Tarr, J. v. Young, F. ( 2022 )

J-S25032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOYCE TARR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
FABIAN YOUNG :
:
Appellant : No. 172 WDA 2022
Appeal from the Order Entered January 26, 2022
In the Court of Common Pleas of Crawford County
Civil Division at No(s): 2021-120-S
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: OCTOBER 21, 2022
Appellant, Fabian Young (“Father”), appeals pro se from the order
entered in the Crawford County Court of Common Pleas, granting primary
physical custody of, and sole decision-making authority concerning, minor
children, L.Y., A.Y., and J.Y. (“Children”) to Appellee, Joyce Tarr (“J.T.”). We
affirm.
The trial court set forth the relevant facts and procedural history of this
case as follows:
This [c]ourt held a de novo custody trial on January 24,
2022 at Father’s request. The parties are [J.T.] and
[Father], who was recently confirmed as the father of the
three Children through paternity testing.
The subjects of this custody action (hereafter “the
Children”) are [L.Y.], born July…2017 (currently age 4),
[A.Y.], born December…2018 (currently age 3), and [J.Y],
born February…2020 (turning 2 in February).
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On March 24, 2021, the biological mother of the Children,
[B.K. (“Mother”)], died of a drug overdose. The Children
resided with their mother since birth at [J.T.’s] residence…in
Guys Mills, Pennsylvania. Presently residing at [J.T.’s]
residence are: [J.T], [J.T.’s grandson R.K.], and the
Children.
The biological father is [Father]. Father resides in Edinboro,
PA, with his girlfriend [J.G., J.G.’s] five year old son [M.],
[Father’s] fourteen year old daughter [N.], and, on
weekends, [Father’s] thirteen year old son. Last week,
Father started a job as a health care worker at Cross Home
Care. Father reports he receives income from side jobs and
two businesses: a cleaning service for Airbnb and another
online business. Father’s girlfriend works at Walmart in
Edinboro, Pennsylvania.
This case has a long procedural and factual history both
before and after [J.T.] filed for custody in April of 2021. The
circumstances surrounding [J.T.] filing for custody of the
Children were as follows: when [Mother] died in March of
2021, [Maternal Grandmother], made an emergency
telephone call to [J.T.] and asked her to care for the
Children. ([Mother] and the Children had been living with
[J.T.] and the Children knew her as a caregiver).[1] For the
transfer, [Maternal Grandmother] arranged to meet [J.T.] in
a church parking lot. When [J.T.] arrived and was waiting
for car seats, Father also arrived. The situation became
hostile and [Maternal Grandmother] called the police. When
the officers arrived, they permitted the Children to go with
their father. Father put the children in his car and left
without car seats.
Having no way to see the Children and no way to contact
Father, [J.T.] filed for custody and appeared in Custody
____________________________________________
1 Mother was raised by her stepfather, J.O., and step-grandmother, J.T.
Mother resided with J.T. frequently throughout her life, including after she
gave birth to Children. Children primarily resided in J.T.’s home with Mother
since they were born. J.T. is the step-great-grandmother to Children, and
Children considered J.T. as a grandparent. Although Children primarily
resided with J.T., on the evening before Mother’s death, Children had visited
with Maternal Grandmother so they were not in J.T.’s care when Mother died.
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Motions Court on April 14, 2021. The Honorable Mark D.
Stevens awarded legal and physical custody of the Children
to [J.T.] Then on April 19, 2021, [J.T.] filed a Motion to
Preserve the Status Quo. On April 22, 2021, the Honorable
John F. Spataro ordered that the Children be immediately
returned to [J.T.] pending mediation. The Judge ordered all
law enforcement authorities to enforce the order. Erie
County Judge John J. Trucilla ordered Erie County law
enforcement and Sheriff’s department to enforce Judge
Spataro’s order. The case proceeded to mediation on June
14, 2021. Father did not appear. Judge Spataro entered
an order following the recommendation of the mediator that
[J.T.] have sole legal and physical custody and reaffirming
that all law enforcement were requested to enforce the
order.
On June 25, 2021, Father filed a Request for De Novo
Hearing stating he was in Florida and did not receive notice
of the mediation. Upon receipt of the request, Judge
Spataro ordered the case to be returned to mediation. [J.T.]
filed an Emergency Petition for Contempt on July 21, 2021.
The motion was withdrawn as Father had already been
found in contempt of Erie County Judge Trucilla’s Order by
the Honorable Connelly Marucci on July 23, 2021. On July
29, 2021, four months after Father left with the Children,
Father relinquished the Children to the Erie County Sheriff’s
Office and [J.T.] received the Children.
Father then filed a Petition to Modify Judge Spataro’s June
14, 2021 custody order seeking sole legal and physical
custody of the Children and, once again, the case was
scheduled for mediation. This time Father appeared. Judge
Spataro adopted the recommendation of the mediator and
entered an order dated August 20, 2021 giving [J.T.]
primary physical custody. Father was given as many
supervised visits as he can afford at The Center For Family
Services. [J.T.] and Father were given shared legal custody
with [J.T.] having sole decision-making authority.
On August 26, 2021, Father’s mother [M.B.], who is the
paternal grandmother to the Children [(“Paternal
Grandmother”)], filed a Petition to Intervene. (When
paternity was established at our de novo hearing on January
24, 2022, the subject of this opinion, the [c]ourt granted
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[Paternal Grandmother’s] Petition to Intervene.)
In September, Father filed a pro se Petition for Contempt, a
Motion for Emergency Custody Order and a Request for a
De Novo Custody Hearing. Father also filed a Motion for
Guardian Ad Litem [(“GAL”)] and a Motion for an Expedited
Hearing. The Motion for Emergency Custody was denied by
Judge Spataro on September 20, 2021. The remainder of
the Motions were heard by the Honorable Senior Judge
William R. Cunningham on September 27, 2021. Judge
Cunningham granted the request for a [GAL], and appointed
Mary Adelman, Esquire, as the GAL. Judge Cunningham
denied or otherwise dispensed the remainder of Father’s pro
se motions, ordering [Father] to complete paternity testing
to establish standing for both Father and [Paternal
Grandmother].
(Opinion and Order, filed 1/26/22, at 1-2).
Following the September 27, 2021 hearing, the court entered an opinion
and order on October 6, 2021, expressly rejecting Father’s claim that J.T.
lacked standing to bring the custody action. The court made clear that J.T.
has been in loco parentis to Children their entire lives. (See Opinion and
Order, filed 10/6/21, at 7-9).
The court held a de novo custody trial on January 24, 2022. On January
26, 2022, the court entered a custody order adopting the same arrangement
set forth in the August 20, 2021 order, namely, awarding J.T. primary physical
custody of Children and Father supervised visitation at The Center for Family
Services; and for J.T. and Father to share legal custody, with J.T. to have sole
decision-making authority. Father timely filed a notice of appeal on February
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7, 2022.2
Father raises four issues for our review:
Did the [trial] court commit an abuse of discretion erring
when it determined that it had jurisdiction to commence
[J.T.’s] child custody action?
Did the [trial] court commit an abuse of discretion erring
when it found that [J.T.] had standing to initiate her custody
action?
Did the [trial] court commit an abuse of discretion erring
when it entered an order of default judgment that
relinquished [Father]’s parental rights to [J.T.]?
Did the [trial] court commit an abuse of discretion erring
when it allowed the child custody proceedings to egregiously
proceed past the allotted time established by law?
(Father’s Brief at iv).3
In custody cases, the relevant scope and standard of review are as
follows:
[T]he appellate court is not bound by the deductions or
inferences made by the trial court from its findings of fact,
nor must the reviewing court accept a finding that has no
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2 Father did not file a concise statement of errors complained of on appeal
contemporaneously with his notice of appeal per Pa.R.A.P. 1925(a)(2)(i).
Following a directive from this Court to file his concise statement by March 14,
2022, Father complied and filed his concise statement on March 9, 2022. We
decline to quash Father’s appeal or deem his issues waived under these
circumstances. See In re K.T.E.L., 983 A.2d 745, 747 n.1 (Pa.Super. 2009)
(stating that appellant’s failure to file concise statement contemporaneously
with notice of appeal in children’s fast track case did not result in waiver on
appeal where appellant subsequently filed statement, and there was no
allegation of prejudice based on late filing).
3We note that Father improperly refers to himself as “appellee” and to J.T. as
“appellant” throughout his brief which makes it difficult to read in some places.
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competent evidence to support it…. However, this broad
scope of review does not vest in the reviewing court the duty
or the privilege of making its own independent
determination…. Thus, an appellate court is empowered to
determine whether the trial court’s incontrovertible factual
findings support its factual conclusions, but it may not
interfere with those conclusions unless they are
unreasonable in view of the trial court’s factual findings; and
thus, represent a gross abuse of discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (quoting
Bovard v. Baker, 775 A.2d 835, 838 (Pa.Super. 2001)). “On 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.” R.M.G., Jr., supra.
The parties cannot dictate the amount of weight the trial
court places on the evidence. Rather, the paramount
concern of the trial court is the best interest of the child.
Appellate interference is unwarranted if the trial court’s
consideration of the best interest of the child was careful
and thorough, and we are unable to find any abuse of
discretion.
Id. (quoting S.M. v. J.M., 811 A.2d 621, 623 (Pa.Super. 2002)). Additionally,
when making an award of custody, the court must evaluate the custody factors
delineated in Section 5328. See 23 Pa.C.S.A. § 5328(a) (factors to consider
when awarding custody).
In his first issue, Father argues the trial court lacked jurisdiction over
the custody matter. Father asserts that Erie County was the proper venue in
which to file the custody complaint because Children had resided there for 12
months preceding the filing of the complaint. Father claims that J.T.
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improperly filed the custody complaint in Crawford County, before she had
“physical possession of the children[.]” (Father’s Brief at 8). Father insists
J.T. knowingly and intentionally included misstatements and omissions of
material facts in the complaint,4 which prevented the court from performing
its “neutral and detached function, thereby voiding the complaint.” (Id. at 9).
We disagree.
Initially, we observe:
A court’s decision to exercise or decline jurisdiction is
subject to an abuse of discretion standard of review and will
not be disturbed absent an abuse of that discretion. Under
Pennsylvania law, an abuse of discretion occurs when the
court has overridden or misapplied the law, when its
judgment is manifestly unreasonable, or when there is
insufficient evidence of record to support the court’s
findings. An abuse of discretion requires clear and
convincing evidence that the trial court misapplied the law
or failed to follow proper legal procedures.
Lucas v. Lucas, 882 A.2d 523, 527 (Pa.Super. 2005). This Court has
explained:
Frequently, the terms jurisdiction and venue are used
interchangeably although in fact they represent distinctly
different concepts. Subject matter jurisdiction refers to the
competency of a given court to determine controversies of
a particular class or kind to which the case presented for its
consideration belongs. Venue is the place in which a
particular action is to be brought and determined, and is a
matter for the convenience of the litigants. Jurisdiction
denotes the power of the court whereas venue considers the
practicalities to determine the appropriate forum.
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4Father does not elaborate in his brief on J.T.’s purported “misstatements and
omissions of material facts.”
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J.K. v. W.L.K., 102 A.3d 511, 513 (Pa.Super. 2014) (internal citation
omitted).
Pennsylvania Rule of Civil Procedure 1915.2 governs the venue of
custody matters. The Rule provides, in relevant part:
Rule 1915.2. Venue
(a) An action may be brought in any county
(1)(i) which is the home county of the child at the
commencement of the proceeding, or
(ii) which had been the child’s home county within six
months before commencement of the proceeding and the
child is absent from the county but a parent or person acting
as parent continues to live in the county[.]
Pa.R.C.P. 1915.2(a)(1).
Instantly, J.T. presented testimony/evidence throughout the history of
this case that Children resided in J.T.’s home with Mother in Crawford County
prior to Mother’s death. J.T. acknowledged that on occasion Mother would
take Children to visit Maternal Grandmother or to visit Father and Father’s
family in Erie County, as Mother and Father had an “on again, off again”
relationship. J.T. clarified that Mother never left with Children for more than
a few weeks at a time. Although Father claimed that Children predominantly
resided in Erie County, the court credited J.T.’s testimony. (See Opinion and
Order, 1/26/22, at 3) (stating Children have resided at J.T.’s residence since
birth). See also R.M.G., Jr. (explaining that we defer to credibility findings
by trial court). Additionally, the court already decided by opinion and order
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entered October 6, 2021 that J.T. stood in loco parentis to Children. Thus,
the record shows that at the time J.T. filed the custody complaint on April 8,
2021, Crawford County had been Children’s home county within the preceding
six months. Additionally, even though Children were absent from Crawford
County at the time J.T. filed the custody complaint because Father had taken
them with him following Mother’s death, J.T. (who was acting in the role of in
loco parentis) was still residing in Crawford County. Therefore, venue was
proper in Crawford County per Rule 1915.2(a)(1)(ii), and Father’s first issue
merits no relief. See Pa.R.C.P. 1915.2(a)(1)(ii).
In his second issue, Father argues the court erroneously concluded that
J.T. had in loco parentis standing to commence the custody action. Father
emphasizes that he did not consent to J.T.’s actions evinced by Father’s
challenge to Children being taken from him. Father submits that Children did
not reside with J.T. for 12 consecutive months prior to the filing of the action.
Father concludes J.T. lacked standing to pursue custody, and this Court must
grant relief. We disagree.
Preliminarily, we reiterate that the court held a hearing to address the
parties’ standing on September 27, 2021, and entered an opinion and order
on October 6, 2021, confirming J.T.’s standing as in loco parentis to pursue
custody. Although that order was not final, it was immediately appealable
under the collateral order doctrine. See K.W. v. S.L., 157 A.3d 498(Pa.Super. 2017) (holding that father’s appeal from order granting appellees’
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in loco parentis standing was immediately appealable as collateral order).
Father did not file an interlocutory appeal from that decision as a collateral
order. In its Rule 1925(a) opinion, the trial court suggested that Father
waived the standing issue, presumably because Father could have challenged
standing following the October 6, 2021 order. Recently, however, this Court
stated: “We can find no rule of law, either statutory or common law, which
states that a collateral order must be appealed within 30 days of its entrance
or an appeal based upon the substance of the collateral order is forever
precluded.” Adams v. Toll Brothers, Inc. No. 1451-1460 EDA 2021
(Pa.Super. July 28, 2022), 2022 WL 2980865 at *6 (unpublished
memorandum)5 (emphasis in original). See also Pa.R.A.P. 313(a) (stating
appeal may be taken as of right from collateral order). Consequently, we
disagree that Father’s challenge to standing is waived in this appeal and we
will review the merits of Father’s second issue.
Our review of this issue implicates the following legal principles:
“Threshold issues of standing are questions of law; thus, our
standard of review is de novo and our scope of review is
plenary.” Rellick–Smith v. Rellick, 147 A.3d 897, 901
(Pa.Super. 2016) (quoting Johnson v. American
Standard, 607 Pa. 492, 8 A.3d 318, 326 (2010)).
Generally, the Child Custody Act does not permit third
parties to seek custody of a child contrary to the wishes of
that child’s parents. The Act provides several exceptions to
this rule, which apply primarily to grandparents and great-
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5 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions from
this Court filed after May 1, 2019 for persuasive value).
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grandparents. See 23 Pa.C.S.A. § 5324(3); 23 Pa.C.S.A. §
5325. In fact, unless a person seeking custody is a parent,
grandparent, or great-grandparent of the child, the Act
allows for standing only if that person is “in loco parentis.”
23 Pa.C.S.A. § 5324(2).[6]
“The term in loco parentis literally means ‘in the place of a
parent.’” Peters v. Costello, 586 Pa. 102, 891 A.2d 705,
710 (2005) (citing Black’s Law Dictionary, 791 (7th Ed.
1991)). A person stands in loco parentis with respect to a
child when he or she “assum[es] the obligations incident to
the parental relationship without going through the
formality of a legal adoption. The status of in loco parentis
embodies two ideas; first, the assumption of a parental
status, and, second, the discharge of parental duties.” Id.(quoting T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913, 916-
17 (2001)). Critical to our discussion here, “in loco parentis
status cannot be achieved without the consent and
knowledge of, and in disregard of[,] the wishes of a parent.”
E.W. v. T.S., 916 A.2d 1197, 1205 (Pa.[Super.] 2007)
(citing T.B., supra).
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6Under Section 5324, the following individuals may file an action for any form
of physical custody or legal custody:
(1) A parent of the child.
(2) A person who stands in loco parentis to the child.
(3) A grandparent of the child who is not in loco parentis to
the child:
(i) whose relationship with the child began either with the
consent of the parents of the child or under a court order;
(ii) who assumes or is willing to assume responsibility for
the child; and
(iii) when one of the following conditions is met:
* * *
(C) the child has, for a period of at least 12
consecutive months, resides with the grandparents,
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.
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K.W., supra at 504-05.
Instantly, in the trial court’s October 6, 2021 opinion and order following
the September 27, 2021 hearing on standing, the court explained that J.T.
has always been “a grandmother figure” for Children. (Opinion and Order,
10/6/21, at 5). The court noted that Children resided almost exclusively with
J.T. since their birth, and any periods of time where Mother would take
Children to stay at other locations were temporary. Specifically, the court
noted that J.T. provided parental support for Children by feeding Children,
bathing them, providing transportation for Children, and assisting with all
other activities of daily living. In essence, J.T.’s relationship with Children
“was far beyond that of just a caregiver for Children.” (Id.) J.T. was also the
primary financial support for Children and Mother. When Mother died,
Maternal Grandmother immediately called J.T. to pick up Children. Thus, even
Maternal Grandmother recognized J.T. as the appropriate custodial adult for
Children after Mother’s death.
The court further noted that at the September 27, 2021 hearing, Father
had the opportunity to examine J.T. on the witness stand and to present his
own testimony and that of witnesses. The court rejected the claims by Father
and Paternal Grandmother that Children have slept in Paternal Grandmother’s
house in Erie County every night of their lives. The court expressly stated
“there [was] no basis to find the testimony of [Father] or [Paternal
Grandmother] to be credible.” (Id. at 7). In sum, the court decided “[t]here
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is no question [J.T.] has been in loco parentis to the Children their entire
lives.” (Id. at 8).
The record supports the court’s analysis that J.T. had standing to pursue
custody under Section 5324(2). See 23 Pa.C.S.A. § 5324(2); R.M.G., Jr.,
supra. Further, we defer to the credibility findings of the trial judge, who had
the opportunity to observe the proceedings and the demeanor of the
witnesses. See id. See also M.J.S. v. B.B., 172 A.3d 651 (Pa.Super. 2017)
(holding grandmother stood in loco parentis to Child and had standing to
pursue custody under Section 5324(2) where grandmother, mother, and child
lived together for five years as intact family unit and grandmother either
shared or assumed sole parenting responsibility for entirety of child’s life;
record showed that grandmother fed, bathed, and entertained child daily,
attended doctors’ appointments, and transported child to kindergarten;
grandmother also assisted child financially and has consistently been
stabilizing force in child’s life). Further, we reject Father’s contention that J.T.
acted in loco parentis to Children against Father’s wishes. As this Court said
in M.J.S.: “Through his own inaction, Father acquiesced to the development
of the in loco parentis relationship between Grandmother and [Child]. …
Stated another way, by failing to act while Grandmother raised his son, Father
acted in a manner consistent with his consent to her in loco parentis status.”
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M.J.S., supra at 657.7 For all of these reasons, Father’s second issue on
appeal merits no relief.
In his third issue, Father contends the court’s entry of “default
judgment” relinquishing his parental rights was “in stark contrast to [legal]
principles[.]” (Id. at 10). Father insists the court’s entry of “default
judgment” is “voidable” here. (Id. at 16). We disagree that relief is due.
Initially, it is unclear why Father refers to the custody order at issue as
a “default judgment.” To the extent that Father is complaining about the
court’s temporary custody order after Father failed to attend mediation, the
court subsequently held another mediation at which Father appeared, and
ultimately held a de novo custody trial. To the extent Father is complaining
the court failed to evaluate the relevant custody factors in making its custody
decision, the record belies that contention. Rather, the record shows the court
carefully considered each of the sixteen custody factors. (See Opinion and
Order, 1/26/22, at 3-6). In its conclusion, the court stated: “[I]t is clear to
this [c]ourt that [J.T.] has rebutted the presumption that custody shall be
awarded to the parent. She has rebutted the presumption with clear and
convincing evidence. It is in the best interest of the Children that they remain
with [J.T.]” (Id. at 6). See also 23 Pa.C.S.A. § 5327(b) (stating that in any
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7We note that Father seems to suggest J.T. lacked standing under Section
5324(3). As we have already decided that J.T. had standing under Section
5324(2), we decline to confront Father’s argument related to Section 5324(3).
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action regarding custody of child between parent of child and nonparent, there
shall be presumption that custody shall be awarded to parent; presumption in
favor of parent may be rebutted by clear and convincing evidence). We agree
with the court’s thorough analysis as detailed in the January 26, 2022 opinion
and order. Thus, Father’s third issue merits no relief.
In his fourth issue, Father complains the court failed to dispose of the
custody matter in a timely manner. Father argues the custody matter was
initiated on April 8, 2021, and that trial did not occur until January 24, 2022,
through no fault of his own. Father submits the custody complaint should
have been dismissed on this basis. Father concludes the court’s custody order
was improper, and this Court must grant him full and sole custody of Children.
We disagree.
Pennsylvania Rule of Civil Procedure 1915.4 provides, in relevant part:
Rule 1915.4. Prompt Disposition of Custody Cases
* * *
(b) Listing Trials Before the Court. Depending upon the
procedure in the judicial district, within 180 days of the filing
of the complaint either the court shall automatically enter
an order scheduling a trial before a judge or a party shall
file a praecipe, motion or request for trial, except as
otherwise provided in this subdivision. If it is not the
practice of the court to automatically schedule trials and
neither party files a praecipe, motion or request for trial
within 180 days of filing of the pleading, the court shall, sua
sponte or on motion of a party, dismiss the matter unless a
party has been granted an extension for good cause shown,
or the court finds that dismissal is not in the best
interests of the child. The extension shall not exceed 60
days beyond the 180 day limit. A further reasonable
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extension may be granted by the court upon agreement of
the parties or when the court finds, on the record,
compelling circumstances for a further reasonable
extension. If an extension is granted and, thereafter,
neither party files a praecipe, motion or request for trial
within the time period allowed by the extension, the court
shall, sua sponte or on the motion of a party, dismiss the
matter unless the court finds that dismissal is not in
the best interests of the child. A motion to dismiss,
pursuant to this rule, shall be filed and served upon the
opposing party. The opposing party shall have 20 days from
the date of service to file an objection. If no objection is
filed, the court shall dismiss the case. Prior to a sua sponte
dismissal, the court shall notify the parties of an intent to
dismiss the case unless an objection is filed within 20 days
of the date of the notice.
(c) Trial. Trials before a judge shall commence within 90
days of the date the scheduling order is entered. Trials and
hearings shall be scheduled to be heard on consecutive days
whenever possible but, if not on consecutive days, then the
trial or hearing shall be concluded not later than 45 days
from commencement.
Pa.R.C.P. 1915.4(b), (c) (emphasis added).
Here, the court noted:
On December 2, 2021, [Father] filed a Motion to Dismiss in
which he alleged that the custody complaint should be
dismissed because the custody trial was not scheduled
within 180 days of the filing of the custody complaint. By
Order dated December 3, 2021, [the court] denied the
Motion to Dismiss as it was abundantly clear that dismissal
would not be in the best interest of the children.
Additionally, the custody trial was delayed due to pre-trial
litigation most of which was initiated by [Father].
(Rule 1925(a) Opinion, filed 3/15/22, at 1). We agree with the trial court that
no relief is due.
The record shows that J.T. filed the custody complaint on April 8, 2021.
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On May 26, 2021, the court issued a notice of mediation. The case proceeded
to mediation, which Father failed to attend. Father subsequently filed a
request for a de novo hearing on June 25, 2021, claiming he had no notice of
the mediation. Therefore, on July 13, 2021, the court scheduled a new
mediation for August 9, 2021. Following mediation, Father again requested a
de novo hearing. Paternal Grandmother subsequently filed a petition to
intervene. In the meantime, Father challenged J.T.’s standing to pursue
custody. Thus, on September 27, 2021, the court held a hearing to address
J.T.’s standing. The court further sought to establish Father’s standing by way
of a paternity test, where there were questions concerning paternity. Once
the standing issues were resolved, on December 6, 2021, the court scheduled
the de novo hearing for December 29, 2021; and ultimately rescheduled the
hearing for January 24, 2022, when it took place. We agree with the trial
court that the lengthy pre-trial litigation in this case was the cause of any
postponement of trial.
Additionally, the Rule expressly prohibits dismissal of a custody case
where it is not in the best interests of the child. See Pa.R.C.P. 1915.4(b). We
agree with the trial court that dismissal would not have served Children’s best
interests. Moreover, although the court technically failed to schedule the
custody trial within 180 days of the filing of the custody complaint, factoring
in the 180 days for scheduling and the 90 days thereafter in which to hold the
hearing, the Rule contemplates a custody trial occurring within nine months
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(absent any extensions). See Pa.R.C.P. 1915.4(b), (c). Thus, the court held
the custody trial in the approximate timeframe contemplated by the Rule.
Under these circumstances, we see no prejudice to Father. See M.S. v. J.K.,
No. 2282 EDA 2020 (Pa.Super. Aug. 17, 2021) (unpublished memorandum)
(holding no relief was due where trial court failed to comply with language of
Rule 1915.4(c) and did not complete custody hearings for more than two years
after first hearing because father did not suffer prejudice).8 Therefore,
Father’s fourth issue on appeal merits no relief. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2022
____________________________________________
8 See Pa.R.A.P. 126(b).
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