J-A22031-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

WILLIAM SELEMBO AND JEANNIE 

SELEMBO

Appellees

v.

JAMES MARIANI AND ANNE MARIANI

Appellants

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 504 WDA 2023

Appeal from the Order Entered March 29, 2023

In the Court of Common Pleas of Indiana County

Civil Division at No(s): 10163 CD 2021

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: JANUARY 4, 2024

Appellants, James Mariani (“Father”) and Anne Mariani (“Adoptive 

Mother”) (collectively, “Parents”),1 appeal from the order entered in the 

Indiana County Court of Common Pleas, which granted partial physical 

custody of J.W.M. (born in December of 2006), H.K.M. (born in September of 

2008), and C.R.M. (born in April of 2011) (“Children”) to Appellees, William 

Selembo and Jeannie Selembo (“Maternal Grandparents”).2 We affirm.

____________________________________________

1 Biological mother died in July 2014. Adoptive Mother married Father in July 

2015, and she adopted the children on May 30, 2018.

2 Although this appeal involves a custody action, we will use the parties’ names 

in the caption “as they appeared on the record of the trial court at the time 

the appeal was taken.” Pa.R.A.P. 904(b)(1). Notably, “upon application of a 

party and for cause shown, an appellate court may exercise its discretion to 

(Footnote Continued Next Page)
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In its opinion, the trial court set forth some of the relevant facts and 

procedural history of this case as follows:

[Maternal Grandparents] filed a Complaint for Custody on 

February 4, 2021. In their Complaint, [Maternal 

Grandparents] seek partial physical custody pursuant to 23 

Pa.C.S.A. § 5325(1). On February 9, 2021, the Parties were 

ordered by the [c]ourt to communicate with each other to 

attempt to resolve the issues raised in the Complaint, prior 

to scheduling Mediation. On March 8, 2021, [Maternal 

Grandparents] filed a Motion for Mediation.

On May 7, 2021, [Parents] filed a Motion to Dismiss, arguing 

that [Maternal Grandparents] did not have standing to bring 

a complaint for custody and that any court intervention 

would infringe upon [Parents’] right to raise the Minor 

Children. On July 19, 2021, the [c]ourt found that [Maternal 

Grandparents] had standing in accordance with 23 Pa.C.S.A. 

§ 5325(1) and the Motion to Dismiss was denied. The 

Parties attended Mediation on July 27, 2021, and no 

resolution was reached. The action was subsequently 

scheduled for Trial on February 9, 2022, and February 10, 

2022. Trial was continued for exactly one month due to 

illness.

On February 22, 2022, a Consent Order was entered upon 

agreement of the Parties. Said Order stayed the 

proceedings and continued the Trial to provide the Parties 

an opportunity to work together in good faith to resolve the 

custody issue. The Order stated that the Parties shall work 

together to restore the prior familial relationship between 

[Maternal Grandparents] and the Minor Children. 

Additionally, neither Party could move for lifting of the stay 

or rescheduling of trial for ninety (90) days from the date of 

the Order.

____________________________________________

use the initials of the parties in the caption based upon the sensitive nature 

of the facts included in the case record and the best interest of the child.” 

Pa.R.A.P. 904(b)(2). See also Pa.R.A.P. 907(a). The parties have not applied

to this Court for the use of initials in the caption. Nevertheless, we will use 

the children’s initials or refer to them collectively as “Children.”
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On May 24, 2022, [Maternal Grandparents] filed a Motion 

for Lift of Stay and to Schedule Custody Trial, averring that 

[Parents] did not engage in good faith to repair the 

relationship between [Maternal Grandparents] and the 

Minor Children. A Pre-Trial Conference was scheduled for 

July 15, 2022. On June 27, 2022, [Maternal Grandparents] 

filed a Motion for Custody Evaluation, citing that an 

evaluation would be helpful to the [c]ourt at Trial and that 

[Parents] were not working in good faith to reach a 

resolution. On July 15, 2022, the [c]ourt granted [Maternal 

Grandparents’] Motion for a Child Custody Evaluation, 

appointing Dr. Carolyn Menta as the evaluator. The Custody 

Evaluation Report was obtained by the Parties on November 

14, 2022 and a Pre-Trial Conference was scheduled for 

January 13, 2023 and a final Status Conference scheduled 

for February 16, 2023. Trial was scheduled for March 8, 

2023 and March 9, 2023. The Parties were ordered to file 

their position on the custody factors to be addressed and 

their Pre-Trial Statements ten (10) days prior to the final 

Status Conference.

[Maternal Grandparents] are seeking to retain physical 

custody of the Minor Children, specifically having periods of 

partial physical custody to ensure stability and continuity in 

the Minor Children’s lives and to provide the Minor Children 

with community of family. [Parents] oppose [Maternal 

Grandparents’] position, stating that a [c]ourt Order is not 

in the best interest of the Minor Children. 

(Trial Court Opinion, filed 3/29/23, at 2-3).

The court held a custody trial on March 8-9, 2023. During trial, the 

court heard testimony from, inter alia, each of the Children, Dr. Carolyn 

Menta, Psy. D., Maternal Grandparents, and Parents. On March 29, 2023, the 

court granted Parents sole legal custody and primary physical custody of 

Children. The court awarded Maternal Grandparents partial physical custody 

of Children for four (4) hours each month, at a date and time to be agreed 

upon by the parties. If the parties could not agree, then Maternal 
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Grandparents’ periods of custody would be the third Saturday of each month 

from 1:00 p.m. until 5:00 p.m., beginning in June of 2023. The court also 

ordered Parents to share Children’s extracurricular activities schedule with 

Maternal Grandparents so that Maternal Grandparents could attend Children’s 

activities if they chose to do so. On April 24, 2023, Parents filed a timely 

notice of appeal along with a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).

Parents raise four issues for our review:

Did the trial court err in finding that [Maternal 

Grandparents] had standing under 23 Pa.C.S.A. § 5325(1) 

in violation of [Parents’] fundamental right to parent their 

children? 

Did the trial court commit an error of law by finding 23

Pa.C.S.A. § 5325(1) constitutional as applied to [P]arents? 

Did the trial court abuse its discretion and/or commit an 

error of law by misapplying evidence and/or testimony to 

the custody factors or finding factors in favor of [Maternal 

Grandparents] contrary to the custody factors under 23 

Pa.C.S.A. § 5328(a) and (c)(1)? 

Did the trial court abuse its discretion and/or commit an 

error of law by failing to consider whether specific 

benchmarks should be met in the court-ordered family 

counseling before visits begin between the children and 

[Maternal Grandparents] in contradiction to the evidence, 

testimony, and/or expert report of Dr. Carolyn Menta, 

Psy.D.? 

(Parents’ Brief at 7-8).

Our scope and standard of review in custody matters are as follows:

In reviewing a custody order, our scope is of the broadest 

type and our standard is abuse of discretion. We must 
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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 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.

With any child custody case, the paramount concern is the 

best interests of the child. This standard requires a caseby-case assessment of all the factors that may legitimately 

affect the physical, intellectual, moral and spiritual wellbeing of the child.

M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.Super. 2013). 

In their first and second issues, Parents assert that Adoptive Mother is 

Children’s legal mother. Parents argue that childrearing decisions belong to 

parents and not to the courts. Parents maintain that Maternal Grandparents 

have not alleged abuse, neglect, or unfitness by Parents. Rather, Maternal 

Grandparents have only asserted that their visitation with Children did not 

occur as often as they wanted. Parents emphasize that it was their choice as 

parents to decide how often Children visit with Maternal Grandparents. 

Parents acknowledge that 23 Pa.C.S.A. § 5325 grants grandparents standing 

where a parent is deceased. Nevertheless, Parents claim there is no 

compelling reason for the statute to treat fit adoptive parents and fit widowed 

parents differently than fit biological parents, which includes the right to 
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decide with whom their children associate. Parents insist that Section 5325(1) 

unlawfully infringes on their fundamental right to parent.

Parents acknowledge that pursuant to 23 Pa.C.S.A. § 5326, after an 

adoption takes place, grandparents lose all rights to pursue custody, except 

when the adoption occurs by a stepparent, grandparent, or greatgrandparent. Parents argue, however, that once Adoptive Mother adopted 

Children, Children were akin to her biological children “in the eyes of the law.” 

(Parents’ Brief at 18). Parents complain that the exception under Section 

5326 “severely limits and infringes upon prospective adoptive parents’ rights 

and obligations as a parent.” (Id. at 17). Parents insist that the statutory 

language “is contradictory and makes certain adoptive parents second-class 

citizens.” (Id.) Parents complain that simply because Adoptive Mother is 

considered a “stepparent” she has fewer legal rights than other adoptive 

parents such as an adoptive aunt or uncle. 

Parents admit that the state has a compelling interest in protecting the 

bonds between children and their grandparents. Nevertheless, Parents 

maintain that the statute granting grandparents any rights in this situation is 

not narrowly tailored. Parents insist that “[b]y limiting grandparents’ standing 

only when the adopting parent is a stepparent or grandparent is not narrowly 

tailored to achieve this interest. If this was the true compelling interest, then 

grandparents would have standing anytime a grandchild is adopted, but the 

state legislature has severely limited that.” (Id. at 19). Parents conclude
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that the statutes granting Maternal Grandparents standing in this case are

unconstitutional, and this Court must grant relief. We disagree. 

Parents’ challenge to Maternal Grandparents’ standing is a question of 

law. S.G. v. J.M.G., 186 A.3d 995, 997 (Pa.Super. 2018), appeal denied, 649 

P. 645, 197 A.3d 1177 (2018). Therefore, our standard of review is de novo,

and our scope of review is plenary. Id. Similarly, “as challenges to the 

constitutionality of statutes present pure questions of law, our standard of 

review is de novo, and our scope of review is plenary.” Pennsylvania 

Environmental Defense Foundation v. Commonwealth, 640 Pa. 55, 86, 

161 A.3d 911, 929 (2017). “As with any constitutional challenge to legislation, 

the challenger bears the heavy burden of demonstrating that the statute 

clearly, plainly, and palpably violates the Constitution.” Id. (internal citation 

and quotation marks omitted). 

The Domestic Relations Code grants standing to seek partial physical 

custody and supervised physical custody, in pertinent part, as follows:

§ 5325. Standing for partial physical custody and 

supervised physical custody

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 
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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 greatgrandparents 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 greatgrandparent, 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.A. § 5325. 

Regarding the effect of adoption, the Domestic Relations Code further 

provides:

Any rights to seek physical custody or legal custody rights 

and any custody rights that have been granted under 

section 5324 (relating to standing for any form of physical 

custody or legal custody) or 5325 (relating to standing for 

partial physical custody and supervised physical custody) to 

a grandparent or great-grandparent prior to the adoption of 

the child by an individual other than a stepparent, 

grandparent or great-grandparent shall be automatically 

terminated upon such adoption.

23 Pa.C.S.A. § 5326 (emphasis added). In other words:

[W]hen a stepparent adopts a child..., grandparents and 

great-grandparents retain their right to seek physical or 

legal custody of the child, as well as retain any custody 

rights already awarded to them. Such rights are 

automatically terminated, however, when the child is 

adopted by an individual other than a stepparent, 

grandparent or great-grandparent. 

In re Adoption of M.E.L., ___ Pa. ___, ___, 298 A.3d 118, 122 n.2 (2023)

(internal quotation marks omitted).
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Instantly, the trial court determined that Maternal Grandparents had 

standing in this case, explaining:

This [c]ourt recognizes that Grandparents are given special 

treatment in the child custody laws of Pennsylvania. That 

special treatment is set forth in 23 Pa.C.S.A. § 5324[3] and 

23 Pa.C.S.A. § 5325. The natural birth parents to the Minor 

Children are [Father] and [Biological Mother]. [Biological 

Mother] passed away on July 5th, 2014. [M]aternal 

Grandparents are the parents of the natural birth mother, 

and are seeking visitation of the Minor Children pursuant to 

23 Pa.C.S.A. § 5325(1). [F]ather remarried and is now 

married to...[A]doptive Mother[.] [Adoptive Mother] 

adopted the Minor Children on May 30, 2018. As noted 

above, 23 Pa.C.S.A. § 5325(1) provides that “(1) where the 

parent of the child is deceased, a parent or grandparent of 

the deceased parent may file an action under this section.” 

... The subsequent adoption of the Minor Child[ren] by 

stepparent, [Adoptive Mother], does not preclude [Maternal 

Grandparents] from pursuing custody. Pursuant to 23 

Pa.C.S.A. § 5326, a grandparent’s standing is cut off only if 

the child is adopted by third parties who are not the 

stepparents or grandparents of the child. This [c]ourt finds 

that [Maternal Grandparents] have standing to seek partial 

physical custody and/or supervised physical custody in 

accordance with 23 Pa.C.S.A. § 5325(1).

(Trial Court Opinion at 7-8).

We agree with the court’s analysis. Section 5325 makes clear that 

grandparents have standing to pursue partial physical custody or supervised 

physical custody where the parent of the child is deceased. See 23 Pa.C.S.A. 

§ 5325(1). Further, Maternal Grandparents retained their right to pursue 

custody even after Adoptive Mother’s adoption of Children because such 

____________________________________________

3 Section 5324 also grants grandparents standing to pursue custody under 

certain circumstances not present in this case. See 23 Pa.C.S.A. § 5324(3). 
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adoption was a stepparent adoption. See 23 Pa.C.S.A. § 5326; In re 

Adoption of M.E.L., supra. 

Regarding Parents’ constitutionality claims, we initially note that when 

a party challenges the constitutionality of a statute in a case where the 

Commonwealth is not a party, the challenging party “is required to notify the 

State Attorney General Office so that the Attorney General has the opportunity 

to be heard on the issue.” In re J.Y., 754 A.2d 5, 11 (Pa.Super. 2000), appeal 

denied, 564 Pa. 712, 764 A.2d 1070 (2000). See also Pa.R.C.P. 235

(requiring notice to Attorney General in any proceeding in which Act of 

Assembly is alleged to be unconstitutional where Commonwealth is not party 

to case); Pa.R.A.P. 521(a) (explaining that it shall be duty of party who draws 

into question constitutionality of any statute in any matter in appellate court 

to which Commonwealth is not party upon filing of record, or as soon 

thereafter as question is raised in appellate court, to give immediate notice to 

Attorney General of Pennsylvania of existence of question, together with copy 

of pleadings or other portion of record raising issue, and to file proof of service 

of such notice). “Failure to do so...results in waiver of the claim.” In re J.Y., 

supra. 

Notice to the Attorney General is necessary only in facial challenges, 

and not as-applied challenges to the constitutionality of a statute. Kepple v. 

Fairman Drilling Co., 532 Pa. 304, 615 A.2d 1298 (1992). Nevertheless, a 

litigant’s characterization of an argument as being facial or “as applied” is not 
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controlling. See Potts v. Step by Step, Inc., 26 A.3d 1115 (Pa.Super. 

2011). “A facial challenge to the constitutionality of a statute is a claim 

alleging that a statute suffers an ‘ineluctable constitutional deficiency.’” 

Commonwealth v. Hairston, ___ Pa. ___, ___, 249 A.3d 1046, 1054 n.5 

(2021), cert. denied, ___ U.S. ___, 142 S.Ct. 598, 211 L.Ed.2d 371 (2021). 

“By contrast, an as-applied challenge to the constitutionality of a statute is 

one asserting that the statute, even though it may generally operate

constitutionally, is unconstitutional in a [party’s] particular circumstances.” 

Id.

Instantly, we must discern the nature of Parents’ constitutional claims. 

Parents complain that Section 5325(1) treats a fit adoptive and widowed 

parent differently than it treats fit biological parents. (See Parents’ Brief at 

15-16). Parents further allege that the exception set forth in Section 5326 

“severely limits and infringes upon prospective adoptive parents’ rights and 

obligations as a parent.” (Id. at 17). Read together, Parents essentially argue

that these statutes on their face treat a fit, married adoptive and widowed 

couple differently than other fit parents concerning the fundamental right to 

parent their children. Thus, we construe Parents’ arguments as a facial 

challenge to the constitutionality of Section 5325(1) and 5326. See Hairston, 

supra. Parents did not, however, provide proper notice of their constitutional 

arguments to the Attorney General’s Office. Thus, Parents have waived their 

constitutional claims. See In re J.Y., supra.
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In their third issue, Parents argue that the trial court found certain 

custody factors to favor Maternal Grandparents contradictory to the evidence 

and testimony presented at trial. Parents claim the court erroneously found 

factor one (which party will permit more frequent and continuing contact) to 

favor Maternal Grandparents. Parents insist they have consistently included 

Maternal Grandparents in events and special occasions, even in the midst of 

the COVID-19 pandemic. By contrast, Parents complain that Maternal 

Grandparents did not invite Parents to gatherings but then later lamented that 

Parents were “missed” from events they were never invited to. Regarding the 

seventh factor (the well-reasoned preference of Children), Parents assert the 

court found this factor did not favor either party. Nevertheless, Parents 

emphasize that Children testified that they are currently involved in numerous 

activities and Children did not want court-ordered visitation with Maternal 

Grandparents. Rather, Children testified they wanted to visit Maternal 

Grandparents on their own terms. 

Parents also challenge the court’s finding on factor eight (attempts of 

one party to turn Children against the other party) to favor Maternal 

Grandparents. Parents maintain the court relied on a conversation where 

Children asked for a pool, and Father said they could not afford a pool because 

of the litigation. Although Father admits this statement demonstrated “a lack 

of judgment on his part” (see Parents’ Brief at 28), Parents contend the court 

improperly relied on this statement to weigh this factor in favor of Maternal 
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Grandparents. Parents further insist the court improperly evaluated factor 

thirteen (the level of conflict between the parties and the willingness and 

ability of the parties to cooperate) in favor of Maternal Grandparents. Parents 

proclaim that Maternal Grandparents are also to blame for the level of conflict 

between the parties. Parents suggest that they have attempted to restore the 

relationship, but Maternal Grandparents have allowed the conflict to continue.

Additionally, Parents maintain the court erred in finding the parent-child 

relationship would not be affected by an award of custody to Maternal 

Grandparents. Parents posit that Maternal Grandparents have consistently 

undermined Parents’ authority. Parents submit that Maternal Grandparents 

question Parents’ decisions regarding Children, and doing so creates a rift in 

the parent-child relationship. Finally, Parents complain the court improperly 

found that awarding Maternal Grandparents partial custody would serve 

Children’s best interests. Parents insist that family counseling is necessary 

and will be helpful in resuming Children’s visits with Maternal Grandparents.4 

Parents claim that Maternal Grandparents have taken actions in the past that 

did not serve Children’s best interests. Under the totality of all custody 

factors, Parents conclude that court-ordered visitation is not in Children’s best 

interests, and this Court must grant relief. We disagree.

The Child Custody Act provides: 

§ 5328. Factors to consider when awarding custody

____________________________________________

4 Parents elaborate on this claim in their fourth issue on appeal.
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(a) Factors.—In ordering any form of custody, the court 

shall determine the best interest of the child by considering 

all relevant factors, giving weighted consideration to those 

factors which affect the safety of the child, including the 

following: 

(1) Which party is more likely to encourage and 

permit frequent and continuing contact between 

the child and another party. 

(2) The present and past abuse committed by a 

party or member of the party’s household, whether 

there is a continued risk of harm to the child or an 

abused party and which party can better provide 

adequate physical safeguards and supervision of 

the child. 

(2.1) The information set forth in section 

5329.1(a) (relating to consideration of child abuse 

and involvement with protective services). 

(3) The parental duties performed by each party 

on behalf of the child. 

(4) The need for stability and continuity in the 

child’s education, family life and community life. 

(5) The availability of extended family. 

(6) The child’s sibling relationships. 

(7) The well-reasoned preference of the child, 

based on the child’s maturity and judgment. 

(8) The attempts of a parent to turn the child 

against the other parent, except in cases of 

domestic violence where reasonable safety 

measures are necessary to protect the child from 

harm. 

(9) Which party is more likely to maintain a 

loving, stable, consistent and nurturing 
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relationship with the child adequate for the child’s 

emotional needs. 

(10) Which party is more likely to attend to the 

daily physical, emotional, developmental, 

educational and special needs of the child. 

(11) The proximity of the residences of the 

parties. 

(12) Each party’s availability to care for the child 

or ability to make appropriate child-care 

arrangements. 

(13) The level of conflict between the parties and 

the willingness and ability of the parties to 

cooperate with one another. A party’s effort to 

protect a child from abuse by another party is not 

evidence of unwillingness or inability to cooperate 

with that party. 

(14) The history of drug or alcohol abuse of a 

party or member of a party’s household. 

(15) The mental and physical condition of a party 

or member of a party’s household. 

(16) Any other relevant factor. 

* * *

(c) Grandparents and great-grandparents.—

(1) In ordering partial physical custody or

supervised physical custody to a party who has 

standing under section 5325(1) or (2) (relating to 

standing for partial physical custody and 

supervised physical custody), the court shall 

consider the following:

(i) the amount of personal contact between the 

child and the party prior to the filing of the action; 

(ii) whether the award interferes with any 
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parent-child relationship; and 

(iii) whether the award is in the best interest of 

the child.

23 Pa.C.S.A. § 5328(a), (c)(1). 

This Court has explained:

[I]n the recent past, grandparents have assumed increased 

roles in their grandchildren’s lives and our cumulative 

experience demonstrates the many potential benefits of 

strong inter-generational ties. Thus: While acknowledging 

the general benefits of these relationships, we cannot 

conclude that such a benefit always accrues in cases where 

grandparents force their way into grandchildren’s lives 

through the courts, contrary to the decision of a fit parent. 

In contrast, however, we refuse to close our minds to the 

possibility that in some instances a court may overturn even 

the decision of a fit parent to exclude a grandparent from a 

grandchild’s life, especially where the grandparent’s child is 

deceased and the grandparent relationship is longstanding 

and significant to the grandchild.

* * *

Except under unusual circumstances, no child should be cut 

off entirely from one side of [his or her] family. [V]isits with 

a grandparent are often a precious part of a child’s 

experience and there are benefits which devolve upon the 

grandchild from the relationship with his grandparents 

which he cannot derive from any other relationship. If

animosities continue between the parties, and result in 

adverse [e]ffects on [the child] ..., a visitation order may be 

revised, even to the extent of retracting visitation.

K.T. v. L.S., 118 A.3d 1136, 1161 (Pa.Super. 2015) (internal citations, 

quotation marks, and emphasis omitted). Thus, Pennsylvania has a “strong 

public policy favoring grandparent involvement in a child’s life.” Id. at 1164. 

The statutory presumption favoring an award of custody to parents over third-
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parties is inapplicable where grandparents are seeking only partial physical 

custody. Id. at 1159 (citing 23 Pa.C.S.A. § 5327(b) and explaining 

presumption in cases concerning primary physical custody). 

Instantly, the trial court analyzed each of the custody factors under 

Section 5328(a) in making its decision. Regarding the first custody factor, the 

court explained that for the majority of Children’s lives, they spent 

considerable time with Maternal Grandparents. When biological mother died, 

Maternal Grandmother assumed the role of mother so that Father could work. 

Maternal Grandmother woke up at 4:30 a.m. to help Children get ready for 

school, and she helped with meals. 

Around late 2020, disagreements arose among the parties, and Father 

and Adoptive Mother essentially ceased Children’s contact with Maternal 

Grandparents. The court did not accept Parents’ position that if there was no 

custody case, then they would permit Children to see Maternal Grandparents 

similar to the contact that had existed previously. Parents’ decision to restrict 

contact between Children and Maternal Grandparents during the pendency of 

the custody action directly contradicts that position. Thus, the court found 

this factor favored Maternal Grandparents. (See Trial Court Opinion at 9-11).

The court found the second factor as neutral where no past or present 

abuse has taken place. (See id. at 11). The parties stipulated that the third 

custody factor was neutral, and the court agreed that it was neutral. (Id. at 

12). The court further found factor four was neutral, stating: “While the 
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[c]ourt recognizes that the Minor Children spend the majority of their lives 

with [Parents], it is clear that both parties are dedicated to providing stability 

and continuity in the Minor Children’s lives.” (Id. at 13). The court also found 

the fifth custody factor as neutral, as Children have extended family on both 

Father’s side and Maternal Grandparents’ side of the family. (Id.) The parties 

stipulated that the sixth custody factor was neutral, and the court agreed. 

(Id. at 13-14).

With respect to factor seven, the court noted that J.W.M. had positive 

things to say about his Maternal Grandparents and spending time with them. 

H.K.M. and C.R.M. had negative things to say about Maternal Grandparents, 

specifically concerning the pending custody action. H.K.M. and C.R.M. further 

indicated that they did not want to be forced by a court order to visit with 

Maternal Grandparents. Nevertheless, the court found that H.K.M. and C.R.M. 

seemed to be influenced by Father and Adoptive Mother. Specifically, the 

court stated: “The statements made by the children were all similar to not 

only their siblings’ testimony, but to that of Father and Adoptive Mother. Thus, 

it is difficult to determine if the Minor Children’s opinions are entirely wellreasoned, specifically in regard to [H.K.M.] and [C.R.M.]” (Id. at 15). The 

court found factor eight to favor Maternal Grandparents, where Children seem 

to have been heavily influenced by Parents in their perceptions of Maternal 

Grandparents. Notably, the court found that “[Parents] have likely aided in 

the Minor Children’s negative feelings towards [Maternal Grandparents].” (Id.
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at 15-16).5

The court found factor nine neutral, as both parties are able and willing 

to maintain a loving, stable, consistent, and nurturing relationship with 

Children. (Trial Court Opinion at 16-17). The court also found factor ten 

neutral, as both parties can attend to and intend to support Children’s present 

and future physical, emotional, developmental, educational, and special 

needs. (Id. at 17). The parties stipulated that factor eleven was neutral, and 

the court agreed given that the parties live approximately 20 minutes from 

each other. (Id. at 18). The parties also stipulated to factor twelve being 

neutral, as both parties can make appropriate child-care arrangements. (Id.) 

The court decided factor thirteen favored Maternal Grandparents. There 

is a very high level of conflict between the parties, and the court found the 

animosity towards Maternal Grandparents is misplaced. (Id. at 18-21). The 

parties stipulated that factor fourteen was neutral, as there were no 

allegations of drug or alcohol abuse by either party. (Id. at 21). Regarding 

factor fifteen, the court found that no testimony was provided to demonstrate 

a concern surrounding the care of Children based on the mental or physical 

condition of a party. (Id.)

____________________________________________

5 Dr. Menta specifically testified that Children have been heavily influenced by 

Parents’ views in this case. Dr. Menta described Parents as having shared too 

much information with Children. Dr. Menta agreed that “indoctrination” is an 

appropriate word to describe Parents’ influence over Children in this case. 

(See N.T. Trial, 3/8/23, at 122, 141, 145-46).
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The court considered Dr. Menta’s custody evaluation as it related to

factor sixteen. The court agreed with Dr. Menta’s recommendation for

Maternal Grandparents to have unsupervised partial physical custody of

Children once a month for a period of four hours. Dr. Menta further 

recommended participation in family counseling. The court emphasized that 

Children will never have the opportunity to form a life-long bond with their 

Biological Mother, and the benefits of having a relationship with Maternal 

Grandparents will help Children build a loving memory of their late mother. 

(Id. at 22).

In addition to the sixteen custody factors, the court considered the three 

factors under Section 5328(c). The court decided: (1) Maternal Grandparents 

had maintained consistent contact with Children prior to the Parents’ 

restriction of such contact following the 2020 holiday season; (2) an award of 

custody to Maternal Grandparents will not interfere with the existing 

parent/child relationships, as Maternal Grandparents are seeking only 

minimal, monthly visitation with Children; and (3) an award of partial physical 

custody to Maternal Grandparents serves Children’s best interests. (Id. at 

23-25).

Our review of the record demonstrates that the court carefully 

considered all relevant factors when making its decision to award Maternal 

Grandparents partial physical custody for four hours once a month. See 23 

Pa.C.S.A. § 5328(a), (c)(1). Parents essentially invite this Court to reweigh 
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the factors in their favor, which we will not do. See M.J.M., supra. We 

emphasize Dr. Menta’s expert opinion that periods of partial physical custody 

with Maternal Grandparents will serve Children’s best interests. (See N.T., 

3/8/23, at 143). On this record, we see no abuse of discretion in the court’s 

custody decision. See id. Therefore, Parents’ third issue on appeal merits no 

relief.

In their fourth issue, Parents argue that the court did not order family 

counseling to begin before Children resume visitation with Maternal 

Grandparents. Despite expert testimony which favors having some family 

counseling prior to beginning visits, Parents assert that the court failed to 

institute such benchmarks. Parents insist that Children should not begin 

visitation with Maternal Grandparents prior to the start of counseling in light 

of the anger and conflict among the parties. Parents conclude the court erred 

by failing to require specific benchmarks to be met in family counseling prior 

to Children beginning visitation with Maternal Grandparents, and this Court 

must grant relief. We disagree.

Preliminarily, we observe:

As a general rule, an actual case or controversy must exist 

at all stages of the judicial process, or a case will be 

dismissed as moot. An issue can become moot during the 

pendency of an appeal due to an intervening change in the 

facts of the case or due to an intervening change in the 

applicable law. In that case, an opinion of this Court is 

rendered advisory in nature. An issue before a court is moot 

if in ruling upon the issue the court cannot enter an order 

that has any legal force or effect. ... 
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* * *

[T]his Court will decide questions that otherwise have been 

rendered moot when one or more of the following 

exceptions to the mootness doctrine apply: 1) the case 

involves a question of great public importance, 2) the 

question presented is capable of repetition and apt to elude 

appellate review, or 3) a party to the controversy will suffer 

some detriment due to the decision of the trial court.

In re D.A., 801 A.2d 614, 616 (Pa.Super. 2002) (en banc) (internal citations 

and quotation marks omitted). 

“The concept of mootness focuses on a change that has occurred during 

the length of the legal proceedings.” In re Cain, 527 Pa. 260, 263, 590 A.2d 

291, 292 (1991). “If an event occurs that renders impossible the grant of the 

requested relief, the issue is moot and the appeal is subject to dismissal.” 

Delaware River Preservation Co., Inc. v. Miskin, 923 A.2d 1177, 1183 

n.3 (Pa.Super. 2007). Importantly, “mootness, however it may have come 

about, simply deprives us of our power to act; there is nothing for us to 

remedy, even if we were disposed to do so. We are not in the business of 

pronouncing that past actions which have no demonstrable continuing effect 

were right or wrong.” Spencer v. Kemna, 523 U.S. 1, 18, 118 S.Ct. 978, 

988, 140 L.Ed.2d 43 (1998).

Instantly, following the court’s custody order, Parents filed a petition 

seeking to stay the trial court’s order pending appeal. The court denied 

Parents’ requested relief on May 18, 2023. Parents did not seek a stay of the 

court’s order in this Court. Therefore, assuming the parties have complied 
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with the court’s March 29, 2023 order, Maternal Grandparents have already 

begun exercising their periods of partial physical custody since June 2023. As 

such, this issue is moot, because even if Parents’ issue had merit, we cannot 

undo the periods of partial custody that have already occurred and order 

certain “benchmarks” to occur first. See id.; Delaware River Preservation 

Co., Inc., supra. Parents allege no exceptions to the mootness doctrine, and 

we do not see any of the exceptions as applicable to this particular issue. See 

In re D.A., supra.

Moreover, even if the issue presented is not moot, it would not entitle 

Parents to relief. Here, the court stated:

In summary, this [c]ourt finds that it is in the Minor 

Children’s best interest to maintain a relationship with 

[Maternal Grandparents]. However, due to the level of 

anger that the Minor Children currently harbor towards 

[Maternal Grandparents], the [c]ourt finds that an 

immediate transition into partial custody/visitation with 

[Maternal Grandparents] is not appropriate without some 

support by professional counselors. The [c]ourt finds that 

counseling prior to the implementation of periods of partial 

physical custody will help to diffuse that anger and aid in the 

transition.

An appropriate Order will be entered.

(Trial Court Opinion at 27). In the order granting Maternal Grandparents 

partial physical custody, the court directed:

That within ten (10) days of the date of this Order, Maternal 

Grandparents and Parents shall contact Jennifer HinkleStanley, MS, or Bethanne Petrlak, LMT and schedule Family 

Counseling to include [Maternal] Grandparents, Parents, 

and the Minor Children. The purpose of the Family 

Counseling is to address communication skills between all 
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parties, the implementation of reasonable and necessary 

boundaries, and the anger issue as depicted by the Minor 

Children relating to the filing of the Custody Action. Counsel 

for the parties shall communicate with one another to 

determine which counselor is most able to address these 

issues in the immediate future and shall select the 

counselor. Costs relating to the Counseling shall be shared 

1⁄2 by the Parents and 1⁄2 by the Maternal Grandparents.

(Order, filed 3/29/23, at ¶ 5). 

Notably, the court entered its order on March 29, 2023. The court did 

not order Maternal Grandparents to begin their periods of partial physical 

custody until the third Saturday of June 2023, unless the parties mutually 

agreed on a different date of the month. (See Order at ¶ 6). The court 

contemplated that the parties could schedule family counseling in early April 

2023, and they would have over two months to undergo family counseling 

sessions prior to Maternal Grandparents’ ability to exercise their partial 

physical custody rights. The court’s order was directly in line with the court’s 

opinion that family counseling would benefit all parties involved. Parents cite 

no law that the court was required to set specific “benchmarks” before 

visitation would begin, and Parents do not specify on appeal what those 

“benchmarks” would be. Further, Dr. Menta opined that therapy could happen 

at the same time as visitation and was not a necessary precursor to beginning 

Maternal Grandparents’ periods of partial custody. (See N.T., 3/8/23, at 164, 

171). Thus, even if Parents’ fourth issue was not moot, we would see no error 

with the court’s order. Accordingly, we affirm.

Order affirmed. 
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FILED: 1/4/2024