J-A02031-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
D.A.H AND B.A.H., IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellants
v.
D.J.H. AND D.D.H.,
Appellees No. 1332 WDA 2017
Appeal from the Order Entered August 17, 2017
In the Court of Common Pleas of Allegheny County,
Civil Division, at No(s): FD 16-007859-017.
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 03, 2018
Paternal Grandparents, D.A.H. and B.A.H., appeal from the order of
court granting Father, D.J.H., primary physical and sole legal custody of
Father’s child, S.J.H. After careful consideration, we conclude that the trial
court erred when it did not revisit the issue of standing, and when it did not
complete a full custody analysis under 23 Pa.C.S.A. §5328(c). Accordingly, we
are constrained to vacate the custody order and remand for further
proceedings.
The pertinent factual background and procedural history of the case is
as follows. D.J.H. is the father of S.J.H. The child’s biological mother – D.D.H.
the ex-spouse of Father – has never been involved in this case. On April 15,
2016, Grandparents filed an initial complaint for custody, wherein they sought
J-A02031-18
primary physical and legal custody of the child. A rule to show cause was
issued on the basis that the Grandparents had not sufficiently pled facts to
establish standing under 23 Pa.C.S.A. §5324 (“Standing for any form of
physical custody or legal custody.”) On May 16, 2016, Grandparents filed an
amended complaint for custody seeking primary and legal custody under
§5324, or, in the alternative, partial physical custody under §5325 (“Standing
for partial physical custody and supervised physical custody”). On July 15,
2016, the trial court held a hearing to determine standing. The trial court
determined that while Grandparents lacked standing to seek primary physical
or legal custody of the child under §5324, they still had standing for partial
physical custody under §5325.1
The trial court then referred the matter to the hearing officer, who is
authorized to make custody awards only in partial custody cases. But upon
allegations of abuse in Father’s home, instead of the hearing officer awarding
the Grandparents partial custody the trial court itself issued an interim custody
order in September 2016 that granted Grandparents primary physical custody.
____________________________________________
1 The trial court did not specify which of the statute’s three provisions applied.
We can infer from the trial court’s findings, however, that the facts do not
warrant standing under either §5325(1) or §5325(3), which left only
§5325(2). Although the first clause of §5325(2) was struck down by our
Supreme Court, in the months following the trial court’s July 2016 hearing on
standing, it appears that the Grandparents qualified for standing under the
second clause of §5325(2) as the parents of the child are divorced. See D.P.
v. G.J.P., 146 A.3d 204 (Pa. 2016). The constitutionality of §5325(2)’s second
clause has not been challenged.
-2-
J-A02031-18
In December 2016, the trial court issued another interim custody order, which
granted Father partial custody on the weekends. The trial court referred the
case to the partial custody hearing officer for a second time. In doing so, it
appears the trial court effectively equipped the hearing officer with only
enough authority to grant Father some form of partial custody. The
consequence of the trial court’s referral to the hearing officer was that the
Grandparents would retain primary custody, despite the trial court’s earlier
determination that the Grandparents did not have standing for primary
custody.
In February 2017, the hearing officer issued an interim custody order
essentially mirroring the trial court’s December 2016 interim order. The
hearing officer recommended further that the child be appointed a guardian
ad litem (“GAL”), and the hearing officer set the matter for a June 5, 2017
review. But, in March 2017, when Father filed a motion for special relief, the
trial court: canceled the June review; stayed the order for the GAL; set the
case for an expedited conciliation before the trial court; and directed Father
to file a formal complaint for primary custody. Father filed the complaint for
primary custody on March 24, 2017.
Following a conciliation in April, the trial court set the matter for a
hearing on July 21 and 24, 2017. Before the trial, the trial court – again
precipitated by motion – issued an interim order clarifying that the interim
order of December 2016 governed until the trial, and clarified that Father shall
-3-
J-A02031-18
enjoy sole legal custody as well as two straight weeks of physical custody in
June. This clarification was perhaps necessary as the trial court, on February
23, 2017, issued an interim order setting physical custody at 50/50. This trial
court order was issued mere days after the hearing officer’s February 17, 2017
order, which kept the Grandparents as the primary physical custodians.
At the July trial – technically held to adjudicate Father’s complaint for
custody – the Grandparents sought to present evidence that they had standing
to remain the child’s primary physical custodians. They had been the child’s
interim primary custodians for nearly a year. Father presented an oral motion
in limine to preclude such evidence, which the court granted. Specifically, the
court declined outright to revisit its previous determination, entered 12
months prior, that the Grandparents did not stand in loco parentis, per 23
Pa.C.S.A. §5324(2). The trial court additionally precluded the Grandparents
from presenting evidence of abuse, whereby they might have demonstrated
that they still had standing for primary custody under 23 Pa.C.S.A.
§5324(3)(iii)(B). The trial court proceeded to conduct a custody inquiry based
on only §5328(a). In its resulting August 17, 2017 custody order, from which
Grandparents have taken this appeal, the trial court reverted primary custody
back to Father at all times, except one day on the last weekend of every
month.
Grandparents raise the following claims:
1. Whether the trial court committed an error of law by precluding evidence
on the issue of the Grandparents’ standing for primary physical custody?
-4-
J-A02031-18
2. Whether the trial court committed an abuse of discretion by finding that
there were no credible allegations of abuse when such a finding is
against the weight of the evidence produced at trial?
3. Whether the trial court committed an abuse of discretion in finding that
one overnight per month with Grandparents, and no vacation or holiday
schedule for Grandparents was sufficient to maintain the positive and
close relationship the child has with Grandparents after determining that
neither party would encourage contact?
“Generally, an appellate court’s standard of review of a trial court’s
evidentiary ruling is whether the trial court abused its discretion; however,
where the evidentiary ruling turns on a question of law, review is plenary.”
Buckman v. Verazin, 54 A.3d 956 (Pa. Super. 2016). “A trial court’s decision
to grant a motion in limine is subject to an evidentiary abuse of discretion
standard of review.” In re Fiedler, 132 A.3d 1010, (Pa. Super. 2016).
In their first matter, Grandparents argue that the trial court erred when it
granted Father’s oral motion in limine and refused to revisit the issue of
standing. They cite Kellogg v. Kellogg, 646 A.2d 1246 (Pa. Super. 1994),
to support the proposition that the trial court may make a standing
determination at any time. This argument is not entirely accurate.
We decided Kellogg before the promulgation of a 2014 amendment to Rule
of Procedure 1915.5, which explicitly requires a standing objection be made
within 20 days. See C.G. v. J.H., 172 A.3d 43, 56 n.10 (Pa.Super.
2017)(discussing Kellogg). In our most recent discussion of Kellogg, we
stated, “While standing in custody cases may be fluid under some
circumstances, it certainly cannot be asserted at any time.” Id. (quoting M.G.
-5-
J-A02031-18
v. L.D., 155 A.3d 1083, 1087 n.5 (Pa. Super. 2017), appeal denied, 169 A.3d
522 (Pa. 2017). “[W]hile we have re-evaluated a party’s standing following a
factual change in circumstances, i.e., the termination of parental rights or
adoption, our review of Pennsylvania jurisprudence does not support the ad
hoc re-evaluation of standing….” M.G. 155 A.3d, at 1087 n.5. (Pa.Super.
2017)(emphasis original). In limiting Kellogg, we have reaffirmed there still
could be narrow circumstances when standing needs to be re-evaluated by
the trial court at a later date in the litigation.
The circumstances in the instant matter reflect the very fluidity and
factual change in circumstances we anticipated when we sought to safeguard
the trial court’s flexibility in third-party custody matters. Here, the trial court
conducted a proper standing determination in July 2016. But between then
and the final custody award, from which the appeal was taken, the change in
circumstances compelled the trial court to issue no less than four interim
custody orders. Primary custodians were swapped entirely.
In March 2017, this case’s complicated nature finally caused the trial
court to revoke jurisdiction from the hearing office so the trial judge could
hear the matter herself. Presumably, the learned trial court recognized its
need to have available the full spectrum of possible legal remedies. The very
fact that the trial court directed Father to file his own complaint for custody
demonstrated the need for the court to revisit standing. While the trial court
had yet to make final factual findings, its directive to Father carried with it the
-6-
J-A02031-18
implicit acknowledgement that the facts and circumstances might have
drastically changed since the initial standing determination.
We need look no further than the procedural disposition of this matter.
No final determination of the Grandparents’ amended complaint for custody,
filed in April 2016, was ever made; Father became the moving party by virtue
of his March 2017 petition. After the initial standing hearing, when the court
found Grandparents lacked standing for full custody, the trial court granted
the Grandparents interim primary custody based on allegations that the child
was substantially at risk of abuse when in the Father’s home. The custody trial
was held on Father’s complaint to determine whether primary physical custody
of the child should revert back to him. Grandparents should have been
afforded the opportunity to present evidence why primary physical custody
should remain with them. That is, they should have been afforded the ability
to present evidence that there actually was a substantial risk of abuse at
Father’s home.
When the trial court directed Father to file a complaint for custody, it
would have been unrealistic for the Grandparents to raise a standing
objection, per Pa.R.C.P. 1915.5. Parents always have standing for primary
custody. See 23 Pa.C.S.A. §5324(1). This hypothetical standing objection
would have improperly delayed the final custody trial, which finally came to
fruition 15 months after the Grandparents’ amended complaint for custody.
-7-
J-A02031-18
No doubt the convoluted path of this case – complete with several
interim custody orders and a full restart on litigation – was less than ideal for
the trial court. Various motions, abuse allegations, and bureaucratic delays
all conspired to make this case procedurally atypical. Such can be the nature
of contentious family court litigation, which is why precedent affords the trial
court the aforementioned discretion or when to address standing issues.
Here, we believe the trial court abused its discretion when it granted
Father’s motion in limine, thereby barring itself from re-evaluating the
changed facts and circumstances from the time of its initial standing
determination to the ultimate custody determination.
Because we conclude the trial court erred when it did not revisit
standing, we decline to address Grandparents’ remaining appellate issues. We
note for the trial court’s future reference, however, that it also erred in not
considering both the custody factors captured in 23 Pa.C.S.A. §5238(a) and
those grandparent-specific factors listed in §5328(c). See M.G. v. L.D., 155
A.3d 1083, 1100 (Pa. Super. 2017)(citing K.T. v. L.S., 118 A.3d. 1136, 1159
(Pa. Super. 2015);(see also L.A.L. v. V.D., 72 A.3d 690,695 (Pa. Super.
2013). The failure to consider both would have constrained this Court to
vacate the trial court’s order and remand the matter for the preparation of a
new order and memorandum. The failure to re-evaluate standing, however,
necessitates a new hearing on the matter.
-8-
J-A02031-18
Finally, in remanding the case for further proceedings, we recognize that
proceedings in the custody court might not be appropriate for this family at
this time. This Court learned at the oral argument on January 24, 2018, that
this case is scheduled for dependency proceedings. We defer to the trial court
to determine whether the custody action is moot in light of proceedings in
dependency court.2
Order vacated. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/2018
____________________________________________
2 Considering the hostility between Father and Paternal Grandparents, and the
bitterness that the parties continue to display during this highly contentious
child custody litigation, we recommend that the trial court appoint separate
counsel for S.J.H. pursuant to 23 Pa.C.S.A. § 5335 and/or a guardian ad litem
pursuant to 23 Pa.C.S.A. § 5334. The appointment of independent
representation is especially appropriate in light of the multiple allegations of
child abuse that Paternal Grandparents have leveled against Father
throughout these proceedings.
-9-
J-A02031-18
- 10 -