J-A29025-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

THOMAS M. HOOVER, JR.

v.

JAMES AND KIM LEWIS

v.

LISA K. COHEN 

Appellant

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 812 WDA 2023

Appeal from the Order Entered June 7, 2023

In the Court of Common Pleas of Blair County Civil Division at No(s): 

No. 2011 254

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

DISSENTING MEMORANDUM BY BOWES, J.: FILED: APRIL 26, 2024

I agree with my esteemed colleagues’ sentiments concerning the threeyear delay in resolving the child custody dispute between Mother, Father, 

Maternal Grandparents, and Paternal Grandmother. As the majority 

accurately states, “[t]he delays in this case have been unconscionable.” 

Majority Memorandum at 25. However, for the reasons discussed infra, I 

disagree with the majority’s finding that Maternal Grandparents lacked 

standing to pursue anything beyond periods of partial physical custody of their 

thirteen-year-old grandson, A.J.L., with whom Maternal Grandparents have 

maintained an exceptionally close relationship since his birth in 2010. Thus, 

I respectfully dissent from the decision to reverse the custody order awarding 
J-A29025-23

- 2 -

Maternal Grandparents shared legal custody and primary physical custody of 

the child and remand for additional proceedings. 

As the issue regarding standing pursuant to the relevant provisions of 

the Child Custody Act is a question of law, we review the trial court’s decision

de novo, and our scope of review is plenary. G.A.P. v. J.M.W., 194 A.3d 614, 

616 (Pa. Super. 2018). The majority determined that Maternal Grandparents’ 

July 2020 petition to intervene in the custody dispute between Mother and 

Father involving A.J.L., which specifically requested “temporary physical 

custody or periods of physical custody with shared legal custody,” was 

insufficient to satisfy the six-month period of commencement outlined in 23 

Pa.C.S. § 5324(3)(iii)(C), relating to standing for any form of physical custody 

or legal custody.

1

 Petition to Intervene/Emergency Custody, 7/9/20, at ¶ 15. 

According to the majority, that pleading was ineffective to toll the time-

____________________________________________

1 Pursuant to 23 Pa.C.S. 5324(3)(iii)(C), a grandparent who previously lived 

with the child for at least twelve months may have standing to seek any form 

of custody under the statute if the custody action is filed within six months of 

the child’s removal from the home. Instantly, Mother and A.J.L. resided with 

Maternal Grandparents between his birth in January 2010 and May 2020,

either inside their residence, or with Stepfather in a mobile home that was 

placed in Maternal Grandparents’ backyard. Even when Mother, Stepfather 

and A.J.L. stayed in the trailer home, A.J.L. retained his own room in Maternal 

Grandparents’ home. As the majority readily concedes, “Maternal 

Grandparents were involved in the Child’s life on a near-daily basis until 2020.” 

Majority Memorandum at 3. Indeed, Maternal Grandparents sought to 

intervene in the custody dispute, in part, to safeguard A.J.L.’s mental health, 

physical health and academic progress. See Petition to Intervene/Emergency 

Custody, 7/9/20, at ¶¶ 12-15. 
J-A29025-23

- 3 -

requirements because Maternal Grandparents averred that they stood in loco 

parentis (ostensibly invoking a different basis of standing), the wherefore

clause requested “emergency shared legal and physical custody,” and during

a subsequent video conference Maternal Grandparents indicated that they 

were seeking partial custody. Majority Memorandum at 19. My learned 

colleagues then reasoned that Maternal Grandparents subsequently 

abandoned the petition to intervene when, ten months later, they filed a 

complaint for custody that specifically invoked § 5324(iii)(C), which the 

majority reasons was filed six months too late.

2

 Id. at 18, 19. 

Finally, having determined that Maternal Grandparents’ 2020 filings

were insufficient to toll the time requirements for the above stated reasons, 

the majority nevertheless declares that its characterizations of those filings 

are ultimately immaterial to the standing analysis in light of its independent

finding that the operative removal of A.J.L. from maternal Grandparents’ home 

had, in fact, occurred in 2015 when Mother and Stepfather took up residence 

in Maternal Grandparents’ backyard. See Majority Memorandum at 21-24 

(quoting and interpreting testimony about the family’s living arrangements

after 2015 before concluding that “the Child has not resided with Maternal

Grandparents since approximately 2015.”).

____________________________________________

2 Likewise, the majority discounts as irrelevant Maternal Grandparents’ 

October 2020 motion challenging Appellant’s standing to participate in the 

custody dispute that was the basis of Maternal Grandparents’ then-pending 

July 2020 petition to intervene. Majority Memorandum at 21.
J-A29025-23

- 4 -

The effect of the majority’s exacting review of Maternal Grandparents’

2020 custody filings, independent fact finding, and mechanical application of 

23 Pa.C.S. § 5324(3)(iii)(C) is to reverse Maternal Grandparents’ award of 

shared legal custody and primary physical custody and to divest Maternal 

Grandparents of standing to pursue anything beyond partial physical custody 

of A.J.L. pursuant to § 5325(1). 

However, notwithstanding the majority’s scrutiny of the 

§ 5324(3)(iii)(C) time component, as explained supra, I believe that Maternal 

Grandparents established standing to pursue custody of A.J.L. pursuant to 

§ 5324(3)(iii)(B), which does not implicate the six-month period following the 

child’s removal. The relevant portion of § 5324 provides “Standing for any 

form of physical custody or legal custody” as follows: 

. . . .

(3) A grandparent of the child who is not in loco parentis to the 

child:

(i) whose relationship with the child began either with the 

consent of a parent of the child or under a court order;

(ii) who assumes or is willing to assume responsibility for the 

child; and

(iii) when one of the following conditions is met:

(B) the child is substantially at risk due to parental abuse, 

neglect, drug or alcohol abuse or incapacity; 

23 Pa.C.S. § 5324(3) (i-iii)(B).
J-A29025-23

- 5 -

Maternal Grandparents argue, and I agree, that they have standing to 

pursue custody pursuant to § 5324(3)(iii)(B), which grants standing to a 

grandparent if the child is substantially at risk due to abuse, neglect, drug 

abuse or incapacity. The majority summarily rejects this argument because 

the trial court did not invoke it as grounds to award standing and because 

Father’s reliance upon Paternal Grandmother’s de facto parenting shielded him 

from allegations of neglect or incapacity. It reasons, “Although Father has 

allowed his negative opinion of the judicial system to interfere with his 

relationship with the Child, his ambivalence[3] does not constitute neglect, 

because the Child was never put at risk. While Father was content to let 

others raise the Child, he at least ensured the Child’s safety.” Majority 

Memorandum at 17-18.

Notwithstanding the majority’s contrary conclusion, the record bears out 

that Father is unconcerned about A.J.L. Father’s involvement with his son has 

been minimal, and despite receiving at least partial physical custody of the 

child throughout this litigation, he has declined to exercise custody 

consistently and frequently failed to attend custody exchanges. 

____________________________________________

3 The majority and trial court both mischaracterize Father as “ambivalent,” 

which Merriam-Webster defines as “having or showing simultaneous and 

contradictory attitudes or feelings toward something or someone[.]” See

https://www.merriam-webster.com/dictionary/ambivalent (last visited Apr. 

10, 2024). A more precise characterization would be that Father is simply 

unconcerned about his son. As discussed in the body of this dissenting 

memorandum, I believe that A.J.L. is substantially at risk due to Father’s 

parental detachment.
J-A29025-23

- 6 -

Consequently, the 2020 consent order between Mother and Father, which 

granted Paternal Grandmother shared physical and legal custody, excluded 

Father from physical custody, except during holidays. Overall, the trial court 

opined, “Indeed, in some respects it would appear that Father had no 

relationship with the Child but for the involvement of his parents during their 

periods of custody.” Trial Court Opinion, 6/7/23, numbered at 11. Indeed, 

Paternal Grandmother is the sole driving force behind this appeal, as Father 

neither appealed the at-issue custody order nor bothered to file a brief with 

this Court. 

Likewise, insomuch as harm may transcend physical mistreatment, the 

record also demonstrates that A.J.L.’s mental health and emotional welfare is 

substantially at risk due to Father’s apathy. A.J.L. suffers from depression, 

endures mental health problems which require medication, and has chronic 

academic issues that risked him being held back a grade. A.J.L.’s mental 

health concerns were aggravated by both the death of his mother and this 

extended custody litigation. Significantly, when the parties met to discuss this 

reality with the trial court, Father neglected to appear at the status 

conference. Considering A.J.L.’s mental health problems and emotional 

struggles and the fact that harm manifests in myriad forms, I reject the 

majority’s foundational premise that Father’s delegation of parenting 

responsibilities to Paternal Grandmother effectively bars Maternal 

Grandparents from establishing standing under 5324(3)(iii)(B). In fact, I 
J-A29025-23

- 7 -

believe that Father’s reliance upon Paternal Grandmother to satisfy his 

parental obligations in this situation, where he exercises shared legal custody 

and periods of physical custody independent from Paternal Grandmother,

creates, rather than alleviates, the ongoing possibility of a substantial risk to 

A.J.L. due to Father’s neglect or incapacity.

We confronted a similar situation in G.A.P., 194 A.3d at 618, where the 

trial court sustained maternal great-grandparents’ preliminary objection to a 

paternal grandparent’s petition to intervene in a custody dispute pursuant to 

§ 5324(3)(iii)(b). The maternal great-grandparents had exercised primary 

physical custody of the seven-year-old child and the father had periods of

supervised physical custody. Paternal grandparents sought to intervene 

because both parents had problems with substance abuse, the father a 

criminal history, and the father had recently relapsed. Maternal greatgrandparents filed a preliminary objection asserting that the child was not 

substantially at risk because they were exercising primary physical custody. 

The trial court sustained the objection without a hearing. 

In reversing the order, this Court extended the concept of substantial 

risk to include a theoretical future detriment associated with a parent's 

retention of parental rights and concluded that, because the parental rights of 

the mother and father had not been terminated, the child remained 

substantially at risk due to parental behaviors. Id. Phrased differently, the 

G.A.P. Court reasoned, “[s]ince parental rights have not been terminated or 
J-A29025-23

- 8 -

relinquished, it is possible for either parent to seek custody of Child. This 

possibility creates an ongoing risk to Child.”).

4

 

For the same reasons that we reversed the order denying standing in 

G.A.P., it is irrelevant, herein, that Father shifted his parental responsibilities 

to Paternal Grandmother. Regardless of that arrangement, Father has 

maintained his parental rights, and in fact, was awarded both shared legal 

custody and periods of physical custody independent from Paternal 

Grandmother, even if he neglects to exercise those rights. In essence,

Father’s indifference toward his son places the child substantially at risk. See

____________________________________________

4 As it relates to the interplay between grandparents competing for standing 

to pursue physical custody in this situation, the G.A.P. Court reasoned,

It would most certainly be absurd, unreasonable, and against 

public interest to create a race to file a custody petition and divest 

one grandparent of his or her right to custody because another 

grandparent filed a petition first. Rather, the trial court should 

have the opportunity to determine which grandparent can best 

serve the child's needs. The trial court must consider in its analysis 

many custodial factors, including the impact of moving the child 

from one grandparent to another one. The trial court, however, 

should have the opportunity to consider all custodial options for 

the child and this interpretation of the statute gives the trial court 

the discretion to place the child with the grandparent best suited 

to care for the child and does not limit the trial court's decision to 

the grandparent who filed first.

G.A.P. 194 A.3d at 618-19. Insofar as the majority discounts the value of 

Maternal Grandparents’ July 2020 petition to intervene in the custody dispute 

between Mother and Father and acknowledges the significance of the 

subsequent accord between Mother and Father granting Paternal 

Grandmother shared physical and legal custody less than two weeks later, it 

is apparent that Paternal Grandmother effectively won the race for custody 

standing that the G.A.P. Court sought to avoid.
J-A29025-23

- 9 -

G.A.P. 194 A.3d at 618; Martinez v. Baxter, 725 A.2d 775 (Pa.Super. 1999)

(applying the predecessor to § 5324, and holding, “[w]e will not interpret this 

statute to deprive grandparents of this privileged status merely because CYS 

has stepped in before the grandparent has had an opportunity to assert her 

interest in raising her grandchild”). 

Thus, for all the foregoing reasons I respectfully dissent. Rather than 

reverse the custody order and not only strip Maternal Grandparents of shared 

legal custody and primary physical custody, but also deprive them of standing 

to seek anything beyond periods of partial physical custody, I would either 

affirm the custody order based on the existing record or, at least, remand for 

the trial court to make a factual assessment regarding Maternal Grandparents’ 

standing to proceed under § 5324(3)(iii)(B).