J-A15018-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DUANE A. WOLFE AND PATRICIA J. 

WOLFE

v.

KAYLIN J. WILSON AND KYLE R. 

VANALSTINE

v.

COLIN WILSON AND NANCY WILSON

APPEAL OF: KAYLIN J. WILSON

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1101 WDA 2021

Appeal from the Order Entered August 30, 2021,

in the Court of Common Pleas of Elk County,

Civil Division at No(s): 2019-16.

BEFORE: BOWES, J., KUNSELMAN, J., and SULLIVAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: SEPTEMBER 9, 2022

Kaylin J. Wilson (Mother) appeals the order issued by the Elk County 

Court of Common Pleas, which kept primary physical custody of her threeyear-old son, J.V. (the Child) with Duane A. Wolfe and Patricia J. Wolfe 

(Paternal Grandparents).1 Mother had previously lost custody of the Child in 

2018, following her involvement with a local children and youth services 

____________________________________________

1 Duane Wolfe is the Paternal Step-Grandfather.
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agency in Nebraska. Thereafter, the Elk County Court of Common Pleas 

awarded sole custody to the Paternal Grandparents. See Order of Court, 

4/12/19. This matter involves Mother’s request to modify the April 2019 order

to obtain primary custody. The trial court only granted Mother partial physical 

and shared legal custody. See Order of Court, 8/30/21. On appeal, Mother 

argues inter alia that the trial court erred when it failed to employ the 

statutory presumption that custody should be awarded to the parent over a 

nonparent. See 23 Pa.C.S.A. § 5327(b). After review, we remand for further 

proceedings.2

Given our disposition, we abbreviate the factual and procedural history 

as follows: The Child was born in January 2018. The family resided at various 

times with the Paternal Grandparents and with the Maternal Grandfather and 

Maternal Step-Grandmother. In October 2018, the family decided to move to 

Oregon. While enroute, in Nebraska, the police pulled them over discovered 

heroin and methamphetamines. They arrested the parents, and the local 

social services agency took custody of the Child. The juvenile court in 

Nebraska released the Child to the care of the Paternal Grandparents in 

December 2018; the trial court in Elk County then awarded Paternal 

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2 Colin Wilson and Nancy Wilson – the Maternal Grandfather and Maternal 

Step-Grandmother – (Maternal Grandparents) were parties to the previous 

action, but they did not seek custody in the instant matter; Maternal 

Grandfather appeared at the hearing as a witness for Mother. Kyle R. 

Vanalstine (Father) originally sought custody modification as well, but he did 

not appear at the hearing.
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Grandparents sole legal and physical custody. See Order of Court, 4/12/2019. 

The April 2019 order specified that both the parents and the Maternal 

Grandparents may exercise custody, as the Paternal Grandparents agree.

Mother eventually entered drug treatment in Oregon and has remained 

clean and sober.3 In February 2020, while in Oregon, Mother and Father 

petitioned to modify the April 2019 custody order. In September 2020, Mother 

moved back to Pennsylvania. In January 2021, Mother filed an amended 

petition, choosing to proceed without Father. 

The trial court held a two-day hearing on February 25 and 26, 2021 to 

adjudicate the parents’ petitions. On August 25, 2021 – six months after the 

custody hearing – the trial court issued an order granting Mother’s 

modification petition, in part. The court awarded Mother legal custody but 

ordered that it be shared with the Paternal Grandparents. The court awarded 

Mother physical custody but limited it to partial physical custody – every other 

weekend, and during the evenings on Tuesday and Thursday.

4

 Mother timely

filed this appeal.

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3

In October 2019, Mother gave birth to another son, the Child’s younger 

sibling. Mother has custody of the sibling, who is not subject to these 

proceedings.

4 The August 25 order also denied the parents’ original modification petition. 

In Mother’s case, the court denied the original petition as a matter of 

housekeeping, given that Mother had subsequently filed the amended petition. 

In Father’s case, the court denied the original modification because he failed 

to appear.

The court then amended the August 25 order by order of August 30, 2021 to 

correct the caption and to delineate its reasons for the decision.
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She presents the following six issues for our review:

1. Did the trial court abuse its discretion in awarding the 

Paternal Grandparents primary physical custody of the 

Child based upon what was actually entered into 

evidence, exhibit and testimony entered of record at 

a two-day evidentiary hearing?

2. Did the trial court commit an[] error of law when it 

failed to accurately address the stringent statutory 

requirements for an award of physical custody to 

grandparents contained in 23 Pa.C.S.A. § 5324?

3. Did the trial court commit an abuse of discretion 

and/or error of law by failing to apply 23 Pa.C.S.A. § 

5327 regarding presumption in cases concerning 

primary custody to be awarded to a parent?

4. Did the trial court abuse its discretion through its 

conclusions and findings contained in its opinion, with 

the court’s findings being based mostly on speculation 

and conjecture rather than an analysis of the 

testimony and exhibits presented at trial?

5. Were [Mother’s] due process constitutional rights 

violated pursuant to the Fourteenth Amendment 

which is designed to protect the rights of parents to 

care and have custody of their children, when the 

court failed to recognize the strong preference of the 

first of fit parents to raise their children as opposed to 

awarding a third-party primary physical custody of the 

child, when its basis appeared to be simply that it 

believed the Paternal Grandparents would make 

better decisions for the Child?

6. Did the trial court abuse its discretion/commit an error 

of law when it did not provide a prompt disposition of 

this case, which is required by law pursuant to 

Pa.R.C.P. 1915.4(d)?

Mother’s Brief at 5-6 (capitalization adjusted).
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We address these claims in accordance with the relevant the pertinent 

scope and standard of review:

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

type and our standard is abuse of discretion. We must 

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.

S.T. V. R.W., 912 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted).

Our discussion begins with Mother’s third appellate issue, which the 

Paternal Grandparents concede is dispositive. Mother argues the trial court 

erred when in failed to apply Section 5327(b).5

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5 We note Mother’s concise statement of errors complained of on appeal, filed 

pursuant to Pa.R.A.P. 1925(a)(2)(i) mistakenly referenced Section 5337 

(“Relocation”) instead of the correct 5327((“Presumption in cases concerning 

primary physical custody”). 

Such an error may result in waiver, especially here where the parents’ original 

modification petition implicated relocation under Section 5337. See Pa.R.A.P. 

302(a) (“Issues not raised in the trial court are waived and cannot be raised 

for the first time on appeal.”). Waiver is not appropriate in this case, because 

the concise statement sufficiently referenced “presumption,” thereby making 

the typographical error obvious. As we discuss, the Paternal Grandparents do 

not argue waiver, but concede that a remand is necessary to correctly apply 

Section 5327. For these reasons, we conclude Mother preserved this claim.
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Section 5327(b) of the Child Custody Act provides:

In any action regarding the custody of the child between a 

parent of the child and a nonparent, there shall be a 

presumption that custody shall be awarded to the parent. 

The presumption in favor of the parent may be rebutted by 

clear and convincing evidence.

23 Pa.C.S.A. § 5327(b).

We have defined “clear and convincing evidence” as evidence “that is so 

clear, direct, weighty, and convincing so as to enable the trier of fact to come 

to a clear conviction, without hesitation, of the truth of the precise facts in 

issue.” M.J.S. v. B.B., 172 A.3d 651, 660 (Pa. Super. 2017) (citations 

omitted).

Here, the trial court did not apply the presumption under Section 

5327(b). Instead, the court applied Section 5328(c). In certain cases 

between parents and grandparents, Section 5328(c)(1) obligates the court to 

consider three additional factors beyond those mandated by Section 

5328(a)(1)-(16). Section 5328(c) was not applicable in this case, because 

that section only applies to cases where the court awards the grandparent 

partial or supervised physical custody. Here, the trial court awarded the

Paternal Grandparents primary physical custody. Thus, the court did not have 

to consider the enumerated factors under Section 5328(c); instead, the court 

had to apply the statutory presumption under Section 5327(b). The trial 

court’s failure to do so constitutes a reversible error. M.J.S. v. B.B., 172 A.3d 

651, 660-61 (Pa. Super. 2017).
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Although the Paternal Grandparents maintain that they rebutted the 

presumption, they recognize the trial court erred by not applying the proper 

legal analysis. The parties agree on this point, but that is where their 

agreement ends. 

The Paternal Grandparents request that we direct the trial court to

supplement the record with additional findings, given that approximately 18 

months have elapsed since the custody trial – partly due to the trial court’s 

delay. See Paternal Grandparents’ Brief at 18. Mother argues we may settle 

the matter in this appeal. First, she claims the record sufficiently supports her 

request for primary custody. She further claims the trial court the trial court 

relied upon facts not in evidence. Given this, and the fact that the court failed 

to apply the correct presumption, Mother reasons that this Court should enter 

an order awarding primary physical custody to Mother. See Mother’s Brief at 

39.

Mother misunderstands our role. We are an error-correcting court; we 

do not make independent factual findings or reweigh the evidence. S.T., 912 

A.3d at 1160. We must defer to the presiding trial judge who viewed and 

assessed the witnesses first-hand. Id. “It is within the trial court’s purview

as the finder of fact to determine which factors are most salient and critical in 

each particular case.” M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013) 

(citation omitted) (emphasis added). The question of whether nonparents 

rebutted the statutory presumption in favor a parent must be resolved by the 

trial court, which is the ultimate arbiter of fact. M.J.S., 172 A.3d at 661.
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For these reasons, we agree with the Paternal Grandparents’ 

recommended disposition. We remand for the trial court to supplement its 

findings and determine whether the Paternal Grandparents overcame the 

statutory presumption in favor of Mother. Upon a request from either party, 

or upon its own motion, the trial court may conduct further proceedings to 

make additional findings about what has transpired since the February 2021 

custody hearing. We relinquish jurisdiction to ensure the same. We do not 

address Mother’s contention that the trial court relied upon facts not in 

evidence, but we remind the court that the Paternal Grandparents must 

present clear and convincing evidence to rebut the presumption in favor of 

Mother. See id.

Next, we briefly address the parties’ dissatisfaction with the trial court’s 

delay in rendering a decision. Our Rules of Procedure mandate that a judge’s 

decision shall be entered within 15 days of the trial’s conclusion. Pa.R.C.P. 

1915.4(d) (“Prompt Disposition of Custody Cases.”). Rule 1915.4(d) allows 

the court to extend that deadline, if an order is entered showing good cause; 

but under no circumstances shall the extension delay the decision for more 

than 45 days. Id. 

Here, the trial court did not enter decision within 15 days, nor did the 

court enter an order extending that deadline to 45 days upon a showing of 

good cause. By our count, 180 days elapsed from the conclusion of the trial 

until the court’s ultimate decision. The trial judge explained that the delay 

was caused by the extensive backlog created by the COVID-19 pandemic and 
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subsequent judicial emergency; and that prompt adjudication of the backlog 

was exacerbated by the trial judge’s duties to both Elk and Cameron Counties. 

See Amended Order of Court, 8/30/21, at 1 n.1. We are sympathetic that 

this predicament was not of the court’s own making, but we remind the court 

of its duties under our Rules of Procedure. See Rule 1915.4(d); see also In 

re T.S.M., 71 A.3d 251, 269 (Pa. 2013) (observing that “courts must keep 

the ticking clock of childhood ever in mind[;] [c]hildren are young for a scant 

number of years[.]”).

In sum, we agree with the parties the trial court erred when it failed to 

apply the proper statutory presumption under Section 5327(b). A remand is 

necessary to allow to supplement its findings. Given the prolonged delay, we 

relinquish jurisdiction to allow the court to conduct further proceedings as it 

deems necessary.

As a final matter, we explain our precise disposition. Typically, when an 

error of law necessitates a remand, we vacate the offending order. Here, 

vacating the August 2021 order means that the April 2019 order would govern 

the parties’ rights and responsibilities. Under the April 2019 order, Mother

had no legal custody, nor physical custody beyond what the Paternal 

Grandparents allowed. We presume neither Mother, nor the trial court,

desires this result. Thus, without commenting on its propriety, we convert6

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6 Pursuant to 42 Pa.C.S.A. § 706: “An appellate court may affirm, modify, 

vacate, set aside or reverse any order brought before it for review, and may 
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the August 30, 2021 order to an interim order pending further proceedings 

consistent with this decision.

7

Case remanded. Order converted to temporary order. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2022 

____________________________________________

remand the matter and direct the entry of such appropriate order, or require 

such further proceedings to be had as may be just under the circumstances.

7 Alternatively, the trial court may fashion an entirely different interim order, 

pursuant to Pa.R.C.P. 1915.13 (“Special Relief”).