Giambanco, V. v. Harriger, E. v. Giambanco, M. ( 2023 )

J-A02031-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
VINCENZO G. GIAMBANCO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERICA N. HARRIGER :
:
Appellant : No. 639 WDA 2022
:
:
:
:
v. :
:
:
MARY GIAMBANCO :
Appeal from the Order Entered May 6, 2022
In the Court of Common Pleas of Jefferson County
Civil Division at No. 246-2021 CD
BEFORE: BOWES, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: MARCH 29, 2023
Erica N. Harriger (Appellant) appeals from the custody order pertaining
to L.M.G. and R.R.G. (the Children), her children with Vincenzo G. Giambanco
(Father). The trial court awarded Appellant, Father, and Mary Giambanco
(Paternal Grandmother) shared legal and physical custody. The court further
awarded primary physical custody to Appellant with Father initially having
supervised physical custody, increasing incrementally during the 2023 school
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* Retired Senior Judge assigned to the Superior Court.
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year, and on alternating weeks during the summer of 2023, when “Father can
be unsupervised and any custodial time allotted to [Paternal Grandmother]
shall be during the times of Father’s custody.” Order, 4/29/22, at 3
(unpaginated). The court also awarded Father unsupervised partial physical
custody during the 2023-2024 school year. After careful review, we affirm in
part, reverse in part, and remand to the trial court.
Appellant and Father never married. They began their relationship and
moved in together in 2017. N.T., 4/18/22, at 146. Appellant had four children
at the time. She was (and remains) separated from her husband, with whom
she has three children ranging in age from 9 - 12. Id. at 145. She also has
a 14-year-old child from a prior relationship. Id.
In January 2018, L.M.G. was born. R.R.G. was born in November 2019.
Appellant and Father’s relationship ended on or about March 24, 2021, when
Father was arrested and charged with terroristic threats and harassment.1 Id.
at 152-153; Appellant’s Exhibit 3.
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1 The record does not identify the victims, but indicates Father entered a two-
year Accelerated Rehabilitative Disposition (ARD) program on September 21,
2021. N.T., 4/18/22, at 153-154; Appellant’s Exhibit 3. Father is supervised
by a probation officer, but his probation conditions are unclear. Father
testified to obtaining “psychologicals ordered by the court” in February 2022,
which resulted in the recommendation that he stop using medical marijuana
and take Depakote “to remain calm.” N.T., 4/18/22, at 14-16, 101. Father
stated he was “attending counseling sessions [and] completed anger
management courses. I [] use techniques taught to me by the anger
management therapist.” Id. at 16. Father also testified to participating in
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On March 24, 2021, Appellant filed a Protection from Abuse (PFA)
petition against Father on behalf of herself and her six children. Id. at 154.
At a hearing on March 31, 2021, Father consented to the order which, inter
alia, expires “in 3 years on March 31, 2024.” PFA Order, 3/31/21, at ¶ 10.
The order awarded Appellant “temporary exclusive custody” of L.M.G. and
R.R.G., stating that “any valid custody order entered after the final Protection
From Abuse order supersedes the custody provisions of this order.” Id. at ¶
5.
On April 19, 2021, Father filed a complaint seeking shared legal and
physical custody of the Children. By order entered June 10, 2021, Father and
Appellant agreed on an interim basis to shared legal custody, with Appellant
having primary physical custody, and Father having supervised physical
custody through Children and Youth Services (CYS) for a maximum of two
hours a week. The order also directed Father to complete an anger
management course.2
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indoor soccer and Jiu-Jitsu to keep “a balanced state of mind,” as
recommended by his probation officer. Id. at 16-17.
2 The Honorable John H. Foradora, President Judge of Jefferson County,
presided at the PFA and custody cases, as well as Father’s criminal case. He
explained he “is the only general jurisdiction judge in Jefferson County,
Pennsylvania, [and] will continue to be in charge of both the Jefferson County
family and criminal dockets.” Trial Court Opinion, 7/27/22, at 1.
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On February 18, 2022, Paternal Grandmother filed a petition to
intervene pursuant to 23 Pa.C.S.A. § 5325(2), and requested partial physical
custody of the Children. Appellant filed an answer in opposition on the basis
that Paternal Grandmother lacked standing. Appellant asserted, inter alia,
that she and Father agree to Paternal Grandmother seeing the Children.
The trial court held a hearing on Paternal Grandmother’s petition on
March 29, 2022. Paternal Grandmother testified, along with Appellant and
Father. At the conclusion of Paternal Grandmother’s testimony, Appellant’s
counsel moved for a directed verdict, which the court denied. N.T., 3/29/22,
at 37-44. After the hearing, the trial court concluded “the facts justify the
granting of the petition[.]” Id. at 81-82.
The trial court incorporated the notes of testimony from the March 29,
2022, hearing in the custody trial held on April 8 and 18, 2022. Father
requested supervised physical custody at Paternal Grandmother’s home every
Sunday morning through Monday evening. N.T., 4/18/22, at 31-32, 40.
Father presented testimony from Paternal Grandmother and Chaunci Letang,
the CYS caseworker who had supervised Father’s visits with the Children.
Appellant requested primary physical custody. She asked that CYS
continue to supervise Father’s physical custody so that the Children would be
protected if Father “would have an anger outburst.” N.T., 4/18/22, at 247-
248. Appellant opposed supervision by Paternal Grandmother, because
Paternal Grandmother would not “be able to stand up” to Father should he
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have an “anger outburst.” Id. at 224. In the alternative, Appellant proposed
that Father’s custody be supervised by Janelle Spuck (Appellant’s best friend
who was also Father’s cousin) and/or Christopher Burns (the Children’s
maternal uncle), both of whom testified to their availability. Id. at 249.
Appellant opposed an award of partial physical custody to Paternal
Grandmother. In the alternative, Appellant requested that any award of
physical custody to Paternal Grandmother occur simultaneously with Father’s
physical custody. Id. at 250-251.
With respect to legal custody, Appellant agreed to shared legal custody
with Father if the trial court would order both parents “to follow doctor’s
recommendations” for the Children’s vaccinations. Id. at 248, 271. Appellant
explained that she and Father had been communicating through Paternal
Grandmother, because the PFA order prohibited Father from communicating
with Appellant. Id. at 169. Appellant no longer wished to communicate
through Paternal Grandmother, and asked that the court permit the parents
to communicate through the Our Family Wizard website. Id. at 169, 275-
276.
Appellant presented testimony from Lisa Doty, a caseworker with
Justiceworks Youth Care, who provided in-home anger management services
to the parents prior to their separation. Appellant also presented Donald
Burns, who is the Children’s maternal grandfather (and Appellant’s father).
Finally, Appellant introduced documentary evidence, which included text
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messages from Father and text messages between Appellant and Paternal
Grandmother.
Paternal Grandmother testified, agreeing with Father’s proposal that she
supervise Father’s physical custody at her home every Sunday morning
through Monday evening. N.T., 4/18/22, at 316. Paternal Grandmother
requested additional partial physical custody, exclusive of Father, for no more
than four hours, twice per month. Id. at 318-319.
By order dated April 18, 2022, the trial court directed Father to schedule
biweekly treatment with Hallie S. Carlton.3 By separate order dated April 18,
2022, the court directed Appellant and Father to communicate through the
Our Family Wizard website.
The trial court thereafter issued the April 29, 2022 custody order. The
court summarized the evidence and addressed the statutory factors impacting
the court’s decision. The court also concluded Paternal Grandmother “had
standing for partial physical custody, pursuant to 23 Pa.C.S.A. §
5325(2)(i)(ii).” Trial Court Opinion, 4/29/22, at 26 (unpaginated). The court
issued an “amended order” on May 2, 2022, and a “clarification order” on May
6, 2022.
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3 The trial court did not identify Ms. Carlton beyond telling Father he “need[s]
some psychological help, and you need some from a psychologist[.]” N.T.,
4/18/22, at 256.
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The trial court awarded Appellant, Father and Paternal Grandmother
shared legal custody, and directed that Children’s pediatrician administer
vaccinations that he or she deems in the Children’s best interests. The court
awarded Appellant primary physical custody, with Father to have
incrementally increasing periods of supervised physical custody, transitioning
to unsupervised in Summer 2023.
Specifically, the court terminated CYS supervision of Father’s physical
custody on or about June 27, 2022: Beginning May 18 - 20, 2022, and every
Wednesday and Friday until July 1, 2022, the individuals Appellant proposed
(family members Janelle Spuck and Christopher Burns) supervised Father’s
physical custody. Beginning July 3, 2022, Paternal Grandmother supervised
Father’s custody at Paternal Grandmother’s home on alternating Sundays.
Beginning August 13, 2022, at 8:00 p.m., through August 15, 2022, at 8:00
p.m., and every Saturday through Monday thereafter, Paternal Grandmother
supervised Father’s physical custody at Paternal Grandmother’s home. The
court further awarded Father shared physical custody on alternating weeks
beginning in the summer of 2023, which “will end when the school year
begins. Father can be unsupervised[.]” Order, 4/29/22, at ¶ 3(e).
The court awarded Paternal Grandmother partial physical custody on
alternating Saturday through Monday evenings, and beginning July 6, 2022,
for two hours on alternating Wednesday and Friday evenings. When Father’s
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custody is no longer supervised, Paternal Grandmother’s physical custody
occurs “during the times of Father’s custody.” Id.
On May 27, 2022, Appellant timely filed a notice of appeal along with a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). Appellant presents five questions for review:
1. Whether the trial court abused its discretion and committed
an error of law in finding [Paternal Grandmother] had standing to
intervene in this matter?
2. Whether the trial court abused its discretion and
[committed] an error of law in granting [Paternal Grandmother]
legal custody under 23 Pa.C.S. § 5325(2)?
3. Whether the trial court abused its discretion by entering an
order granting Father shared physical custody beginning the end
of the school year in 2023?
4. Whether the trial court abused its discretion and [committed
an] error of law in stating and relying upon facts that were not of
record?
5. Whether the trial court abused its discretion in designating
[Paternal Grandmother] as the supervisor for [Father]’s custody
periods?
Appellant’s Brief at 4-5 (reordered for disposition).
Appellant raises the threshold issue of Paternal Grandmother’s standing,
which is subject to the authority of the Child Custody Act (Act), 23 Pa.C.S.A.
§§ 5321-5340.4
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4 The Act provides:
(Footnote Continued Next Page)
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The interpretation and application of a statute is a question of
law. G.A.P. v. J.M.W., 194 A.3d 614, 616 (Pa. Super. 2018) (citation
omitted). Our standard of review is de novo, and our scope of review is
plenary. Id.This Court has explained:
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-grandparents. See 23
Pa.C.S.A. §§ 5324(3), 5325 (“Standing for partial physical
custody and supervised physical custody.”). A person standing in
loco parentis may also seek custody. See 23 Pa.C.S.A.
§ 5324(2).
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§ 5323. Award of custody
(a) Types of award.--After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it is in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S.A. § 5323(a).
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“The term in loco parentis literally means ‘in the place of a
parent.’” K.W. [v. S.L.], 157 A.3d [498,] 504-05 [Pa. Super.
2017] (citing Black’s Law Dictionary, 791 (7th Ed. 1991)) (further
citation omitted). A person stands in loco parentis with respect to
a child when he or she “assumes 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. at 505 (citation omitted).
In 2018, the Child Custody Act was amended to grant standing to
another class of individuals. See 23 Pa.C.S.A. § 5324(4).
Raymond v. Raymond, 279 A.3d 620, 627 (Pa. Super. 2022). Section
5324(4) provides standing to any individual “who establishes certain criteria
by clear and convincing evidence.” Raymond, 279 A.3d at 630 (citing 23
Pa.C.S.A. § 5324(4)(1)-(4)).
Further, this Court has recognized:
(1) [S]tanding in child custody may be inconstant; (2) fit parents
have a fundamental right to parent without governmental
interference; and (3) where there is no dispute between parents
whether to permit interactions with third parties, court-mandated
associations with third parties intrudes upon the parents’
constitutional prerogatives. See M.W. [v. S.T., 196 A.3d 1065,
1071 (Pa. Super. 2018)](“[standing in] custody cases may be
fluid under some circumstances”); D.P. v. G.J.P., 636 Pa. 574,
146 A.3d 204, 214 (Pa. 2016) (“absent factors such as abuse,
neglect, or abandonment, the law presumes parents are fit and,
as such, that their parenting decisions are made in their children’s
best interests.”); Id. at 593-94 (citing Hawk v. Hawk, 855
S.W.2d 573, 577 (Tenn. 1993) (“[T]he trial court’s interference
with the united decision of admittedly good parents represents a
virtually unprecedented intrusion into a protected sphere of family
life.”).
E.A. v. E.C., 259 A.3d 497, 503 (Pa. Super. 2021) (footnote omitted).
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Instantly, Paternal Grandmother sought standing and requested
permission to seek partial physical custody pursuant to Section 5325(2),
which provides:
§ 5325. Standing for partial physical custody and
supervised physical custody.
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 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;
...
23 Pa.C.S.A. § 5325(2).5
Appellant argues the evidence does not support Paternal Grandmother’s
standing because the parents’ predicate disagreement in Section 5325(2)(ii)
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5The Act defines “partial physical custody” as “The right to assume physical
custody of the child for less than a majority of the time.” 23 Pa.C.S.A. §
5322(a). The Act defines “supervised physical custody” as “Custodial time
during which an agency or an adult designated by the court or agreed upon
by the parties monitors the interaction between the child and the individual
with those rights.” Id.
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does not exist. See E.A., 259 A.3d at 504 (concluding, “the plain language
of the statute confers standing to grandparents and great-grandparents to
intercede in custody litigation when the parents ‘do not agree’ as to the nature
of the third-party’s interaction with their child”). Appellant emphasizes that
she and Father agree to Paternal Grandmother’s involvement with the Children
“on a regular basis.” Appellant’s Brief at 20. Further, Appellant claims she
“supports a fostering and healthy relationship between the [C]hildren and
Paternal Grandmother,” and “has repeatedly permitted contact between the
[C]hildren and Paternal Grandmother, as acknowledged by Paternal
Grandmother.” Id. at 20-21. The record indicates otherwise.
Father testified in support of Paternal Grandmother being awarded
partial physical custody. N.T., 3/29/22, at 71. Father’s counsel questioned
Appellant:
Q. [Y]ou only allow [Paternal Grandmother] to see [the Children]
in public places with you there.
A. Correct, now, yes.
Id. at 63-64.
Appellant testified on direct examination that approximately nine days
earlier, she and the Children had interacted with Paternal Grandmother at
“Fun Central.” Id. at 50. She explained that the Children “played on the
jungle gym. [Paternal Grandmother] got to slide down the slide with them.
It was a good time. We had dinner. We had lunch together. Like, the kids
had fun. We all had fun. It was good.” Id. Appellant also testified that
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Paternal Grandmother recently invited them to a relative’s birthday party, and
“everything was good there.” Id. However, Appellant also testified:
Q. So why do you feel uncomfortable with [Paternal Grandmother]
having time without you being present?
A. I felt [Father] would show up there and that his time would not
be supervised. . . . I didn’t feel like she’d be able to stop him if
he would do something to the [C]hildren, or she would cover for
him.
Id. at 51.
On this record, we cannot conclude the trial court erred in granting
Paternal Grandmother’s petition to intervene pursuant to Section 5325(2)(ii).
In her second issue, Appellant argues the court erred in awarding
Paternal Grandmother shared legal custody because Paternal Grandmother
claimed standing under Section 5325(2), which pertains to physical custody.6
We agree.
This Court has stated:
When interpreting a statute, this [C]ourt is constrained by the
rules of the Statutory Construction Act of 1972 (the “Act”). 1
Pa.C.S. §§ 1501-1991. The Act makes clear that the goal in
interpreting any statute is to ascertain and effectuate the
intention of the General Assembly while construing the statute in
a manner that gives effect to all its provisions. See 1 Pa.C.S. §
1921(a). The Act provides: “[w]hen the words of a statute are
clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §
1921(b). Moreover, it is well settled that “the best indication of
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6 The Act defines “shared legal custody” as “The right of more than one
individual to legal custody of the child.” 23 Pa.C.S.A. § 5322. The Act defines
“legal custody” as “The right to make major decisions on behalf of the child,
including, but not limited to, medical, religious and educational decisions.” Id.
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the General Assembly’s intent may be found in a statute’s plain
language.” Cagey v. Commonwealth, 179 A.3d 458, 462 (Pa.
2018).
G.A.P. v. J.M.W., 194 A.3d at 616-617; see also 1 Pa.C.S.A. § 1924 (“The
title and preamble of a statute may be considered in the construction
thereof.”); 1 Pa.C.S.A. § 1932(a) (“Statutes or parts of statutes are in pari
materia when they relate to the same persons or things or to the same
class of persons or things.”).
The trial court found Paternal Grandmother “had standing for partial
physical custody, pursuant to 23 Pa.C.S.A. 5325(2)(i)(ii).” Trial Court
Opinion, 4/29/22, at 26 (unpaginated). The trial court concluded, without
further explanation, that Appellant and Father “cannot communicate and, as
such, [Paternal Grandmother] should be given custody rights to assist with
communication regarding major decisions in [the] Child[ren]’s life.” Trial
Court Opinion, 7/27/22, at 1.
The plain language of Section 5325 confers standing to grandparents to
seek partial physical custody and supervised physical custody. In contrast,
Section 5324(3) confers standing to grandparents to file an action “for any
form of physical custody or legal custody.”7
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7 § 5324. Standing for any form of physical custody or legal custody.
The following individuals may file an action under this chapter for
any form of physical custody or legal custody:
(Footnote Continued Next Page)
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Paternal Grandmother asserts, “Although not specifically stated, the
[t]rial [c]ourt’s grant of legal custody is in keeping with the requirements of §
5324(3) ....” Paternal Grandmother’s Brief at 31-32 (averring she met the
qualifications of Section 5324(3)). However, Paternal Grandmother
disregards that she claimed grounds for standing under Section 5325(2).
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...
(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 a parent 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:
(A) the child has been determined to be a dependent child
under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);
(B) the child is substantially at risk due to parental abuse,
neglect, drug or alcohol abuse or incapacity; or
(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(3).
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Because Paternal Grandmother sought standing under Section 5325(2),
and the trial court granted relief under that provision, we conclude the court
erred in awarding Paternal Grandmother shared legal custody.8 Therefore, we
reverse the award of shared legal custody to Paternal Grandmother.
We review Appellant’s remaining issues mindful of the following:
[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
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)). Moreover,
[O]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.
The parties cannot dictate the amount of weight the trial
court places on 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
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8 Notably, the court directed the parents to communicate through the Our
Family Wizard website, and directed the Children’s pediatrician to administer
vaccinations if deemed to be in the Children’s best interests. Order, 4/18/22;
Order, 4/29/22.
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of the best interest of the child was careful and thorough,
and we are unable to find any abuse of discretion.
R.M.G., Jr., supra at 1237 (internal citations omitted). The test
is whether the evidence of record supports the trial court’s
conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super.
2006).
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).
The focus in custody cases, “including those in which grandparents are
seeking rights, is the best interests of the child.” D.R.L. v. K.L.C., 216 A.3d
276, 279 (Pa. Super. 2019) (citation omitted). “The best-interests standard,
decided on a case-by-case basis, considers all factors that legitimately have
an effect upon the child’s physical, intellectual, moral, and spiritual well[-
]being.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citing
Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004)).
The Act requires a trial court to consider 16 factors when awarding
custody:
§ 5328. Factors to consider when awarding custody.
(a) Factors. – In ordering any form of custody, the court
shall determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical safeguards
and supervision of the child.
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(2.1) The information set forth in section 5329.1(a)(1) and
(2) (relating to consideration of child abuse and involvement
with protective services).
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child's maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate
for the child's emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
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(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).
In addition,
(c) Grandparents and great-grandparents.—
(1) In ordering partial physical custody or supervised physical
custody to a party who has standing under section 5325(1) or (2)
(relating to standing for partial physical custody and supervised
physical custody), the court shall consider the following:
(i) The amount of personal contact between the child and
the party prior to the filing of the action;
(ii) whether the award interferes with any parent-child
relationship; and
(iii) whether the award is in the best interest of the child.
23 Pa.C.S.A. § 5328(c)(1).
The trial court must consider “[a]ll of the factors listed in section
5328(a) . . . when entering a custody order.” J.R.M. v. J.E.A., 33 A.3d 647,
652 (Pa. Super. 2011) (emphasis in original); see also D.R.L., 216 A.3d at
280 (“All of the sixteen ‘best interest’ factors set forth in Section 5328(a), as
well as the three statutory custody factors pertaining to grandparents listed
in Section 5328(c)(1), are required to be considered by the trial court when
grandparents are seeking custody rights.”). This Court has held that trial
courts must set forth the mandatory assessment of the Section 5328(a) best
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interest factors “prior to the deadline by which a litigant must file a notice of
appeal.” A.V., 87 A.3d at 823 (citation omitted).
Instantly, the trial court issued its assessment of the Section 5328(a)
and (c)(1) factors with the custody order. The court weighed Section
5328(a)(1) in Father’s favor. As best we discern, the court weighed equally
Section 5328(a)(5), (13), and (15). The court found inapplicable Section
5328(a)(7), (8), and (11). The court weighed the remaining Section 5328(a)
factors in Appellant’s favor.
The trial court found Section 5328(a)(4) and (10) favorable to Paternal
Grandmother. Specifically, the court found Paternal Grandmother “has a very
stable residence and provide[s] stability and continuity in the educational,
family and community lives of [the] Children.” Trial Court Opinion, 4/29/22,
at 29 (unpaginated). The court also found Paternal Grandmother “is available
to attend to the daily physical, emotional, developmental, educational, and
special needs of [the] Children. Grandmother is a trained nurse and she has
dealt with the special needs of [L.M.G.],9 she keeps a very clean residence,
and is a very loving and caring Grandmother.” Id. at 30.
Regarding Section 5328(c)(1), the court determined Paternal
Grandmother’s partial physical custody to be in the Children’s best interests.
____________________________________________
9 L.M.G. is autistic. See N.T., 3/29/22, at 7.
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Id. at 27; 23 Pa.C.S.A. § 5328(c)(1)(iii). The court found Paternal
Grandmother
had physical contact with Children at least three to four times a
week while [the parents] were together. Grandmother had
contact with Children at least once a week after the parties
separated and filed an action. [L.M.G.] spent overnights, several
times a month, during [the parents]’ time together.
Id.; 23 Pa.C.S.A. § 5328(c)(1)(i). Further, the court found the award of
partial physical custody to Paternal Grandmother would not interfere with the
parent-child relationship under Section 5328(c)(1)(ii). Rather, it would “help
the relationship between Father and Children.” Id.
Mindful of the foregoing, we turn to Appellant’s third and fourth issues.
Appellant argues the court abused its discretion in awarding Father shared
physical custody10 during the summer of 2023, more than a year after the
April 2022 custody hearing. Appellant asserts the court relied on evidence not
of record in finding that “Father will be compliant with his probation programs
(per [his enrollment in the ARD program]), as well as [the court] stating ‘he
should be ready to have standard custody’ simply because he completed
probation and the PFA [order] expired.” Id. Further, Appellant claims the
court’s “reliance upon the wrong date of expiration of the PFA [order] was a
substantial consideration for the trial court awarding shared physical custody
____________________________________________
10 The Act defines “shared physical custody” as “The right of more than one
individual to assume physical custody of the child, each having significant
periods of physical custodial time with the child.” 23 Pa.C.S.A. § 5322.
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to Father in May 2023.” Appellant’s Brief at 27. Appellant’s argument has
merit.
The trial court explained its award of shared physical custody to Father
as follows:
In August, 2023, the Protection from Abuse Order between the
parties will be expired and Father will have completed all programs
for Jefferson County Adult Probation, his probation will have
expired[,] and he should be ready to have standard custody. The
[c]ourt implemented this provision to avoid further attorneys’ fees
and proceedings for the parties. Of course, this Jurist being the
only general jurisdiction judge in Jefferson County, Pennsylvania,
will continue to be in charge of both the Jefferson County family
and criminal dockets. This Judge will be in a position to suspend
or modify custody immediately should any violations arise. If no
violations occur, Father will be ready to have a standard custody
arrangement.
Trial Court Opinion, 7/27/22, at 1.
Appellant correctly observes that the PFA order does not expire in
August 2023. The PFA order expires “in 3 years on March 31, 2024.” PFA
Order, 3/31/21, at ¶ 10. The court appears to have mistakenly stated
“Protection from Abuse” in referencing the September 1, 2021 order admitting
Father to the two-year ARD program. Father will complete ARD on September
1, 2023. See Trial Court Opinion 7/27/22, at 1. Regardless, the court’s
finding that Father “should be ready to have standard custody” is speculative.
The court stated:
[Appellant] has primary [physical] custody and the [C]hildren are
presently satisfactory in that primary custody. Father needs to
continue to work through his therapy and supervision, but with
the help of [Paternal Grandmother] and others, he will be to the
point, someday, where he can appropriately parent alone.
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However, at present, Father does not present a danger to the
minor children with appropriate supervision of this order which will
work him towards an appropriate schedule.
Trial Court Opinion, 4/29/22, at 33 (unpaginated) (emphasis added).
The trial court awarded primary physical custody to Appellant, and
supervised physical custody to Father, based on the evidence. The court
concluded Father was not “to the point” of appropriately parenting alone,
which the record supports. See id.
Father has had “anger issues” since high school. N.T., 4/8/22, at 107.
When Appellant and Father were together, L.M.G., who is autistic, would often
cry. Id. at 16-17, 32. Appellant testified Father would call L.M.G. “fu-----
retard all the time. He told her that she was a curse to him.” N.T., 4/18/22,
at 176-177. The trial court admitted into evidence a text message from July
16, 2020, in which Father asked Appellant: “Is the fu----- retard asleep yet?”
Id. at 179. Appellant responded, “She’s not a retard, but, yes, she’s sleeping;
and you just made her cry more and more when you said that stuff. Please
just let me calm her down and walk away next time.” Id. Appellant confirmed
that Father was referring to L.M.G. in the text message. Id. at 180. The trial
court admitted another message where Father texted Appellant: “We should
have never had kids. Never. Ever. F--- kids. All of them. Seriously. F---
every god---- fu----- child on this planet. F--- them all.” Id. at 198. Finally,
Appellant testified about a text exchange with Father that occurred several
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months before his 2021 arrest. Appellant was out while Father was home with
the Children.
Q. And what happened?
A. He couldn’t handle them. He said he was going to snap and kill
her. . . . [L.M.G.] is acting like a fu----- maniac since you left.
She has snapped. I am ready to fu----- kill her.
...
I’m so fu----- pissed right now. I hate your kids so fu----- much.
And by yours, I mean [L.M.G.] and [R.R.G.]. I cannot stand them.
...
[L.M.G.] watched you walk out that door and has been nonstop
screaming since you left. I have already had to fu----- scream
and hold her down about five times.
Id. at 199-201. Appellant testified that she hurried home, and the Children
“ran for me, and I just comforted them.” Id. at 202.
The caseworker from Justiceworks Youth Care, Lisa Doty, testified that
CYS contacted her in September 2020 to work on anger management issues
in the home. N.T., 4/8/22, at 130-131. She testified that a test to evaluate
Father’s anger revealed “high, extreme anger.” Id. at 133. At the completion
of the service, the agency re-evaluated Father, and his anger remained “very
high.” Id. She testified that CYS requested different services for the family
to “get [Appellant] and the children out of the home” within two months. Id.
at 134. Ms. Doty explained CYS was “very concerned about the safety of the
children.” Id. However, Appellant was afraid to leave Father. Id. at 136.
Appellant told Ms. Doty that Father threatened, “He would kill everyone
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around [Mother], but her[,] so that she would . . . feel the suffering of that.
So she was afraid.” Id.
With respect to Section 5328(a)(15), concerning “a party’s mental and
physical condition,” the trial court found, “Father suffers from explosive anger
outbursts, anxiety, and the overwhelming need to have things be completely,
and exactly, the way he demands. Father has improved and he will continue
to improve with therapy and programs in which he has attended.” Trial Court
Opinion, 4/29/22, at 31 (emphasis added). Paternal Grandmother testified
that since separating from Appellant, Father is “just a lot more calm.” N.T.,
4/18/22, at 313. However, the court’s finding that Father “will continue to
improve” and be capable of unsupervised shared physical custody by the
summer of 2023 is speculative.
Section 5328(a)(1), concerning which party “is more likely to encourage
and permit frequent and continuing contact between the children and another
party,” is the only factor the court weighed against Appellant. The court
stated:
Father is more likely to encourage and permit frequent and
continuing contact between [the] Children and [Appellant]. Had
this case ended without [Appellant]’s testimony on the third day
[of] trial, the [c]ourt might have been less certain regarding
[Appellant] permitting and encouraging contact between Father
and [the] Children. However, not only was she vocal in saying
that for the next 15 years, Father only being permitted two hours
of custody, supervised in a room at [CYS,] was more than
adequate contact; [Appellant] added to that by saying she wanted
Grandmother in the same room even though they had been
together at Fun Central with [the] Children just days before the
intervention hearing.
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Trial Court Opinion, 4/29/22, at 28 (unpaginated).
Our review reveals no testimony by Appellant requesting that Father’s
physical custody be supervised by CYS “for the next 15 years.” On cross-
examination, Appellant testified:
Q. So if [Father] goes to the psychologist and the psychologist
says that he is certainly capable of taking care of his children, are
you going to accept it then?
A. I mean, I’d have to see him go more than one time to a
psychologist and to not just go off one time seeing him. If he was
continuing to go to a psychiatrist and working with them, I’d feel
a lot more comfortable.
N.T., 4/18/22, at 288-289. The record indicates Father was not under the
care of a psychologist or psychiatrist during the custody proceedings. Id. at
100-101. During Mother’s testimony, the trial court interjected:
First of all while we’re here and we’re still awake, [Father,] I am
ordering you to go to Hallie Carlton twice a month so we have a
Ph.D. psychologist, not just some person you’re talking to. So put
that in an order. He starts out immediately.
...
You make the appointment with Hallie tomorrow morning. I’ll
check on it because I don’t think you’ve done anything. I’ll say
that for the record. You don’t appear to me to be any different
than you were before, but she is probably correct in her testimony.
You were getting worse. You need some psychological help, and
you need some from a psychologist, not some girl you went to
high school with who has a counseling degree. . . .
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Id. at 252-253, 256.11 Therefore, we conclude that the record does not
support the court’s findings with respect to Section 5328(a)(1). To the extent
the court found Section 5328(a)(1) determinative in awarding Father
unsupervised physical custody during the summer of 2023, it abused its
discretion. As such, we reverse the award of Father’s shared physical custody
beginning in the summer of 2023.
Appellant’s final issue concerns Paternal Grandmother’s supervision of
Father’s physical custody. Appellant argues the trial court abused its
discretion because
Paternal Grandmother would misrepresent or cover-up any
negative actions by Father, which would be contrary to the
[C]hildren’s best interest. Even if Father was not directly
screaming or abusing the [Children,] just the [C]hildren having to
witness Father’s outbursts and reactions would be detrimental to
them.
Mother’s Brief at 24. We discern no abuse of discretion.
Mother testified on direct examination:
Q. And why do you think that [Paternal Grandmother] wouldn’t be
able to stop [Father] or that she would cover for him?
A. Because she covered for him for the Zach situation.
N.T., 3/29/22, at 51.
____________________________________________
11 Father testified he was in counseling for 10 months with someone who was
a former high school classmate. N.T., 4/18/22, at 136-137.
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Paternal Grandmother testified Zach was her client through a home
health care agency. Id. at 20. He was approximately 21 years old and
mentally disabled. Id. at 19-20. She testified that she took care of Zach
“pretty much every single day.” Id. at 20. Paternal Grandmother explained
that she regularly brought Zach to her family’s pizza shop while she “would
go in and help.” Id. at 21. She testified that in October 2020, a customer
came to the pizza shop and later reported to an adult protective service agency
that he or she “heard some commotion, yelling between” Father and Zach.
Id. at 21-22. Paternal Grandmother stated, “[Y]ou have to know Zach. Like,
he was very, very loud, vocal. He was always very loud there. . . .” Id. at
22. Paternal Grandmother testified that she never witnessed any
inappropriate behavior by Father towards Zach, and the adult protective
service agency determined the report was unfounded. Id.
In contrast, Appellant testified:
Q. What’s your understanding about what happened with that
situation?
A. I got a call from [Paternal Grandmother] asking me if . . .
everything was okay at home. And I said, Yeah. Why? What’s
going on? And she told me [Father] attacked her client and
dragged him down a flight of steps.
And he was screaming, Injury, injury, injury. And I asked [Father]
about it. And he had told me the exact same thing that she had
told me. He was screaming, Injury, injury, injury. . . .
...
Q. So you have a different understanding of what occurred and
what was testified by [Paternal Grandmother]; is that right?
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A. Yes, correct.
Id. at 51-52.
On redirect, Paternal Grandmother denied telling Appellant that Father
“dragged [Zach] down the stairs.” Id. at 79.
Likewise, Father testified:
I think on that particular day, Zachary would, you know, stay
downstairs in the basement where we had . . . a little room for
him, and he had come upstairs and . . . was being kind of loud in
the kitchen area. And I did . . . escort him back downstairs. But
in no way did I harm him or hurt him. And in no way was he
screaming “pain” or “injury” ever throughout that day or at any
point.
Id. at 70.
We discern no abuse of discretion by the trial court to the extent it made
credibility findings in favor of Paternal Grandmother and against Appellant
with respect to the incident with Zachary.
Paternal Grandmother further testified:
Q. You heard [Appellant]’s testimony that . . . she believes that
[Father] would have an outburst and that you would not be able
to control [Father]. You heard the testimony here today, correct?
A. Yes.
Q. Has there ever been an occasion in all of your son’s adult life
or even as a teenager where he was violent with you or
threatening to you in any way?
A. No.
Q. Has there ever been a time when you felt that . . . he was out
of control that you could not – you were afraid of him or you
couldn’t manage his behavior?
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A. No.
Id. at 79. On cross-examination, Paternal Grandmother testified:
Q. [D]id you go to [Father] while [Parents] were together and tell
him that he needed to get help or that you had concerns about
him?
A. When I was there and he was yelling at the kids or they were
arguing, I mean, I would step in and say something. . . .
I don’t condone his behavior when he was doing that, calling
[Mother] names or yelling at the kids. . . .
Q. But you never talked to him about getting mental health
treatment or anything like that?
A. Yeah, I probably brought it up to him.
N.T., 4/8/22, at 80-81 (emphasis added).
Finally, Father testified:
Q. If your mother says your behavior was out of line, do you
understand you need to take direction from your mother on that?
A. Yes, I do.
Q. And do you realize that it’s not preferable that your behavior
ever be out of line?
A. Yes.
Q. And is that the goal here?
A. Yes.
...
Q. What steps have you taken to make sure that your mother
doesn’t have to correct your behavior?
A. I had, you know, continued counseling using techniques learned
at anger management. . . .
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Q. What is your intent with regard to continuing counseling at the
direction of your counselor?
A. Just to keep attending as long as I feel like I have to or as long
as she thinks I should.
N.T., 4/18/22, at 132-133. Father confirmed he has learned parenting skills
from counseling and anger management sessions, such as, “Not using
profanity, not name calling of any sort, not any type of physical or verbal
abuse, just all around going about things differently.” Id. at 120.
Based on this record and deferring to the trial court’s determinations as
to credibility and weight of the evidence, we discern no abuse of discretion in
the court’s designation of Paternal Grandmother as the supervisor of Father’s
physical custody.
In conclusion, we reverse the portion of the order awarding (1) shared
legal custody to Paternal Grandmother, and (2) unsupervised physical custody
to Father in the summer of 2023 (beginning the first Friday after the last day
of the 2023 school year). Following remand, and upon motion by Father, the
court may remove the supervision requirement (if Father seeks removal of
supervision and Appellant opposes removal, the trial court shall convene a
hearing to create a record in support of its decision). Likewise, our remand
does not impede the parties’ statutory right to petition for modification of
custody “to serve the best interest of the child” pursuant to 23 Pa.C.S.A. §
5338. We affirm the order in all other respects.
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Order affirmed in part and reversed in part. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2023
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