J-A13021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

B.H. AND D.H., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

U.K.H. AND B.W.H.,

Appellees No. 1907 WDA 2014

Appeal from the Order Entered October 17, 2014

In the Court of Common Pleas of Washington County

Civil Division at No(s): No. 5533 of 2013

BEFORE: PANELLA, SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JUNE 18, 2015

B.H. and D.H., paternal grandparents (“Grandparents”), appeal from 

the order denying their exceptions to a partial physical custody report and 

recommendation regarding their minor grandchildren, T.H., D.H.1,1and 

K.H., ages seventeen, ten, and nine, respectively (collectively, “the 

Children”). We affirm.

Grandparents are the parents of B.W.H. (“Father”)2and the in-laws of 

U.K.H. (“Mother”). Mother had obtained full legal and physical custody of 

the Children pursuant to a custody order dated February 22, 2013. In 

____________________________________________

1

 Because Grandfather D.H. and child D.H. have the same initials, the trial 

court referred to the child as D.H.1 throughout its opinion. Trial Court 

Opinion, 12/9/14, at 2 n. 2.

2

 Father’s parental rights were terminated in July 2014. He is not a party to 

this appeal.
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September 2013, Grandparents filed a complaint for partial physical custody 

of the Children. Custody Conference Officer Dawn L. Haber (“CCO Haber”) 

scheduled a conciliation conference for December 13, 2013. In response to 

Mother’s request for a continuance of the conference, the trial court entered 

an interim order granting Grandparents visitation on December 26, 2013, 

without Father being present. Order, 12/3/13. The conciliation conference 

was rescheduled to March 11, 2014.3 In a second interim order, the trial 

court continued Mother’s sole physical custody of the Children and granted 

Grandparents visitation on the Saturday before Easter and every other 

Saturday for five hours, beginning on May 3, 2014, without Father being 

present. Interim Order, 4/8/14, at ¶¶ 4–6.

CCO Haber conducted a partial custody hearing on May 23, 2014, at 

which Mother, Grandmother, T.H. and D.H.1 testified.4 CCO Haber 

subsequently issued a report, setting forth forty-three findings of fact, as 

follows:

____________________________________________

3

 The certified record does not indicate if the conference was held.

4

 The certified record does not include notes of testimony from the May 23, 

2014 partial custody hearing. Moreover, Grandparents did not attempt to 

comply with our appellate rules by preparing “a statement of the evidence or 

proceedings from the best available means, including [their] recollection.” 

Pa.R.A.P. 1923. See In re G.T., 897 A.2d 1197, 1199 (Pa. 2006) (citing 

Commonwealth v. Williams, 715 A.2d 1101, 1106 (Pa. 1998)) (holding 

that rules of appellate procedure require appellant to provide complete 

record on appeal, including requesting transcription of testimony germane to 

appeal). However, as discussed above, even absent the missing transcript, 

the evidence contained in the record supports the trial court’s conclusion.
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1. [Grandparents] live on Blackdog Hollow Road in Clarksville, 

PA.

2. Father live[s] two doors away from [Grandparents] on 

Blackdog Hollow Road in Clarksville, PA.

3. Prior to the Order of December 3, 2013, [Grandparents] last 

saw [the Children] in January, 2013.

4. Mother and Father lived with [Grandparents] for two years 

when [T.H.] was a baby.

5. Mother and Father lived two doors away from them on 

Blackdog Hollow Road in Clarksville, PA. until they separated 

in 2009.

6. [Grandparents] saw the [Children] when Father had 

custody.

7. On November 5, 2012 a PFA was entered against Father for 

threatening [M]other at 2012-7106.

8. Criminal charges were levied against Father for an 

altercation with his oldest son. Charges were also levied 

against [T.H.].

9. The Court signed an Order for special relief limiting Father to 

supervised visitation on December 28, 2012.

10. [Grandparents] permitted Father to have custody during a 

visit in January, 2013 contrary to the December 28, 201[2] 

Court Order.

11. [Grandmother] claimed she did [not] understand why her 

visits were terminated after this incident.

12. Mother testified she told [Grandmother] that Father’s 

contact was limited by Court Order.

13. [Grandparents] appeared at the District Justice office to 

testify on Father’s behalf regarding the altercation with his 

oldest son.
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14. [Grandmother] testified that she doesn’t believe that Father 

abused Mother or the [C]hildren.

15. Grandmother also testified that she knows the [C]hildren

are in counseling but believes that Mother is as much to 

blame for their mental health problems as Father.

16. Grandmother also testified that she told the [C]hildren that 

it is Mother’s fault that the [C]hildren have no family as she 

was cheating on Father.

17. Grandmother admitted that she approached the younger 

children at school and told them that she was going to get 

custody of them.

18. Grandmother testified that [T.H.] had changed and no 

longer wants to talk to them.

19. Grandmother testified that the [C]hildren want to see their 

Father and she had [K.H.] write a letter to her Father while 

at [G]randmother’s home.

20. Grandmother testified that she did not believe [G]randfather 

hit [D.H.1] during the last visit.

21. [Grandfather] was present [at the hearing] but did not 

testify.

22. [T.H.] age 16 testified he did not have a relationship with 

his grandparents.

23. [T.H.] testified that he was concerned about the safety of 

his younger siblings while visiting [Grandparents] because 

his Father lived nearby and that Grandfather had hit [D.H.1] 

during the last visit.

24. [T.H.] testified that [G]randmother told him that his Mom 

cheated on his Father and was too [sic] blame for the 

marriage ending.

25. [T.H.] testified that the Grandparents just want to see them 

on holidays to save face with the extended family.
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26. [D.H.1], age 10 testified that his father had grabbed him 

and that he was afraid of his Father.

27. [D.H.1] testified that he was afraid of his grandfather. His 

grandfather had hit him on the last visit because he got the 

quad dirty.

28. [D.H.1] testified that his grandparents do not like his 

Mother.

29. [D.H.1] testified his grandmother told him that he should 

live with them.

30. [D.H.1] testified that he did not feel safe at his 

grandparents[’ house]. He would see them if a police officer

supervised the visits.

31. [D.H.1] enjoys seeing his cousins during visits with 

[G]randparents.

32. [Mother] testified that she was abused by Father through 

out [sic] their marriage.

33. Mother testified that after they separated Father started to 

abuse [T.H.] during visits.

34. When [T.H.] stopped seeing his Father, Father became 

abusive toward [D.H.1].

35. Mother informed Grandmother of the abuse but 

[Grandmother] told her that [the] men [in the family] do 

this.

36. Mother feels there is [a] culture of abuse in the [H.] family.

37. Mother testified that the [C]hildren are very antsy before 

any visits with [G]randparents.

38. [T.H.] is on medication for stress and anxiety.

39. The [C]hildren attend therapy.

40. The younger children were very upset when Grandmother 

approached them and told them they were going with her.
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41. [Mother] indicates that [G]randparents did not have a 

relationship with the [C]hildren independent of the parents. 

They did not babysit.

42. [Mother] did not hear from [G]randparents from January 

2013 to July 2013.

43. Mother feels that [G]randparents’ partial custody should be 

suspended so the [C]hildren can heal.

Report and Recommendation, 6/5/14, at 2–4. CCO Haber recommended no 

partial physical custody by Grandparents. Id. at 4.

Relying on CCO Haber’s Report and Recommendation, the trial court 

entered an order suspending Grandparents’ visitation and denying their 

complaint for partial custody, subject to exceptions being filed within twenty 

days. Order, 6/5/14, at ¶¶ 4–6. Grandparents filed exceptions on June 23, 

2014, and a brief in support; Wife filed a brief in opposition. “On October 

17, 2014, after oral argument, a review of the Report and Recommendation 

of CCCO Haber, and a review of the parties’ briefs and pertinent case law,” 

the trial court denied the exceptions, thereby finalizing its June 5, 2014 

order. Trial Court Opinion, 12/9/14, at 2–3. Grandparents filed the instant 

appeal on November 17, 2014. Grandparents and the trial court complied 

with Pa.R.A.P. 1925.

On appeal, Grandparents state the following questions for review:

1. Whether the trial court erred as a matter of law by utilizing a 

repealed statute — 23 Pa. C.S.A. § 5312 — in forming the 

legal basis of its Order, and therefore failed to consider the 

requisite factors set forth in § 5328(a) and (c)?
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2. Whether the trial court erred by concluding that granting 

[Grandparents’] Petition for partial physical custody was not 

in the Children’s best interest?

3. Whether the trial court erred by failing to consider the 

previous and established relationship between [Grandparents] 

and the Children, as required by 23 Pa. C.S.A. §5328(c)(1)(i).

4. Whether the trial court erred as a matter of law by 

considering matters or factual allegations beyond the scope of 

the factors set forth in 23 Pa. C.S.A. 5328; specifically, the 

trial court considered the alleged conduct of the Children’s 

Father/Appellee when determining whether to grant 

[Grandparents] partial physical custody of the Children and 

whether the same was in Children’s best interest?

5. Whether the trial court erred in concluding that 

[Grandparents] would interfere with the parent-child 

relationship as a result of a perceived animus by 

[Grandparents] against Appellee/Mother? 

6. Whether the trial court’s conclusion that [Grandparents] 

intended to reintroduce Children to Appellee/Father, was 

against the weight of the evidence?

Grandparents’ Brief at 21–22 (reformatted to single space).5

We apply the following standards when reviewing a custody decision:

Our standard of review over a custody order is for a gross abuse 

of discretion. If a trial court, in reaching its conclusion, 

____________________________________________

5

 Question 5 appears in Grandparents’ Pa.R.A.P. 1925(b) statement of 

errors as issue number 6. Question 6 appears in Grandparents’ Pa.R.A.P. 

1925(b) statement of errors as issue number 5. Moreover, Grandparents’ 

Pa.R.A.P. 1925(b) statement included two additional issues. Issue 7 

challenged the trial court’s denial of “any periods of custody with Children.” 

Pa.R.A.P. 1925(b) Statement, 12/1/14, at ¶ 7. Issue 8 challenged the trial 

court’s failure to use “less harsh means . . . while still addressing the two 

concerns of the [c]ourt.” Id. at ¶ 8. Grandparents have abandoned these 

two issues on appeal. Grandparents’ Brief at 21–22.
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overrides or misapplies the law or exercises judgment which is 

manifestly unreasonable, or reaches a conclusion that is the 

result of partiality, prejudice, bias or ill will as shown by the 

evidence of record, then discretion is abused. Our scope of 

review over custody disputes is broad; this Court is not bound by 

the deductions and inferences the trial court derives from its 

findings of fact, nor must we accept the trial court’s findings of 

fact when these findings are not supported by competent 

evidence of record. Our paramount concern in child custody 

matters is the best interests of the children.

L.A.L. v. V.D., 72 A.3d 690, 692 (Pa. Super. 2013) (quoting Yates v. 

Yates, 963 A.2d 535, 539 (Pa. Super. 2008) (citations omitted)).

A grandparent’s right to partial physical custody is governed by two 

statutes, 23 Pa.C.S. § 5325 (standing)6and 23 Pa.C.S. § 5328(c) (factors). 

Where custody or visitation is concerned, “our paramount concern is that the 

disposition of the matter reflects what is in the best interests of the child.” 

Tripathi v. Tripathi, 787 A.2d 436, 439 (Pa. Super. 2001) (citation 

omitted). This is equally true in cases involving grandparents’ rights to 

visitation or custody. We have emphasized, “[I]t is the grandparents’ 

burden to demonstrate partial custody or visitation is in the best interest of 

the children and will not interfere with the parent-child relationship.” 

Fausey v. Hiller, 851 A.2d 193, 196 (Pa. Super. 2004).

____________________________________________

6

 Although Grandparents’ standing was not an issue in this case, the trial 

court determined that they have standing to seek partial physical custody 

under 23 Pa.C.S. § 5325(2) because the parents had been separated for 

more than six months, since 2009. Trial Court Opinion, 12/9/14, at 3.
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Upon review of the parties’ briefs, the certified record, and the 

relevant case law, we conclude that the thorough, well-reasoned Pa.R.A.P. 

1925(a) opinion of the Honorable Valarie Costanzo completely and 

accurately disposes of the issues Grandparents raise in this appeal. We, 

therefore, affirm the trial court’s order denying Grandparents’ exceptions on 

the basis of its December 9, 2014 opinion. The parties are instructed to 

attach a copy of that opinion to this memorandum in the event of future 

proceedings.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/18/2015
-n 

1-·- 

t 

fTl 

j 

1 As this is a custody matter, Appellant was required to file a concise statement of errors complained of on appeal 

simultaneously with the notice of appeal. Pa.R.A.P. 905(a)(2). Because Appellants failed to do so, the Trial Court 

issued the above-referenced order. 

Complaint for Partial Custody ofU.K.H. and B.W.H.'s three minor children, T.H.,._ 

On September 10, 2013, B.H. and D.H. (hereinafter referred to as "Appellants") filed a 

PROCEDURAL HISTORY 

includes eight matters complained of on appeal. The Trial Court will address the issues below. 

R.A.P. l 925(b ).1 On or about November 26, 2014, Appellant filed a concise statement, which 

the Appellants to file a Concise Statement of Errors complained of on appeal pursuant to Pa. 

on or about November 17, 2014. Thereafter, on November 18, 2014, this Trial Court directed 

Recommendation and Report. The Appellants filed an appeal of the Order to the Superior Court 

Order denied a number of Exceptions raised by the Appellants to a partial physical custody 

from an order of this Trial Court dated October 17, 2014 (hereinafter referred to as "Order"). The 

This matter comes before the Court upon B.H. and D.H.'s appeal to the Superior Court 

OPINION PURSUANT TO Pa.R.A.P. 1925(a) 

Appellees. 

U.K.H. and B.W.H., 

v. 

Nos. 

Appellants, 

2013-5533 

1907 WDA 2014 

) 

) 

) 

) 

) 

) 

) 

) 

) 

B.H. and D.H., 

IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA 

CIVIL DIVISION 

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2 Appellant D.H. and child D.H have the same initials. For purposes of clarity, the child with the initials D.H. who 

is ten years old, will be referred to as D.H. I throughout this opinion. The Appellant will be referred to as D.H. 

U.K.H. filed a brief in opposition to the Exceptions. On October 17, 2014, after oral argument, a 

Report and Recommendation. Appellant filed a brief in support of its Exceptions, and Appellee 

2 

On or about June 23, 2014, Appellants filed a number of Exceptions to CCCo+{ffber,Js 

denying Appellants petition for partial physical custody. 

Rule 1915-4-2(b) and Washington County Local Rule 1915.31, the Trial Court issued an order 

On June 3, 2014, after a review ofCCCO Haber's Report and Recommendation, and pursuant to 

attended a two hour partial custody hearing before CCCO Haber, at which testimony was taken. 

B.W.H. attended that meeting. Thereafter, on May 23, 2014, every party but father B.W.H. 

Conference Officer L. Dawn Haber (hereinafter referred to as "CCCO Haber.") Every party but 

On March 11, 2014, a custody conciliation meeting was scheduled before Custody 

terminated. 

Accordingly, B.W.H.'s parental rights to the three children, T.H., D.H.1, and K.H. were 

July 31, 2014, Judge Emery issued an opinion and order that granted U.K.H. 's petition. 

30, 2014, a hearing was held on the petition before the Honorable Judge Katherine Emery. On 

B. W .H. 's parental rights to the three children that are the subject of the instant appeal. On June 

alcohol evaluation. 

On January 21, 2014, Appellee U.K.H. filed a petition to involuntarily terminate 

minors on the condition that he completed anger management classes as well as a drug and 

order, B.W.H., the father of the children, was granted supervised partial custody of the three 

pursuant to a custody order dated February 22, 2013 at docket number 2012-6253. Under that 

U.K.H., the children's mother, has sole legal and primary physical custody of the children 

._..) •• age 10 and K.H., •••age 9 . , age 17, D.H.1,2 

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(i) the amount of personal contact between the child and the party 

prior to the filing of the action; 

described above, Section 5328(c) requires the Trial Court to consider the following factors: 

In ordering partial physical custody to grandparents who meet the standing requirements 

proceeding to dissolve their marriage." 

child have been separated for a period of at least six months or have commenced and continued a 

3 

under Section 5325(2) which permits grandparents to file for custody where "the parents of the 

pleadings and oral argument, Appellants have standing to file for partial custody of the children 

assume Appellants have met the standing requirements set forth in Section 5325. Based on the 

appeal, nor was it raised before this Court, for purposes of this appeal the Trial Court will 

petition the court for custody in three situations. Because standing is not an issue raised in this 

Pa.C.S.A. § 5325 and 23 Pa C.S.A. § 5328(c). Under Section 5325, grandparents are able to 

grandparent's right to partial physical custody is primarily governed by two statutes, 23 

upon a minor typographical error, and therefore lacks any merit. In Pennsylvania, a 

5312, which was repealed by the General Assembly in 2010. Appellants' argument is based 

Appellants first argue that CCCO Haber and the Trial Court erred by relying on Section 

Trial Court has condensed these matters where appropriate. 

1. Whether CCCO Haber and the Trial Court erred by relying on 23 Pa.C.S.A. § 5312, 

which was repealed on November 23, 2010. 

Appellants have filed eight matters complained of on appeal. For purposes of clarity, the 

OPINION 

s., ~ •• 

-,.. . ' 

-. Appellants now seek to appeal. 

and pertinent case law, the Trial Court denied Appellants Exceptions. It is this order that 

review of the Report and Recommendation of CCCO Haber, and a review of the parties' briefs 

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5328(c) and determined that based upon the three factors it was not in the best interests of the 

Regardless, this Trial Court assessed the Appellants exceptions according to Section 

instead of Section 5328( c ), the requirements contained in both statutes are identical in meaning. 

language set forth in Section 5328( c ). Assuming CCCO Haber did rely upon Section 5312, 

23 Pa.C.S.A § 5312. The language of this repealed statute is identical in meaning to the 

4 

marriage is dissolved or parents are separated", stated the following: 

Section 5312. The language of repealed Section 5312, which was entitled, "When parents' 

In all proceedings for dissolution, subsequent to the 

commencement of the proceeding and continuing thereafter or 

when parents have been separated for six months or more, the 

court may, upon application of the parent or grandparent of a party, 

grant reasonable partial custody or visitation rights, or both, to the 

unmarried child if it finds that visitation rights or partial custody, 

or both, would be in the best interest of the child and would not 

interfere with the parent-child relationship. The court shall 

consider the amount of personal contact between the parents or 

grandparents of the party and the child prior to the application. 

Appellants appear to hang their argument on the fact that CCCO Haber's report cites to 

grant of partial physical custody to Appellants would be in the best interests of the three children. 

interfere with U.K.H.'s relationship with her three children. Lastly, paragraphs 10, 13, 14, 16, 

17, 18, 20, 22, 23, 24, 27, 28, 30, 35, 37, 38, 39 and 40 include findings that pertain to whether a 

from the testimony before CCCO Haber that touch upon whether an award of custody would 

this action for partial custody. Paragraphs 14, 15, 16, 17, 20, 24, 28, 29, and 40 contain findings 

and 42 describe the amount of contact the children had with the Appellants prior to the filing of 

reflects that CCCO Haber considered these three factors. For example, paragraphs 4, 5, 6, 41, 

23 Pa.C.S.A. § 5328(c)(l)(i)-(iii). In the instant matter, the Report and Recommendation clearly 

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

and 

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

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U.K.H., Appellant B.H., children T.H. and D.H.l, it was not in the best interests of the children 

set forth in Section 5 3 28( c) and determined that after a hearing, where testimony was taken from 

In the instant matter, CCCO's Haber Report and Recommendation addressed each factor 

5 

Super. 246, 248, 619 A.2d 339, 340 (Pa. Super. 1993). 

involving whether grandparent visitation rights should be awarded." Norris v. Teamey, 422 Pa. 

v. McMillen, 529 Pa. 198, 202, 602 A.2d 845, 847 (Pa. 1992). 'This is equally true in cases 

concerns custody or visitation, [its] paramount concern is the best interest of the child. McMillen 

23 Pa.C.S.A. § 5328(c)(l)(i)-(iii). This Trial Court is well aware that "Whether the matter 

(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 parent-child relationship; 

and 

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

following factors when order partial physical custody to a grandparent: 

As described above, Section 5328(c) requires the Trial Court to consider the three 

5. Whether CCCO Haber and the Trial Court erred by denying Appellants any periods 

of custody with the children. 

4. Whether CCCO Haber and the Trial Court erred by finding that Appellants have an 

animus against the children's mother, U.K.H., and that such animus would interfere 

in the relationship between the children and their mother. 

3. Whether CCCO Haber and the Trial Court erred by failing to consider the previously 

established relationship between the Appellants and the children as required by 23 

Pa.C.S.A. § 5328(c)(l)(i). 

2. Whether CCCO Haber and the Trial Court erred by determining that granting 

Appellants' petition for partial physical custody of the children would not serve the 

best interests of the three children. 

claim lacks any merit. 

three children for Appellants to be granted partial physical custody. As a result, Appellants 

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6 

for the Appellants to have partial physical custody. During oral argument before this Court, 

Appellants' attorney had the opportunity to argue why granting Appellants partial custody would 

be in the children's best interests. After a review of the record, CCCO Haber's Report and 

Recommendation, and the factors set forth in Section 5328(c), the Trial Court determined that 

partial custody between Appellants and the children would not serve their best interests. 

Factor (i) requires this Court to inquire into the amount of personal contact between 

Appellants and the three children before Appellants filed the instant custody action. Appellants 

filed their custody complaint on September 9, 2013. The Appellees had lived with the 

Appellants when their oldest child, T.H. was a baby. Thereafter, Appellees lived two houses 

away from Appellants until the Appellees separated sometime in 2009. On December 3, 2013 

the Honorable Judge Gary Gilman entered an order granting Appellants five hours of custody 

time with the children. Prior to that order, the last time Appellants had seen the children was in 

January of 2013. The reason for the lapse in visitation with the children is because Appellants 

had permitted their son, Appellee B.W.H., to visit with the children in clear violation of the 

Appellees' custody order, dated December 28, 2012 at docket number 2012-6253. 

T.H. testified that he does not have a relationship with his grandparents. The children's 

mother, Appellee U.K.H., testified that the Appellants never had a relationship with the children 

independent of the Appellees. She also stated that she did not hear from the Appellants from 

January 2013 through July 2013. 

Based on the above testimony, the Trial Court determined that Appellants and the 

children did not have much personal contact prior to the Appellants filing an action for partial 

custody. 

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7 

Factor (ii) requires the Trial Court to consider whether an award of custody to 

grandparents would interfere with any parent-child relationship. During the partial custody 

hearing before CCCO Haber, many of the witnesses testified to an event wherein T.H. alleged 

that his father, Appellee B.W.H., had hit him. Appellant B.H. testified that she did not believe 

that B.W.H. ever hit his son T.H. In addition, Appellant B.H. stated that both she and her 

husband, D.H., had testified against T.H. and on behalf of B.W.H. at a magisterial district judge 

he~ing concerning the alleged altercation. 

Appellant B.H. also stated that she had told the children that it was the children's 

mothers' fault, Appellee U.K.H., that the children have no family because she cheated on their 

father, Appellee B.W.H. Furthermore, T.H. testified that his grandmother, Appellant B.H., told 

him that his mother cheated on his father and that it was her fault that the marriage ended. B.H. 

also testified that she approached the younger children at school and told them that she was 

going to get custody of them. D .H. l testified that his grandmother told him that he should live 

with the Appellants. This Court cannot fathom why B.H., the children's grandmother, would 

relay such messages to the children. B.H.' s conduct in this regard is clearly detrimental to the 

children and inapposite to their best interests. 

Based on the testimony presented at the partial custody hearing, this Trial Court 

determined that an award of partial custody to Appellants would interfere with the parent-child 

relationship that Appellee U.K.H. currently enjoys with her children. Based on the testimony 

presented, the Court believes that Appellant B.H. would make more harmful disparaging remarks 

about the children's mother to the children if she were granted partial custody. 

Factor (iii) requires this Court to determine whether an order of partial custody to 

Appellants would be in the children's best interests. During the hearing, several of the witnesses 

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8 

Based on these facts, the Trial Court determined that it was not in the best interests of the 

children for Appellants to be granted partial physical custody. However, based on the testimony 

presented, the Trial Court determined that at the current time, partial physical custody would 

serve more as a detriment to the children, than a benefit, and consequently is not in their best 

interest. 

In accordance with Section 5328(c) this Trial Court considered (i) the amount of personal 

contact between Appellants and the children; (ii) whether the award would interfere with 

Appellees and the children's relationship; and (iii) whether the award of custody would be in the 

3 K.H., the youngest child in this matter, did not testify. 

testified to an event where Appellee B.W.H. and his son T.H. got into a physical altercation. 

Afterwards, both were criminally charged. During a hearing before a magisterial district judge, 

Appellants testified on B.W.H.'s behalf and against T.H. 

As noted previously, B.H. admitted that she told the children she was going to get 

custody of them and that their parents' divorce was a result of their mother's infidelity. T.H. 

stated that he had no relationship with Appellants. T.H. testified that he would fear for the safety 

of his younger siblings if they were left in Appellants' care. 

D.H.1, who is ten years old, testified that his grandfather, Appellant D.H., had hit him 

during their last visit because he had "got the quad dirty." D.H.l further stated that he did not 

feel safe at the Appellants' home, but that he would feel comfortable during visits with 

Appellants if the police were present.' The children's mother, Appellee U.K.H., testified that all 

of the children appear anxious before visits with Appellants, and that T.H. is currently on 

medication for stress and anxiety. U.K.H. also stated that the children became very upset when 

Appellant B.H. told the younger children during school that she was going to get custody of 

them. 

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9 

assertion is baseless and should be dismissed. 

described in the preceding paragraphs. Because there was never a :finding of animus, Appellants 

Appellant B.H. admitted to making negative remarks about U.K.H. to her children, which are 

Recommendation does contain findings consistent with the testimony of the witnesses, wherein 

6. Whether CCCO Haber and the Trial Court erred by considering factual matters 

outside the scope of 23 Pa.C.S.A. § 5328(c). 

refers to Appellant B.H. as harboring an animus against Appellee U.K.H. The Report and 

Appellant B.H. has an animus against the children's mother, Appellee U.K.H. First, the Trial 

Court never made such a finding. Second, CCCO Haber's Report and Recommendation never 

Appellants also assert that both CCCO Haber and the Trial Court erred by "finding" that 

Appellants argument is meritless and should be denied. 

argument. Because the Trial Court considered this relationship in making its determination, 

Haber's Report and Recommendation, detailed in Appellants' brief and presented at oral 

considered the Appellants established relationship with the children, as described in CCCO 

attorney addressed the Appellants' connection with the three children. The Trial Court 

party prior to filing the action." During oral argument before the Trial Court, Appellants' 

Recommendation clearly addresses the amount of "personal contact between the child and the 

relationship between Appellants and the children. The CCCO Haber's Report and 

Appellants further argue that the Trial Court failed to consider the previously established 

dismissed. 

Appellants to be granted partial physical custody. As a result, Appellants appeal should be 

presented, the Trial Court determined that it was not in the children's best interests for 

best interests of the children. Based on these factors as well as the testimony and evidence 

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10 

Appellant also argues that CCCO Haber and the Trial Court erred by considering factual 

matters that are not required by Section 5328. Appellants argue that the Trial Court should not 

have considered the conduct of the children's father, Appellee B.W.H., in analyzing whether 

partial custody was in the best interest of the three children. The Trial Court did not directly 

consider the conduct of the children's father, as his custody matter was not before the Court. 

Rather, the Trial Court considered the Appellants' relationship and conduct towards the children, 

which in some instances did tangentially involve father, Appellee B.W.H. 

For instance, the Trial Court did consider the fact that the Appellants testified on behalf 

of their son B.W.H. and against their grandson T.H. at a criminal proceeding. In making its 

custody determination, the Trial Court also found it relevant that Appellant B.H. permitted 

Appellee B.W.H. to visit with the children, in spite of a court order that stated B.W.H. was not 

permitted to have supervised physical custody of the children until he satisfied certain 

conditions. Clearly, any consideration the Trial Court gave to father's conduct was de minimus 

and did not factor into its decision to deny Appellants petition for partial physical custody. 

Although the Trial Court submits that it did not rely on the conduct of father in denying 

Appellants petition, it must address Appellants' argument that a trial court may only consider the 

factors set forth in 23 Pa.C.S.A. § 5328(c) in making a custody determination, a position that is 

clearly at odds with the statute. As our Supreme Court has explained, "[the] paramount concern 

in child custody cases is the best interest[s] of the child[ren]." McMillen, 602 A.2d at 846. The 

paragraph of Section 5328 that addresses the custodial rights of grandparents and greatgrandparents states, "(I) 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 ... " 23 

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Collins v. Collins. 897 A.2d 466, 471 (Pa. Super. 2006). 

11 

Court's standard of review for factual matters is as follows: 

Appellants seek to reintroduce the children to their father, Appellee B.W.H. The Superior 

In reviewing a custody order, our scope and standard of review are 

well established. [O]ur 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. 

Appellants next assert that CCCO Haber and the Trial Court erred by finding that the 

best interest .determination, the statute would have included restrictive language. 

7. Whether CCCO Haber and the Trial Court erred by concluding that the Appellants 

intended to reintroduce the children to their father, B.W.H. 

legislature had intended to limit the factual information a trial court could consider in making a 

statute, which requires the trial court to determine the best interest of the children. If the 

Appellants' interpretation of Section 5328(c) contradicts the spirit of the child custody 

specifically consider the three specifically contained within subsection (c). 

statute does not require that trial courts only consider the three factors, but that triers of fact 

whether a grandparent may have partial physical custody of their grandchildren. However, the 

constrained by this language and may only ever consider these three factors where determining 

Pa.C.S.A. 5328(c)(l) (emphasis added). Appellants appear to advocate that a trial court is 

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12 

Valarie Costanzo 

DATE: BY THE COURT: 

Court dated October 17, 2014 should be affirmed and Appellants' appeal dismissed. 

For the reasons set forth above, the Trial Court respectfully submits that the order of the Trial 

has sought to reintroduce the children to their father, Appellants claim is simply meritless. 

Because the evidence and testimony presented at the partial custody hearing establish that B.H. 

B.W.H. from physical custody of the children unless he satisfies the conditions described above. 

children to her son, despite the fact that there is a court order in place which prohibits Appellee 

The actions of Appellant B.H. demonstrate to this Trial Court that she seeks to reintroduce the 

they fear being at Appellants' home because their father lives a couple of houses down the street. 

CONCLUSION 

wrote a letter to her father, B.W.H. 

that the children wish to see their father, and that when K.H. was in her custody, B.H. had K.H. 

T.H. and D.H.l both clearly testified that they are afraid of their father. Both stated that 

visits with the children were terminated following that incident. Appellant B.H. further stated 

completed anger management. B.H. further stated that she did not understand why her custody 

permitted to visit with his children unless he underwent a drug and alcohol evaluation and 

Appellee B.W.H., to visit with the children despite the fact that a court order stated he was not 

During the partial custody hearing, Appellant B.H. admitted that she permitted her son, 

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