V.B. v. J.E.B.
55 A.3d 1193
| Pa. Super. Ct. | 2012Background
- Father appeals December 20, 2011 order granting Grandparents sole legal custody and primary physical custody, with Mother and Father each to receive two nonconsecutive days of partial custody per month
- A.B. and Z.B. are six and five, born during Mother’s relationship with Father and Husband; polyamorous household followed by dissolution
- DYFS intervened in 2007 after A.B. sustained a spiral fracture; children placed with Grandparents for about nine additional months
- CYF conducted custody evaluation at Mother’s and Father’s residences; Grandparents’ New Jersey residence not evaluated; Grandparents provided financial support to Mother
- Trial court relied on an expired foster home license and disregarded CYF findings; court awarded Grandparents sole legal custody despite evidence
- Court reverses, finds the presumption in favor of birth parents not properly rebutted, and remands for a custody order consistent with the opinion and further proceedings
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly applied the parent-cpresumption under 23 Pa.C.S. § 5327(b) | Father argues the court failed to apply the statutory presumption favoring parents | Grandparents contend they rebutted the presumption with clear and convincing evidence | No; court abused discretion by not upholding the presumption for parents |
| Whether the court erred by weighing Father’s polyamorous past as evidence against his current parenting | Father asserts past polyamory should not affect current custody absent evidence of harm | Grandparents rely on lifestyle history to justify custody decision | Yes; the court improperly used past polyamory as a basis to deny custody |
| Whether the trial court improperly relied on morality-based reasoning under 5328 factors | Father argues morality considerations (polyamory, Stepmother’s sexuality) were improperly weighed | Grandparents point to need for stability and family dynamics | Yes; morality-based considerations were improperly injected and unsupported by the record |
| Whether the court erred by judicially notice and incorporating prior unrelated custody findings | Father contends the court relied on findings from a prior, unrelated case without allowing adducing contrary evidence | Grandparents assert court may judicially notice prior rulings | Yes; court erred in incorporating unrelated case findings and relying on them in the present decision |
| Whether, on remand, an award to Father with ordered counseling would better serve the children | Remand with custody schedule designed to serve best interests | Grandparents request continued custody arrangement | Remand for new custody order consistent with best interests and compulsory counseling |
Key Cases Cited
- Charles v. Stehlik, 560 Pa. 334 (2000) (birth-parent presumption in custody disputes; rebuttable by clear and convincing evidence)
- Ellerbe v. Hooks, 490 Pa. 363 (1980) (non-parent burden of production and persuasion; possible award to non-parent if evidence shows harm)
- McDonel v. Sohn, 762 A.2d 1101 (Pa. Super. 2000) (preserves that non-parents bear heavy burden to rebut presumption)
- Michael T.L. v. Marilyn J.L., 368 Pa. Super. 42 (1987) (mother’s prior sexual conduct requires adverse effect on child to affect custody decision)
- Jones v. Jones, 884 A.2d 915 (Pa. Super. 2005) (judicial notice of prior case findings may be improper if party not present)