J-A04021-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

N.M. AND M.M

v.

J.N.M., J.W., AND R.M.

APPEAL OF: J.W., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1823 EDA 2020

Appeal from the Order Entered August 28, 2020

In the Court of Common Pleas of Carbon County

Civil Division at No(s): No. 14-1196

BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY KING, J.: FILED: FEBRUARY 19, 2021

Appellant, J.W. (“Father”), appeals from the order entered in the Carbon 

County Court of Common Pleas, which denied his Petition to Modify Existing 

Custody Order, as it relates to his minor child (“Child”) (born December 2008). 

We affirm.

In its opinion, the trial court accurately set forth the relevant facts and 

procedural history of this case as follows: 

This case dates back to June 20, 2014, when the [p]laintiffs, 

[N.M. and M.M. (collectively, “Grandparents”)], who at all 

relevant times resided [in]...Summit Hill, Carbon County, 

Pennsylvania, filed a custody complaint requesting that the 

[c]ourt award them sole legal and physical custody of their 

grandchild J.M, and his half-brother, [Child]. The 

[d]efendant in this case is [(“Mother”)], who is the mother 

of J.M. and...Child. Though [Grandparents] have no 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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biological relation to...Child, both children have resided with 

them for a majority of their lives.[1] The Grandparents 

further disclosed that...Child’s father was not known to them 

and that he had not been in...Child’s life to that point.

After proceedings had begun, but before the [c]ourt had 

issued a final custody order concerning...Child and J.M., 

[Father] filed a Petition to Intervene. Father asserted his 

belief that he was the biological father of...Child and sought 

primary physical custody of...Child through his intervention 

in this matter. At all times relevant, Father has resided [in]

Columbus, Ohio, with his wife, [L.T.], and step-child, [D.]

Father averred through his Petition to Intervene that Mother 

had concealed herself and [C]hild from Father since...Child’s 

birth and that he had been unable to locate Mother or...Child 

until discovering a docket listing for this case. Father 

therefore asserted that his petition should be granted so 

that he could “finally enjoy his right as a parent to have a 

relationship with his son, and be part of the child’s life[.]”

In the Grandparents’ pre-trial memorandum of September 

29, 2014, they argued that they should be awarded primary 

physical custody of...Child and J.M. because the children had 

resided with Grandparents since September 2010. Mother 

resided with Grandparents and the children from September 

2010 to September 2013. However, Grandparents asserted 

that they have been the primary caretakers of the children 

since September 2010. ... 

On October 2, 2014, Father’s Petition to Intervene was 

granted. Father was confirmed to be the biological father 

of...Child on December 3, 2014.

Through his pre-trial memorandum, Father argued that 

Mother had concealed...Child from him until 2014. However, 

since locating...Child, Father had maintained constant phone 

contact with him and had one visit with...Child in Ohio. 

Father argued that the above actions had demonstrated “a 

strong desire and dedication to be part of his son’s life[.]”

____________________________________________

1 Grandparents are the biological paternal grandparents of Child’s halfbrother. 
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A custody hearing was held on March 13, 2015 before this 

[c]ourt. On March 25, 2015, [the court] entered an order 

awarding joint legal custody of...Child to Grandparents and 

Father. However, Grandparents were awarded primary 

physical custody, while Father was awarded partial physical 

custody. Father’s periods of custody were set for the 

summer recess [of the school year] and the Christmas 

holiday in odd numbered years with the precise exchange 

times to be mutually agreed upon by Grandparents and 

Father. The [c]ourt further ordered that telephone contact 

be permitted between...Child and the non-custodial party.

On January 29, 2018, Father filed a petition to modify the 

custody order of March 25, 2015, in which he again 

requested that the [c]ourt award him primary physical 

custody of...Child. Through his petition, Father asserted that 

he is “better-suited at this time to care for the emotional, 

mental, physical and educational needs of the minor 

child[.]”

In their pre-trial memorandum relative to Father’s petition 

to modify the custody order, Grandparents argued that 

primary physical custody of...Child should remain with them, 

as “a transfer of custody would be particularly inappropriate 

in light of the fact that, were Father to obtain custody, the 

same would, necessarily, necessitate a relocation of the 

minor child from the Commonwealth of Pennsylvania to the 

State of Ohio[,] thus taking him away not only from the 

home, extended family, friends, school, community, etc. 

which he has known for the past ten (10) years, but, also, 

from his sibling of whom the Grandparents continue to 

maintain primary physical custody[.]”

Father filed a pre-trial memorandum on November 27, 

2018, in which he asserted that Grandparents [had] failed 

to encourage frequent and continuing contact 

between...Child and Father. In support of that position, 

Father alleged that he was often denied telephone contact 

with...Child, and that Grandparents [had] cancelled or failed 

to appear for reunification therapy sessions (Father 

and...Child began participating in the sessions after the 

initial custody order was entered) on several occasions[.]
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At the hearing on Father’s modification petition, ...Child was 

interviewed in camera. [C]hild expressed a desire to remain 

with Grandparents, as he misses his half-brother while he is 

in Ohio. Grandfather testified that...Child and J.M. “spend 

almost every waking moment together.”

[The court] denied Father’s petition to modify the custody 

order on January 11, 2019. “Based upon their role as 

primary custodians and caregivers for the last eight and one 

half (81⁄2) years, [the court found] that Grandparents are 

more likely to attend to the daily physical, emotional, 

developmental and educational needs of...Child. While [the 

court] believe[s] that Father is sincere in his desire to be 

more actively involved in...Child’s life, the fact remains that 

he has not fully exercised the partial physical custody rights 

vested in him by this [c]ourt in our Order of March 25, 2015, 

spending one (1) month with...Child in Ohio during the 

summer of 2015 and two (2) months during the summer of 

2018 rather than two and a half (21⁄2) months each summer 

and one (1) week between Christmas Eve and New Years 

Eve in alternating years previously awarded by the 

[c]ourt[.]”

On March 6, 2019, Father filed a petition for contempt 

alleging that Grandparents had failed to produce...Child for 

reunification therapy sessions as well as scheduled phone 

calls. Further, Father alleged that Grandparents had failed 

to allow...Child the privacy to speak openly with Father 

during therapy and phone calls, and threatened to 

send...Child to therapy wearing a concealed recording 

device[.]

Pursuant to this [c]ourt’s order of April 24, 2019, Father’s 

petition for contempt was denied following an evidentiary 

hearing. However, by agreement of the parties, Father was 

granted telephone contact with...Child every Monday, 

Wednesday, and Friday, between 7:00 p.m. and 7:15 p.m.

On July 30, 2019, Father filed a petition for special relief 

alleging that...Child had confided in him instances of sexual 

abuse by members of Grandparents’ household, one of 

whom continued to reside at Grandparents’ house. The two 

individuals alleged to have been involved were [E.A.] and a 

minor child (J.P.) who had only resided with Grandparents 
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for two months, and [were] not currently residing with 

Grandparents. Father requested through his petition that 

he be awarded primary physical custody and that 

Grandparents’ periods of custody be suspended pending the 

outcome of the investigations[.]

The allegations raised by...Child were investigated by the 

Carbon County Office of Children and Youth Services and 

the Lehigh Valley Children’s Advocacy Center. [C]hild’s 

report was validated and the allegations were referred to 

the Summit Hill Police Department. Additionally, Father’s 

period of custody was extended pending the results of the 

investigation.

On September 9, 2019, Father filed a petition to modify the 

custody order...in light of the sexual abuse investigation 

concerning...Child[.] However, ...Child later recanted the 

allegations on October 9, 2019[.] After an interview 

of...Child by Emily Greenwald of Carbon County Children and 

Youth Services, ...Child was deemed safe in Grandparents’ 

home[.]

After a hearing on Father’s petition for special relief, the 

[c]ourt issued an order on September 13, 2019 allowing 

Grandparents to resume primary physical custody on 

September 14, 2019 provided that Grandparents 

“immediately evict and exclude [E.A.] (one of the 

perpetrators alleged by...Child) from their residence[.] 

[Grandparents] shall ensure that [E.A.] has no contact with 

[Child.]” Other than the aforementioned conditions, the 

March 25, 2015 order was to remain in effect[.]

Thereafter, Grandparents filed a petition to modify the 

custody order on December 18, 2019. Through their 

petition, they claimed that...Child has recanted his 

allegations against [E.A.], and that the restrictions 

concerning [E.A.] should be removed[.]

On January 17, 2020, Father filed a petition for contempt 

alleging that Grandparents had failed to produce...Child for 

Father’s one-week period of custody during the Christmas 

holiday, as directed by the March 25, 2015 order. 

Additionally, Father alleged that Grandparents (and the rest 

of their household) continue[d] to interfere with Father’s 
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scheduled telephone calls with...Child[.]

Grandparents explained that they had attempted to comply 

with the order to produce...Child for the visit with Father 

over the Christmas holiday. However, ...Child refused to go, 

and had threatened to jump out of the car if Grandparents 

forced him to go. Therefore, Grandparents made the 

decision that...Child should not attend the visit with Father[.]

On February 5, 2020, Father filed a pre-trial memorandum 

in support of his petition to modify the custody order. ...

Hearings began on February 12, 2020 relative to the 

outstanding petitions. Susan [Barradale2], who is the 

reunification counselor for...Child and Father, testified that 

she became involved in this case on March 24, 2018. [C]hild 

had been having difficulty connecting with Father, and 

Father wanted...Child’s next visit to be more comfortable. 

Ms. [Barradale] testified that one of the issues disclosed to 

her by...Child is that he “doesn’t like places with a lot of 

people.” [C]hild has also maintained that he misses his 

brother while he is away, even after he became more 

comfortable in Father’s household.

On June 9, 2020, Grandparents filed a petition to modify 

custody and for an expedited hearing asking that the [c]ourt 

suspend Father’s period of custody during the summer 

recess until after the completion of the hearing on all 

outstanding petitions. In support of their position, they 

alleged that...Child was unwilling to attend the summer 2020 

visit with Father and was threatening to run away or take 

other extreme measures if forced to attend[.]

Father filed an answer to Grandparents’ special relief 

petition on June 22, 2020. Father asserted that he was 

opposed to the suspension of his period of custody over the 

summer, and asked the [c]ourt to order that...Child be

evaluated by a mental health provider if he was threatening 

any form of self-harm[.]

____________________________________________

2 Ms. Barradale’s name is spelled several different ways in the trial court 

opinion. We use the spelling of “Barradale” as set forth in the notes of 

testimony. (N.T. Hearing, 2/12/20, at 2, 4). 
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On that same day, Father filed an emergency petition for 

special relief asking that the [c]ourt hold Grandparents in 

contempt. Father alleged through his petition that 

Grandparents failed to produce...Child for Father’s period of 

custody beginning on June 12, 2020, [and] that 

Grandparents [continued to act in contempt of the court’s 

prior custody order]. 

A hearing was held before this [c]ourt on Grandparents’ 

petition to modify custody and for an expedited hearing and 

Father’s emergency petition for special relief on July 17, 

2020. [C]hild was interviewed in camera during the 

hearing, where he expressed that he had no desire to see 

Father at all. According to...Child, Father spends most of 

his time with...Child disparaging Grandparents and has “an 

attitude.” Additionally, ...Child feared that if he was forced 

to go back to Father’s house for the summer, he would not 

be brought back to Pennsylvania.

[C]hild elaborated that Father has told him that 

Grandparents don’t love him and that they are only keeping 

him for money. Further, ...Child mentioned an occasion 

where Father took him to GameStop where he refused to 

purchase a video game for...Child, saying[,] “They 

[Grandparents] get enough money for you.” [C]hild also 

brought up that Father’s wife had told him that [E.A.] would 

shoot him if he returned to Pennsylvania during his visit in 

the summer of 2019.

On that same day, [this court] found Grandfather in 

contempt of [c]ourt, and ordered that he immediately 

transfer custody of...Child to Father as well as comply with 

other purge conditions as a result of the contempt[.]

This [c]ourt held a hearing on the remaining outstanding 

petitions on August 13, 2020. Father, Grandfather, and 

Grandmother testified at the hearing, and the [c]ourt 

conducted an in camera interview of...Child.

[C]hild testified on August 13, 2020 that although he was 

enjoying his time in Ohio with Father, he desired to continue 

living in Carbon County with Grandparents. [C]hild 

expressed that he misses his brother and Grandparents 
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during periods of separation. He further expressed 

displeasure with the tension between Grandparents 

(particularly Grandfather) and Father. [C]hild found 

Father’s comments about his grandparents “not really loving 

him” or “only using him as a paycheck” to be particularly 

upsetting.

[C]hild elaborated that even when in Ohio, he is not able to 

spend much time with Father. He explained that Father is 

often working and that most of his time this past summer 

has been spent with his step-brother, [D.] [C]hild expressed 

that he still does not know how to feel towards his father. 

The best thing that...Child was able to say about Father is 

that he is a good cook. In fact, when asked, ...Child stated 

that Father would be in last place on the list of things that 

he liked about Ohio.

[C]hild stated that he was nervous about what was going to 

happen (as a result of these proceedings). He elaborated 

that he was reluctant to go to Ohio that summer because he 

was afraid that he would not be returned to Carbon County.

In addition to stating his feelings on the custody matter, 

...Child testified that he enjoys attending school in the 

Panther Valley School District and has made numerous 

friends through school. [C]hild performs well in school 

despite his I.E.P. for a reading comprehension disability.

Grandfather testified about the issues that he has had in 

communicating with Father. According to Grandfather, 

Father has blocked his phone number. Additionally, 

Grandfather testified that he will continue to send...Child to 

reunification counseling if ordered by the [c]ourt, but that 

he was under the impression that the counseling had 

already served its purpose.

Grandfather further raised concerns about forcing...Child to 

spend more time with Father when he clearly does not wish 

to do so. Grandfather explained that...Child’s half-brother, 

J.M., and everything that...Child knows are in Carbon 

County. In addition to J.M., three of the Child’s cousins 

reside at Grandparents’ house with...Child.

Grandmother testified that although...Child is not always 
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available for the scheduled phone calls with Father, and he 

does not always wish to speak with Father, she continues to 

encourage him to do so. Additionally, she asserts that 

neither she, nor anyone in her household, has ever 

disparaged Father during the scheduled phone calls.

Grandmother admitted that she suffers from diabetes and 

respiratory problems for which she sometimes uses “a 

breathing machine.” However, Grandmother asserts that 

she is still able to perform parental duties, such as 

helping...Child with his school work.

Father testified that despite Grandparents’ claims 

that...Child did not want to visit with Father, ...Child calmed 

down upon leaving Pennsylvania shortly after the July 17, 

2020 hearing. Additionally, Father learned during the 

summer 2020 visit that...Child has pre-diabetes and high 

cholesterol levels and has since been monitoring...Child’s 

food intake and medication.

Father also testified that he has had difficulty 

reaching...Child for scheduled phone calls. He stated that 

he has been referred to as a “sperm donor” by members of 

Grandparents’ household during scheduled calls.

Father further testified that his household does everything 

together as a family and that if awarded primary custody, 

he could structure his work schedule to maximize time spent 

with...Child. In addition to Father’s immediate family, Father 

testified that...Child has extended family in Columbus, Ohio. 

However, there was no testimony that...Child has met all of 

the extended family members or established close familial 

bonds with any of them. 

Lastly, Father stated that he intended to enroll...Child in a 

Catholic school should he gain custody of him during the 

school year. However, Father did not testify as to the 

reputation of the schools that he was considering, how those 

schools would accommodate...Child’s I.E.P., or how they 

compare with the educational program at Panther Valley.

[C]hild’s [c]ourt-appointed guardian ad litem [(“GAL”)] 

argued at the hearing that the custody arrangement should 

be modified, giving Father primary physical custody. As per 
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his report, his recommendation is primarily based on the 

presumption of custody in a child’s natural parent. [The 

GAL] had previously testified that despite his 

recommendation, he believed that Grandparents 

loved...Child and that...Child loved Grandparents and his 

half-brother as if they were his biological family[.] [The 

GAL] also stressed the importance of stability in...Child’s 

schooling considering his I.E.P., and recommended that the 

[c]ourt be sure that an appropriate arrangement is made to

accommodate...Child in school should custody be transferred 

to Father[.]

On August 28, 2020, [the court] denied Grandparents’ 

petition to modify custody and for [expedited] hearing 

concerning [E.A.] This [c]ourt also held Grandfather in 

contempt of [c]ourt as per the allegations made by Father 

in his [January 2020 petition for civil contempt and June 

2020 emergency petition for special relief]. [The court] 

ordered additional periods of custody for Father as well as 

other purge conditions as a result of Grandfather’s 

contempt.

Lastly, on that same date, the [c]ourt denied Father’s 

“Petition to Modify Existing Custody Order,” which is the 

subject of this appeal. [The court] stated in the order that 

the third-party Grandparents had met their burden of 

overcoming the presumption that custody should be 

awarded to a child’s natural parent by presenting clear and 

convincing evidence that it is in...Child’s best interest to 

remain with Grandparents[.]

(Trial Court Opinion, filed October 23, 2020, at 2-18) (internal citations to 

record and footnotes omitted). On September 25, 2020, Father timely filed a 

notice of appeal and a contemporaneous concise statement of errors 

complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i). 

Father raises the following issues for our review:

Whether the trial court abused its discretion by failing to 

properly apply the presumption of custody in favor of 

[Father] by failing to consider [Father’s] evidence in its 
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opinion[?]

Whether the trial court erred and abused its discretion by 

improperly relying on overturned legal doctrine in its 

analysis[?]

Whether the trial court erred and abused its discretion by 

misapplying the legal standard used when considering a 

child’s preferences in cases involving a third party[?]

(Father’s Brief at 2).

Our standard and scope of review in this case are as follows:

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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (internal citation 

omitted). This Court has consistently held:

[T]he discretion that a trial court employs in custody 

matters should be accorded the utmost respect, given the 

special nature of the proceeding and the lasting impact the 

result will have on the lives of the parties concerned. 

Indeed, the knowledge gained by a trial court in observing 

witnesses in a custody proceeding cannot adequately be 

imparted to an appellate court by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (internal citation 
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omitted). In addition:

Although we are given a broad power of review, we are 

constrained by an abuse of discretion standard when 

evaluating the court’s order. An abuse of discretion is not 

merely an error of judgment, but if the court’s judgment is 

manifestly unreasonable as shown by the evidence of 

record, discretion is abused. An abuse of discretion is also 

made out where it appears from a review of the record that 

there is no evidence to support the court’s findings or that 

there is a capricious disbelief of evidence.

M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa.Super. 2010) (en banc) (internal 

citations omitted).

The paramount concern in any custody case under the Child Custody 

Act is the best interests of the child. See 23 Pa.C.S.A. § 5328 (stating: “In 

ordering any form of custody, the court shall determine the best interest of 

the child by considering all relevant factors...”); 23 Pa.C.S.A. § 5338 (stating: 

“Upon petition, a court may modify a custody order to serve the best interest 

of the child”). Section 5328(a) sets forth the best interest factors that the 

trial court must consider in awarding custody:

§ 5328. Factors to consider when awarding custody

(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 
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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)(1) 

and (2) (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 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.
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(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.

23 Pa.C.S. § 5328(a)(1)-(16).

In custody disputes between natural parents and a third party, “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. § 5327(b). Accordingly:

[W]here the custody dispute is between a biological parent 

and a third party, the burden of proof is not evenly balanced. 

In such instances, the parents have a prima facie right to 

custody, which will be forfeited only if convincing reasons 

appear that the child’s best interest will be served by an 

award to the third party. Thus, even before the proceedings 

start, the evidentiary scale is tipped, and tipped hard, to the 

biological parents’ side.

V.B. v. J.E.B., 55 A.3d 1193, 1199 (Pa.Super. 2012) (quoting Charles v. 

Stehlik, 560 Pa. 334, 340, 744 A.2d 1255, 1258 (2000)).

What the [trial court] must do, therefore, is first, hear 

all evidence relevant to the child’s best interest, and 

then, decide whether the evidence on behalf of the 

third party is weighty enough to bring the scale up to 

even, and down on the third party’s side. 

McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa.Super. 2000) 

(quoting Ellerbe v. Hooks, 490 Pa. 363, 367-68, 416 A.2d 

512, 513-14 (1980)). In [Ellerbe,] our Supreme Court 

noted that “these principles do not preclude an award of 

custody to the non-parent. Rather they simply instruct the 

hearing judge that the non-parent bears the burden of 
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production and the burden of persuasion and that the nonparent’s burden is heavy.” Essentially, the Supreme Court 

determined, “where circumstances do not clearly indicate 

the appropriateness of awarding custody to a non-parent, 

we believe the less intrusive and hence the proper course is 

to award custody to the parent or parents.” [Id. at 369, 

416 A.2d at 514].

V.B., supra at 1199.

After a thorough review of the certified record, the parties’ briefs, and 

the relevant law, we conclude that the record supports the trial court’s 

determination. See C.R.F., supra. Consequently, we affirm the order 

denying Father’s petition to modify custody for the reasons stated in the trial 

court’s October 23, 2020 opinion.

Specifically, in evaluating the relevant custody factors, the trial court

noted that the first factor favored Father, as Grandfather had not permitted 

contact with Child absent the court’s intervention. (See Trial Court Opinion 

at 23-24). The court found that the second factor favored neither party, as 

there was no current risk of abuse in Grandparents’ household and there had 

been no allegations of abuse in Father’s household. (Id. at 24). Regarding 

the third factor, the court indicated that both parties were able to perform 

parental duties on behalf of Child, but emphasized that Grandparents have 

been providing for Child’s daily needs for over ten years. (Id. at 25). The 

court found that the fourth factor favored Grandparents as they have raised 

Child with his half-brother since infancy, and Child has attended the same 

school district his entire life where Child performs exceptionally well 

academically. (Id.) The court found that the fifth factor favored neither party, 
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as Child has family members in both Carbon County and the Columbus area. 

(Id. at 26). The court found that the sixth factor favored Grandparents, as 

Child and his half-brother are very close and have been raised together since 

infancy. (Id.) The court found that the seventh factor favored Grandparents, 

as Child’s preference was to remain with Grandparents in Pennsylvania. (Id.) 

The court found that the eighth factor favored neither party, as both 

parties had made disparaging comments about each other to Child. (Id.) The 

court found that the ninth factor and tenth factors favored Grandparents as 

Child had lived his whole life with them. (Id. at 26-27). The court found that 

the eleventh factor favored neither party, and noted that the distance between 

the parties rendered a standard custody schedule unworkable. (Id. at 27). 

Similarly, the court found that the twelfth factor favored neither party, as both 

parties could care for Child or make appropriate childcare arrangements. (Id.) 

The court found that the thirteenth factor favored neither party, due to the 

high level of animosity between both parties. (Id. at 28). The court found 

that the fourteenth factor was not applicable. (Id.) The court noted that with 

regard to the fifteenth factor, Grandmother has diabetes and respiratory 

issues. (Id.) 

Finally, as to the sixteenth factor, the court found that Child’s bonds 

with members of Father’s household, Child’s physical and mental health, and 

the GAL’s recommendation were additional relevant factors in this case. (Id.

at 29). The court noted that Child testified regarding his good relationship 

with his stepmother and step-brother; that Child was recently diagnosed with 
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pre-diabetes and that Father carefully monitors Child’s diet; that Grandfather 

did not believe Child would benefit from further therapy, but would comply 

with court orders directing participation; and that the GAL recommended 

transferring primary custody to Father. (Id. at 29-30).

Further, in applying the law concerning third parties versus natural 

parents in custody cases, the court acknowledged that Grandparents are not 

Child’s biological grandparents. Nevertheless, the court emphasized that 

Grandparents have raised Child and his half-brother together for the past ten 

years, during which they have lived as an intact family unit that has been a 

stabilizing force for Child after Mother abandoned him. (Id. at 30-31). Thus, 

although the court acknowledged the statutory presumption in favor of Father, 

it determined that clear and convincing evidence in this case rebutted that 

presumption and it was in Child’s best interests to remain with Grandparents. 

(Id.) 

On appeal, Father essentially asks this Court to reweigh the Section 

5328(a) factors in his favor. We have carefully reviewed the record in this 

case, and because the record supports the trial court’s reasonable findings 

and those findings were not the result of an error of law, we accept the trial 

court’s findings and decline to reweigh the evidence.3 See C.R.F., supra 

____________________________________________

3 We reject Father’s argument presented in his second issue regarding the 

court’s alleged improper reliance on the primary caretaker doctrine in its 

analysis of the third and fourth custody factors. (See Father’s Brief at 18-

19). This Court has observed:
J-A04021-21

- 18 -

(reiterating that where trial court’s conclusions are reasonable as shown by 

record evidence and those conclusions are not result of error of law, appellate 

court is bound by those conclusions). Accordingly, we affirm based on the 

reasons stated in the trial court’s thorough October 23, 2020 opinion. 

Order affirmed.

____________________________________________

The “primary caretaker doctrine,” as it has come to be known, had 

its genesis in Commonwealth ex rel. Jordan v. Jordan, [448 

A.2d 1113 (Pa.Super. 1982)]. In that case, this Court held that 

in cases involving an award of primary custody “where two 

natural parents are both fit, and the child is of tender years, 

the trial court must give positive consideration to the parent who 

has been the primary caretaker.” Id. at 1115 (emphasis 

added)[.] ... Thus, this doctrine was intended to be an additional 

consideration that would tip the scales in favor of the primary 

caretaker in a situation where the trial court deemed both parents 

to be fit to act as a primary custodian.

M.J.M. v. M.L.G., 63 A.3d 331, 337-39 (Pa.Super. 2013), appeal denied, 620 

Pa. 710, 68 A.3d 909 (2013). Initially, we note that the primary caretaker 

doctrine is not directly applicable in this case because Grandparents are not 

Child’s natural parents. In any event, following revisions to the Child Custody 

Act, “[t]he considerations embraced by the primary caretaker doctrine have 

been woven into the statutory factors, such that they have become part and 

parcel of the mandatory inquiry.” Id. at 339. These factors are: “[t]he 

parental duties performed by each party on behalf of the child,” and “[t]he 

need for stability and continuity in the child’s education, family life and 

community life.” 23 Pa.C.S. § 5328(a)(3), (4). Further, the court did not 

invoke the primary caretaker doctrine; instead, the court appropriately 

considered each custody factor. (See Trial Court Opinion at 23-31). The fact 

that Grandparents have been the primary caretakers performing parental 

duties and providing stability to Child throughout his life is a fact supported 

by the record and not a misapplication of law. See C.R.F., supra.
J-A04021-21

- 19 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/21
Circulated 02/11/2021 02:43 PM 

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA 

CIVIL ACTION - LAW 

Kgrn, 

Plaintiffs 

v- 1,NeAT), 

Defendant 

and 

Intervenor 

and 

Indispensable Party : Nicholas J. Masington, III, 

-5, 13 (7 ry) 

Arley L. Kemmerer, Esquire 

Adam R. Weaver, Esquire 

NO. 141.196 

5 33q 54 

Esq. Counsel for Plaintiffs 

Pro Se Defendant 

Counsel for Intervenor 

Pro Se Indispensable Party 

Guardian Ad Litem for cillod 

a minor 

MEMORANDUM OPINION 

Serfass, J. - October 23, 2020 

Here before the Court is Intervenor ;.-5,VV,(dmcrd 

Appeal of this Court's Order dated August 28, 2020. 

following Memorandum Opinion pursuant to Pa. R.A,P. 

respectfully recommend 

We file the 

19.25(a) and 

that our Order of August 28, 2020 be 

affirmed for the reasons set forth hereinafter. 

FS -34-20,20 

1 
FACTUAL AND PROCEDURAL BACKGROUND 

This case dates back to June 20, 2014, when the 

Plaintiffs, Ninn-strna-M Cweirand$90"1410 at all relevant times 

resided tn Summit Hill, Carbon County, 

Pennsylvania, filed a custody complaint requesting that the 

Court award them sole legal and physical custody of their 

grandchild J.M. and his half-brother, 

(hereinafter "the Child")'. The Defendant in this case is 

n() (hereinafter "Mother"), who is the mother of 

J.M. and the Child. Though the Plaintiffs (hereinafter 

collectively referred to as "Grandparents" or "Grandmother" and 

"Grandfather") have no biological relation to the Child, both 

,children have resided with them for a majority of their lives. 

The Grandparents further disclosed that the Child's father was 

not known to them and that he had not been in the Child's life 

to that point.' 

After proceedings had begun, but before the Court had 

issued a final custody order _concerning the Child and J.M., 

3T Y\7.(hereinafter "Father") filed a Petition to 

Intervene. Father asserted his belief that he was the 

biological father of the Child and sought primary physical 

1 Though the original action in this case concerned both 3.M, and the Child, 

only the Child is the subject of the order from which Intervenor appeals. 

2 The Child was born in 2008, and was five years old at the time of the 

initial custody action. 

FS -34-2020 

2 
custody of the Child through his intervention in this matter. 

At all times relevant, Father has resided n 

Columbus, Ohio, with his wife, - , and step -child, 

t>0 

Father averred through his Petition to Intervene that 

Mother had concealed herself and the minor child from Father 

since the Child's birth and that he had been unable to locate 

Mother or the Child until discovering a docket listing for this 

case. Father therefore asserted that his petition should be 

granted so that he could "finally enjoy his right as a parent to 

have a relationship with his son, and be part of the child's 

life" (Father's Petition to Intervene, 9/18/14). 

In the Grandparents' pre-trial memorandum of September 29, 

2014, they argued that they should be awarded primary physical 

custody of the Child and J.M. because the children had resided 

with Grandparents since September 2010. Mother resided with 

Grandparents and the children from September 2010 to September 

2013. However, Grandparents asserted that they have been the 

primary caretakers of the children since September 2010. 

Grandparents further asserted that if granted primary physical 

custody of the Child, they would continue to encourage frequent 

and continuing contact between the Child and his Mother and 

Father. Additionally, Grandparents believed that several of the 

FS -34-2020 
established custody factors were in their favor (Grandparents' 

Pre -Trial Memorandum, 5/29/14). 

On October 2, 2014, Father's Petition to Intervene was 

granted. Father was confirmed to be the biological father of 

the Child on December 3, 2014. 

Through his pre-trial memorandum, Father argued that Mother 

had concealed the Child from him until 2014. However, since 

locating the Child, Father had maintained constant phone contact 

with him and had one visit with the Child in Ohio. Father argued 

that the above actions had demonstrated "a strong desire and 

dedication to be part of his son's life" (Father's Pre -Trial 

Memorandum, 1/7/15). 

A custody hearing was held on March 13, 2015 before this 

Court. On March 25, 2015, we entered an order awarding joint 

legal custody of the Child to Grandparents and Father. However, 

Grandparents were awarded primary physical custody, while Father 

was awarded partial physical custody. Father's periods of 

custody were set for the summer recess (commencing one (1) week 

after the conclusion of the school year and ending two (2) weeks 

prior to the start of the new school year) and the Christmas 

holiday in odd numbered years with the precise exchange times to 

be mutually agreed upon by Grandparents and Father. The Court 

F5-34-2020 

4 
further ordered that telephone contact be permitted between the 

Child and the non -custodial party. 

On January 29, 2018, Father filed a petition to modify the 

custody order of March 25, 2015, in which he again requested 

that the Court award him primary physical custody of the Child. 

Through his petition, Father asserted that he is "better -suited 

at this time to care for the emotional, mental, physical and 

educational needs of the minor child" (Father's Petition to 

Modify Existing Custody Order, 1/29/18). 

In their pre-trial memorandum relative to Father's petition 

to modify the custody order, Grandparents argued that primary 

physical custody of the Child should remain with them, as "a 

transfer of custody would be particularly inappropriate in light 

of the fact that, were Father to obtain custody, the same would, 

necessarily, necessitate a relocation of the minor child from 

the Commonwealth of Pennsylvania to the State of Ohio thus 

taking him away not only from the home, extended family, 

friends, school, community, etc. which he has known for the past 

ten (10) years but, also, from his sibling of whom the 

Grandparents continue to maintain primary physical custody" 

(Grandparents' Pre -Trial Memorandum, 11/16/18). 

Father filed a pre-trial memorandum on November 27, 2018, 

in which he asserted that Grandparents have failed to encourage 

FS -34-2020 

5 
frequent and continuing contact between the Child and Father. 

In support of that position, Father alleged that he was often 

denied telephone contact with the Child, and that Grandparents 

have cancelled or failed to appear for reunification therapy 

sessions (Father and the Child began participating in the 

sessions after the initial custody order was entered) on several 

occasions (Father's Pre -Trial Memorandum, 11/27/20). 

At the hearing on Father's modification petition, the Child 

was interviewed in camera. The Child expressed a desire to 

remain with Grandparents, as he misses his half-brother while he 

is in Ohio. Grandfather testified that the Child and J.M. 

"spend almost every waking moment together." 

We denied Father's petition to modify the custody order on 

January 11, 2019. "Based upon their role as primary custodians 

and caregivers for the last eight and one half (B %) years, we 

find that Grandparents are more likely to attend to the daily 

physical, emotional, developmental and educational needs of the 

Child. While we believe that Father is sincere in his desire to 

be more actively involved in the Child's life, the fact remains 

that he has not fully exercised the partial physical custody 

rights vested in him by this Court in our Order of March 25, 

2015, spending one (1) month with the Child in Ohio during the 

summer of 2015 and two (2) months during the summer of 2018 

FS -34-2020 

6 
rather than two and a half (2 )4) months each summer and one (1) 

week between Christmas Eve and New Years Eve in alternating 

years previously awarded by the Court" {Court's Order of 

1/11/19). 

On March 6, 2019, Father filed a petition for contempt 

alleging that Grandparents had failed to produce the Child for 

reunification therapy sessions as well as scheduled phone calls. 

Further, Father alleged that Grandparents had failed to allow 

the Child the privacy to speak openly with Father during therapy 

and phone calls, and threatened to send the Child to therapy 

wearing a concealed recording device (Father's Petition for 

Contempt, 3/6/19). 

Pursuant to this Court's order of April 24, 2019, Father's 

petition for contempt was denied following an evidentiary 

hearing. However, by agreement of the parties, Father was 

granted telephone contact with the Child every Monday, 

Wednesday, and Friday, between 7:00 p.m. and 7:15 p.m. 

On July 30, 2019, Father filed a petition for special 

relief alleging that the Child had confided in him instances of 

sexual abuse by members of Grandparents' household, one of whom 

continued to reside at Grandparents' house. The two individuals 

alleged to have been involved were `G -P and a minor 

child (am who had only resided with Grandparents for two 

F5-34-2020 

7 
months, and was not currently residing with Grandparents. 

Father requested through his petition that he be awarded primary 

physical custody and that Grandparents' periods of custody be 

suspended pending the outcome of the investigations (Father's 

Petition for Special Relief, 7/30/19). 

The allegations raised by the Child were investigated by 

the Carbon County Office of Children and Youth Services and the 

Lehigh Valley Children's Advocacy Center. The Child's report 

was validated and the allegations were referred to the Summit 

Hill Police Department. Additionally, Father's period of 

physical custody was extended pending the results of the 

investigation. 

On September 9, 2019, Father filed a petition to modify 

the custody order stating that "Petitioner believes it would be 

in the child's best interest to grant Petitioner primary 

physical custody because Petitioner is better -suited to care for 

the emotional, mental, and physical needs of the child, and can 

ensure the child's safety within his household" in light of the 

sexual abuse investigation concerning the Child that was active 

at the time (Father's Petition to Modify Custody Order, 9/9/19). 

However, the Child later recanted the allegations on October 9, 

2019 (N.T. 2/12/20, p. 58) After an interview of the Child by 

Emily Greenawald of Carbon County Children and Youth Services, 

FS -34-2020 

8 
the Child was deemed safe in Grandparents' home (N.T. 2/12/20 p. 

65). 

After a hearing on Father's petition for special relief, 

the Court issued an order on September 13, 2019 allowing 

Grandparents to resume primary physical custody on September 14, 

2019 provided that Grandparents "immediately evict and exclude 

qADN, (one of the perpetrators alleged by the Child) 

from their residence... Plaintiffs shall ensure that, 

has no contact with Criqa.' Other than the 

aforementioned conditions, the March 25, 2015 order was to 

remain in effect (Court's Order 9/13/19). 

Thereafter, Grandparents filed a petition to modify the 

custody order on December 18, 2019. Through their petition, 

they claimed that the Child has recanted his allegations against 

ti pc 

Q, Pc 

and that the restrictions concerning 

should be removed (Grandparents' Petition to Modify 

Custody Order). 

On January 17, 2020, Father filed a petition for contempt 

alleging that Grandparents had failed to produce the Child for 

Father's one -week period of custody during the Christmas 

holiday, as directed by the March 25, 2015 order. Additionally, 

Father alleged that Grandparents (and the rest of their 

household) continue to interfere with Father's scheduled 

FS -34-2020 

9 
telephone calls with the Child (Father's Petition for Contempt, 

1/17/20). 

Grandparents explained that they had attempted to comply 

with the order to produce the Child for the visit with Father 

over the Christmas holiday. However, the Child refused to go, 

and had threatened to jump out of the car if Grandparents forced 

him to go. Therefore, Grandparents made the decision that the 

Child should not attend the visit with Father (Grandparents Pre - Trial Memorandum, 2/4/20). 

On February S, 2020, Father filed a pre-trial memorandum in 

support of his petition to modify the custody order. Father 

alleged that "tilt would be in the best interest of the child to 

award primary custody to Father, the child's only natural parent 

present in his life, with visitations and telephone 

communication to facilitate ongoing contact with GricaAldpartnts 

and C4IAdkS half-brother" (Father's Pre -Trial Memorandum, 

2/5/20). 

Hearings began on February 12, 2020 relative to the 

outstanding petitions. Susan Barrandale, who is the 

reunification counselor for the Child and Father, testified that 

she became involved in this case on March 24, 2018. The Child 

had been having difficulty connecting with Father, and Father 

wanted the Child's next visit to be more comfortable. Ms. 

FS -34-2020 

10 
Sarrendale testified that one of the issues disclosed to her by 

the Child is that he "doesn't like places with a lot of people."3 

The Child has also maintained that he misses his brother while 

he is away, even after he became more comfortable in Father's 

household. 

On June 9, 2020, Grandparents filed a petition to modify 

custody and for an expedited hearing asking that the Court 

suspend Father's period of custody during the summer recess 

until after the completion of the hearing on all outstanding 

petitions. In support of their position, they alleged that the 

Child was unwilling to attend the summer 2020 visit with Father, 

and was threatening to run away or take other extreme measures 

if forced to attend (Grandparents' Petition for Special Relief, 

6/9/20). 

Father filed an answer to Grandparents' special relief 

petition on June 22, 2020. Father asserted that he was opposed 

to the suspension of his period of custody over the summer, and 

asked the Court to order that the Child be evaluated by a mental 

health provider if he was threatening any form of self -harm 

(Father's Answer, 6/22/20). 

I Father lives in Columbus, Ohio, a city with an estimated total population of 898,663 

people compared to an estimated total population of 64,182 in all of Carbon County. 

Pennsylvania. guidances: Carbon County, Pennsylvania, Columbus city, Ohio, U.S. 

Census Bureau, July 1, 2019, 

https://www.censue,gov/quickfacts/fact/table/carboncountypennsylvania,columbuscicyohio 

/PST045219. 

FS -34-2020 

11 
On that same day, Father filed an emergency petition for 

special relief asking that the Court hold Grandparents in 

contempt. Father alleged through his petition that Grandparents 

failed to produce the Child for Father's period of custody 

beginning on June 12, 2020, that Grandparents continue to 

interfere with Father's phone contact with the Child, that 

Grandparents continue to fail to produce the Child for 

reunification therapy, and that Grandparents disparage Father in 

the presence of the Child (Father's Petition for Special Relief, 

6/22/20). 

A hearing was held before this Court on Grandparents' 

petition to modify custody and for an expediated hearing and 

Father's emergency petition for special relief on July 17, 2020. 

The Child was interviewed in camera during the hearing, where he 

expressed that he had no desire to see Father at all. According 

to the Child, Father spends most of his time with the Child 

disparaging Grandparents and has an "attitude." Additionally, 

the Child feared that if he was forced to go to Father's house 

for the summer, he would not be brought back to Pennsylvania. 

The Child elaborated that Father has told him that 

Grandparents don't love him and that they are only keeping him 

for money. Further, the Child mentioned an occasion where 

Father took him to GameStop where he refused to purchase a video 

FS -34-2020 

12 
game for the Child, saying "They (Grandparents) get enough money 

for you." The Child also brought up that Father's wife had told 

him that would shoot him if he returned to 

Pennsylvania during his visit in the summer of 2019. 

On that same day, we found Grandfather in contempt of 

Court, and ordered that he immediately transfer custody of the 

Child to Father as well as comply with other purge conditions as 

a result of the contempt (Court Order of 7/17/20). 

This Court held a hearing on the remaining outstanding 

petitions on August 13, 2020. Father, Grandfather, and 

Grandmother testified at the hearing, and the Court conducted an 

in -camera interview of the Child. 

The Child testified on August 13, 2020 that although he was 

enjoying his time in Ohio with Father, he desired to continue 

living in Carbon County with Grandparents. The Child expressed 

that he misses his brother and Grandparents during periods of 

separation. He further expressed displeasure with the tension 

between Grandparents (particularly Grandfather) and Father. The 

Child found Father's comments about his grandparents "not really 

loving him" or "only using him as a paycheck" to be particularly 

upsetting. 

The Child elaborated that even when in Ohio, he is not able 

to spend much time with Father. He explained that Father is 

FS -34-2020 

13 
often working and that most of his time this past summer has 

been spent with his step -brother, pc The Child expressed 

that he still does not know how to feel towards his father. The 

best thing that the Child was able to say about Father is that 

he is a good cook. In fact, when asked, the Child stated that 

Father would be in last place on the list of things that he 

liked about Ohio. 

The Child stated that he was nervous about what was going 

to happen (as a result of these proceedings]. He elaborated 

that he was reluctant to go to Ohio that summer because he was 

afraid that he would not be returned to Carbon County. 

In addition to stating his feelings on the custody matter, 

the Child testified that he enjoys attending school in the 

Panther Valley School District and has made numerous friends 

through school. The Child performs well in school despite his 

I.E.P. for a reading comprehension disability. 

Grandfather testified about the issues that he has had in 

communicating with Father. According to Grandfather, Father has 

blocked his phone number. Additionally, Grandfather testified 

that he will continue to send the Child to reunification 

counseling if ordered by the Court, but that he was under the 

impression that the counseling had already served its purpose.' 

' Susan Barradale testified on February 12, 2020 that 41 think we have done as much as we can at this point" (N.T. 2/2/20, p. 33). 

FS -34-2020 

14 
Grandfather further raised concerns about forcing the Child 

to spend more time with Father when he clearly does not wish to 

do so. Grandfather explained that the Child's half-brother, 

J.M., and everything that the Child knows are in Carbon County. 

In addition to J.M., three of the Child's cousins reside at 

Grandparents' house with the Child. 

Grandmother testified that although the Child is not always 

available for the scheduled phone calls with Father, and he does 

not always wish to speak with Father, she continues to encourage 

him to do so. Additionally, she asserts that neither she, nor 

anyone in her household, has ever disparaged Father during the 

scheduled phone calls. 

Grandmother admitted that she suffers from diabetes and 

respiratory problems for which she sometimes uses "a breathing 

machine." However, Grandmother asserts that she is still able 

to perform parental duties, such as helping the Child with his 

school work. 

Father testified that despite Grandparents' claims that the 

Child did not want to visit with Father, the Child calmed down 

upon leaving Pennsylvania shortly after the July 17, 2020 

hearing. Additionally, Father learned during the summer 2020 

visit that the Child has pre -diabetes and high cholesterol 

FS -34-2020 

15 
levels and has since been monitoring the Child's food intake and 

medication. 

Father also testified that he has had difficulty reaching 

the Child for scheduled phone calls. He stated that he has been 

referred to as a "sperm donor" by members of Grandparents' 

household during scheduled calls. 

Father further testified that his household does everything 

together as a family and that if awarded primary custody, he 

could structure his work schedule to maximize time spent with 

the Child. In addition to Father's immediate family, Father 

testified that the Child has extended family in Columbus, Ohio. 

However, there was no testimony that the Child has met all of 

the extended family members or established close familial bonds 

with any of them. 

Lastly, Father stated that he intended to enroll the Child 

in a Catholic school should he gain custody of him during the 

school year. However, Father did not testify as to the 

reputation of the schools that he was considering, how those 

schools would accommodate the Child's I.E.P, or how they compare 

with the educational program at Panther Valley. 

The Child's Court -appointed guardian ad litem, Attorney 

Adam Weaver, argued at the hearing that the custody arrangement 

should be modified, giving Father primary physical custody. As 

FS -34-2020 

16 
per his report, his recommendation is primarily based on the 

presumption of custody in a child's natural parent. Attorney 

Weaver had previously testified that despite his recommendation, 

he believed that Grandparents loved the Child and that the Child 

loved Grandparents and his half-brother as if they were 

biological family (N.T. 2/12/20, p. 72-79). Attorney Weaver 

also stressed the importance of stability in the Child's 

schooling considering his IEP, and recommended that the Court be 

sure that an appropriate arrangement is made to accommodate the 

Child in school should custody be transferred to Father (N.T. 

2/12/20, p. 92). 

On August 28, 2020, we denied Grandparents' petition to 

modify custody and for expediated hearing concerning 

This Court also held Grandfather in contempt of 

Court as per the allegations made by Father in his January 17, 

2020 "Petition for Civil Contempt for Willful Disobedience of a 

Custody Order" and his June 22, 2020 "Emergency Petition for 

Special Relief." We ordered additional periods of custody for 

Father as well as other purge conditions as a result of 

Grandfather's contempt. 

Lastly, on that same date, the Court denied Father's 

"Petition to Modify Existing Custody Order," which is the 

subject of this appeal. We stated in the order that the third - FS -34-2020 

17 
party Grandparents had met their burden of overcoming the 

presumption that custody should be awarded to a child's natural 

parent by presenting clear and convincing evidence that it is in 

the Child's best interest to remain with Grandparents (Court 

Order, Denying Petition to Modify Custody, 8/28/20). 

On September 25, 2020, Father filed an Appeal to the 

Superior Court of Pennsylvania requesting review and reversal of 

this Court's August 28, 2020 Order which denied his "Petition to 

Modify Existing Custody Order." 

ISSUES 

In his Concise Statement of Matters Complained of on 

Appeal, Father raises the following issues: 

1. The Trial Court erred by ruling that Plaintiff third -party 

custodians should retain primary physical custody of the 

subject minor child where the presumption of custody in 

favor of Intervenor natural Father was not properly 

considered and where the record fails to support the Trial 

Court's determination, upon its analysis of several custody 

factors as enumerated in Pa. C.S. § 5328, that the 

Plaintiffs rebutted said presumption by clear and 

convincing evidence in accordance with 23 Pa. C.S. § 5327(b). 

DISCUSSION 

FS -34-2020 

18 
"The paramount concern in child custody cases is the best 

interests of the child." C.G. v. 47.14., 193 A.3d 891, 909 (Pa. 

2018). "The best interests standard decided on a case -by -case 

basis, considers all factors which legitimately have an effect 

upon the child's physical, intellectual, moral, and spiritual 

well-being." M.J.N. v. J.K., 169 A.3d 108, 112 (Pa. Super. 

2017). Factors to be considered include, but are not limited 

to, those set forth in 23 Pa. C.S.A. § 5328(a). Id. Moreover, 

"Mt is within the purview of the trial court, as the fact 

finder, to determine which of the factors outlined in 23 Pa. 

C.S.A. § 5328(a) is the most salient and critical in each 

custody case." M.J.M, v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 

2013). 

23 Pa. C.S.A. § 5328(a) provides as follows: "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 

FS -34-2020 

19 
(3) 

risk of harm to the child or an abused party and which 

party can better provide adequate physical safeguards and 

supervision of the child. 

The parental duties performed by each party on behalf of 

the child. 

(4) The need for stability and continuity in 

education, family life and community life. 

the child's 

(5) The availability of extended family. 

(6) The child's sibling relationships. 

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

child's maturity and judgment. 

based on the 

(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 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 

ES -34-2020 

20 
(12) Each party's availability to care for the child or 

ability to make appropriate childcare 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. 

23 Pa. C.S.A. § 5328. 

In a custody dispute between two (2) biological parents, 

"the burden of proof is shared equally by the contestants..." 

Ellerbe v. Hawks, 416 A. 2d 512, 513 (Pa. 1980). However, 

where- as here- the custody dispute is between a biological 

parent and a third party, the burden of proof is not evenly 

balanced. In such instances, "the parents have a 'prima facie 

right to custody' which will be forfeited only if 'convincing 

reasons' appear that the child's best interests will be served 

by an award to the third party." V.B. v. J.E.B., 55 A.3d 1193, 

1199 (Pa. Super. 2012). Section 5327 of the Custody Act 

FS -34-2020 

21 
pertains to cases "concerning primary physical custody" and 

provides that "in any action regarding the custody of a child 

between a parent of the child and a non -parent, 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). Clear and 

convincing evidence has been defined by our Superior Court "as 

presenting 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.S., 172 A. 3d 651, 660 (Pa. Super. 

2017). 

Therefore, "even before the proceedings start, the 

evidentiary scale is tipped, and tipped hard, to the biological 

parents' side." V.B., 55 A.3d at 1199. We recognize that the 

trial court is required to "decide whether the evidence on 

behalf of the third party is weighty enough to bring the scale 

up to even and down on the third party's side" prior to awarding 

primary physical custody to a non -parent. Id. We note, however, 

that this principle does not preclude the award of custody to a non -parent but simply instructs the trial court that the non - parent bears the burden of production and the burden of 

persuasion and that the non -parent's burden is heavy. Jones v. FS -34-2020 

22 
Jones, 8811 A.2d 915, 918 (Fa. Super. 2005). It is well settled 

that "(w)hile the Commonwealth places great importance on 

biological ties, it does not do so to the extent that the 

biological parent's right to custody will trump the best 

interests of the child. In all custody matters, our primary 

concern is, and must continue to be, the well-being of the most 

fragile human participant- that of the minor child." Charles v. Stehlik, 744 A.2d 1255, 1259 (Pa. 2000). "Once it is 

established that someone who is in loco parentis, that person 

does not need to establish that the biological parent is unfit, 

but instead must establish by clear and convincing evidence that 

it is in the best interests of the child to maintain that 

relationship or be with that person." Jones, 884 A.2d at 917. 

In the case at bar, the Court applied the 23 Pa. C.S.A. § 5328 factors as follows: 

As to the first factor, Grandparents, particularly 

Grandfather, have not encouraged frequent and continuing contact 

between Father and Child. Rather, Grandfather has not permitted 

such contact absent the Court's intervention. He failed to 

transport the Child to Ohio for Father's limited custodial 

periods during the 2019 Christmas holiday and the 2020 summer 

recess which necessitated the initiation of contempt proceedings 

FS -34-2020 

23 
by Father in order to secure his court ordered periods of 

partial custody with the Child. 

As to the second factor, while the Child was in Father's 

custody during the summer of 2019, he raised allegations of 

having been sexually abused approximately five to six years ago 

by f cpc, and a minor child, (J.P) both of whom were 

residing in Grandparents' home at the time. Following an 

investigation by the Carbon County Office of children and Youth 

Services and the Lehigh Valley Children's Advocacy Center, the 

Child's report was validated and the allegations were referred 

to the Summit Hill Police Department. The Child later recanted 

these allegations and no criminal charges were filed. Children 

and Youth Services determined that there was no safety risk to 

the Child as E.A. had no unsupervised contact with the Child and 

the other alleged perpetrator, J.P., had resided at 

Grandparents' home for a period of only two months approximately 

five to six years ago. Following a hearing on this matter, the 

Court issued an order dated September 13, 2019, directing, inter 

alia, that E.A. be evicted and excluded from Grandparents' home 

and that they ensure that he have no contact with the Child. 

Accordingly, we find that there is currently no risk of harm to 

the Child in Grandparents' home. With regard to Father's 

FS -34-2020 

24 
household, there are no instances of abuse, past or present, and 

no risk of harm to the Child. 

As to the third factor, while we find that both parties are 

able to perform parental duties on behalf of the Child and that 

Father has discharged those duties in a satisfactory manner 

during the limited period he has exercised physical custody of 

the Child, we recognize that Grandparents have been providing 

for the Child's daily needs for over ten (10) years. 

As to the fourth factor, the Child and his younger halfbrother, J.M., have been raised together by Grandparents since 

infancy. They have provided the children with a loving and 

stable home environment. The Child has been enrolled as a student in the Panther Valley School District since 

kindergarten. About to begin sixth grade at Panther Valley 

Intermediate School, the Child has performed exceptionally well 

academically and puts forth a "1501 effort" according to his 

teachers. Other than Father's statement that all schools in 

Columbus are virtual until October 27, 2020, there was no 

testimony concerning the Columbus public school system, the 

school that the Child would attend if enrolled there, the 

general curriculum, or any specialized educational programs in 

light of the Child's current I.E.P. 

FS -34-2020 

25 
As to the fifth factor, in addition to his half-brother, 

the Child has three cousins who also live at Grandparents' home 

in carbon County. The Child's paternal grandparents, aunts, 

uncles, and cousins all reside in the Columbus area. 

As to the sixth factor, although they are not full 

siblings, the Child considers J.M. to be his brother as the boys 

were raised together by Grandparents since infancy. As a consequence, the two children are extremely close. The Child is 

very protective of J.M. and misses him a great deal when they 

are separated. 

As to the seventh factor, the Child's preference is to live 

primarily with Grandparents in Pennsylvania. We find that his 

preference to remain in Carbon County is well -reasoned in that 

his "Gram and Pap," his friends, his brother, his school, and 

nearly everything he knows is here, providing him with a sense 

of stability, security, and continuity. 

As to the eighth factor, there was testimony indicating 

that Grandfather has referred to Father as a "sperm donor" in 

the Child's presence and that Father has repeatedly told the 

Child that he is "just a paycheck" to Grandparents who do not 

really love him. The latter comment is particularly upsetting to 

the Child. 

FS -34-2020 

26 
As to the ninth factor, we find that Grandparents continue 

to be in the best position to provide a loving, stable, 

consistent, and nurturing relationship with the Child. The 

Child has been in Grandparents' primary care and has resided 

with them and his half-brother since he was fifteen months old. 

He has attended the public schools of the Panther Valley School 

District since kindergarten, has done well academically and 

developed friendships with many of his fellow students. 

As to the tenth factor, based upon their role as primary 

custodians and caregivers for the last ten years, we find that 

grandparents are more likely to attend to the daily physical, 

emotional, developmental and educational needs of the Child. 

As to the eleventh factor, Grandparents reside in Summit 

Hill, Pennsylvania, and Father resides in Columbus, Ohio. Their 

homes are approximately six hundred miles apart which equates to 

a driving distance of approximately eight hours. Therefore, the 

substantial distance between Grandparents' residence in 

Pennsylvania and Father's residence in Ohio renders a standard 

custody schedule unworkable. 

As to the twelfth factor, we find that both parties are 

able to provide child care personally or to make appropriate 

child care arrangements. 

FS -34-2020 

27 
As to the thirteenth factor, there is a great deal of 

animosity between Father and Grandfather. Father has been 

described by grandfather, in the course of this case, as being 

"a sorry piece of crap that doesn't care about his child" and 

Father describes Grandparents as "bums" and "stupid 

hillbillies." They do not cooperate, communicate or co -parent 

effectively. Father believes that Grandparents are 

intentionally interfering with his ability to parent his son and 

Grandparents feel unappreciated for raising the Child with no 

outside assistance. The parties' relationship has rapidly 

deteriorated as a result of the sexual abuse allegations. As 

noted by the guardian ad litem, both parties accuse the other of 

coaching the child relative to his claims- Grandparents 

concerning the initial report and Father concerning the 

recantation of the abuse allegations. 

As to the fourteenth factor, there is no history of drug or 

alcohol abuse in Father's household and there was no testimony 

concerning any drug or alcohol abuse by any current member of 

Grandparents' household. 

As to the fifteenth factor, Grandmother has diabetes and 

suffers from respiratory problems for which she sometimes uses a "breathing machine." 

FS -34-2020 

28 
As to the sixteenth factor, we find that the bonds formed 

by the Child with members of Father's household, the Child's 

physical and mental health, and the recommendation of the 

Child's guardian ad litem to be relevant factors in this case. 

As to the bonds that the Child has formed with members 

Father's household, the Child testified that he has a good 

relationship with his stepmother, L and a similar relationship with her son, 7 with whom he enjoys 

spending time and playing video games. 

As to the Child's physical health, the Child was recently 

diagnosed with pre -diabetes type 2 for which he takes 

prescription medication. According to Father, the Child has 

high cholesterol levels and he carefully monitors the boy's 

diet, ensuring that he eats no sugars and only the recommended 

daily servings of meat and starches. 

As to the Child's mental health, Grandfather testified that 

he does not believe the Child will benefit from further 

therapy/counseling sessions, but will comply with any order of 

this Court directing the Child's participation in such sessions. 

Lastly, as to the recommendation of the Court -appointed 

guardian ad litem, Attorney Adam Weaver, according to his 

written report, pursuant to Pa. R.C.P. 1915.11-2, Attorney 

Weaver recommends transferring primary physical custody to 

FS -34-2020 

29 
Father. We note that Attorney Weaver's recommendation is based 

primarily on Father's role as the Child's natural parent. 

In applying the law concerning third parties versus natural 

parents in custody cases, we acknowledge that Gairldranytc are 

not the Child's biological grandparents. However, they have 

raised the Child and his half-brother, who is their biological 

grandson, as siblings. The importance of raising siblings 

together and maintaining a family unit should not be ignored. 

See Johns v. Cioci, 865 A.2d 931, 942 (Pa. Super. 2004). 

"Absent compelling reasons to separate siblings, they should be 

reared in the same household to permit the 'continuity and 

stability necessary for a young child's development." L.F.F. v. P.R.F., 828 A.2d 1148, 1152 (Pa. Super. 2003) (absent compelling 

reasons to the contrary, it is the policy of this Commonwealth 

to raise siblings together whenever possible); Wiskoski v. Wiskoski, 629 A.2d 996 (Pa. Super. 1993)(policy applies equally 

to half -siblings); appeal denied, 639 A.2d 33 (Pa. 1994) 

emphasis added. 

The Child has established strong emotional bonds with his 

half-brother and Grandparents who have provided him with care, 

nurture, affection, and financial support for nearly his entire 

life. For the past ten years, they have lived as an intact 

family unit, with Grandparents having assumed sole parenting 

FS -34-2020 

30 
responsibility. Since the Child was abandoned by his mother, 

Grandparents have consistently been a stabilizing force in his 

life and ensured his well-being without parental assistance. 

Moreover, we found that uprooting the Child from his home, his 

school, his support network of family and friends, and 

separating him from his half-brother, could prove detrimental to 

his emotional well-being. Accordingly, while we recognize the 

statutory presumption in favor of the Father, we find that the 

clear and convincing evidence presented in this case rebuts that 

presumption and that maintaining the current custody order is in 

the Child's best interest at this time. 

The Court's decision in this case is distinguishable from 

the decision of the Pennsylvania Superior Court in V.B. v. J.F.B.. The trial court in V.B. found that third -party 

grandparents should be the primary custodians of the subject 

children in that case over the biological mother and biological 

father. V.B., SS A.3d at 1197. However, the trial court failed 

to take into account the heightened standard of proof on the 

third -party grandparents when deciding the case. Id. at 1200. 

Additionally, the trial court in V.B. took into account various 

impermissible factors, such as the sexual orientation and 

lifestyle of the parties, the morality of the biological mother, 

and a prior custody hearing involving the biological father's 

FS -34-2020 

31 
wife as a party. Id. at 1200-1203. In addition to considering 

impermissible factors, the trial court in V.B. failed to 

consider factors that are relevant under 23 Pa. C.S.A. § 5328, 

such as mother's allegations that third -party grandparents' 

inaction during periods of sexual abuse of her by a paternal 

uncle. Id. at 1202. Therefore, the Superior Court of 

Pennsylvania found that the trial court abused its discretion in 

finding that the third -party grandparents in V.B. had met their 

burden of presenting clear and convincing evidence to overcome 

the presumption of custody remaining with a child's natural 

parents. Id. at 1205. 

The Court's decision in the case at bar is based upon our 

analysis of the factors enumerated in 23 Pa. C.S.A. S 5328. The 

Court found that the Child's need for stability, his sibling 

relationships, and his well -reasoned preference to be 

particularly convincing in awarding primary physical custody to 

third -party Grandparents in this case. Unlike the court in 

V.B., the Court did not consider any impermissible factors. 

Additionally, the Court has taken all allegations of abuse in 

this case seriously, and has employed the necessary precautions 

to ensure the safety of the Child, unlike the court in V.B. 

In further support of our decision, the Pennsylvania 

Superior Court in Jones v. Jones found that a third -party, non - 

FS -34-2020 

32 
biological parent, who stood in loco parentis for the subject 

children's entire lives had met the clear and convincing 

evidence standard to be awarded primary physical custody based 

on a number of the factors stated in 23 Pa. C.S.A. § 5328. More 

specifically, the third -party demonstrated that the "children's 

relationship with both parties would be better fostered if 

custody were awarded to Jones." Jones, 884 A.2d at 918. 

Additionally, the Superior Court in Jones found that the natural 

parent's attempts to deprive the third -party of custody of the 

children had disrupted the children's schooling and overall 

stability. Id. at 919. The only other factor the court 

considered in Jones was the third -party's testimony of 

abuse and mental instability of the natural parent. 

the trial court did not find the natural parent to 

Id. at 918-919. 

Although there is animosity between both parties in this 

case, the Jones case demonstrates that clear and convincing 

evidence may be established by only a few custody factors that 

fall strongly in the third -party's favor. In the case at bar, 

the Child has been raised by Grandparents for over ten years 

along with his half-brother, with whom he spends "almost every 

waking moment." He has never spent more than three (3) months 

with Father at a time. Though we acknowledge that Father is not 

FS -34-2020 

33 

alcohol 

However, 

be unfit. 
at fault for the circumstances in this case, the standard to be 

applied is that of the child's best interest. C.G. v. JAI., 193 

A.3d 891, 909 (Pa. 2018). The Grandparents in this case have 

proven by clear and convincing evidence that the Child's best 

interests would be better served by maintaining stability in the 

home that he has known for a majority of his life, which is with 

them and the members of their household in Carbon County. 

Further, the Pennsylvania Supreme Court in Charles v. Stehlick upheld the trial court's award of primary physical 

custody of the subject child to a third -party stepfather over 

the biological father, where the child considered his stepfather 

to be a parent. Charles, 744 A.3d at 1258. In making its 

decision, the trial court considered that the child's school, 

stepsister, and school friends were all located in the city in 

which his stepfather lived. Id. at 1257. Additionally, the 

trial court in Charles considered the child's level of distress 

in the current custody arrangement. The child's treating 

therapist testified that the child "felt a strong sense of 

abandonment whenever he would visit Appellant in New Jersey, and 

that he worried that he would not be brought back to 

Pittsburgh." Id. at 1256-1257. 

Like the child in Charles, the Child in the instant case 

has a strong preference to stay in the home in which he was 

FS -34-2020 

34 
raised and currently resides, with Grandparents, who he calls 

"Gram and Pap." This Court considered similar factors to the 

court in Charles in reaching our decision to uphold primary 

custody in favor of Grandparents. Additionally, the Child 

similarly disclosed during his in -camera interview that he has 

had fears of not being able to return to Carbon County while 

with Father or in anticipation of visiting Father. 

Lastly, the Court must consider the preference of the child 

when deciding any custody case. "A child's preference, though 

not controlling, is a factor to be considered, so long as it is 

based on good reasons." Hugo v. Hugo, 430 A.2d 1183, 1186 (Pa. 

Super. 1981). In E.A.L. v. L.J,W., the Superior Court of 

Pennsylvania reversed the trial court's grant of primary custody 

to the natural mother over a set of grandparents partially based 

on the trial court not taking the children's preference into 

consideration. The Pennsylvania Superior Court explained that 

"fa2s children grow older, more weight must be given to the 

preference of the child." E.A.L. v. L.J.W., 662 A.2d 1109, 1118 

(Pa. Super. 1995) (citing Grieb v. Driban, 458 A.2d 1006 

(1983)), The children in E.A.L. were ages ten (10) and twelve 

(12). The court ruled that the children's preference to live 

with their grandparents should have been factored into the 

decision by the trial court. 

FS -34-2020 

35 
In this case, the Child is eleven years old. Throughout 

the years of proceedings in this matter, he has continuously 

expressed a clear preference to live with Grandparents. His 

preference is based upon the close relationship and strong 

emotional bond that he has formed with Grandparents and his 

half-brother, J.M. Moreover, as previously mentioned, 

everything that the Child knows is in Carbon County. Therefore, 

we found his preference to be well reasoned. 

CONCLUSION 

For the foregoing reasons, this Court concludes that 

an award of joint legal custody and primary physical custody to 

the Grandparents as outlined in our Order of August 28, 2020 is 

in the Child's best interest. Therefore, we respectfully 

recommend that Father's appeal be denied and that our Order of 

August 28, 2020 be affirmed accordingly. 

BY THE COURT: 

..C51;2 -04e: 

Steven R. Serfass, J. 

FS -34-2020 

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