M.J.S. v. B.B.
172 A.3d 651
Pa. Super. Ct.2017Background
- Child L.M.S., born 2010, lived with his mother (B.M.B.) and maternal grandmother (B.B.) for first five years; father (M.J.S.) had alternating weekend contact and lived about an hour away.
- Mother entered inpatient detox in Aug 2015; Father took physical custody, enrolled the child in school, and filed for primary physical custody and emergency relief alleging Mother's ongoing drug use.
- Grandmother filed an emergency petition to intervene under 23 Pa.C.S. § 5324, claiming she stood in loco parentis and requesting primary custody; the trial court granted emergency custody to Grandmother without a hearing and later a temporary order awarding her primary physical custody.
- A custody trial occurred on March 11, 2016; the court issued its final opinion and order nine months later (Dec. 6, 2016) awarding shared legal custody but primary physical custody to Grandmother, with Father having partial custody periods.
- Father appealed, arguing (1) Grandmother lacked standing, (2) the court misapprehended the procedural posture and improperly placed the burden on Father, and (3) the court ignored the statutory presumption favoring a parent over a third party (23 Pa.C.S. § 5327).
- The appellate court held Grandmother had standing via in loco parentis, but reversed and remanded because the trial court (a) improperly conflated Mother and Grandmother when weighing best-interest factors, (b) failed to apply the presumption favoring the parent over a nonparent, and (c) wrongly imposed the burden on Father as if modifying an existing custody order.
Issues
| Issue | Father's Argument | Grandmother/Mother's Argument | Held |
|---|---|---|---|
| Standing to pursue custody | Grandmother lacked standing; she did not assume parental status or duties | Grandmother stood in loco parentis based on shared/primary caretaking since birth | Court: Grandmother had in loco parentis standing under §5324(2) (affirmed) |
| Emergency custody procedure | Trial court erred by granting Grandmother emergency custody without a hearing/ex parte relief | Rule 1915.13 permits interim special relief; Grandmother filed petition and received notice | Court: No error — trial court may grant interim relief sua sponte under Rule 1915.13 |
| Application of best-interest factors | Trial court improperly combined Mother's and Grandmother's roles instead of evaluating Father vs Grandmother; some factors misapplied | Trial court treated Mother/Grandmother collectively and found most factors favored Grandmother | Court: Reversible error — must assess Father vs Grandmother independently; consider Mother only where relevant |
| Burden of proof / parental presumption (§5327) | Trial court wrongly placed burden on Father and ignored statutory presumption that parent prevails over nonparent (rebuttable by clear and convincing evidence) | Grandmother argued her in loco parentis status justified custody without parent presumption applying | Court: Trial court erred — §5327(b) presumption applies between a parent and nonparent; Father should have benefitted from presumption and Grandmother bore clear-and-convincing burden to rebut; remand for correct analysis |
Key Cases Cited
- K.W. v. S.L., 157 A.3d 498 (Pa. Super. 2017) (standing is a threshold question of law reviewed de novo)
- Peters v. Costello, 891 A.2d 705 (Pa. 2005) (defines in loco parentis; "in the place of a parent")
- T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001) (third-party with parent-like bond may obtain standing to litigate custody over a parent)
- D.G. v. D.B., 91 A.3d 706 (Pa. Super. 2014) (co-residence with parent and child can support in loco parentis standing)
- Argenio v. Fenton, 703 A.2d 1042 (Pa. Super. 1997) (mere daily childcare may be insufficient for in loco parentis)
- Collins v. Collins, 897 A.2d 466 (Pa. Super. 2006) (in absence of a preexisting custody order, parents stand on equal footing re: burden)
- V.B. v. J.E.B., 55 A.3d 1193 (Pa. Super. 2012) (defines "clear and convincing evidence" standard)
- In re B.C., 36 A.3d 601 (Pa. Super. 2012) (explains clear-and-convincing standard in custody context)
- In re C.M.S., 884 A.2d 1284 (Pa. Super. 2005) (nonaction by parent can demonstrate consent to third-party role)
- In re T.S.M., 71 A.3d 251 (Pa. 2013) (courts must expedite custody matters; unexplained delays are unacceptable)