J-S82029-17

____________________________________

* Former Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.

2018 PA Super 50

A.J.B.

v.

A.G.B. ******************************* D.K.

v.

A.B. AND A.G.B.

APPEAL OF: A.M.G.

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1164 WDA 2017

Appeal from the Order Entered July 31, 2017

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

No. 2016-2996, No. 2017-941

BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.** OPINION BY STEVENS, P.J.E.: FILED MARCH 7, 2018

Appellant, A.M.G. (“Ex-Wife”), files this appeal from the Order dated

July 7, 2017, and entered July 31, 2017,1in the Cambria County Court of ____________________________________________

1 The subject order was dated July 7, 2017. However, the clerk did not provide

notice pursuant to Pa.R.C.P. 236(b) until July 31, 2017. Our appellate rules

designate the date of entry of an order as “the day on which the clerk makes

the notation in the docket that notice of entry of the order has been given as

required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further, our Supreme Court

has held that “an order is not appealable until it is entered on the docket with

the required notation that appropriate notice has been given.” Frazier v. City

of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115 (1999).
J-S82029-17

- 2 -

Common Pleas, granting A.J.B.’s (“Mother”) Motion to Strike Co-Defendant

[Ex-Wife] for Lack of Standing, and granting D.K.’s (“Father”) Motion to Vacate

Order and Mother’s Petition to Vacate Consent Order. After review, we affirm

in part, and vacate and remand in part. The trial court summarized the relevant procedural and factual history

as follows:

PROCEDURAL HISTORY

This matter involves two cases and three pleadings, which

the trial court consolidated for hearing:

DIVORCE ACTION (DOCKET NO. [])

In the first case (Docket No. []), A.J.B. [“Mother”] filed a

Complaint in Divorce against A.M.B., now A.M.G. [“Ex-Wife”], on

August 12, 2016 [(]“divorce action”[)]. Although Mother’s

Complaint did not include a claim for custody, Mother and Ex-Wife

nonetheless filed a Consent Order for Custody [(]“Consent

Order”[)] regarding a minor child, D.H.B. (born November []

2015) [(]“Child”[)]. The trial court executed the Consent Order

on August 15, 2016. Pursuant to the Consent Order, Mother and

Ex-Wife shared legal custody; Mother exercised primary physical

custody; and Ex-Wife had partial custody every weekend, shared

holidays, and at other times as mutually agreed.

On April 21, 2017, Father filed a Motion to Vacate Order in

the divorce action. On April 24, 2017, Mother filed a Petition to

Vacate Consent Order for Custody.

CUSTODY ACTION (DOCKET NO. [])

In the second case (Docket No. []), [Father] filed a

Complaint for Physical Custody and Shared Legal Custody against

Mother and Ex-Wife on March 13, 2017 [(]“custody action”[)]. On

April 17, 2017, Mother filed a Motion to Strike Co-Defendant for

Lack of Standing.

PROCEEDINGS
J-S82029-17

- 3 -

The trial court consolidated the cases for hearing and

scheduled summary proceedings for June 19, 2017.[2] The trial

court scheduled the matter for an additional full-day hearing on

July 7, 2017.[3] The trial court rendered a decision from the bench

at the conclusion of the hearing. The trial court filed an Order

confirming its decision on July 31, 2017.[4] Ex-Wife filed a Notice

of Appeal and a Concise Statement of Matters Complained of on

Appeal on August 7, 2017.[5] . . . FINDINGS OF FACT

The [c]ourt makes the following Findings of Fact:

. . . 3. Mother had a romantic and sexual relationship with [Ex- Wife] that led to marriage and culminated in divorce.

. . . 5. Beginning April 6, 2009, Mother and Ex-Wife dated while Ex- Wife was in high school. Ex-Wife was 15 years old when she

began to date Mother; Mother was 20.

6. In 2011, Mother and Ex-Wife began to reside together.

____________________________________________

2 The Notes of Testimony for this proceeding are not included as part of the

certified record.

3 Mother, Father, and Ex-Wife were all present at the hearing and represented

by counsel. All testified on their own behalf. Additionally, Ex-Wife presented

the testimony of a friend, J.L.

4

In the interim, Ex-Wife filed a Motion for Reconsideration/Motion for Court

Intervention in Custody Reduction Schedule/Motion for Final Order on July 27,

2017. By Order dated and entered August 2, 2017, the court, in relevant part,

denied the Motion for Reconsideration and determined the Motion for Final

Order moot as a result of the subject order of the instant appeal dated July 7,

2017, and entered July 31, 2017.

5 Ex-Wife filed a revised Notice of Appeal on September 5, 2017, to correct

the caption.
J-S82029-17

- 4 -

7. On March 15, 2013, Mother and Ex-Wife developed a plan

to conceive a child. Mother and Ex-Wife determined that Mother

would carry the child. Mother chose men to engage in three-way

sex with her and Ex-Wife. The men ejaculated in Mother. Some

of the men knew they were being used as sperm donors; others

did not. Mother did not become pregnant after approximately one

year of following this protocol.

8. Between February 2014 and February 2015, Mother and Ex- Wife were not in a relationship.

9. From March 2014 to January 2015, Mother had a romantic

relationship with [Father] that included sexual intercourse.

Mother and Father also had sexual relations around Mother’s

birthday (January 27, 2015) through mid-February 2015 during

an unsuccessful reconciliation attempt.[6]

10. During Mother’s relationship with Father, Mother did not

believe she could become pregnant.

11. Mother did not intend for Father to impregnate her so she

could raise the child with Ex-Wife.

12. On January 25, 2015, Mother had sexual relations with a

male, D.F., in Clarion, Pennsylvania. D.F. was not one of the men

used for the purpose of conception.

. . . 14. In February 2015, Mother and Ex-Wife met for lunch to

discuss reconciliation. That night, Mother sent Ex-Wife a photo of

a positive pregnancy test. The next day, Mother took three more

pregnancy tests in Ex-Wife’s presence. All were positive.

15. About two weeks after their luncheon meeting, Mother and

Ex-Wife moved in together.

16. Mother’s doctor calculated the date of conception to be

January 29, 2015.

17. Mother and Ex-Wife were not in a monogamous relationship

at the time of Child’s conception. ____________________________________________

6 Critically, Mother testified that she and Father had sexual relations

approximately the second weekend of February. N.T. at 50, 170-71, 175.
J-S82029-17

- 5 -

18. Initially, Mother did not believe Father could be Child’s

parent based on the date of conception.

19. Father . . . learned Mother was pregnant. Mother advised

Father that “the dates didn’t match up to the time [Father] had

intercourse with [Mother].” Father reasonably believed he was

not Child’s father at this time.

20. On April 14, 2015, Mother and Ex-Wife legally married.

21. After their marriage[,] but prior to Child’s birth, Mother and

Ex-Wife consulted an attorney regarding termination of parental

rights for D.F., whom Mother and Ex-Wife believed to be Child’s

father. Neither Mother nor Ex-Wife followed through with legal

action.

22. Mother gave birth to Child [in] November [of] 2015.

23. Mother and Ex-Wife are both listed on Child’s birth

certificate as parents.

24. Ex-Wife chose Child’s first name; Mother and Ex-Wife jointly

selected Child’s middle name.

25. Ex-Wife served as the sole source of financial support for

Mother and Child for approximately six weeks after Child’s birth

when Mother was on maternity leave.

26. From Child’s birth until December 16, 2015, Mother and Ex- Wife intended to “raise the child together in a happy marriage....”

The parties shared day-to-day childcare duties during this time.

27. The marriage lasted approximately five to six weeks after

Child was born. On December 16, 2015, Mother learned that [Ex- Wife] was having an affair; and the parties separated. (The

parties memorialized the date of separation in a Marriage

Settlement Agreement filed on August 12, 2016.)

28. After separation, Mother refused Ex-Wife’s offers of support.

Mother did not file a complaint for support against Ex-Wife.

29. On January 21, 2016, D.F. participated in a store-bought

paternity test. By report dated February 3, 2016, D.F. was

“excluded as the biological father of [Child].”

30. In March of 2016, Mother approached Father and advised

him that D.F. had failed the paternity test. Father took a store- bought paternity test, which indicated he was not Child’s father.
J-S82029-17

- 6 -

31. Ex-Wife continued to reside at the home, mostly separate

and apart from Mother, from December 16, 2015, to April 2016.[7]

32. Between December 16, 2015, and April 2016, Ex-Wife’s

contact with Child was impacted by working an overnight shift,

attending college classes, and staying with a male friend. Ex-Wife

continued to perform routine parenting duties for Child when she

(Ex-Wife) was available.[8]

33. In April 2016, Ex-Wife moved out of the home she shared

with Mother.

34. Between April 2016 and August 2016, Ex-Wife had contact

with Child initially for a few hours per week, then on Wednesdays

and every weekend.

35. Mother received and relied upon legal advice from a

competent attorney that Ex-Wife was entitled to custody because

Child was born during their marriage.

36. Ex-Wife presented credible testimony that Mother agreed to

Ex-Wife’s weekend custody in exchange for Mother receiving the

marital residence in equitable distribution.

37. On August 12, 2016, Mother filed for divorce.

38. On or about August 15, 2016, Mother and Ex-Wife executed

a Consent Order for Custody.[9] Pursuant to the Order, Mother

and Ex-Wife shared legal custody; Mother exercised primary

physical custody; and Ex-Wife had partial custody every weekend

(Friday at 5:00 P.M. to Monday at 12:00 P.M.), shared holidays,

and other times by mutual agreement.

39. Neither Mother nor Ex-Wife notified Father of the Consent

Order. ____________________________________________

7 Ex-Wife disputed Mother’s characterization of their interaction while Ex-Wife

remained in the home. N.T. at 81.

8 Mother disputed the nature and extent of Ex-Wife’s involvement with Child

prior to her leaving the marital home. N.T. at 13.

9 The trial court notes that “[i]t is the trial court’s policy to approve and

execute consent orders that contain executed joinders without requiring the

parties to appear in court.” Trial Court Opinion (“T.C.O.”), 9/15/17, at 2 n.4.
J-S82029-17

- 7 -

40. Ex-Wife attended to Child’s day-to-day needs during her

custody periods. Ex-Wife also attends Child’s doctor

appointments with Mother.

41. Mother and Ex-Wife were divorced by Decree dated

December 12, 2016.

42. In January 2017, Father took a second store-bought

paternity test that indicated he is Child’s father. Father received

the results of this test in mid-February 2017.

43. On March 1, 2017, Father took a third paternity test

administered by a reputable lab that confirmed he is Child’s father.

44. Father contacted an attorney the day after receiving the lab

test results; and he filed a Complaint for Physical Custody and

Shared Legal Custody against Mother and Ex-Wife on March 13,

2017.

45. Father had no contact with Child between her birth and

March 2017.

46. Since March 2017, Mother has facilitated partial physical

custody between Father and Child a few days every week.

47. Child calls Father “Dad.”

48. Child calls Ex-Wife “Mommy.” Child also calls maternal

grandmother, maternal great-grandmother, Father’s fiancée, and

paternal grandmother “Mom” or “Mommy” on occasion.

49. Ex-Wife holds herself out as Child’s mother, although Ex- Wife’s family and friends understand she is not a biological parent.

. . . T.C.O. at 2-9 (citations to record omitted) (footnotes omitted).

On appeal, Ex-Wife raises the following issues for our review:

I. Did the [t]rial [c]ourt err in failing to grant [Ex-Wife] in loco

parentis standing under 23 Pa.C.S.[A.] § 5324(2) to pursue

continued custody of [C]hild born during same-sex marriage when

[Ex-Wife] assumed parental status with consent of biological

[m]other and discharged parental duties for nearly two years,

wherein [Ex-Wife] established strong bond with [C]hild by

providing care, nurture and affection, like that of a parent?
J-S82029-17

- 8 -

II. Should the [t]rial [c]ourt have used [a] best interest analysis

to determine whether or not to vacate [the] Consent Order for

Custody entered into between same-sex spouses’ [sic] during

divorce when: 1.) [C]hild’s best interests require [Ex-Wife] be

granted standing in order to fully litigate if [the] parent-child

relationship should be maintained over natural parent’s objection;

2.) the need to protect the rights of a natural parent must be

tempered by the paramount need to protect the child’s best

interests as declared by the Pennsylvania Supreme Court in T.B.

v. L.R.M. (Pa. 2001); and 3.) vacating the Consent Order

constituted a change in custody under 23 Pa.C.S.[A.] § 5338?

III. Absent corroborative expert testimony, was the [t]rial

[c]ourt’s finding that [] [C]hild would not remember [Ex-Wife]

supported by the record below?

Ex-Wife’s Brief at 4.10

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. ____________________________________________

10 We observe that Ex-Wife states her issues somewhat differently than in her

Rule 1925(b) Statement, but find that she has preserved her first and second

issues. In addition, we note that Ex-Wife raised numerous additional issues

in her 1925(b) Statement, which she did not address in her Statement of

Questions Involved or her brief. As such, Ex-Wife has waived any claims as

to these issues. See Krebs, 893 A.2d at 797; see also In re W.H., 25 A.3d

330, 339 n.3 (Pa.Super. 2011), appeal denied, 611 Pa. 643, 24 A.3d 364

(2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa.Super. 2010)) (“[W]here

an appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue in any other meaningful fashion

capable of review, that claim is waived.”). With regard to Ex-Wife’s third

issue, that the trial court erred in determining that Child would not remember

Ex-Wife, in light of our discussion infra, we find it unnecessary to address this

issue.
J-S82029-17

- 9 -

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., III v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted).

See also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015), appeal denied, 635 Pa. 754, 135 A.3d 586 (2016). This Court consistently has held:

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) (quoting Jackson

v. Beck, 858 A.2d 1250, 1254 (Pa.Super. 2004)).

Initially, we must first consider whether the July 31, 2017, Order was

properly appealable.11 “‘[S]ince we lack jurisdiction over an unappealable order it is

incumbent on us to determine, sua sponte when necessary,

whether the appeal is taken from an appealable order.’” Gunn v.

Automobile Ins. Co. of Hartford, Connecticut, 971 A.2d 505,

508 (Pa.Super. 2009) (quoting Kulp v. Hrivnak, 765 A.2d 796,

798 (Pa.Super. 2000)). It is well-settled that, “[a]n appeal lies

only from a final order, unless permitted by rule or statute.”

Stewart v. Foxworth, 65 A.3d 468, 471 (Pa.Super. 2013).

Generally, a final order is one that disposes of all claims and all

parties. See Pa.R.A.P. 341(b).

K.W. v. S.L. & M.L. v. G.G., 157 A.3d 498, 501-02 (Pa.Super. 2017). ____________________________________________

11 While Ex-Wife addressed in her brief the appealability of the order in

question, this was not addressed by the trial court.
J-S82029-17

- 10 -

In the case sub judice, the order in question is not a final order. See

G.B. v. M.M.B., T.B. & A.B., 670 A.2d 714 (Pa.Super. 1996) (a custody order

is final and appealable after the trial court has concluded its hearings on the

matter and the resultant order resolves the pending custody claims between

the parties). Ex-Wife concedes this fact. Ex-Wife’s Brief at 8. Nonetheless,

the order is appealable pursuant to the collateral order doctrine. See

Pa.R.A.P. 313(a) (providing that an appeal may be taken as of right from a

collateral order of a lower court). “A collateral order is an order separable

from and collateral to the main cause of action where the right involved is too

important to be denied review and the question presented is such that if

review is postponed until final judgment in the case, the claim will be

irreparably lost.” Pa.R.A.P. 313(b). See also K.C. & V.C. v. L.A., 633 Pa.

722, 729-32, 128 A.3d 774, 779-81 (2015); K.W., 157 A.3d at 501-04

(“standing is an issue separable from, and collateral to, the main cause of

action in a child custody case;” the right to intervene in custody cases

implicates Pennsylvania’s “paramount interest in the welfare of children and,

as a result, in identifying the parties who may participate in child custody

proceedings;” and the right to appeal is irreparably lost when intervention in

child custody proceedings is denied). Having determined that the subject order was appropriately appealable

as a collateral order, we take Ex-Wife’s issues out of turn for ease of

disposition and address her second issue first. With this issue, Ex-Wife

challenges the trial court’s vacation of the Consent Order.
J-S82029-17

- 11 -

The Pennsylvania Rules of Civil of Procedure establish parameters with

regard to the filing of a claim for custody and notification of those with parental

and custodial rights. Rule 1915.3 provides as follows with regard to the

commencement of an action for custody:

Rule 1915.3. Commencement of Action. Complaint. Order

(a) Except as provided by subdivision (c), an action shall be

commenced by filing a verified complaint substantially in the form

provided by Rule 1915.15(a).

(b) An order shall be attached to the complaint directing the

defendant to appear at a time and place specified. The order shall

be substantially in the form provided by Rule 1915.15(b).

Note: See § 5430(d) of the Uniform Child Custody

Jurisdiction and Enforcement Act, 23 Pa.C.S.[A.] §

5430(d), relating to costs and expenses for

appearance of parties and child, and 23 Pa.C.S.[A.] §

5471, relating to intrastate application of the Uniform

Child Custody Jurisdiction and Enforcement Act.

(c) A claim for custody which is joined with an action of divorce

shall be asserted in the complaint or a subsequent petition, which

shall be substantially in the form provided by Rule 1915.15(a).

Note: Rule 1920.13(b) provides that claims which

may be joined with an action of divorce shall be raised

by the complaint or a subsequent petition.

(d) If the mother of the child is not married and the child has no

legal or presumptive father, then a putative father initiating an

action for custody must file a claim of paternity pursuant to 23

Pa.C.S.[A.] § 5103 and attach a copy to the complaint in the

custody action.

Note: If a putative father is uncertain of paternity, the

correct procedure is to commence a civil action for

paternity pursuant to the procedures set forth at Rule

1930.6.
J-S82029-17

- 12 -

. . . Pa.R.C.P. No. 1915.3 (bold in original). Further, Rule 1915.15, in relevant part, sets forth the following as to

notification of those with custodial and/or parental rights:

Rule 1915.15. Form of Complaint. Caption. Order. Petition

to Modify a Custody Order

. . . 6. Plaintiff (has) (has not) participated as a party or witness, or in

another capacity, in other litigation concerning the custody of the

child in this or another court. The court, term and number, and its

relationship to this action is: ___________________________________________________

___________________________________________________

___________________________________________________

Plaintiff (has) (has no) information of a custody proceeding

concerning the child pending in a court of this Commonwealth or

any other state. The court, term and number, and its relationship

to this action is: _______________

Plaintiff (knows) (does not know) of a person not a party to the

proceedings who has physical custody of the child or claims to

have custodial rights with respect to the child. The name and

address of such person is: ___________________________________________________

. . . 8. Each parent whose parental rights to the child have not been

terminated and the person who has physical custody of the child

have been named as parties to this action. All other persons,

named below, who are known to have or claim a right to custody

of the child will be given notice of the pendency of this action and

the right to intervene:

Name Address Basis of Claim
J-S82029-17

- 13 -

___________________________________________________

___________________________________________________

___________________________________________________

9.(a) If the plaintiff is a grandparent who is not in loco parentis to

the child and is seeking physical and/or legal custody pursuant to

23 Pa.C.S.[A.] § 5323, you must plead facts establishing standing

pursuant to 23 Pa.C.S.[A.] § 5324(3). ___________________________________________________

___________________________________________________

(b) If the plaintiff is a grandparent or great-grandparent who is

seeking partial physical custody or supervised physical custody

pursuant to 23 Pa.C.S.[A.] § 5325, you must plead facts

establishing standing pursuant to § 5325. ___________________________________________________

___________________________________________________

(c) If the plaintiff is a person seeking physical and/or legal custody

pursuant to 23 Pa.C.S.[A.] § 5324(2) as a person who stands in

loco parentis to the child, you must plead facts establishing

standing. ___________________________________________________

___________________________________________________

. . . Pa.R.C.P. No. 1915.15 (bold in original). In addition, when seeking custody in connection with an action for

divorce, Rule 1920 provides:

Rule 1920.13. Pleading More Than One Cause of Action.

Alternative Pleading

(a) The plaintiff may state in the complaint one or more grounds

for divorce and may join in the alternative a cause of action

for annulment.

(b) The plaintiff may
J-S82029-17

- 14 -

(1) join in the complaint in separate counts any other claims

which may under the Divorce Code be joined with an action

of divorce or for annulment or, if they have not been so

joined, the plaintiff may as of course amend the complaint

to include such other claims or may file to the same term

and number a separate supplemental complaint or

complaints limited to such other claims; or

(2) file to the same term and number a subsequent petition

raising such other claims.

(c) The court may order alimony pendente lite, reasonable counsel

fees, costs and expenses pending final disposition of any claim. Pa.R.C.P. No. 1920.13 (bold in original). Moreover, Rule 1915.7 states as follows with regard to Consent Orders:

Rule 1915.7. Consent Order

If an agreement for custody is reached and the parties desire a

consent order to be entered, they shall note their agreement upon

the record or shall submit to the court a proposed order bearing

the written consent of the parties or their counsel.

Pa.R.C.P. No. 1915.7 (bold in original). In the instant matter, in vacating the Consent Order entered into by

Mother and Ex-Wife, the trial court reasoned as follows:

In the case at bar, Mother and Ex-Wife short-circuited the custody

process. Neither woman filed either a custody complaint or a

count for custody in the divorce action. Nevertheless, they jointly

presented a Consent Order for Custody in the divorce case, which

the trial court executed. It is clear that Father was not given

notice of the pendency of this action or the right to intervene in

accordance with the Rules of Civil Procedure. Mother and Ex- Wife’s collective failure to properly file the Consent Order in a

custody action/count does not relieve them of the obligations to

notify all parties who could claim a right to Child’s custody.

The trial court acknowledges that Mother and Ex-Wife did not have

confirmation of Child’s paternity when they reached the custody
J-S82029-17

- 15 -

agreement on August 15, 2016. D.F. had been excluded as Child’s

father on February 3, 2016; Father had been ruled out in March

2016. Despite the apparently-inexplicable test results, Mother

and Ex-Wife knew Child had a father; they did not know the

father’s identity. Mother and Ex-Wife failed or refused to take

reasonable steps at that time to determine Child’s parentage by

retesting the putative fathers. (Father’s second paternity test did

not occur until January 2017, after the Consent Order was filed.)

Because of their omission, Mother and Ex-Wife entered into the

Consent Order for Custody at their own risk; and the Consent

Order cannot stand. Accordingly, Father’s Motion to Vacate Order

and Mother’s Petition to Vacate Consent Order for Custody are

GRANTED.

T.C.O. at 10-11 (footnotes omitted) (emphasis in original).

Ex-Wife argues that the trial court should have utilized a best interest

analysis in determining whether to vacate the Consent Order. Ex-Wife’s Brief

at 16-17. Ex-Wife asserts that Child’s best interests supersede any parental

objection to third party standing and Child’s best interests support her

standing to pursue custody. Id. Moreover, Ex-Wife posits that the resulting

change to the Consent Order as to Ex-Wife amounts to a modification requiring

a formal best interest analysis pursuant to 23 Pa.C.S.A. § 5328. Id. at 16.

In so arguing, Ex-Wife states:

The [t]rial court’s Order[] of July 7, 2017[][12] vacated the existing

Consent Order for Custody, dated August 15, 2016, between

Mother and [Ex-Wife]. The change to the Order, reducing and

eliminating [Ex-Wife] from the child’s life, clearly constitutes a

“modification of an existing Order” which triggers a best interest

analysis under 23 Pa.C.S.[A.] § 5328.

Our [c]ourts have held that a natural parent’s objection to a third

party’s in loco parentis relationship is not grounds to deny

standing because the best interests of the child is paramount to

____________________________________________

12 As indicated, this order was not entered until July 31, 2017.
J-S82029-17

- 16 -

the rights of a parent. Standing is fact sensitive, based upon the

conduct/actions of the third party towards the child. Once

standing is granted, the third party must meet their evidentiary

burden which provides protection to biological parents against

unwanted intrusion into the sanctity of the family. Here[,]

however, there is no intact family unit to protect. Mother is

remarried to another woman. Father has a fiancée to whom [sic]

has a son. And, [Ex-Wife] lives with her boyfriend.

The [t]rial [c]ourt never considered the child’s best interests

which, as previously stated, are paramount to the rights of a

natural parent to object to a third party’s standing. Under

Pennsylvania law, a best interest analysis would have proven that

removal of a stepparent from a child’s life wreaks the same havoc

and negative effects as removal of a parent.

Thus, the [t]rial [c]ourt committed an error of law in failing to

grant standing to [Ex-Wife] and in failing to apply the best interest

factors to determine if modification, i.e. reduction/elimination of

[Ex-Wife]’s partial physical custody, was in child’s best interests.

Id. at 16-17 (citation omitted). Upon review, we disagree. We discern no abuse of discretion by the

trial court in vacating the Consent Order. Mother and Ex-Wife did in fact

“short-circuit” the custody process. Mother and Ex-Wife failed to file a

Complaint for Custody or a count for custody in the Complaint for Divorce, as

required, in complete disregard of the Rules of Civil Procedure.13 Moreover, as noted by the trial court, “Father’s fundamental constitutional right to parent

Child” favors vacation of the Consent Order. T.C.O. at 11. As a result, as

determined by the trial court, this procedural deficit requires that the Consent ____________________________________________

13 We do, however, disagree with the trial court’s suggestion that both Mother

and Ex-Wife “failed or refused to take reasonable steps at that time to

determine Child’s parentage by retesting the putative fathers.” T.C.O. at 11. We decline to state that Mother and Ex-Wife had a duty to “retest” either

Father or D.F. and find that the trial court erred in creating such a duty.
J-S82029-17

- 17 -

Order be vacated. Ex-Wife’s second issue is, therefore, without merit and

fails.

Next, with Ex-Wife’s first issue, she alleges error generally with regard

to the trial court’s finding that she did not stand in loco parentis to pursue

custody of Child. Ex-Wife’s Brief at 9-16. Ex-Wife maintains that she “fully

assumed her parental status with the consent of Mother and discharged

parental duties, for nearly two years, wherein [Ex-Wife] established a strong

bond with the child by providing care, nurture and affection, like that of a

parent.” Id. at 10.

A trial court’s determination regarding standing will not be disturbed

absent an abuse of discretion. Butler v. Illes, 747 A.2d 943, 944 (Pa.Super.

2000). As we have stated, “An abuse of discretion is not merely an error of

judgment; if, in reaching a conclusion, the court overrides or misapplies the

law, or the judgment exercised is shown by the record to be either manifestly

unreasonable or the product of partiality, prejudice, bias or ill will, discretion

has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa.Super.

2007) (quotation omitted).

As to third parties and standing with respect to custody, 23 Pa.C.S.A. §

5324 provides as follows:

§ 5324. Standing for any form of physical custody or legal

custody.

The following individuals may file an action under this chapter for

any form of physical custody or legal custody:

(1) A parent of the child.
J-S82029-17

- 18 -

(2) A person who stands in loco parentis to the child.

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

child:

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

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

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

the child; and

. . . 23 Pa.C.S.A. § 5324.

For purposes of the instant matter, we focus on “in loco parentis.”

14 On

this topic, this Court has stated:

Generally, the Child Custody Act does not permit third parties to

seek custody of a child contrary to the wishes of that child’s

parents. The Act provides several exceptions to this rule, which

apply primarily to grandparents and great-grandparents. See 23

Pa.C.S.A. § 5324(3); 23 Pa.C.S.A. § 5325. In fact, unless a

person seeking custody is a parent, grandparent, or great- grandparent of the child, the Act allows for standing only if that

person is “in loco parentis.” 23 Pa.C.S.A. § 5324(2).

“The term in loco parentis literally means ‘in the place of a

parent.’” Peters v. Costello, 586 Pa. 102, 891 A.2d 705, 710

(2005) (citing Black’s Law Dictionary, 791 (7th Ed. 1991)). A

person stands in loco parentis with respect to a child when he or

she “assum[es] 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.” Id. (quoting T.B. v. L.R.M., 567 Pa. 222, 786

A.2d 913, 916-17 (2001)). Critical to our discussion here, “in loco

parentis status cannot be achieved without the consent and

knowledge of, and in disregard of [,] the wishes of a parent.” E.W. ____________________________________________

14 Mother asserts that Ex-Wife argues standing as a parent. While Ex-Wife

offered a presumption of parentage and parentage by estoppel in her reply to

Mother’s petition to vacate the consent order and her Rule 1925(a)(2)(i)

statement, Ex-Wife has not pursued those arguments in this Court.
J-S82029-17

- 19 -

v. T.S., 916 A.2d 1197, 1205 (Pa.[Super.] 2007) (citing T.B., supra).

K.W., 157 A.3d at 504-05. “[T]he showing necessary to establish in loco

parentis status must in fact be flexible and dependent upon the particular facts

of the case.” J.A.L. v. E.P.H., 682 A.2d 1314, 1320 (Pa.Super. 1996). Of relevance, looking to cases involving step-parents, we have held that

former same-sex partners are entitled to in loco parentis standing as third

parties where they “lived with the child and the natural parent in a family

setting, whether a traditional family or a nontraditional one, and developed a

relationship with the child as a result of the participation and acquiescence of

the natural parent.” J.A.L., 682 A.2d at 1321; see also T.B. v. L.R.M., 567

Pa. 222, 232-33, 786 A.2d 913, 918-19 (2001). Specifically, as we

summarized recently in C.G. v. J.H., 172 A.3d 43 (Pa.Super. 2017), allocatur

granted, No. 769 MAL 2017 (January 17, 2018):

In T.B., the trial court found that a same-sex partner, T.B., had

in loco parentis standing to the child at issue, A.M. This Court and

the Supreme Court of Pennsylvania affirmed. In its opinion, the

Supreme Court deferred to the trial court’s factual findings

because the record supported them. T.B., 786 A.2d at 919.

Those findings included that the parties “engaged in an exclusive,

intimate relationship,” “shared finances and expenses,” “jointly

purchased a home,” “decided to have a child,” and “agreed that

[the biological mother, L.R.M.] would be impregnated by a sperm

donor and that [T.B.] would choose the donor.” Id. at 914-15

(footnote omitted). T.B. “cared for [L.R.M.] during her pregnancy

and attended childbirth classes with her[, and] was the designated

co-parent for purposes of being present in the operating room

during the birth.” Id. at 915. After the child was born, the parties

lived together with the child but did not enter into a formal

parenting agreement. Id. L.R.M. named T.B. as guardian of the

child in her will. Id. L.R.M. and T.B. “shared day-to-day child

rearing responsibilities, including taking [the child] for medical
J-S82029-17

- 20 -

check-ups and other appointments.” Id. T.B. “was active, yet

deferential to [L.R.M.] in making parental decisions.” Id.

Accepting the trial court’s findings, the Court agreed that T.B.

stood in loco parentis and had standing to seek partial custody.

Id. at 919-20.

In J.A.L., this Court reversed a trial court ruling that a same-sex

partner, J.A.L., lacked in loco parentis standing with respect to the

child there at issue, G.H. J.A.L., 682 A.2d at 1316. We stated

that “[t]he facts as found by the trial court clearly indicate that

[the biological mother,] E.P.H. and J.A.L. lived together ... as a

nontraditional family, for many years before the birth of the child”

and that the child “was to be a member of their nontraditional

family.” Id. at 1321. Those facts included: “the parties agreed

that E.P.H. would be artificially inseminated to attempt to conceive

a child whom the parties would raise together”[;] the parties

selected a sperm donor together; J.A.L. performed the

inseminations; J.A.L. accompanied E.P.H. to doctor visits and

childbirth classes; J.A.L., along with two other friends of E.P.H.,

was present at the birth of the child; and the child was given

J.A.L.’s surname as a middle name. Id. at 1316. In addition,

before the child’s birth, the parties consulted an attorney who

drafted documents, including “a Nomination of Guardian in which

E.P.H. named J.A.L. as the guardian of the child in the event of

E.P.H.’s death or disability”; “an Authorization for Consent to

Medical Treatment of Minor, permitting J.A.L. to consent to

medical or dental treatment of the child[;]” “a Last Will and

Testament for each party, providing for the other party and the

child[,]” and, in E.P.H.’s will, a clause appointing J.A.L. as the

guardian of the child; and a co-parenting agreement. Id. at 1316- 17. The parties executed all of these documents except for the

co-parenting agreement, which J.A.L. refused to execute after

counsel advised the parties that the agreement was not

enforceable in Pennsylvania. Id. at 1317. After the child’s birth,

the parties lived together with the child, and J.A.L. “assisted with

all aspects of the care of the baby.” Id. After the parties

separated, J.A.L. visited the child frequently and regularly. Id. at

1317, 1322.

C.G., 172 A.3d at 57-58.

Notably, however, in C.G., we affirmed the trial court’s determination

that a former same-sex partner did not stand in loco parentis due to the
J-S82029-17

- 21 -

specific factual circumstances of the case. In distinguishing C.G. from J.A.L.

and T.B., we stated:

The court’s holding rests on the unique facts of this case, and

there are significant distinctions between this case and T.B. and

J.A.L., the main decisions on which C.G. relies. For example, in

T.B. and J.A.L., the parties decided together to have a child; here,

the court credited J.H.’s testimony that C.G. “never agreed to

have a child, but merely tolerated the idea of [J.H] having a child.”

Moreover, unlike the parties seeking custody in T.B. and J.A.L., C.G. did not participate in educational or medical decisions

regarding the child, was not intended to be the child’s guardian if

something happened to J.H., and acted more like a babysitter than

a parent. Further, there were no formal documents indicating a

co-parenting arrangement, the child did not bear C.G.’s surname,

and C.G. did not visit the child frequently and regularly after the

parties separated.

Id. at 58-59 (citations omitted).

Moreover, in loco parentis status cannot be in defiance of the natural

parents’ wishes and the parent-child relationship. T.B., 567 Pa. at 229, 786

A.2d at 917. Notwithstanding, such defiance must have been to the creation

of a parent-child bond with the third party, rather than to the continuation of

the relationship. Liebner v. Simcox, 834 A.2d 606, 610 (Pa.Super. 2003). This has been reiterated in cases involving prospective adoptive parents where

a child has been placed for adoption against a natural parent’s wishes. See

B.A. v. E.E. ex rel. C.E., 559 Pa. 545, 741 A.2d 1227 (1999) (reversing and

vacating the trial court’s order granting prospective adoptive parents standing

in loco parentis where the father refused to consent to the child’s adoption

and attempted to gain custody from shortly after the child’s birth); K.W., 157
J-S82029-17

- 22 -

A.3d at 505-07 (reversing the trial court’s order granting prospective adoptive

parents standing in loco parentis where the mother placed child for adoption

without the father’s knowledge of her pregnancy and, upon location by the

adoption agency, the father expressed his lack of consent and filed for custody

shortly thereafter). Nevertheless, a natural parent cannot seek to “eras[e] a

relationship between a former partner and a child which was voluntarily

created and actively fostered simply because after the parties’ separation [the

natural parent] regretted having done so.” J.A.L., 682 A.2d at 1322; see

also T.B., 567 Pa. at 232, 786 A.2d at 919. Also a factor and consideration,

is whether only limited custody rights were being sought by the third party.

J.A.L., 682 A.2d at 1321.

In the case sub judice, while acknowledging a parent-child relationship,

in determining Ex-Wife lacked in loco parentis standing, the trial court

reasoned as follows:

In the case at bar, Ex-Wife is in a similar position to the

prospective adoptive parents in B.A. and K.W., supra. Here,

Mother attempted to confer in loco parentis status on Ex-Wife,

initially when they agreed to raise Child in an intact marriage, and

later when they entered into a Consent Order for Custody. Father

reasonably believed he was not Child’s father at that time. First,

Mother told Father that the date of conception “didn’t match up

to” the dates of their sexual encounters. Second, an initial

paternity test (purchased from a drug store) concluded he was not

Child’s father. However, from mid-February 2017, when Father

received positive results from a second store-bought paternity

test, he took swift and decisive action. On March 1, 2017, Father

took a third paternity test administered by a reputable lab. One

day after receiving confirmation from the lab that he is Child’s

father, he contacted an attorney. On March 13, 2017, Father filed

a custody complaint against Mother and Ex-Wife. When Father
J-S82029-17

- 23 -

learned of his paternity, his actions were immediately inconsistent

with consent to Ex-Wife’s in loco parentis status.

Several other salient facts likewise support the trial court’s

decision. Father and Mother were engaged in a relationship.

Father was not one of the men recruited by Mother and Ex-Wife

to be a sperm donor. Mother and Father did not conceive Child to

be raised by Mother and Ex-Wife. Ex-Wife is not a biological

parent. Ex-Wife did not pursue adoption through the courts. Ex- Wife’s marriage to Mother lasted only six weeks after Child’s birth.

The Child was less than two years old when the trial court ordered

Ex-Wife to transition from Child’s life. Child likely will not

remember this period in her youth. The trial court cannot continue

to perpetrate the fiction of Ex-Wife’s in loco parentis status based

on her short relationship with Child, which Mother and Ex-Wife

facilitated in defiance of Father’s constitutional rights.

T.C.O. at 15-16.

Upon review, we disagree with the trial court and find that Ex-Wife does

have standing in loco parentis with respect to Child. The record reveals that

Ex-Wife participated in the pregnancy and preparations prior to Child’s birth, as well as Child’s birth. N.T. at 9, 34, 38-39, 86, 103. Further, Mother and

Ex-Wife were married at the time of Child’s birth and, regardless of the

ultimate length of the marriage, they had the intent to jointly raise Child

“together in a happy marriage.” Id. at 7, 22, 34, 47. Ex-Wife was named as

a parent on Child’s birth certificate and involved in the naming of Child. Id.

at 34, 86, 104. Prior to Child’s birth, Mother and Ex-Wife consulted an

attorney regarding termination of D.F.’s parental rights. Id. at 39, 46-48,

103. Moreover, while there was some disparity as to the extent of Ex-Wife’s

involvement, Ex-Wife was clearly involved financially and otherwise during the

marriage and remained involved in Child’s life after separation. Id. at 13-14,
J-S82029-17

- 24 -

18-19, 34, 86-89, 91, 94-95, 101-02. Although known to family and friends

that she was not Child’s biological parent, Ex-Wife likewise held herself out as

Child’s parent. Id. at 94-95, 123-24. Significantly, while declining to confer

standing, the trial court even found the existence of a parent-child relationship

as to Ex-Wife and Child, stating as follows:

Here, there is little doubt that Ex-Wife established a parentlike relationship with Child during the approximately six weeks

Mother and Ex-Wife were happily married after Child’s birth. Even

after Mother and Ex-Wife separated (December 16, 2015), but

prior to Ex-Wife’s departure from the residence (April 2016), Ex- Wife performed day-to-day childcare duties consistent with her

schedule of work, school, and relationships. After separation,

Mother afforded Ex-Wife increasing amounts of custody,

culminating in the Consent Order of August 15, 2016.

T.C.O. at 13.

By way of contrast from the cases involving prospective adoptive

parents, instantly, a situation is presented where Mother is attempting in

hindsight to expunge Ex-Wife’s relationship with Child, a relationship that was

created, fostered, and continued, regardless of any legal beliefs or advice, by

Mother, a biological parent, since prior to Child’s birth and for approximately

a year and a half thereafter. Also distinguishable, Mother was the only known

biological parent, as Child’s paternity was unknown, until Child was

approximately 11⁄2 years old. See Father’s Exhibit 1. In addition, Father, once

aware of his paternity, filed a Complaint for Custody against both Mother and

Ex-Wife. N.T. at 62-63. Notably, he did not file to challenge Ex-Wife’s

standing. Further, unlike prospective adoptive parents, whose intent by virtue
J-S82029-17

- 25 -

of adoption is to completely supplant and oust the biological parents, Ex-Wife

does not intend to completely supplant and oust Mother and Father. See Ex- Wife’s Brief at 13.

Importantly, we recognize that this conferral of standing does not

automatically result in or equate to custodial time for Ex-Wife. It merely

allows the trial court to consider Child’s best interests. J.A.L., 682 A.2d at

1319-20.

. . .The existence of such a colorable claim to custody grants

standing only. In other words, it allows the party to maintain an

action to seek vindication of his or her claimed rights. A finding

of prima facie right sufficient to establish standing does not affect

that party’s evidentiary burden: in order to be granted full or

partial custody, he or she must still establish that such would be

in the best interest of the child under the standards applicable to

third parties.

Id. As we further stated, “A determination of standing simply implies that the

party has a substantial interest in the subject matter of the litigation and that

the interest is direct, immediate and not a remote consequence.” T.B., 567

Pa. at 233, 786 A.2d at 919-20 (citation omitted). However, it “does not

speak to [the] chance of success on the merits, but merely affords . . . the

opportunity to fully litigate the issue.” Id. at 233-34, 920.

Accordingly, for the foregoing reasons, we affirm the order of the trial

court in part, and vacate and remand in part.

We affirm the trial court’s order as it relates to the Consent Order.

However, we vacate the trial court’s order as it relates to Ex-Wife’s standing

and remand for a custody hearing on the merits as to Father’s Complaint for
J-S82029-17

- 26 -

Custody as against Mother and Ex-Wife. The custody hearing should be

accomplished as quickly as is practicable in order to satisfy the interests of

finality and stability in custody arrangements for the Child.

Additionally, it is hereby Ordered that the custody arrangement with Ex- Wife having physical custody every weekend (Friday at 5:00 p.m. to Monday

at 12:00 p.m.) shall be reinstated pending the outcome of the new hearing.

Order affirmed in part, and vacated and remanded in part. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/7/2018