J-S08044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.B., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

L.L.D., D.A.L., AND E.D.,

Appellees No. 2810 EDA 2014

Appeal from the Order entered July 15, 2014, 

in the Court of Common Pleas of Montgomery County, 

Civil Division, at No(s): 2014-17859

BEFORE: DONOHUE, WECHT, AND JENKINS, JJ.

MEMORANDUM BY JENKINS, J.: FILED MARCH 30, 2015

Appellant, C.B., (“Plaintiff”) appeals from the order entered on July 15, 

2014, finding that she lacked third-party standing to file a custody 

complaint, against L.D. (“Mother”), D.L. (“Father”), and E.D. (hereinafter 

“Maternal Grandfather”), regarding Mother’s and Father’s son, I.L. (“Child”) 

(born in August of 2010), and dismissing C.B.’s complaint for custody and 

petition for special relief under the Child Custody Act, (“the Act”), 23 

Pa.C.S.A. §§ 5321 to 5340. The order also dismissed, as moot, the petition 

to intervene filed by Maternal Grandfather. We affirm. 

The trial court set forth the factual background and procedural history 

of this appeal as follows.

Defendant/Appellee [L.L.D.] (hereinafter “Mother”), and 

Defendant/Appellee [D.D.L.] (“hereinafter “Father”) are the 

parents of I.J.L[.], [born in August of 2010] (hereinafter “the 
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child”). On June 16, 2014, Plaintiff/Appellant [C.B.] (hereinafter 

“Plaintiff”), a third party, filed a Complaint for Legal and Physical 

Custody of the child against Mother and Father. At the time the 

petition was filed, Mother and Father lived in Miami, Florida. On 

June 23, 2014, Plaintiff filed an Emergency Motion for Special 

Relief against Mother and Father, and added the child’s maternal 

grandfather, [E.D.] (hereinafter “Maternal Grandfather”), as a 

third defendant. On June 25, 2014, the court scheduled a 

hearing on the issue of standing only for July 2, 2014. On July 

1, 2014, Maternal Grandfather filed a Petition to Intervene in 

Custody.

Trial Court Opinion, 10/16/14, at 1.

On July 2, 2014, the trial court held a hearing on the issue of C.B.’s 

standing in the custody matter. C.B. appeared, along with her counsel, 

Attorney Enrico Paganelli. E.D. appeared pro se. Mother and Father did not 

appear, nor did any counsel appear on their behalf. 

The trial court found that the witnesses testified as follows. 

At the July 2, 2014 hearing, Plaintiff testified that she met 

Maternal Grandfather “at the Borgata in Atlantic City at the end 

of May of 2012 . . . and we started dating.” N.T. July 2, 2014 at 

8. Plaintiff testified that they moved in together at her residence 

“. . . by the end of July, the beginning of August of that year. . .” 

N.T. at 8. Plaintiff testified that when she met Maternal 

Grandfather, the child was living with his [m]other in Miami, 

Florida.

Plaintiff testified that in June, 2013, Maternal Grandfather 

went to Miami to see Mother and the child. On June 24, 2013, 

Maternal Grandfather brought the child back with him from 

Miami to Pennsylvania. N.T. at 16-17. Plaintiff entered into 

evidence a letter from Mother which stated that she was giving 

“temporary custody” of the child to Maternal Grandfather, who 

would return the child to Mother in Miami once Mother found a 

place to live and obtained a job.[ ] Trial Exhibit P-2. Plaintiff

testified that while the child lived with her and Maternal 

Grandfather, she “bought him clothes, bought him toys. . . spent 

a couple of days with him. . .” N.T. at 20. Plaintiff testified that 
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she put the child was [sic] in summer camp, hired a babysitter 

to pick him up after school, and placed him in daycare. N.T. at 

20-21. Plaintiff also testified that she paid for the child to have 

health insurance in Pennsylvania. N.T. at 27. Plaintiff testified 

that while the child was living with her and Maternal 

Grandfather, Mother “reached out” to the child “. . . if it wasn’t 

every other day sometimes it was every day.” N.T. at 31. When 

asked by counsel if Mother consented to “Well, she consented 

that [Maternal Grandfather] could bring him. And she knew that 

her father lived with me . . . so, yes.” N.T. at 32. 

On cross-examination, Plaintiff testified that she and 

Maternal Grandfather shared in the daily care of the child, and 

she was not the only one who cared for the child while he was in 

Pennsylvania. N.T. at 43-44. Plaintiff testified that “the intent 

originally was that the child was going to stay until [Mother] got 

her life together . . . originally we thought maybe that would 

take a couple of months. Until it went on, we realized the 

problem was bigger than what was originally anticipated. So the 

summer vacation became a year.” N.T. at 47.

During redirect examination, Maternal Grandfather stated 

to Plaintiff[,] “I was asked to take care of the grandchild, not 

you. . .” N.T. at 49. On his direct examination, Maternal 

Grandfather testified that when he went to Miami to visit Mother 

and the child in June, 2013, he stated to Mother that he could 

help her by taking the child back to Pennsylvania for a “summer 

vacation.” N.T. at 63. Maternal Grandfather testified that “on 

many occasions,” Plaintiff told him that she wanted a child, “and 

I told her look, if you want a kid, you might want to adopt one, 

you can’t keep my daughter’s son.” N.T. at 65.

Maternal Grandfather testified that, eventually, Mother 

intended to come and get the child and take him back to Miami 

“. . . [Plaintiff] kept telling her no, you can’t come to my house.” 

N.T. at 71. Maternal Grandfather testified that Plaintiff went 

behind his back and behind Mother’s back “and filed for custody 

without telling us” in June, 2014. N.T. at 71. When asked by 

the court if Plaintiff was responsible for all of the child’s care, 

Maternal Grandfather replied: “. . . I had everything to do with 

his care. I was living there, I was working, I was buying food. I 

was bathing him, taking him to the doctor’s, taking him to the 

daycare . . . doing everything. . .” N.T. at 79.
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Trial Court Opinion, 10/16/14, at 1-5.

On July 15, 2014, the trial court entered an order finding that C.B. 

lacked third-party standing to participate in custody proceedings, and 

dismissed her complaint for custody and petition for special relief. The court 

further dismissed as moot the petition to intervene filed by Maternal 

Grandfather, as his petition to intervene stated, “I only want [Mother] to 

have custody,” and C.B.’s complaint had been dismissed. See Petition to 

Intervene in Custody at 4. On July 18, 2014, C.B. filed a motion for 

reconsideration of the July 15, 2014 order. The trial court denied 

reconsideration on July 30, 2014, and issued Pa.R.C.P. 236 notice of the 

order on August 1, 2014. 

On August 13, 2014, C.B. timely filed a notice of appeal from the July 

15, 2014 order, along with a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). 

On appeal, C.B. raises one issue, as follows:

Whether the trial court erred in failing to grant Appellant in loco 

parentis standing to sue for legal and physical custody of the 

subject minor child pursuant to 23 Pa.C.S. § 5324(b)?

C.B.’s Brief, at 5.

A trial court’s determination regarding in loco parentis standing will not 

be disturbed, absent an abuse of discretion. Butler v. Illes, 747 A.2d 943, 

944 (Pa. Super. 2000).

In custody cases, our standard of review is as follows:
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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) (citation omitted).

This Court has stated: “[a]n 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).

C.B. argues that the trial court erred in ruling that she lacked 

standing, in loco parentis, to seek custody of Child. C.B. asserts that the 

court failed to recognize Mother’s consent to her assumption of ongoing 

parental duties, both by way of a letter from Mother, and Mother’s action 

over the course of the year that Child lived with C.B. C.B. also contends that 

the trial court failed to consider discrepancies in Maternal Grandfather’s 

testimony, and relied too heavily on assertions that he made without any 
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evidence or proof. She seeks for this Court to vacate the trial court’s order, 

and remand the matter to the trial court for further proceedings. 

Pursuant to section 5324 of the Act, “A person who stands in loco 

parentis to the child” may file an action for any form of physical or legal 

custody. In Peters v. Costello, 586 Pa. 102, 891 A.2d 705 (2005), our 

Supreme Court outlined the relevant principles as follows: 

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

parent.” Black's Law Dictionary (7th Ed. 1991), 791.

The 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, 586 Pa. at 111, 891 A.2d at 710 (citation and footnote 

omitted). 

This Court has stated that a third party cannot place himself or herself 

in loco parentis status in defiance of the parents’ wishes, and the 

parent/child relationship. Gradwell v. Strausser, 610 A.2d 999, 1003 (Pa. 

Super. 1992). See E.W. v. T.S., 916 A.2d 1197, 1205 (Pa. Super. 2007) 

(stating, “the law provides that in loco parentis status cannot be achieved 

without the consent and knowledge of, and in disregard of the wishes of a 

parent”). The frequency of a caretaker’s services does not confer in loco 
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parentis status. Argenio v. Fenton, 703 A.2d 1042, 1044 (Pa. Super. 

1997) (holding that grandmother’s serving as child’s frequent caretaker was 

insufficient to confer on grandmother standing to file custody dispute against 

child’s birth father).

Here, the trial court found as follows.

Based on the evidence presented at the July 2, 2014 

hearing, Plaintiff did not prove that she stands “in loco parentis” 

to the child. Plaintiff did not “live with the child and the natural 

parent in a family setting” and did not develop “a relationship 

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

the natural parent.” Morgan v. Weiser, 923 A.2d 1183 (2007). 

Plaintiff was the girlfriend of Maternal Grandfather at the time 

when the child came to temporarily live with Maternal 

Grandfather in Pennsylvania. There was no evidence that 

Mother, or for that matter Father, consented to Plaintiff having a 

parental role in the child’s life. In fact, Maternal Grandfather 

testified that[,] while the child was in Pennsylvania, Mother 

“repeatedly called me and said Dad, why doesn’t [Plaintiff] let 

me come visit my son.” N.T. at 64. Plaintiff herself testified that 

she was worried what would happen when Mother told the child’s 

[f]ather that Plaintiff had filed for custody. The evidence does 

not support a finding that Plaintiff developed a relationship with 

the child with the consent and support of either Mother or 

Father. As previously stated, Plaintiff cannot stand in loco 

parentis to the child in defiance of the natural parent’s wishes 

and the parent/child relationship.

Maternal Grandfather testified that the child’s stay in 

Pennsylvania was temporary until Mother could find a job and a 

place to live, and was not intended to be a permanent transfer of 

custody of the child to anyone. Furthermore, during the child’s 

stay in Pennsylvania, Plaintiff was not the sole caretaker of the 

child. Maternal Grandfather testified that he provided for the 

day[-]to[-]day care of the child along with Plaintiff. There was 

no evidence that Plaintiff solely assumed the obligation incident

to the parental relationship without “going through the formality 

of a legal adoption”. D.G. and D.G. v. D.B. and G.V., 91 A.3d 

706, [708 (Pa. Super. 2014)]. 
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Plaintiff is not related to the child either through blood or 

marriage. Her only status was as a girlfriend to Maternal 

Grandfather, and[,] in fact, Plaintiff testified that as of August 

2013, she was “basically just co-habitating” with Maternal 

Grandfather. At the time of the hearing, as Maternal 

Grandfather stated in his closing argument, she was “just an exgirlfriend.” N.T. at 98.

There was no evidence presented at the hearing that 

Plaintiff stands in loco parentis to the child. 

Trial Court Opinion, 10/16/14, at 7-8.

The trial court found that Mother and Father had not consented to C.B. 

having a parental role in Child’s life, and that the actions of Mother preclude 

C.B. from attaining in loco parentis status. While C.B. argues that the trial 

court placed excessive weight on the testimony of Maternal Grandfather in 

finding the lack of consent to C.B. having a parental role in Child’s life, we 

find that there was competent evidence in the record to support the trial 

court’s credibility and weight determinations. Thus, we will not disturb 

them. C.R.F., at 443. Accordingly, we find that the trial court did not abuse 

its discretion in denying C.B. third-party standing, and dismissing her 

complaint for custody and petition for special relief. See Gradwell; and 

Argenio, supra.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/30/2015