A.M. v. A.J., Appeal of: L.F.

J-A02003-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 A.M. V. A.J.                            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
 APPEAL OF: L.F.,                        :
                                         :
                    Intervenor           :
                                         :
                                         :
                                         :   No. 885 WDA 2020

                Appeal from the Order Entered July 22, 2020
                In the Court of Common Pleas of Erie County
                     Civil Division at No(s): 10752-2018


BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.:                        FILED FEBRUARY 19, 2021

      L.F. (“Grandmother”), the maternal grandmother of B.J. and A.J.,

appeals from the trial court’s July 22, 2020 order that denied her petition to

intervene in the pending custody litigation between A.M. (“Mother”) and A.J.

(“Father”). We affirm.

      B.J. and A.J. were born in 2013 and 2015, respectively. Between 2016

and 2019, the children resided on Kelso Drive in Erie, Pennsylvania, either as

part of an intact family or with Father. There is no dispute that Grandmother

was a fixture in the children’s lives during this period and helped Mother and

Father care for the children. After the relationship between Mother and Father

deteriorated, Mother moved from the residence and filed a complaint for

custody of the children.
J-A02003-21


       On April 19, 2018, Mother and Father entered a consent agreement

whereby they agreed to share physical and legal custody of the children.

Approximately one year later, Father filed a motion to modify that custody

arrangement due to Mother’s substance abuse problems.        The matter was

assigned to the Honorable Elizabeth K. Kelly, who granted the petition on July

23, 2019, and awarded Father sole physical and legal custody of the children.

Grandmother continued to assist Father with caring for the children until

December 2019.

       Meanwhile, on October 29, 2019, Mother filed a petition to modify the

July 23, 2019 custody order. While that litigation was pending, Grandmother

filed in the orphans’ court petitions seeking to be appointed the guardian of

the person and the estate of B.J. and A.J. The orphans’ court referred the

family to the Erie County Office of Children and Youth (“OCY”) and appointed

Steven George, Esquire as guardian ad litem. Thereafter, the custody court

scheduled the guardianship and custody matters collectively before Judge

Kelly and directed Mother, Father, and Grandmother to submit hair follicle

samples for drug testing. After it was reported that Mother and Grandmother

failed to comply with the drug testing procedure, the court scheduled a

contempt hearing simultaneous with the guardianship and custody matters.1




____________________________________________


1 The hearing was originally scheduled for April 2020, but was delayed until
July 16, 2020 due to the COVID-19 pandemic.

                                           -2-
J-A02003-21


      On June 11, 2020, Grandmother filed in the custody court a petition to

intervene in the custody proceedings, a motion to dismiss the contempt

hearing, and a counterclaim for physical custody of both children.             The

petitions were scheduled for hearing along with the pending custody and

guardianship matters, and on July 16, 2020, Judge Kelly heard evidence from

the guardian ad litem, the OCY caseworker, Father, and Grandmother’s

counsel concerning all of the pending petitions.       Grandmother and Father

presented competing narratives regarding the level of Grandmother’s

interaction with the children. The guardian ad litem opined that guardianship

was not appropriate in this case, but he noted that Grandmother played a

substantial role in caring for the children and believed that her continued

contact with B.J. and A.J. would serve the children’s best interest.

Significantly, however, the guardian ad litem intentionally avoided opining on

whether Grandmother stood in loco parentis to the children, highlighting that

the extent of her involvement, whether as a mere helper or a de facto parent,

was still under dispute.

      In   open   court,   Judge   Kelly   denied   Grandmother’s   petition   for

guardianship and dismissed the contempt petition. N.T., 7/16/20, at 8, 10.

After taking the matter relating to Grandmother’s standing under advisement,

Judge Kelly entered the above-referenced order denying Grandmother’s

petition to intervene.




                                      -3-
J-A02003-21


        This timely appeal followed, wherein Grandmother complied with

Pa.R.A.P. 1925(a)(2)(i) by contemporaneously filing a concise statement of

errors complained of on appeal. The trial court entered an opinion pursuant

to Pa.R.C.P. 1925(a). Grandmother presents three issues for our review:

        I. Whether the trial court committed an error of law and/or abused
        its discretion in denying the motion to intervene, where the
        testimony, including that of the guardian ad [l]item, established
        that [Grandmother] parented the children along with the
        Appellee/Father, thus establishing standing pursuant to 23
        Pa.C.S. section 5324(2) (in loco parentis standing).

        II. Whether the trial court committed an error of law and/or
        abused its discretion in denying the motion to intervene pursuant
        to 23 Pa.C.S. section 5325(2) (standing for partial custody or
        visitation), where [Grandmother] had a prior relationship with the
        children with the consent of the parents, the parents initiated the
        custody action, and the parents do not agree whether
        [Grandmother] should have partial custody or visitation.

        III. Whether the trial court committed an error of law and/or
        abused its discretion in disregarding the testimony of the guardian
        ad litem as to [Grandmother’s] history and relationship with the
        children and that it would be in the children's best interest for
        movant to have some form of partial custody.

Grandmother’s brief at 3-4 (unnecessary capitalization omitted).2

        Our standard of review is well-settled.

        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
        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
____________________________________________


2   Neither Father, Mother, nor the guardian ad litem filed a brief in this appeal.

                                           -4-
J-A02003-21


      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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa.Super. 2012) (citations omitted).

      Grandmother’s issues implicate her standing to participate in the

custody litigation between Mother and Father. In child custody cases, the

concept of standing differs from the typical determination regarding whether

a party has a direct interest in the outcome of litigation.      As this Court

explained,

      In the area of child custody, principles of standing have been
      applied with particular scrupulousness because they serve a dual
      purpose: not only to protect the interest of the court system by
      assuring that actions are litigated by appropriate parties, but also
      to prevent intrusion into the protected domain of the family by
      those who are merely strangers, however well-meaning.

D.G. v. D.B., 91 A.3d 706, 708 (Pa.Super. 2014) (quoting J.A.L. v. E.P.H.,

682 A.2d 1314, 1318 (Pa.Super. 1996)).

      Grandmother invokes two separate standing provisions under the Child

Custody Law. First, as it relates to standing to exercise any form of physical

custody or legal custody, the Child Custody Law extends standing to, inter

alia, “A person who stands in loco parentis to the child.” 23 Pa.C.S. § 5324(2).

We previously explained,

      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.   Critical to our discussion here, in loco

                                     -5-
J-A02003-21


       parentis status cannot be achieved without the consent and
       knowledge of, and in disregard of, the wishes of a parent.

K.W. v. S.L., 157 A.3d 498, 505 (Pa.Super. 2017).3

       Second, the Child Custody Law provides grandparent standing for partial

physical custody and supervised physical custody as follows:

             In addition to situations set forth in section 5324 (relating
       to standing for any form of physical custody or legal custody),
       grandparents and great-grandparents may file an action under
       this chapter for partial physical custody or supervised physical
       custody in the following situations:

         (1) where the parent of the child is deceased, a parent or
         grandparent of the deceased parent may file an action under
         this section;

         (2) where the relationship with the child began either with the
         consent of a parent of the child or under a court order and
         where the parents of the child:

            (i) have commenced a proceeding for custody; and

            (ii) do not agree as to whether the grandparents or great-
            grandparents should have custody under this section; or

         (3) when the child has, for a period of at least 12 consecutive
         months, resided with the grandparent or great-grandparent,
         excluding brief temporary absences of the child from the home,
         and is removed from the home by the parents, an action must
         be filed within six months after the removal of the child from
         the home.

23 Pa.C.S. § 5325




____________________________________________


3 Grandmother does not assert standing under any of the remaining
subparagraphs, including the provision that addresses a grandparent who is
not in loco parentis, i.e., 23 Pa.C.S. § 5324(3).

                                           -6-
J-A02003-21


      In sum, Grandmother argues that the trial court abused its discretion in

concluding that the evidence presented during the custody hearing did not

warrant finding that she stood in loco parentis pursuant to 23 Pa.C.S.

§ 5324(2). She contends that, for three years, she assisted Mother and Father

in raising the children until Father obtained sole custody and precluded

contact. In support of this position, Grandmother highlights the fact that B.J.

remained in the school district designated for her residence even though

Father was awarded physical custody, presumably in a different district.

      As to § 5325(2), Grandmother asserts that her relationships with the

children began with the consent of Mother and Father, who have commenced

a proceeding for child custody and do not agree as to whether she should

exercise custody. The first two prongs of this subsection are not in dispute.

In support of the determinative final prong, Grandmother’s counsel argued

during the hearing, “presently the mother is allowing contact by phone

between the grandmother and the children, while the father has refused all

contact since December of 2019.” N.T., 7/16/20, at 14.

      Finally, Grandmother argues that the trial court erred in disregarding

the testimony of the guardian ad litem concerning the benefits of her

continued contact with the children. Specifically, Grandmother contends, “the

testimony of the [guardian ad litem] . . . confirmed that . . . Father and

Maternal Grandmother were the two parties working together to raise the




                                     -7-
J-A02003-21


children, and that it would be in the children’s best interest to have a schedule

with Maternal Grandmother.” Grandmother’s brief at 19.

      After a thorough review of the certified record, Grandmother’s brief, and

the pertinent law, we fully agree with the cogent and well-reasoned opinion

entered on September 4, 2020, by the Honorable Elizabeth K. Kelly.

Specifically, as it relates to Grandmother’s three arguments, Judge Kelly

concluded that (1) in light of Father’s credible testimony to the contrary,

Grandmother’s interactions with B.J. and A.J. did not constitute the

assumption of parental status with Father’s consent; (2) Mother’s willingness

to permit the children’s telephone contact with Grandmother is not

tantamount to evidence of her agreement to Grandmother exercising physical

custody; and (3) notwithstanding his observations about the children’s best

interests, the guardian ad litem specifically declined to speculate about the

threshold determination concerning whether Grandmother stood in loco

parentis with the children. See Trail Court Opinion, 9/4/20, at 4-9. We adopt

Judge Kelly’s reasoning as our own in affirming the denial of Grandmother’s

petition to intervene.

      Order affirmed.




                                      -8-
J-A02003-21


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2021




                          -9-
                                                          Received 9/11/2020 3:08:54 PMCirculated 01/29/2021
                                                                                        Superior Court       12:34
                                                                                                       Western     PM
                                                                                                                District


                                                              Filed 9/11/2020 3:08:54 PM Superior Court Western District
                                                                                                        885 WDA 2020
AMBER MOWREY,                                              IN THE COURT OF COMMON PLEAS
       Plaintiff                                           OF ERIE COUNTY, PENNSYLVANIA

                              v.

ARMANDO JIMENEZ,
    Defendant                                              NO. 10752      - 2018


                                                 OPINION

       Septembere,2020:       This child custody matter is before the Court on the appeal of Lori

Ferguson from a July 22, 2020 Order denying her Petition to Intervene and Counter-Claim for

Custody. Ms. Ferguson filed the Petition in the custody action regarding her two grandchildren,

B.J., now seven years old, and A.J.,   5   years old (hereinafter "the Children").

                                   PROCEDURAL HISTORY

       On March 20, 2018, Amber Mowrey (hereinafter "Mother") filed a Complaint for Custody

against Armando Jimenez (hereinafter "Father") requesting primary physical custody of the

Children. The parties, by a consent order entered April 19, 2018, agreed to an order whereby they

would share legal and physical custody of the Children. Pursuant to the April 19, 2018 Order of

Court, Mother was to exercise physical custody every Monday through Thursday with Father

exercising custody every Thursday through Monday.

       On April 9, 2019, Father filed a Modification Petition. Father alleged that the best interest

of the children would be served by modification of the order due to safety concerns, including B.J.

being returned to First Student as Mother was not home when the bus dropped him off from school.

Following a July 23, 2019 Custody Trial, the undersigned issued a July 23, 2019 Order granting




                                                      1
Father sole legal and physical custody of the Children'.

         Mother, on October 29, 2019, filed a Modification Petition requesting primary physical

custody of the Children. Mother and Father attended a November 19, 2019 custody conference at

which they were unable to reach an agreement regarding custody. Accordingly, the matter was

forwarded to court for a custody trial. The case was scheduled in the Custody Trial Term occurring

during the week of January 27, 2020.

         Meanwhile, on December 23, 2019, Ms, Ferguson filed a Petition for Appointment of

Guardian of the Person and/or Estate of a Minor requesting guardianship of each of the Children.

Following a January 16, 2020 hearing, the undersigned issued an order of the same date continuing

the hearing to April 13, 2020, referring the matter to the Erie County Office of Children and Youth

for investigation and appointing Steven George, Esquire as Guardian Ad Litem for both of the

Children.2

         By Order of Court filed January 30, 2020, the Honorable Joseph M. Walsh, III ordered

Mother, Father and Ms. Ferguson all to submit to drug testing and ordered the custody trial on

Mother's Modification Petition to be heard simultaneously with the April 13, 2020 guardianship

hearing. The custody and guardianship hearings were ultimately continued to July 16, 2020 due to

the global COVID-19 pandemic.

         Meanwhile, Ms. Ferguson, on June 11, 2020, filed her Petition to Intervene and Counter -

Claim for Custody alleging that she had standing to intervene.




1 At the Custody Trial, Father testified to Mother's drug use, her eviction from her apartment, and
                                                                                                    her association with a
man who hit B.J. Father further testified that the Children had been fully in his custody for over month, with Mother
visiting the Children at times. Father acknowledged that Ms. Ferguson was helping him with the Children.

 As noted in the January 16, 2020 Orders in Orphans' Court, the matter was referred to the Erie County Office of
Children and Youth based upon significant allegations of parental abuse and neglect of the Children and unstable
housing, as well as allegations that all parties, including the proposed guardian, Lori Ferguson, were drug addicted and
using the Children for financial gain.


                                                            2
        Following the July 16, 2020 hearing, the undersigned issued orders denying each Petition for

Appointment of Guardian of the Person and/or Estate of a Minor, as well as the Petition to Intervene

and Counter-Claim for Custody.

        In her Statement of Matters Complained of on Appeal, Ms. Ferguson makes the following

allegations of error:

                1.     The Trial Court committed an error of law and/or abused its discretion in
               denying the Motion to Intervene where the testimony, including that of the Guardian
               ad Litem, established that Movant, Lori Ferguson, parented the children along with
               Defendant/Father, thus establishing standing pursuant to 23 Pa.C.S. §5324(2)(in loco
               parentis standing).
               2.      The Trial Court committed an error of law and/or abused its discretion in
               denying the Motion to Intervene pursuant to 23 Pa.C.S. §5325(2)(standing for partial
               custody or visitation), where the Movant had a prior relationship with the children
               with the consent of the parents, the parents initiated the custody action, and the
               parents do not agree whether Movant should have partial custody or visitation.
               3.       The Trial Court committed an error of law and/or abused its discretion in
               disregarding the testimony of the Guardian ad Litem as to the Movant's history and
               relationship with the child and that it would be in the children's best interest for
               Movant to have some form of partial custody.


                                             DISCUSSION

        All of Ms. Ferguson's allegations of error are based upon the decision of this court not to

allow her to intervene in the custody dispute between the Children's parents. With regard to

standing in a custody action, the Pennsylvania Supreme Court has outlined the general principals as

follows:

                The fundamental concept of standing ensures that a party seeking to litigate a matter
                has a substantial, direct, and immediate interest in the subject-matter of the litigation.
                "In the area of child custody, principles of standing have been applied with particular
                scrupulousness[.]" This stringent application of standing principles serves to protect
                both the interest of the court system by ensuring that actions are litigated by
                appropriate parties and the interest in keeping a family unit free from intrusion "by
                those that are merely strangers, however well-meaning." Indeed, in evaluating
                whether a Washington state statute conferring standing to "any person" to seek
                visitation of children, the United States Supreme Court has recognized the significant
                interest at stake in the context of persons seeking judicial intervention to gain
                visitation or custody of children. "The liberty interest ... of parents in the care,


                                                    3
                   custody and control of their children is perhaps the oldest fundamental liberty
                   interest recognized by this Court." In Pennsylvania, Section 5324 of the Domestic
                   Relations Code limits the classes of persons deemed to have a substantial, direct, and
                   immediate interest in the custody of children by conferring standing only upon "(1) a
                   parent of the child[;] (2) a person who stands in loco parentis to the child[; and] (3) a
                   grandparent of the child who is not in loco parentis to the child[,]" under certain
                   circumstances. Determining standing in custody disputes is a threshold issue that
                   must be resolved before proceeding to the merits of the underlying custody action. It
                   "is a conceptually distinct legal question which has no bearing on the central issue
                   within the custody action who is entitled to physical and legal custody" of a child in
                   light of his or her best interests. Issues of standing are questions of law; thus, the
                   standard of review is de novo and the scope of review is plenary.

C.G.   v.   J.H., 193 A.3d 891 (Pa. 2018) (citations omitted).

            Ms. Ferguson first alleges that the court erred by denying her request to intervene "where

the testimony, including that of the Guardian ad Litem, established that Movant, Lori Ferguson,

parented the children along with Defendant/Father, thus establishing standing pursuant to 23

Pa.C.S. §5324(2)(in loco parentis standing)."

            A person who stands in loco parentis to a child may file a custody action to pursue any form

of physical or legal custody of the child. See 23 Pa.C.S.A. §5324(2). "[T]he phrase 'in loco

parentis refers to a person who puts himself [/herself] in the situation of assuming the obligation

incident to the parental relationship without going through the formality of a legal adoption." D. G.

v.   D.B., 91 A.3d 706 (Pa. Super. 2014) quoting Argenio v. Fenton, 703 A.2d 1042, 1044

(Pa.Super.1997). The legal status of in loco parentis requires the individual claiming the status to

prove their: (1) assumption of parental status; and (2) discharge of parental duties. See id; see also

C.G., 193 A.3d at 907. "The rights and liabilities arising out of an in loco parentis relationship are,

as the words imply, exactly the same as between parent and child." D. G.        v.   D.B., 91 A.3d at 708-09

quoting Morgan       v.   Weiser, 923 A.2d 1183, 1187 (Pa.Super,2007).

            At the July 16, 2020 hearing, Ms. Ferguson, through counsel, set forth that B.J. lived with

her from birth until the age of two, that Mother and both Children resided with her for several years



                                                       4
after that, that the Children were with her all week long after Mother got her own apartment and that

Father shared custody with her once he was granted sole custody of the Children, Ms. Ferguson

further set forth that she provided substantial financial support for the Children when they resided

with her, that she provided B.J. with school clothes, that she drove the Children to almost every

doctor and dental appointment until the Summer of 2019 and that she would have to leave work to

pick the Children up from school because the parents failed to do so.

       Contrary to the picture painted by Ms. Ferguson's counsel, Father represented that Ms.

Ferguson has assisted as a grandmother, while he and Mother shared custody of the Children.

Father asserted that Ms, Ferguson's representation that the Children lived with her was a lie. Father

testified that once Mother moved out of Ms. Ferguson's home that he, Mother and the Children

lived together. He further asserted that Ms. Ferguson saw the Children on weekends but that the

relationship evolved to the point that, when she did take the Children for visits, she only wanted one

child at a time or asked for Father to come and play with one while she interacted with the other

because it was too much for her to have both of the Children at the same time.

       The documents filed of record throughout these proceedings lend credibility to Father's

testimony. Specifically, long before Ms. Ferguson requested to intervene in the custody action,

Mother and Father consistently represented that the Children resided with them as an intact family

unit since at least 2016. First, when Mother, on March 20, 2018, filed the Complaint for Custody

initiating the custody proceedings, she set forth that the Children resided with both parents at 411

Kelso Drive #53 from November 25, 2016 through March 5, 2018 and that, thereafter, the Children

continued to reside with Father at the Kelso Drive address. By the time that Father filed his

Modification Petition on April 9, 2019, both parents' addresses had changed, however, consistent

with Mother's representation in her Complaint for Custody, Father represented that the Children




                                                   5
resided with both parents at 411 Kelso Drive #53 in 2017 and 2018. There is no mention of Ms.

Ferguson during this time, nor was there any attempt by her to intervene.

       With regard to Ms. Ferguson leaving work to pick up the Children from school, it is

noteworthy that Father, in April of 2019, filed a Petition for Modification indicating that the best

interests of the Children would be served by granting him custody due to the safety concern of

Mother not being home when B.J, arrived home through First Student. Moreover, while

grandmother may have provided transportation for the Children to medical and dental appointments,

the Court cannot ignore Father's testimony from the January 16, 2020 guardianship hearing which

demonstrated that he was very much aware of what was going on with the Children's health and

B.J.'s dental needs, indicating that he was substantially involved in such care.

       There is no doubt that Ms. Ferguson assisted Father with the Children when he first assumed

sole physical custody. Father testified to such at the July 23, 2019 Custody Trial, Moreover, based

upon his meetings with the parties, the GAL testified that, because of Mother's serious drug

addiction, Ms. Ferguson stepped into a "mother -like role." Nevertheless, Attorney George

immediately qualified his statement to indicate that he did not identify Ms. Ferguson's role in terms

of standing, but was simply saying that Father worked directly with Ms. Ferguson who provided

some care for the Children.

       Ms. Ferguson's actions in helping out with her grandchildren are commendable. They do

not, however, rise to the level of the assumption of parental status. Even if B.J and Mother resided

with Ms. Ferguson until B,J. was two years old, Father's credible testimony indicates that custody

was between the parents thereafter. Once Father assumed sole custody, Ms. Ferguson helped out

with the Children, including taking them to her house at times on the weekends. Nevertheless, even

that diminished as Ms. Ferguson's desire to take only one child at a time became upsetting to the

Children. Providing the Children with occasional shelter, some financial support, and transportation
to and from medical appointments does not confer in loco parentis status. See D.G.    v.   D.B., 91 A.3d

at 711-12(grandmother did not stand in loco parentis to child, despite child and mother residing

with grandmother for 2 separate time periods, grandmother exercising custody every other weekend

upon mother and grandchild moving out, grandmother doing the grandchild's laundry and providing

meals to mother and grandchild, and grandmother taking grandchild to medical appointments). As

Ms. Feguson's actions are more akin to assistance in a time of need, rather than assuming parental

status, a grant of in loco parentis status is not warranted.

       In her second allegation of error, Ms. Ferguson contends that the court committed an error of

law and/or abused its discretion in denying intervention pursuant to 23 Pa.C.S. §5325(2). Pursuant

to the Domestic. Relations Code, a grandparent has standing to file an action for partial physical

custody or supervised physical custody, in relevant part, as follows:

               (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:
               (1) 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).

       While the parties disagree on the extent of Ms. Ferguson's relationship, it is uncontroverted

that Ms. Ferguson and the Children have a relationship which began with the consent of the parents,

Furthermore, it is clear that there is active litigation between Mother and Father regarding custody

of the Children. Nevertheless, the only evidence that Ms. Ferguson presented to show that the

parents do not agree as to whether she should have custody, is that, while Father has denied Ms.

Ferguson contact with the Children, Mother has allowed her telephone contact with the Children.

The mere fact that Mother has allowed Ms. Ferguson to have contact with the Children via phone in

no way presents a clear desire by Mother for Ms. Ferguson to have some form of physical custody

of the Children. After all, Father clearly asserts his opposition to Ms. Ferguson having custody, yet


                                                    7
he also attempted to maintain a relationship between Ms. Ferguson and the Children via phone. It is

further noteworthy that Mother, who was not present at the July 22, 2020 hearing where Ms.

Ferguson set forth her assertion of Mother's position, clearly set forth at the January16, 2020

hearing her belief that she and Father should share custody and that Ms. Ferguson should have no

custody, In that regard, Ms. Ferguson has not demonstrated that the parents do not agree as to

whether she should have custody; to the contrary, the parents appear to agree that Ms. Ferguson

should not have physical custody of the Children. Accordingly, all elements of Section 5325(2)

were not satisfied and it was appropriate to deny Ms. Ferguson standing to intervene pursuant to the

same.

        In her final allegation of error, Ms. Ferguson alleges that the court erred by disregarding the

testimony of the Guardian ad Litem as to her history and relationship with the Children and that it

would be in the Children's best interest for her to have some form of partial custody.

        Attorney George was appointed as the Guardian Ad Litem in the guardianship proceedings.

At the July 16, 2020 hearing, he made it clear that his testimony was in terms of the guardianship

proceeding, that his comments were not made in terms of standing for custody and, while some

form of contact with Ms. Ferguson would probably be appropriate, it was a matter to be litigated in

the custody proceeding. After Ms. Ferguson presented her case to intervene, the undersigned

prompted Attorney George for his opinion on the matter. Attorney George again qualified his

response to indicate that he was not offering his opinion as to whether Ms. Ferguson met her legal

burden, however, he opined that, since Ms. Ferguson had a significant role, some contact with the

Children would be appropriate.

        The court did not disregard Attorney George's testimony. Instead, as Attorney George

acutely noted, his opinion was not one which could go to whether or not Ms. Ferguson met her legal

burden for standing. Standing is a distinct legal issue from the best interest analysis. See MS.   v.



                                                   8
J.D., 215 A.3d 595, 601-02 (Pa. Super. 2019); see also C G., 193 A.3d at 898 and 909-10 (noting

that standing is a distinct legal question with no bearing on the central issue within the custody

action, the Supreme Court of Pennsylvania concluded that the existence of a bond between the child

and the mother's same -sex unmarried former partner was not a required factor for consideration as

to whether the former partner stood in loco parentis to the child). In that regard, the Guardian Ad

Litem's opinion on some form of contact serving the Children's best interest does not get Ms.

Ferguson past the threshold requirement that she have standing to proceed. Accordingly, Ms.

Ferguson's final allegation of error is without merit.

       For the foregoing reasons, the July 22, 2020 Order should be affirmed.



                                              BY THE COURT:




                                              Elizabeth K. Kelly, Judg




cc:    Stacey K. Baltz, Esquire
       Steven George, Esquire
       Amber Mowrey, 728 West 17th St., Erie, PA 16502
       Armando Jimenez, 1156 West 28th St., Erie, PA 16508
       Custody Office


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