M.J.S. v. B.B. v. B.B., 37 WDA 2017

Background

Child born 2010; lived with mother and maternal grandmother (Grandmother) in Grandmother’s home for first five years; father (Father) had alternating weekend custody and lived an hour away.
Mother entered inpatient detox in Aug 2015; Father took custody and filed for primary physical custody and an emergency petition alleging Mother’s continued drug use.
Grandmother filed an emergency petition to intervene under 23 Pa.C.S. § 5324, claiming in loco parentis and requesting primary physical custody; trial court granted emergency custody to Grandmother and later a temporary order making her primary custodian.
Custody trial occurred March 11, 2016; trial court issued a final order (Dec 6, 2016) awarding shared legal custody, Grandmother primary physical custody, and Father partial physical custody; Father appealed.
Father argued Grandmother lacked standing, trial court misapplied procedural posture, and court failed to apply the statutory presumption favoring parents over third parties; appellate court agreed on some points and reversed and remanded.

Issues

Issue	Plaintiff's Argument (Father)	Defendant's Argument (Grandmother)	Held
Whether Grandmother had standing to seek custody	Grandmother did not meet statutory standing and was not in loco parentis	Grandmother asserted in loco parentis status based on lifelong caretaking	Court held Grandmother had standing as in loco parentis (and alternatively under grandparent provisions)
Whether trial court properly treated Mother and Grandmother collectively in best-interest analysis	Court erred by aggregating Mother and Grandmother roles, disadvantaging Father	Grandmother relied on Mother’s shared caretaking to support custody	Court found the aggregation improper and directed separate consideration of Father vs. Grandmother, though Mother’s role may be considered where relevant
Whether court applied the presumption favoring parents over nonparents (23 Pa.C.S. § 5327(b))	Trial court failed to apply the statutory presumption and improperly placed burden on Father	Grandmother argued her in loco parentis status justified custody without parent presumption applying	Court held trial court erred: presumption in favor of parent applies to parent vs. nonparent and requires clear and convincing evidence to rebut; in loco parentis does not negate presumption
Whether Father bore the burden of proof because case was a modification	Father contended trial court wrongly imposed burden on him; initial custody action means no parent had burden	Grandmother and Mother treated case as modification or relied on trial court practice	Court held trial court misapprehended procedural posture and wrongly placed burden on Father; parents stood on equal footing absent a prior custody order

Key Cases Cited

K.L. v. S.L., 157 A.3d 498 (Pa. Super. 2017) (standard of review and standing are questions of law reviewed de novo)
Peters v. Costello, 891 A.2d 705 (Pa. 2005) (definition and discussion of in loco parentis)
E.W. v. T.S., 916 A.2d 1197 (Pa. 2007) (in loco parentis cannot arise over a parent’s objection)
D.G. v. D.B., 91 A.3d 706 (Pa. Super. 2014) (in loco parentis status when third party lives with child and parent as family unit)
Argenio v. Fenton, 703 A.2d 1042 (Pa. Super. 1997) (distinguishing mere babysitting from in loco parentis)
T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001) (third-party standing protects strong psychological parent-like bonds)
In re C.M.S., 884 A.2d 1284 (Pa. Super. 2005) (parental consent to third‑party role can be inferred from inaction)
Collins v. Collins, 897 A.2d 466 (Pa. Super. 2006) (initial custody determinations: parents share burden of production and persuasion)
V.B. v. J.E.B., 55 A.3d 1193 (Pa. Super. 2012) (definition of clear and convincing evidence in custody context)
In re B.C., 36 A.3d 601 (Pa. Super. 2012) (discussion of clear and convincing standard)
In re T.S.M., 71 A.3d 251 (Pa. 2013) (courts must expedite custody cases and avoid undue delay)