J-A30016-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
K.F. :
:
Appellant : No. 955 MDA 2019
Appeal from the Order Entered May 14, 2019
In the Court of Common Pleas of Lycoming County Civil Division at
No(s): FC-2013-0021695-CU
BEFORE: DUBOW, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 28, 2020
K.F. (Mother) appeals the order granting the petition for modification of
custody filed by R.P. (Father) and awarding Mother and Father shared legal
and physical custody of their son, G.P. (Child), born in November 2013. We
affirm.
The trial court set forth the factual and procedural history of this matter
as follows:
[Mother] has appealed this [c]ourt’s Order dated May 13, 2019,
and docketed on May 14, 2019, issued after a custody trial, with
regard to the Petition for Modification of Custody filed by [Father]
on September 6, 2018. At the time of the custody trial, Father
was present and represented by Melody Protasio, Esquire, and
Mother was present and represented by Brandon Schemery,
Esquire. Prior to the trial, Father and Mother reached an
agreement on a custody schedule for [Child] wherein the parties
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* Retired Senior Judge assigned to the Superior Court.
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would share physical custody on a week-on/week-off basis with
the custody exchanges taking place on Fridays at 4:30 p.m.
Although the parties agreed to the physical custody schedule, they
could not agree on which school district [Child] will attend when
he enters Kindergarten in the fall of 2019. Additionally, Mother
requested that the custody order contain a provision indicating
that if a party would need care for [Child] for a period of three
hours or longer, that party must offer the other parent the right
of first refusal to care for [Child] during that time.[1] Father
objected to the inclusion of this provision as his mother [(Paternal
Grandmother)] has provided childcare for [Child’s] entire life, and
he wishes to allow her to continue doing so during his periods of
custody.
Following a full day of testimony and, after careful consideration
of the facts and exhibits, this [c]ourt determined that [Child]
would attend [school in the South Williamsport School District
(South Williamsport)] where Father resides. Additionally, the
[c]ourt declined to include a right of first refusal/babysitting
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1 The prior custody order of December 3, 2014 contained a “first option
clause.” Mother’s Brief at 6. After Father filed the instant petition for
modification of custody, but before trial, Mother and Father agreed to an
interim custody stipulation, which included the following provisions:
2. The parties acknowledge that paragraph 3(h) of their current
custody order, filed December 3, 2014, permits the non-custodial
parent to pick [Child] up from daycare if he/she is not
working/attending school and the custodial parent is working. The
parties wish to amend that provision of the Order on an interim
basis.
* * *
4. . . . the parties specifically agree that on days where [Child]
has preschool (Mondays, Wednesdays, Fridays), the non-custodial
parent may get custody if they are not working or in school (and
the custodial parent is working or in school) from 11:30 a.m. until
4:15 p.m. or earlier if the custodial parent is off from work/school
earlier.
Interim Custody Stipulation, 2/21/19, at ¶¶ 2, 4.
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provision in the Order. Mother’s counsel filed a Petition for
Reconsideration on May 23, 2019, which was summarily denied
on May 29, 2019. Mother filed a timely Notice of Appeal on June
12, 2019.[2]
Trial Ct. Op., 7/2/19, at 1-2.
On appeal, Mother raises two issues, which we have reordered as
follows:
1. Whether the trial court erred in ordering [Child] to attend
[school in South Williamsport]?
2. Whether the trial court erred in giving a non-party, third party
individual, de facto visitation?
Mother’s Brief at 5.
Mother does not challenge the trial court’s award of shared physical and
legal custody. Instead, she challenges two aspects of the order, namely: (1)
the choice of school district and (2) the absence of a first refusal/babysitting
provision, which, Mother asserts, is equivalent to an improper grant of custody
to Paternal Grandmother. See id. at 35-36, 45, 62. We address these
challenges in further detail below.
Initially, we note that in custody cases under the Child Custody Act (the
Act), 23 Pa.C.S. §§ 5321-5340, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
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2 As required by Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and
(b), Mother filed a concise statement of errors complained of on appeal
contemporaneously with her notice of appeal.
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and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
With any child custody case, the paramount concern is the best
interests of the child. This standard requires a case-by-case
assessment of all the factors that may legitimately affect the
physical, intellectual, moral and spiritual well-being of the child.
M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa. Super. 2013) (citation omitted).
Section 5323 of the Act provides for the following types of awards:
(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. § 5323(a).
Section 5328(a) sets forth the best-interest factors that the trial court
must consider in making a custody award. See E.D. v. M.P., 33 A.3d 73, 79-
80, n.2 (Pa. Super. 2011). However, if the order addresses a discrete and
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distinct issue that is ancillary to the form of custody, full consideration of the
Section 5328(a) factors is not necessary. See S.W.D. v. S.A.R., 96 A.3d 396,
403 (Pa. Super. 2014). In S.W.D., this Court observed that
resolution of an otherwise ancillary matter may affect a form of
custody and require consideration of the § 5328(a) factors. For
instance, the choice of a child’s school may factor into a trial
court’s decision to award a form of custody when the trial court is
addressing a request to establish or change legal or physical
custody in connection with the choice of school. One parent in a
custody dispute may argue that he or she is entitled to primary
physical custody because his or her residence has much better
schools. On the other hand, many times—like here—these items
may appear as independent, discrete issues advanced by motion
or petition that does not require a change in the form of custody.
Although any decision requires consideration of the child’s best
interest, only the former situation requires consideration and
application of the § 5328(a) factors.
Id. at 403; see also M.O. v. J.T.R., 85 A.3d 1058, 1063 (Pa. Super. 2014)
(noting that when the trial court does not make an award of custody, but
modifies a discrete custody-related issue, it does not need to address the best-
interest factors in Section 5328(a) when determining the child’s best interest).
Mother first contends that the trial court erred in deciding that Child
would attend school in South Williamsport rather than in the Williamsport Area
School District (Williamsport). Mother’s Brief at 33-34, 46-62. Mother argues
that although “the trial court was not required to make a full analysis of the
factors, it was not excused from considering the relevant § 5328(a) factors.”
Id. at 47. In particular, Mother asserts that the trial court should have
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considered Section 5328(a)(3), (4), (6), (9), (10), (11), and (12).3 Id. at 49.
Relying on Fox v. Garzilli, 875 A.2d 1104 (Pa. Super. 2005), Mother argues
that the trial court did not properly consider the inconvenience of transporting
Child to school in South Williamsport. Id. at 48.
Mother contends that, if Child attends school in Williamsport,
transportation will be more convenient, and that the trial court did not truly
consider Mother’s inconvenience. Id. at 50-52. Mother argues that the trial
court did not consider that Mother performs more parental duties than Father,
and that Father has not been involved in Child’s daily transportation. Id. at
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3 The pertinent subsections of Section 5328(a) are:
(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.
(6) The child’s sibling relationships.
(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.
23 Pa.C.S. § 5328(a).
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54-56. Mother asserts the trial court failed to consider that Mother’s other
child, Child’s half-sibling, will eventually attend school in Williamsport,
providing additional convenience to Mother if both children attend school in
Williamsport. Id. at 56-57. Mother further argues that the trial court should
have credited testimony that, despite her frequent moves, she built a new
home and intends to remain in the home. Id. at 58.
Additionally, Mother contends that the trial court failed to consider that
other children from Child’s current preschool will attend school in Williamsport.
Id. at 59. Moreover, Mother claims that the court failed to assess Father’s
childcare arrangements and failed to consider how Child’s attendance at
school in South Williamsport would inconvenience Paternal Grandmother. Id.
at 60-61.
Mother summarizes her position as follows:
While the trial court was not required to make a full analysis of
the child custody factors, had it considered the relevant factors to
this case and used Fox . . . as guideposts to making its decision,
it would have been abundantly clear that the decision on May 13,
2019 manifestly inconvenienced both parties to the detriment of
the best interests of the child. Therefore, the trial court abused
its discretion in deciding [Child] should attend South Williamsport
School District, and its decision should be reversed.
Id. at 61-62.
When reviewing a trial court’s decision regarding a discrete issue of
school choice, this Court has noted that
the child’s best interest is still paramount. The § 5328(a) factors,
however, are a means to that end, and represent a legislative
framework for determining a form of custody that is in a child’s
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best interest. Even where a trial court need not consider and
address the § 5328(a) factors, it still must consider the child’s best
interest in custody matters.
S.W.D. 96 A.3d at 403.
Here, the trial court addressed the school choice issue as follows:
Mother . . . alleges that this [c]ourt abused its discretion pursuant
to 23 Pa.C.S.[] § 5328(a) by failing to give appropriate weight to
her “overwhelmingly favorable factors” related to the minor child
attending [school in Williamsport], where she resides. Again, this
[c]ourt notes that Mother’s reliance on 23 Pa.C.S.[] § 5328 is
misplaced. This statute enumerates the factors the [c]ourt must
consider in determining the best interest of the child when
ordering any form of custody. In the present case, the parties
arrived on the day scheduled for the custody trial with an
agreement regarding a shared physical custody schedule.
Therefore, counsel for the parties agreed that a comprehensive
evaluation of the factors enumerated in 23 Pa.C.S.[] § 5328(a)
was not required. While the parties agreed on a shared physical
custody schedule, they left it for the [c]ourt to decide which school
district [Child] would attend and whether or not Mother’s request
for a babysitting provision should be granted. Essentially, with
the physical and legal custody provisions agreed upon, the
testimony on the remaining issues was akin to a hearing on a
petition for special relief.
When determining that [Child] should attend [school in South
Williamsport], the [c]ourt carefully considered both parties’
positions. Mother, who recently had another child with her new
husband, will be a stay-at-home mother. Father works Monday
through Friday. His hours are currently 8:00 a.m. to 4:00 p.m.;
however, he testified that if his request to have [Child] attend
[school in South Williamsport] was granted, he had the flexibility
to change his hours to 9:00 a.m. to 5:00 p.m. Students in [South
Williamsport] can arrive for school at 8:15 a.m. and classes begin
at 8:35 a.m. This would enable Father to take [Child] to school
every day on his custody weeks. In [Williamsport], the doors do
not open until 8:50 a.m. This would prevent Father from ever
being able to take the Child to school during his weeks of custody,
even if he changed the start of his work day to 9:00 a.m., and
require him to arrange for childcare prior to the start of the school
day, including a third party having to transport [Child] to [school
in Williamsport].
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Father has lived in [South Williamsport] for [nine] years and lives
within walking distance of the elementary school that Child will
attend. Father had two witnesses testify that they live in his
neighborhood and have children who also attend the school, and
therefore [Child], who was described as shy, will have peers that
he is familiar with when he starts school in South Williamsport.
Mother, who has lived in her current home for only one year, lives
approximately [ten] highway miles from the elementary school in
Williamsport that [Child] would attend had this [c]ourt found in
her favor. Mother argued that she has another child who will
eventually attend [Williamsport], and that it would be an
inconvenience to have her children in different school districts.
Although the [c]ourt understands Mother’s desire to have her
children attend the same school district, because there is a five-
year age difference between [Child and Child’s half-sibling] they
will never attend the same school together. Therefore, the [c]ourt
did not find this to be a sufficient reason to tip the scales in favor
of [Williamsport].
The [c]ourt did consider the inconvenience that Mother may
encounter if she has to make two trips to South Williamsport to
take the Child to and from school on her weeks of custody.
However, as with any decision in a custody matter, the [c]ourt
must determine what is in the best interest of the Child. This
[c]ourt reasoned that by attending [school in South Williamsport],
on Mother’s weeks of custody he will be dropped off and picked
up by her. On Father’s weeks of custody, he will be dropped off
or walked to school by Father and picked up by paternal
grandmother and taken back to Father’s house. This significantly
reduces the amount of back-and-forth that [Child] could
encounter on Father’s weeks of custody if [Child] were to attend
[Williamsport]. This arrangement, coupled with the fact that
[P]aternal [G]randmother will continue to babysit [Child] on
Father’s weeks of custody, provides the most consistent and
stable schedule for [Child] as he transitions into kindergarten.
Trial Ct. Op. at 3-5 (record citations omitted).
The record supports the trial court’s conclusion. Kirk Felix, the principal
of Jackson Primary School in Williamsport, and Michele Loomis, the
elementary school principal in South Williamsport, testified that the class sizes
at each school were approximately the same. N.T., 5/13/19, at 61-63, 128.
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Both acknowledged that bus transportation would not be available to the
parent who resided outside the district. Id. at 66-67, 135. Mr. Felix testified
that students can arrive in Williamsport at 8:50 a.m. and are released at 3:35
p.m. Id. at 134. In South Williamsport, students can arrive at 8:15 a.m. and
classes begin at 8:35 a.m., with dismissal at 3:05 p.m. Id. at 63-64.
Mother testified that she primarily objected because if Child attended
South Williamsport, the driving distances would make it inconvenient for
everyone, but if Child goes to Williamsport, only Father would bear an
inconvenience.4 Id. at 173-74. Mother asserted that Father could currently
drop Child off at preschool in Williamsport on his way to work, but that he
makes Paternal Grandmother do it instead. Id. at 175. Mother noted that
most of Father’s drop-offs and pick-ups of Child currently occur at his sister’s
home, which is close to Mother’s residence. Id.
Mother acknowledged the trip to South Williamsport is approximately
the same distance as her current trip to Child’s preschool, but expressed
concerns about having to make the trip more frequently. Id. at 204-05.
Mother explained that it would be inconvenient for her to make the trip twice
per day, particularly once Child’s half-sibling attends school. Id. at 177-79,
205.
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4 M.R., Child’s stepfather, testified that it would be more convenient for Child
to attend school in Williamsport because M.R. and Mother would not have to
travel to two different school districts to watch Child’s and Child’s half-sibling’s
activities. N.T., 5/13/19, at 146-48.
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However, Mother agreed that Child and Child’s half-sibling would never
attend the same school because of their age difference. Id. at 210.
Additionally, Mother testified that she wanted Child to ride the bus to school
to gain independence. Id. at 176. Mother believed that the bus trip would
take ten to fifteen minutes, but Mother acknowledged she did not know. Id.
at 203.
Father testified that he lives two blocks from the elementary school in
South Williamsport and has resided in his home for ten years. Id. at 71.
Currently, Father works from 8:00 a.m. to 4:00 p.m., but has flexibility to
work from 9:00 a.m. to 5:00 p.m., which he would do if Child attended school
in South Williamsport. Id. at 72-73. This would enable Father to take Child
to school during his custodial time. Id. at 73. However, if Child attended
school in Williamsport, the later start time and the greater distance to his job
would prevent Father from taking Child to school in the morning. Id. Father
asserted that Child’s middle and high schools in Williamsport would be farther
from Mother’s house than the schools in South Williamsport. Id. at 95-96.
Father testified that if Child went to school in South Williamsport,
Paternal Grandmother would retrieve Child’s cousin, N., at his bus stop after
school, and then travel to South Williamsport to pick up Child. Grandmother
would then before bring the children a short distance back to Father’s house.
Id. at 100. Father testified Grandmother would stay at his house for less than
two hours before he returned home from work. Id. at 92. Father
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acknowledged that he is the only member of his family who lives in South
Williamsport and that Paternal Mother and the rest of his family live
geographically closer to each other in the Jersey Shore/Linden area. Id. at
104. However, he asserted that the travel times for Paternal Grandmother
would not be significantly different if Child went to school in South
Williamsport. Id.
Father noted that Child is very familiar with the South Williamsport
elementary school because they go to the playground there often. Id. at 75-
76. Father believed that Child, who he described as shy, would attend school
in South Williamsport with a friend from Father’s neighborhood and would
know one of the teachers.5 Id. at 88, 90-91.
Paternal Grandmother testified that if Child attends school in South
Williamsport, Father would not need help getting Child to school in the
morning. Id. at 37, 42. Paternal Grandmother further testified that she could
pick her other grandchildren up from the bus at 2:20 p.m. before getting Child
when his school day ended at approximately 3:00 p.m. Id. at 56-59. Paternal
Grandmother acknowledged that she lives closer to Mother than to Father and
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5 R.M., a friend of Father’s who has known Father since grade school, testified
that his daughter and Child are friends and frequently play together. N.T.,
5/13/19, at 6-7. R.M. testified his daughter would attend kindergarten at the
South Williamsport elementary school, and he believed there was a good
chance his daughter and Child would be in the same class. Id. at 8. Further,
R.M.’s wife is a teacher at the school and Child knows her. Id.
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that the school in Williamsport is geographically closer to her. Id. at 47-48,
51. However, Paternal Grandmother stated that the difference in the travel
times of going to the schools in Williamsport versus South Williamsport “might
be one minute or something like that.” Id. at 51.
Based upon our review of the record, we conclude that the trial court
did not commit an error of law or abuse of discretion in its determination that
Child would attend school in South Williamsport. Contrary to Mother’s
argument, the trial court was not required to assess the custody best interest
factors when deciding the discrete issue of Child’s school district. See S.W.D.,
96 A.3d at 403–04.
Further, while Mother argues that Fox should control, we disagree. In
Fox, the mother and father disputed which school district their children would
attend. At the time, the mother exercised physical custody of the children
from Sunday through Thursday, while the father exercised physical custody
from Thursday night through Sunday three weeks per month, and from
Thursday night to Friday one week per month. Fox, 875 A.2d at 1106. The
children were both in elementary school and the parents’ homes were one and
a half miles apart. Id. The children’s elementary school, which was located
in the father’s school district and two miles from the mother’s home, was
somewhat closer to the father’s home. Id. at 1109. The mother was required
to drive the children to school because busing was not available since her
house was not in the same school district. Id. If the children remained in the
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father’s school district, the mother’s drive to the middle and high schools in
the father’s district would exceed twenty minutes, while the middle school in
her district would be less than two miles away. Id.
Ultimately, the trial court in Fox determined that the children would
continue to attend school in the father’s school district, focusing primarily on
the fact that the children were doing well in the school district. Id. at 1108.
This Court reversed, holding that the evidence did not support the trial court’s
conclusion that “the choice of school does not present a burdensome commute
for either party, nor does it present a situation that is contrary to the best
interests of either child.” Id. at 1110 (record citation omitted)). Instead, this
Court observed that if the children attended school in the mother’s school
district, they could get a bus directly across the street from the mother’s
residence. Id. at 1109. Further, the greater distance and travel times
required the children to awaken earlier to accommodate the additional travel
time, and attending school district where the mother resided would have a
favorable impact on the children’s ability to establish friendships with children
who lived in the immediate vicinity. Id. at 1109-1110. The Fox Court held
that “[s]ince the children live primarily with [their m]other, the record
supported the conclusion that they should attend school where they reside.”
Id. at 1110.
Here, Mother’s and Father’s physical custody schedule is markedly
different from the schedule in Fox. Child spends equal time in both homes,
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albeit on a week on/week off schedule. Therefore, the predominant feature
in Fox, that the children lived primarily with one of the parents, is not present
here. Therefore, Mother’s arguments based on Fox merit no relief.
Moreover, although Mother argues that it would be more convenient for
her and Paternal Grandmother for Child to attend school in Williamsport, the
trial court appropriately focused on the best interests of Child. The trial court
considered the inconvenience to Mother of making two trips to South
Williamsport to take the Child to and from school on her weeks of custody.
See Trial Ct. Op. at 5. However, the trial court reasoned that by having Child
attend kindergarten in South Williamsport, Mother will drop off and pick up
Child on her weeks of custody. See id. During Father’s weeks of custody,
Father will drop off or walk Child to school and Grandmother will pick up Child
and taken him back to Father’s house. See id. The trial court concluded that
this significantly reduced the amount of back-and-forth that Child would
encounter during Father’s weeks of custody and provided the more consistent
and stable schedule for Child as he transitions into kindergarten. See id. at
5-6.
In sum, after considering the record, as well as the trial court’s rationale,
we discern no abuse of discretion or error of law in the trial court’s conclusion
that it is in Child’s best interest to attend school in South Williamsport.
Accordingly, Mother’s first issue fails. See M.J.M. 63 A.3d at 334.
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In her remaining issue, Mother claims that by denying her a right to
custody of Child when Father needs to utilize the services of a babysitter for
more than three hours, the trial court awarded Paternal Grandmother “de
facto visitation.” Mother’s Brief at 37. Mother asserts that including a right
of first refusal would foster the best interests of Child by prioritizing Child’s
time with his parents as opposed to third parties. Id. at 35. Mother argues
that the parties previously included a right of first refusal in the custody order
and that the trial court’s failure to include such a provision in the May 14,
2019, order precludes her from caring for Child when Father is at work and
Child has a school break. Id. at 35-36.
Mother acknowledges that Paternal Grandmother was not a party to the
custody litigation, but contends that Grandmother lacked standing to seek
physical custody pursuant to 23 Pa.C.S. § 5325.6 Id. at 37-39. Mother further
argues, pursuant to 23 Pa.C.S. § 5327,7 that there is a presumption in favor
of a parent over third parties in custody matters. Id. at 41. Moreover, Mother
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6 Section 5325 sets forth limited situations where grandparents and great-
grandparents can file an action for partial physical custody or supervised
physical custody. See 23 Pa.C.S. § 5325. Mother also references 23 Pa.C.S.
§ 5324, which delineates the individuals who may file an action for any form
of physical or legal custody.
7 In pertinent part, Section 5327 provides: “In any action regarding the
custody of the child between a parent of the child and a nonparent, there shall
be a presumption that custody shall be awarded to the parent. The
presumption in favor of the parent may be rebutted by clear and convincing
evidence.” 23 Pa.C.S. § 5327(b).
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asserts, “the law protects the natural parent’s relationship with his or her child
and will not interfere unnecessarily with that relationship, even at the cost of
estrangement to the extended family.” Id. Mother contends:
This well-known abductive reasoning test applies: if it looks like a
duck, swims like a duck, and quacks like a duck, then it probably
is a duck. In this case, if it looks like an award of visitation, sounds
like an award of visitation, and acts as an award of visitation, it
probably is.
Id. at 42-43. Additionally, Mother argues that the trial court failed to consider
Child’s sibling relationship with Mother’s infant daughter. Mother’s Brief at 45.
The trial court rejected Mother’s argument, reasoning:
Mother alleges that this [c]ourt abused its discretion in denying
her request for a modified inclusion of a long-standing mutual
babysitter/first option clause in the final custody Order. Mother
further alleges that this essentially gave a third party de facto
visitation in lieu of Mother’s ability to provide childcare. Mother
cites 23 Pa.C.S. § 5324 in her Concise Statement. The [c]ourt
initially notes that Mother’s reliance on this statute in support of
her position is misplaced. 23 Pa.C.S. § 5324 describes certain
individuals who may file an action for any form of physical or legal
custody. In the instant case, [Paternal Grandmother] was not
requesting to intervene in the current custody case, nor was she
seeking any defined period of custody of [Child]. The [c]ourt
heard testimony from [Paternal Grandmother] that she retired in
March of 2016 and started to babysit her grandchild, and had
watched him every day since then. [Paternal Grandmother] also
babysits her other grandchildren, one of whom is very close with
[Child]. For years, [Paternal Grandmother] babysat [Child] with
the consent of both parties, including during Mother’s periods of
custody. It is evident to this [c]ourt that there is a very close
bond between [Child] and [Paternal Grandmother], and that she
has consistently played an important role in his life as a caregiver.
This [c]ourt’s decision did not grant [Paternal Grandmother] any
type of standing or any defined period of visitation or physical
custody of [Child]. Instead, it simply gave Father the opportunity
to make his own arrangements for childcare if needed when
[Child] is in his custody. Nothing in this [c]ourt’s Order precludes
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Father from offering Mother additional time with the Child during
his weeks of custody when he is working or during the summer.
It merely gives Father the freedom to choose what is most
convenient for him in terms of childcare while allowing him to
maintain the important long-standing bond between [Paternal
Grandmother] and [Child].
Trial Ct. Op. at 2-3.
The record supports the trial court’s conclusion. Mother acknowledged
that Paternal Grandmother previously provided care for Child when both
Mother and Father worked. N.T., 5/13/19, at 164. However, Mother testified
that she now stays at home with her new baby and Child. Id. While Mother
confirmed that Child’s relationship with Paternal Grandmother is important,
Mother explained that she wants to watch both of her children to foster their
relationship and “would love to watch [Child] everyday, be with him and
encourage the relationship.” Id. at 165-66. Mother testified that she was
most concerned with including a right of first refusal for summer vacation and
school holidays when Child would be cared for by Paternal Grandmother for
the whole day while Father works. Id. at 167.
Father testified that Paternal Grandmother provided care for Child for
the prior three years, during both Father’s and Mother’s custodial time. Id.
at 80, 113. Father noted that Child has a very close relationship with his
cousin, N., and that Paternal Grandmother also provides care for both
children. Id. at 94-95. Father explained that he objected to including a right
of first refusal because he wanted Child to have a relationship with his family
during his custodial time. Id. at 111.
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Paternal Grandmother testified that she started caring for Child and her
two other grandchildren when she retired in March 2016. Id. at 28. Initially,
Grandmother watched Child during both Mother’s and Father’s custodial time,
as both had to work. Id. at 30-31. However, after Mother went on maternity
leave in early 2019, Mother provided most of the daytime care for Child. Id.
at 30-31, 33, 54-55. Paternal Grandmother testified that Child and Child’s
cousin, N., are good friends and enjoy spending time together. Id. at 32-33.
When Paternal Grandmother cares for Child during the summer, N. is typically
with her as well, and Grandmother takes the children swimming and hiking,
and to the library. Id. at 28-29.
Contrary to Mother’s argument, the trial court did not confer upon
Paternal Grandmother any right to visitation or physical custody when it
denied Mother a right of first refusal.8 Rather, it permitted Father, in his
____________________________________________
8 We note that “visitation” is not among the awards of custody contemplated
by the current version of the Act. The predecessor to the Act treated “custody”
and “visitation” as distinct awards. See 23 Pa.C.S. § 5302 (defining
“visitation” as “[t]he right to visit a child. The term does not include the right
to remove a child from the custodial parent’s control”) (repealed eff. 2011).
The current Act eliminates this distinction. See 23 Pa.C.S. § 5322(b) (stating
that “[i]n a statutory provision other than in this chapter, when the term
‘visitation’ is used in reference to child custody, the term may be construed to
mean: (1) partial physical custody; (2) shared physical custody; or (3)
supervised physical custody”). In this instance, the most analogous provision
regarding Paternal Grandmother’s care of Child is partial physical custody,
which the Act defines as “[t]he right to assume physical custody of the child
for less than a majority of the time.” 23 Pa.C.S. § 5322(a).
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discretion, to utilize third parties, including Grandmother, to care for Child
during his custodial time.9 In short, we discern no merit to Mother’s argument
that the trial court awarded Grandmother any form of custody.
Moreover, the trial court’s decision was guided by Child’s best interests.
In concluding that it would not include a right of first refusal, the trial court
focused on the fact that Father has the freedom to choose what is most
convenient for him in terms of childcare while also allowing Father to maintain
the important long-standing bond between Grandmother and Child. See Trial
Ct. Op. at 3. After a review of the record, we conclude that the trial court did
not abuse its discretion when it did not to include a right of first refusal in its
May 14, 2019, custody order.
Order affirmed.
____________________________________________
9 Mother’s argument suggests that, in all instances, a parent must be given
the option to take custody of their child from a care provider. However, in
Johnson v. Lewis, 870 A.2d 368 (Pa. Super. 2005), a case predating the
Act, the mother argued that the trial court should have made a provision for
her to have physical custody during the periods when the father worked the
night shift. Id. at 374. Relatedly, the panel considered whether the trial court
erred by allowing any third party, even a competent nanny, to care for the
child when the father worked overnight, where the mother, a fit parent, would
be available to watch the child. Id. at 374-75. The panel examined the
number of waking hours that the child would spend with both parents under
the trial court’s order if the father would work the night shift. Id. at 375. The
panel determined that it would disrupt the child’s stability to provide the
mother with custodial time during the nights when the father would work. Id.
The panel held that maintaining the stable consistency of a weekly shift in
physical custody, even if the father would alter his work schedule, was
reasonably in the child’s best interest. Id.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/28/2020
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