,
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§ 5312, to confirm that standing under § 5325 extends to grandparents of
children who were born out of wedlock.
Accordingly, to the extent that Mother’s standing challenge is not
waived, which it is, we find that the doctrine of equitable estoppel applies to
preclude Mother from challenging Appellants’ standing to maintain partial
physical custody of C.S., and we hold that the trial court erred in granting
Mother’s motion to dismiss/motion to vacate. Thus, for all of the foregoing
reasons, we reverse that order and direct the trial court to reinstate the
March 11, 2013 order granting Appellants periods of partial custody subject
to the trial court’s best-interest analysis pursuant to § 5328(a).
Order reversed. Matter remanded with directions. Jurisdiction
relinquished.
Judge Wecht joins the Memorandum.
Judge Stabile files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2015
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