265 A.3d 688
Pa. Super. Ct.2021Background
- Child (b. 2008) lived with Mother in Philadelphia; Father lives in Middletown, Delaware and had never had custody or cared for the child before these proceedings.
- Maternal Grandmother filed for custody (Apr. 2019); Mother filed for sole custody (May 2019). Father did not file a custody petition or get joined as a party.
- At a Sept. 10, 2020 virtual hearing the child was reportedly living with Father in Delaware after running away twice; Maternal Grandmother changed her request to visitation.
- Trial court awarded Father sole legal and primary physical custody and granted Mother supervised, limited weekend visits; Maternal Grandmother received visitation.
- Superior Court vacated and remanded: trial court erred by awarding custody to a non-party who had not filed a counterclaim (Pa.R.C.P. 1915.6), and failed to adequately apply and explain the statutory best-interest (§5328) and relocation (§5337) factors.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father/Trial Court) | Held |
|---|---|---|---|
| Whether court may award custody to Father who was not joined and did not file for custody | Award to Father was improper because he never filed for custody and never had custody | Father/trial court: nonfiling does not presuppose unfitness; Father consented to custody | Trial court erred as a matter of law; Father had to be joined under Pa.R.C.P. 1915.6 and could then file objection or counterclaim |
| Whether trial court considered §5328 best-interest factors adequately | Mother: court failed to consider all 16 factors and record lacks findings on many (e.g., drug history, household members, availability) | Trial court/counsel: some factors considered; Mother failed to present specifics at hearing | Court held the record and opinion did not show adequate consideration/explanation of §5328 factors; remand required |
| Whether court properly addressed relocation issues under §5337 when child moved ~60 miles to Delaware | Mother: distance and logistics create barrier; court failed to analyze §5337(h) relocation factors or notice requirements | Trial court: judicially noticed distance and said proper petition should be filed; did not intend to overstep | Court held trial court failed to analyze relevant §5337(h) factors (logistics, feasibility, impact); must consider them on remand under §5328(a)(16) when applicable |
| Validity of visitation order for Maternal Grandmother conditioned on Father (custodial parent) | Mother: visitation provision improper because underlying custody award to Father was improper | Trial court: granted visitation as arranged among parties | Visitation order vacated as derivative of invalid custody award; entire order vacated and remanded |
Key Cases Cited
- D.K. v. S.P.K., 102 A.3d 467 (Pa. Super. 2014) (trial courts must consider relevant §5337(h) relocation factors within the §5328 best-interest analysis when a child would move a significant distance).
- M.J.M. v. M.L.G., 63 A.3d 331 (Pa. Super. 2013) (trial court must state reasons for custody decisions on the record or in a written opinion; no rigid detail required but enumerated factors must be considered).
- T.B. v. L.R.M., 874 A.2d 34 (Pa. Super. 2005) (standard of review for custody/visitation orders and importance of best-interest analysis).
- Jordan v. Jackson, 876 A.2d 443 (Pa. Super. 2005) (third party challenging parental custody bears burden to show custody to third party is in child’s best interest).
- Porch v. Porch, 475 A.2d 831 (Pa. Super. 1984) (in parental disputes each parent must prove by preponderance that custody to them serves child's best interests).
- Palmer v. Tokarek, 421 A.2d 289 (Pa. Super. 1980) (a biological parent may not seek custody on behalf of a third party; third party cannot supplant parent without meeting burden).