J.K. and J.K. v. J.D. ( 2019 )

J-A14015-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.K. AND J.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
J.D. :
:
Appellant : No. 99 WDA 2019
Appeal from the Order Entered December 19, 2018
In the Court of Common Pleas of Butler County
Civil Division at No(s): FC07-90783-C-2
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 19, 2019
J.D. (“Father”) appeals from the order entered December 19, 2018, in
the Court of Common Pleas of Butler County, which granted his motion for
reconsideration, but denied his requested relief, by directing that the maternal
grandmother and step-grandfather, J.K. and J.K. (“Grandparents”), retain
standing to pursue partial physical custody of his son, X.D. (“Child”), born in
January 2007.1 After careful review, we affirm.
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1 This order is final and appealable because the trial court entered it after
completing its hearings on the merits, and because it completely resolved the
parties’ pending custody claims. See G.B. v. M.M.B., 670 A.2d 714, 720 (Pa.
Super. 1996).
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The instant dispute began on May 20, 2011, when Grandparents filed a
complaint seeking partial physical custody of Child.2 Grandparents asserted
that they had standing to pursue custody of Child based on 23 Pa.C.S. § 5312.
Prior to its repeal,3 Section 5312 provided standing to grandparents to pursue
“reasonable partial custody or visitation rights”4 when the subject grandchild’s
parents “have been separated for six months or more[.]” 23 Pa.C.S. § 5312
(repealed). While the details are not clear from the record, it is undisputed
that Child was born out of wedlock and that Father and K.K. were separated
prior to the filing of the complaint.
The parties attended a conference before a conciliator on June 10, 2011.
The conciliator issued a report, which the trial court adopted as an interim
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2 The trial court docket indicates that Father and Child’s biological mother,
K.K., commenced a custody proceeding in 2007. The documents pertaining
to that proceeding do not appear in the certified record.
3 Notably, our General Assembly repealed Section 5312 effective January 24,
2011, well before Grandparents filed their complaint. It replaced Section 5312
with a similar provision found at 23 Pa.C.S. § 5325(2). Our Supreme Court
later struck down that provision as unconstitutional in D.P. v. G.J.P., 146
A.3d 204 (Pa. 2016). The General Assembly has since amended Section 5325,
effective July 3, 2018, and a comparable provision no longer exists.
4 The predecessor to our current child custody statute treated “custody” and
“visitation” as distinct awards. See 23 Pa.C.S. § 5302 (defining “visitation”
as “The right to visit a child. The term does not include the right to remove a
child from the custodial parent’s control.”). Our current statute eliminates this
distinction. See 23 Pa.C.S. § 5322(b) (“In a statutory provision other than in
this chapter, when the term ‘visitation’ is used in reference to child custody,
the term may be construed to mean: (1) partial physical custody; (2) shared
physical custody; or (3) supervised physical custody.”).
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order on June 16, 2011. Relevant to this appeal, both the report and the
interim order included provisions indicating that Father preserved a challenge
to Grandparents’ standing. See, e.g., Order, 6/16/11, at 1 (unnumbered
pages) (“It is further ordered that the Father’s right to challenge Maternal
Grandparent[s’] standing in this case is hereby preserved.”).
Ultimately, the parties reached a custody agreement, which the trial
court entered as an order on September 15, 2011. The order awarded primary
physical custody of Child to Father and awarded partial physical custody to
Grandparents every other Monday from 4:30 p.m. until 8:30 p.m. and on the
fourth Saturday of each month from 10:00 a.m. until 6:00 p.m. The order
also awarded Grandparents one extended weekend of custody during the
summer from Thursday at 6:00 p.m. until Monday at 6:00 p.m. The order
made no mention of legal custody.
No further activity occurred in this matter until Father filed a pleading
entitled “Motion to Vacate and Dismiss” on September 12, 2018. Therein,
Father averred that K.K.’s parental rights had been terminated and that his
wife, A.D., adopted Child.5 Father also averred that Grandparents no longer
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5It is important to note that our child custody statute includes the following
provision regarding stepparent adoptions:
Any rights to seek physical custody or legal custody rights and any
custody rights that have been granted under section 5324
(relating to standing for any form of physical custody or legal
custody) or 5325 (relating to standing for partial physical custody
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possessed standing to pursue custody of Child due to the recent amendments
to the Pennsylvania child custody statute at 23 Pa.C.S. § 5325. In the
alternative, Father contended that allowing Grandparents to maintain partial
physical custody of Child would violate his constitutional rights as a parent, as
set forth by our Supreme Court in D.P., supra.
The trial court heard argument on October 31, 2018. Subsequently, on
November 21, 2018, the trial court entered an order denying Father’s motion,
on the basis that “severing a relationship established for years between
[Grandparents] and minor child is not in the child’s best interests.” Order,
11/21/18.
On December 17, 2018, Father presented the trial court with a motion
for reconsideration.6 Therein, Father contended that the court improperly
reached its decision as to Child’s best interest after conducting argument and
without taking any evidence. Father also requested that the court reconsider
its denial of his constitutional and statutory arguments.
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and supervised physical custody) to a grandparent or great-
grandparent prior to the adoption of the child by an individual
other than a stepparent, grandparent or great-grandparent
shall be automatically terminated upon such adoption.
23 Pa.C.S. § 5326 (emphasis added).
6Father presented the motion for reconsideration in person at motions court.
He did not file the motion until December 20, 2018.
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On December 19, 2018, the trial court entered an order granting
Father’s motion for reconsideration for the purpose of clarifying its decision to
deny the motion to vacate and dismiss. Specifically, the court concluded that
the 2018 amendments to the child custody statute “do not have retroactive
effect” on the 2011 order granting custody to Grandparents. Order, 12/19/18.
The court further concluded that the 2011 order did not affect Father’s
constitutional rights and that Father waived any challenge to Grandparents’
standing by failing to raise the issue in 2011.7 Father timely filed a notice of
appeal on January 17, 2019, along with a concise statement of errors
complained of on appeal.
Father now raises the following claims for our review:
1. Whether the trial court committed an error of law by failing to
find that Father’s state and federal constitutional rights to due
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7 The trial court issued an opinion on February 21, 2019, in which it reached
the same conclusions. The court stated as follows:
Contrary to his argument, [Father] did not preserve his
challenge to [Grandparents’] standing in the [September 15,
2011] order of court. Nor has he, since the issuance of said order,
raised any objection to [Grandparents’] standing. Therefore, as
[Father] failed to raise this issue below, it is waived for appellate
consideration.
Furthermore, the court does not find that the amendments,
which became effective on July 3, 2018, are to be applied
retroactively. Therefore, as the issues raised by [Father] in this
appeal are of no merit, the court respectfully requests that the
Order of Court of December 1[9], 2018 be affirmed.
Trial Court Opinion, 2/21/19, at 2.
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process and equal protection were violated by [Grandparents’]
continued exercise of custody[?]
2. Whether the trial court committed an error of law by failing to
find that the 2018 amendments to 23 Pa.C.S. §§ 5324 and 5325
do not deprive [Grandparents] of standing to continue to exercise
custodial rights prospectively[?]
3. Whether the trial court committed an error of law by failing to
find that a custody litigant must maintain standing throughout the
exercise of their custodial rights, elsewise the state’s interest in
exercising [its] parens patriae authority is insufficient to overcome
the constitutional rights of the child’s parents[?]
4. Whether the trial court committed an error of law by finding
that Father had waived these claims (1) because Father expressly
preserved the right to challenge [Grandparents’] standing in this
case, and such preservation was expressly ordered by the trial
court in the first substantive custody order entered with respect
to [G]randparents by order dated June 15, 2011, and (2) because
custody litigants must maintain standing throughout their exercise
of custody, a challenge to that standing is always amenable to
review if the loss of standing renders the state’s intrusion into a
family unit unconstitutional[?]
5. Whether the trial court abused its discretion in its November
20, 2018, order by making a factual determination as to the best
interests of the child without hearing any evidence and, therefore,
failing to consider the factors of 23 Pa.C.S. § 5328, as the
argument on October 31, 2018, was merely an argument on the
legal issues raised by Father’s Motion to Vacate and Dismiss[?]
Father’s Brief 2-3 (footnotes and suggested answers omitted).
Father’s challenge to Grandparents’ standing is a question of law. S.G.
v. J.M.G., 186 A.3d 995, 997 (Pa. Super. 2018), appeal denied, 197 A.3d
1177 (Pa. 2018). Therefore, our standard of review is de novo and our scope
of review is plenary. Id.
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In his issues on appeal combined, Father argues that the trial court erred
by concluding that he waived his challenge to Grandparents’ standing, and by
concluding that the 2018 amendments to the child custody statute did not
deprive Grandparents of standing. Father’s brief at 11-17. He also contends
that Grandparents’ exercise of custody violates his constitutional rights, as
established in D.P., supra. Id. at 8-11. In the alternative, Father contends
that the court erred by making a finding as to Child’s best interests without
conducting an evidentiary hearing and considering the best interest factors
found at 23 Pa.C.S. § 5328(a). Id. at 17-18.
We conclude that the trial court did not abuse its discretion or commit
an error of law by denying Father’s motion to vacate and dismiss. However,
we do so for reasons other than those advanced by the trial court. See In re
A.J.R.-H., 188 A.3d 1157, 1175-76 (Pa. 2018) (“The ‘right for any reason’
doctrine allows an appellate court to affirm the trial court’s decision on any
basis that is supported by the record.”).
As noted above, at the time the trial court entered the September 15,
2011 custody order, Section 5325(2) provided grandparents with standing to
seek partial or supervised physical custody of their grandchildren “where the
parents of the child have been separated for a period of at least six months[.]”
23 Pa.C.S. § 5325(2) (prior to amendment). However, our Supreme Court
struck down the portion of Section 5325(2) providing grandparents with
standing in the event of parental separation in D.P., supra. The Court held
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that the provision “cannot survive strict scrutiny and, as such, it violates the
fundamental rights of parents safeguarded by the Due Process Clause” of the
federal Constitution. D.P., supra, 146 A.3d at 216 (footnote omitted).
Following D.P., our General Assembly passed amendments to Section
5325, which eliminated the offending provision. The current version of Section
5325, which took effect on July 3, 2018, 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:
(1) where the parent of the child is deceased, a parent
or grandparent of the deceased parent may file an
action under this section;
(2) where the relationship with the child began either
with the consent of a parent of the child or under a
court order and where the parents of the child:
(i) have commenced a proceeding for
custody; and
(ii) do not agree as to whether the
grandparents or great-grandparents
should have custody under this section; or
(3) when the child has, for a period of at least 12
consecutive months, resided with the grandparent or
great-grandparent, excluding brief temporary
absences of the child from the home, and is removed
from the home by the parents, an action must be filed
within six months after the removal of the child from
the home.
23 Pa.C.S. § 5325.
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Critical to our resolution of this appeal, our Rules of Civil Procedure
direct that a party to a custody proceeding “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.”
Pa.R.C.P. 1915.5(a). Our case law clarifies that a trial court may reevaluate
standing past the twenty-day deadline for the filing of preliminary objections.
M.G. v. L.D., 155 A.3d 1083, 1087 n.5 (Pa. Super. 2017), appeal denied, 169
A.3d 522 (Pa. 2017); M.W. v. S.T., 196 A.3d 1065 (Pa. Super. 2018), appeal
denied, 199 A.3d 336 (Pa. 2018). Generally, in order to do so, a party must
demonstrate the existence of a factual change in circumstances, such as “the
termination of parental rights or adoption[.]”8 M.G., 155 A.3d at 1087 n.5.
Nonetheless, even assuming that a factual change of circumstances
exists in a particular case, the correct procedural vehicle to challenge standing
is a petition for modification of custody. Section 5338(a) of our child custody
statue provides that, “[u]pon petition, a court may modify a custody order to
serve the best interest of the child.” 23 Pa.C.S. § 5338(a). Neither the rules
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8 The panels in M.G. and M.W. reached seemingly inconsistent conclusions
regarding whether a party may raise standing at any time. Compare M.G.,
155 A.3d at 1087 n.5 (“While standing in custody cases may be fluid under
some circumstances, it certainly cannot be asserted at any time.”), with
M.W., 196 A.3d at 1071 (“[O]ur rules permit parties to raise issues related to
standing beyond the 20-day period. . . . [I]t would not make sense to permit
a party to raise standing at any time, but then consider the factual
circumstances as they existed at the time the complaint was filed[.]”).
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nor the statute permit a party to file a motion requesting that a trial court
vacate or dismiss an existing custody order. See M.W., 196 A.3d at 1067-69
(addressing a request for dismissal filed prior to the entry of a final order);
D.P., 146 A.3d at 205-07 (same). Accordingly, because Father attempted to
challenge Grandparents’ standing by claiming the amended section 5325
should be applied retroactively to an order entered seven years earlier, it was
proper for the trial court to deny Father’s requested relief.
Based on the foregoing, we affirm the trial court’s December 19, 2018
order granting Father’s motion for reconsideration, and denying his request to
vacate and dismiss the existing custody order. If Father intends to challenge
the September 15, 2011 custody order, he may do so by filing a petition for
modification requesting sole custody.9
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2019
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9 If the trial court concludes that a factual change of circumstances has
occurred, the court should provide Grandparents with the opportunity to prove
that they retain standing pursuant to any applicable section of our child
custody statute before granting or denying Father’s petition.
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