J-A31026-15

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.B. : IN THE SUPERIOR COURT OF

 : PENNSYLVANIA

:

v. : No. 854 MDA 2015

:

L.B., B.B. :

Appellants :

J.G. :

 

Appeal from the Order Entered April 20, 2015 

In the Court of Common Pleas of York County

Civil Division, at No. 2014-FC-512-03

BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J. 

MEMORANDUM BY PANELLA, J. FILED FEBRUARY 05, 2016

L.B. (Mother) and B.B. (Stepfather) (collectively, Appellants) appeal 

the order of the Court of Common Pleas of York County, entered April 20, 

2015, that awarded partial physical custody of G.G. (Child) to Mother’s 

former partner, C.B. The order granted C.B. one weekend per month from 

Friday to Sunday and reduced her partial physical custody to one Saturday 

per month beginning in November 2015. We affirm.

The record supports the following recitation of the facts of this case. 

Child was born to Mother and Father in May 2007. Mother and Father 

separated shortly after Child’s birth. Upon separating, Mother and Father 

entered into a stipulated order of custody by which Mother exercised primary 

physical custody and Father, as he was in the military at the time and 

 

 Retired Senior Judge assigned to the Superior Court.
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stationed out of state, enjoyed partial physical custody as the parties might 

agree. 

Mother met C.B. in October 2007; they began living together as a 

family in February 2008, when Child was just eight months old. C.B. 

participated in Child’s medical appointments, helped select Child’s schools 

and autism treatment, and communicated with Child’s teachers and mental 

health professionals. Mother included C.B. in communications to and from 

teachers and in meetings with teachers, even following separation. 

C.B. was with Mother when Child’s pediatrician referred Child for an 

autism evaluation. C.B. contacted the specialists to set up that evaluation 

and participated in the evaluation. When Child was diagnosed as autistic, 

C.B. set up further services and arranged for therapy.

Child has a relationship with C.B.’s extended family. He refers to C.B.’s 

mother as “Nina,” her father as “Pappy” or “Pap,” and her sisters and 

brothers as “aunt” and “uncle.” R. 66a-67a; S.R. 6. Mother, C.B. and Child 

vacationed with each other’s extended families. C.B. cared for Child when 

Mother worked evenings and, if both parties were working, family members 

would babysit Child if Child were not at daycare. C.B.’s mother’s family acted 

as emergency contacts for Child. C.B. helped with such tasks as changing 

diapers and transporting Child to and from daycare and school. 
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C.B. testified that she accompanied Mother and Child on doctor visits 

and took Child to the doctor by herself, at Mother’s request. Both Mother 

and C.B. worked and contributed financially to the household. 

C.B. received Mother’s Day cards from Child and Mother. For 

Christmas 2011, Mother gave C.B. a book with pictures of C.B. and Child 

“Dedicated to my mommy who is always there for me. I love you forever, 

Booey. Love, your baby, [G.G.].” N.T. 3/24/15 at 27. 

C.B. and Mother lived together with Child for four and one half years. 

After they separated in August 2012, C.B. remained involved in Child’s life, 

picking him up from school every Wednesday and keeping him until 8:00 

p.m. or so, and every other weekend from Friday evening to Sunday 

evening. C.B. and Mother also shared holidays. Following separation, Mother 

gave C.B. a Christmas card from a child to his mother on behalf of Child. 

C.B. and Mother continued regular communication regarding Child until 

January 2014, when Mother abruptly discontinued C.B.’s periods of custody. 

B.B. (Stepfather) moved in with Mother and Child in September or 

October 2012. Mother married Stepfather in June 2013. C.B. entered into a 

relationship with her current fiancée in August 2013; they began residing 

together in May 2014. 

C.B. filed her custody action on March 20, 2014. Mother and 

Stepfather filed preliminary objections to C.B.’s standing. A conciliation 

conference resulted in an interim custody order pending trial, by which C.B. 
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exercised partial physical custody one weekend per month at Mother’s 

discretion. Following a hearing on Mother’s preliminary objections, the trial 

court entered an order overruling those objections and consolidating C.B.’s 

action with one filed by Father. The trial court entered the order that is the 

subject of this appeal following a trial held on March 24 and 27, 2015. 

According to that order, C.B. initially exercised custody of Child one weekend 

per month, from Friday to Sunday. Beginning in November 2015, the order 

reduced C.B.’s custodial time to one Saturday per month. This timely joint 

appeal followed. 

Appellants present the following questions for our consideration.

I. Whether the trial court erred in concluding that [C.B.] had 

standing as in loco parentis[?]

II. Whether the [trial] court erred in continuing the contact of 

[Child] with [C.B.] even though there was expert testimony 

showing that it would be detrimental in the long run for 

[Child][?]

III. Whether the trial court erred in following the advice of 

[C.B.’s] expert witness who never saw [Child][?]

Appellants’ Brief at 4.

Our scope and standard of review is 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 
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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) (citation omitted). 

We have stated that

the 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) (citation 

omitted). 

The primary concern in any custody case is the best interests of the 

child. “The best-interests standard, decided on a case-by-case basis, 

considers all factors that legitimately have an effect upon the child’s 

physical, intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902 

A.2d 509, 512 (Pa. Super. 2006) (citation omitted). 

We begin by noting that the trial court entered a comprehensive 

opinion shortly after the entry of the order complained of here. In that 

opinion, the trial court discussed each of the sixteen statutory custody 

factors in 23 Pa.C.S.A. § 5328. The trial court also entered a supplemental 

opinion in which it discussed Appellants’ issues complained of on appeal.
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Appellants do not specifically challenge any of the trial court’s findings 

relative to the sixteen custody factors. Rather, they claim that an analysis of 

those issues “was not appropriate to settle the custody issues between 

biological parents and an in loco parentis individual like [C.B.].” Appellants’ 

Brief, at 14. This argument presents a pure question of law. “As with all 

questions of law, the appellate standard of review is de novo and the 

appellate scope of review is plenary.” B.K.M. v. J.A.M., 50 A.3d 168, 172 

(Pa. Super. 2012) (citation omitted).

Our Supreme Court has explained that 

[t]he phrase ‘in loco parentis’ refers to a person who puts 

oneself [sic] in the situation of a lawful parent by assuming the 

obligations incident to the parental relationship without going 

through the formality of a legal adoption. The status of in loco 

parentis embodies two ideas; first, the assumption of a parental 

status, and, second, the discharge of parental duties. The rights 

and liabilities arising out of an in loco parentis relationship are, 

as the words imply, exactly the same as between parent and 

child.

Peters v. Costello, 891 A.2d 705, 710 (Pa. 2005) (citation omitted). The 

Court added that

[t]he in loco parentis basis for standing recognizes that the need 

to guard the family from intrusions by third parties and to 

protect the rights of the natural parent must be tempered by the 

paramount need to protect the child’s best interest. Thus, while 

it is presumed that a child’s best interest is served by 

maintaining the family’s privacy and autonomy, that 

presumption must give way where the child has established 

strong psychological bonds with a person who, although not a 

biological parent, has lived with the child and provided care, 

nurture, and affection, assuming in the child’s eye a stature like 

that of a parent. Where such a relationship is shown, our courts 
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recognize that the child’s best interest requires that the third 

party be granted standing so as to have the opportunity to 

litigate fully the issue of whether that relationship should be 

maintained even over a natural parent’s objections.

Id., at 711 (citation omitted). 

In support of their first claim, that C.B. did not stand in loco parentis

to Child, Appellants argue that

[t]he trial court erred when it held that [C.B.] adequately held 

an in loco parentis status to [Child] in this case. Specifically, 

none of the factors relied upon by the trial court singly or in 

combination supported the [trial] court’s determination that 

[C.B.] stood in loco parentis to [Child].

Instead, the evidence clearly shows that [C.B.] was Mother’s 

partner. She never discharged parental duties or assumed a 

stature like that of a parent. While Mother did not deny that 

[C.B.] accompanied her to [Child’s] doctor appointments and 

school appointments, she did deny that she attended such 

appointments as a parent. Rather she did so as Mother’s partner, 

not as [Child’s] parent.

Appellants’ Brief, at 9 (citation to the record omitted).

Before we begin our analysis, we are constrained to point out that 

Appellants set a high bar to permitting a person to assume the status of in 

loco parentis. This is what they say about Stepfather’s status in Child’s life 

today:

[Stepfather] testified that he too accompanies Mother to 

parent/teacher conferences and for the most part, picks [Child] 

up every day from school. He further testified that [Child] calls 

him “Dad,” and that [Child] has established [a] relationship with 

his parents and calls them “Grandma[”] and [“]Grandpa.” 

Mother testified that Stepfather’s relationship with [Child] is now 

identical to that of [C.B.’s] relationship, and that Stepfather 

currently does everything [C.B.] testified to doing for and with 
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[Child]. Stepfather actually does more for [Child] than [C.B.] as 

he is helping to substantially supporting [sic] Mother and [Child] 

financially (Father does pay child support for [Child] to Mother), 

and he and Mother now have a family unit that includes Child’s 

half-brother.

If we were to follow the trial court’s reasoning for granting [C.B.] 

standing, Stepfather would also stand in loco parentis to [Child] 

and would ultimately have standing to file for custody rights of 

[Child] if he and Mother were to separate or divorce.

Appellants’ Brief, at 11-12.

According to the Appellants, Stepfather, who has been living with 

Mother and Child for more than three years, is married to Mother, has been, 

according to Mother, caring for Child with her, and is the father of Child’s 

half-brother, does not stand in loco parentis to Child. We are left to wonder, 

then, what would Appellants require of someone before they would permit 

them that status. They do not say. They only say that C.B., and even 

Stepfather, have not done enough.1 

Appellants do not tell us what they mean, above, by “the factors relied 

upon by the trial court.” The only “factors” the trial court relies on are the 

sixteen custody factors, and those are not relevant to the question of 

establishing in loco parentis status. They apply only to persons who, on 

whatever basis, have standing to seek custody of a child. The trial court did 

 

1 We caution the reader that we do not hold that C.B. and Stepfather have 

done, by the conduct described above, enough to be considered in loco 

parentis, we only seek to bring attention to Appellants’ standard.
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not address the question of C.B.’s standing in its opinion of April 20, 2015, 

but it did address it in its supplemental opinion of May 28, 2015.

In this matter, the [c]ourt found that the evidence established 

that [C.B.] had [a] parent-like relationship with [Child] and 

preformed parental duties on his behalf. Testimony established 

that [C.B.] shared in [Child’s] care during her relationship with 

Mother from approximately October of 2007 until August of 

2012. Testimony established that [C.B.] provided childcare when 

Mother was at work and attended [Child’s] doctor appointments 

and educational meetings. [C.B.] further testified that Mother 

encouraged her to have a mother-type bond with [Child]. 

Evidence established that Mother made [C.B.] cards on Mother’s 

Day and referred to her as “Mommy.” Additionally, [C.B.] 

testified that, even following their separation, she continued to 

assist Mother in providing care for [Child] until January of 2014. 

In light of this testimony, the [c]ourt believes that [C.B.] has in 

loco parentis standing to pursue custody in this matter.

Trial Court Supplemental Opinion 5/28/15, at 2.

Our examination of the record reveals that it supports the trial court’s 

findings, and that those findings, examined in the light of our law, are 

sufficient to support the trial court’s determination that C.B. stands in loco 

parentis to Child. The trial court did not abuse its discretion in making that 

determination. Appellants’ first claim of error is without merit. 

In their second issue, whether the trial court erred in permitting 

continuing contact between Child and C.B., Appellants first complain that the 

trial court erred when it considered C.B. as a party equal to Mother and 

Father when it conducted its custody analysis. 

In its opinion, the trial court provided an analysis of the custody 

factors with respect to three different individuals, Mother, 

Father, and [C.B.]. Specifically, it engaged in an exercise where 
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it first listed the custody factors, then outlined relevant 

testimony as it related to that factor, and lastly concluded with a 

statement as to which individual that factor weighed in favor of, 

either Mother, Father, and/or [C.B.]. 

That type of analysis was overbroad and not applicable to an in 

loco parentis individual such as [C.B.]. While this type of analysis 

was completely appropriate to address the custody issue 

between Mother and Father, it was not appropriate to settle the 

custody issues between biological parents and an in loco parentis

individual like [C.B.]. In essence, the trial court elevated [C.B.] 

to the status of a natural parent in determining the merits of the 

custody dispute. 

Appellants’ Brief, at 13-14. 

Appellants badly misread the law. Once the trial court determined that 

C.B. stood in loco parentis to Child, her status as a third party disappeared, 

and the trial court was bound to consider her relationship to Child, “exactly 

the same as between parent and child.” Peters, 891 A.2d at 710 (citation 

omitted). The trial court did not abuse its discretion when it considered C.B. 

as on an equal footing with Mother and Father in its custody analysis. 

In the second part of their second issue, the Appellants complain, that 

“had the trial court conducted the proper analysis, it would have found that 

the evidentiary record does not support a finding of custody rights for 

[C.B.].” Appellants’ Brief, at 14. In support of this claim, Appellants 

maintain, “the trial court appears to completely ignore the testimony of Dr. 

Peter Thomas, a clinical psychologist and a court-recognized expert in 

custody evaluations.” Id. We will discuss this issue with Appellants’ third 

issue, whether the trial court abused its discretion in relying on the expert 
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testimony of clinical psychologist, Melinda Eash, who had never met Mother, 

Father, or Child, as they are interrelated.

“[T]he weight to be given to an expert’s testimony is for the 

factfinder.” Rigler v. Treen, 660 A.2d 111, 116 (Pa. Super. 1995) (citation 

omitted). Appellants argue that the trial court abused its discretion in the 

way that it considered the testimony of Dr. Thomas and Ms. Eash by 

reexamining their testimony in light of the evidence and asking us to reach a 

different conclusion. This we may not do. The credibility of witnesses and the 

weight to be given to expert testimony are for the trier of fact. See S.M. v. 

J.M., 811 A.2d 621, 623 (Pa. Super. 2002); Rigler. 

We quote the trial court’s analysis of the testimony of Dr. Thomas and 

Ms. Eash, with approval.

After thorough review of the testimony and evidence in this 

matter, the [c]ourt concluded that [C.B.] played an important 

role in [Child’s] life and should continue to have a relationship 

with [Child] in a diminished capacity. Mother’s expert, Dr. Peter 

Thomas, performed a custody evaluation for this matter and 

testified that he believed it would be in the best interest of 

[Child] if [C.B.’s] time with [Child] was gradually reduced and 

eventually terminated. Dr. Thomas reasoned that [Child] has a 

difficult time transitioning, and that moving between three (3) 

residences was too overwhelming for [Child]. [C.B.’s] expert, 

Melinda Eash, spoke with [C.B.] and reviewed Dr. Thomas’ 

evaluation and the home study completed on [C.B.] in order to 

render her professional opinion. Ms. Eash testified that she 

questions whether or not it is in the best interest of [Child] to 

completely remove [C.B.] from his life. Ms. Eash further 

explained that it would be very significant to [Child] to remove a 

main caregiver from his life. Ms. Eash stated that she believes 

that [C.B.’s] role will eventually need to be minimized but would 

not recommend complete termination of her time with [Child]. 
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The [c]ourt agrees with this conclusion. In the Final Order of 

Custody, the [c]ourt slowly phased out [C.B.’s] time with [Child] 

from two (2) overnights per month to one (1) day per month. 

The [c]ourt believes that spending one (1) day per month with 

[C.B.] on a Saturday will not be unduly disruptive to [Child’s] 

school and will provide more stability in [Child’s] overnight 

schedule as he will only be sleeping at two (2) different 

residences rather than three (3) residences. As such, the [c]ourt 

believes that continuing contact between [Child] and [C.B.] will 

not be detrimental to [Child].

Trial Court Supplemental Opinion 5/28/15, at 3. 

We also quote, with approval, the trial court’s explanation of its 

analysis of the testimony of Ms. Eash.

The [c]ourt found the testimony of [C.B.’s] witness, Melinda 

Eash, to be compelling and believes her opinion[,] based 

primarily on the report of Dr. Thomas[,] to be satisfactory. 

Additionally, [C.B.’s] expert witness was not the only basis for 

the [c]ourt’s decision to maintain contact between [Child] and 

[C.B.]. The [c]ourt considered the testimony of all witnesses and 

evidence prior to concluding that [C.B.]’s relationship was 

important to [Child] and should be maintained.

Id., at 4. 

The record supports the trial court’s determination to reduce gradually 

Child’s time with C.B. The trial court did not abuse its discretion by refusing 

to follow fully the recommendation of Dr. Thomas, any more than it abused 

its discretion by relying on the testimony of Ms. Eash. 

Our examination of the record in this matter reveals that the record 

supports the trial court’s findings that C.B. stands in loco parentis to Child 

and that a gradual reduction in C.B’s periods of physical custody of Child, 

rather than a sudden termination, is in Child’s best interests. 
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/5/2016