J-S46031-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.L., F.L. AND L.L.,                          IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                   Appellees

           v.

A.A.M.,

                   Appellant                      No. 530 MDA 2014


            Appeal from the Order entered on February 25, 2014,
              in the Court of Common Pleas of Franklin County,
                       Civil Division, at No.: 2013-1943

BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED AUGUST 28, 2014

                                                                  Custody

                                                             -




proceedings.

      The trial court set forth the procedural history of this appeal as

follows:

            This matter arose by a Complaint for Custody, filed by
      [Father and Paternal Grandparents] on May 13, 2013. The
      parties attended a conciliation conference on August 2, 2013.
      [The trial c]ourt approved the recommendations of the
      Conciliatio[r], and a temporary custody [O]rder was entered on
      August 16, 2013. Under that [O]rder, Mother and Father had
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      shared legal custody, with Father having primary physical
      custody and Mother having custody one weekend per month. On
      September 11, 2013, Mother filed a Motion for Scheduling of a
      pre-trial conference. The matter proceeded to trial, which was
      held on February 12, 2014.

Trial Court Opinion, 4/15/14, at 2 (some capitalization omitted).

      The trial court set forth the relevant testimony presented at the

custody trial1 as follows:

            When [C]hild was born, Mother and Father lived with
      [C]hild
      Pennsylvania. [N.T., 2/12/14,] at 26. In February [] 2010,
      Mother moved out of that house and stayed with her mother in
      Chambersburg. Id. at 58-59. Mother then moved in with her
      grandmother in Fayetteville until June [] 2010. Id. at 59.
      During that time, the parties operated under a week-on, week-
      off custody schedule, each parent [having] alternating weeks
      with [C]hild. Id. at 59. Upon Mother securing an apartment in
      June, the parties continued to share custody on a weekly basis.
      Id.

            In June [] 2011, Mother moved to Conneaut Lake,
      Pennsylvania, approximately 3.5 [to] 4 hours away from
      Chambersburg.     Id.    Mother did not seek to relocate with
      [C]hild, and a relocation petition was never filed with [the trial
      c]ourt. The reason for her relocation was that her boyfriend had
      obtained new employment in that area and had to move. Id. at
      60.     Mother and her boyfriend are the parents of a
      three[-]year[-]old child who lives with them. Id. at 61. Upon
      the move to Conneaut Lake, Mother attended school from

      Degree as a medical assistant. Id. at 60. During this time,
      [C]hild continued    to   live  with  Father   at   [P]aternal
                              Id. at 61. Mother usually sees [C]hild
      once a month. Id. at 63.

1
  The trial court heard testimony from Father, Paternal Grandmother,
                                                            in camera).
We note that both Father and Paternal Grandparents appeared pro se, and
Paternal Grandmother questioned several of the witnesses and raised
objections during the course of the trial.
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      factory located in Chambersburg. Id. at 8-10.] Father then
      began residing part-time with his girlfriend in Shippensburg,
      Pennsylvania, who was pregnant at the time. Id. at 7. The
      custody arrangement has been that Father gets [C]hild on
      weekends and any day he has off [] work. Id. Father works the
      second shift at [the factory], from 3:00 p.m. until approximately
      1:00 a.m.       Id. at 10.       He calls [C]hild at [P]aternal
                                             Id.
      schedule, Father and [P]aternal [G]randparents have established
      a routine where [C]hild
      during the week.

Trial Court Opinion, 4/15/14, at 3-4.

      On February 24, 2014, the trial court orally set forth its findings and

decision in open court on the record. The next day, the court entered the

Custody Order, awarding, inter alia, (1) primary physical custody of Child to

Father, with a provision that Paternal Grandparents could exercise partial

                                                                 ;2 (2) partial

physical custody to Mother during the school year, in accordance with a

schedule; and (3) primary physical custody to Mother during the summer,

when Child is not in school.

      Mother filed a Motion for Reconsideration, which the trial court denied.

Thereafter, Mother timely filed a Notice of Appeal, along with a Concise



2
                                                          Father shall have
primary physical custody of [Child] during the school year. Father may
permit [Child] to reside with [Paternal Grandfather] and [Paternal
Grandmother] during the school week due to his current work schedule, but
shall transition to another work schedule if available so that [Child] may


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Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b), after which the trial court issued an Opinion.

      On appeal, Mother presents the following issue for our review:

      Whether the award of [] primary custody to Father with a
      provision that he can delegate his custody to [Paternal
      G]randparents[,] when the [trial] court has specifically found
      that [Paternal G]randparents have not overcome [Mother and
                prima facie right to primary custody[,] is [an] abuse of
      discretion?



      Mother argues that Father is largely unavailable to care for Child (and

thus not an appropriate resource for primary physical custody), and that the

trial court improperly permitted him to delegate his physical custody to

Paternal Grandparents during his workweek. Id. at 9, 12; see also id. at 9

(wherein Mother asserts that, under the Custody Order, Father essentially

does not exercise physical custody of Child on Monday through Saturday



Mother points out that the trial court found that neither parent was unfit to

care for Child.     Id. at 9, 11.      Mother further argues that Paternal



legally entitled to partial physical custody, not primary custody, which,

Mother   asserts,   the   Custody   Order    effectively   awarded   to   Paternal

Grandparents, not Father. Id. at 9-12. Accordingly, Mother requests this

Court to vacate the Custody Order and remand the matter to the trial court



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to enter an order awarding her primary physical custody, in Conneaut Lake,

Pennsylvania. Id. at 13.

      Our 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-
      deductions or inferences from its factual findings. Ultimately,

      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).

      With any custody case, the paramount concern is the best interests of

the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5338 of Child Custody
                3
                    provides that, upon petition, a trial court may modify a

custody order if it serves the best interests of the child. Id. § 5338. Section

5328(a) of the Act sets forth sixteen best interest factors (collectively



when awarding custody. Id. § 5328(a).




3
  See 23 Pa.C.S.A. §§ 5321 to 5340; see also C.R.F., 45 A.3d at 445
(stating that, where, as here, the custody evidentiary proceeding
commences on or after the effective date of the Act, i.e., January 24, 2011,
the provisions of the Act apply).
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       Further, where, as here, a request for relocation of the subject child is

involved, the trial court must consider the ten relocation factors (collectively



Act.   Id. § 5337(h); see also E.D. v. M.P., 33 A.3d 73, 81 (Pa. Super.

                                                                 ial court shall

consider all of the factors listed therein, giving weighted consideration to




                    is no black letter formula that easily resolves relocation

disputes; rather, custody disputes are delicate issues that must be handled

on a case-by-                C.M.K. v. K.E.M., 45 A.3d 417, 421 (Pa. Super.

2012) (citation and quotation marks omitted).

       Initially, we must address whether Paternal Grandparents have

standing to sue in their own right in this case.4

       Section 5324 of the Act provides the following with regard to standing

to file a custody action:

       § 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:

4
    Although the trial court indicates in its Opinion that Mother does not

in fact, raise this issue, as she argues, and the trial court concedes, that

entitlement to primary physical custody of Child as Father or Mother, as
                See                    Trial Court Opinion, 4/15/14, at 6.
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         (1) A parent of the child.

         (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

              (iii) when one of the following conditions is met:

                (A) the child has been determined to be a
                dependent child under 42 Pa.C.S. Ch. 63
                (relating to juvenile matters);

                (B) the child is substantially at risk due to
                parental abuse, neglect, drug or alcohol
                abuse or incapacity; or

                (C) the child has, for a period of at least 12
                consecutive months, resided with the
                grandparent, excluding brief temporary
                absences of the child from the home, and is
                removed from the home by the parents, in
                which case the action must be filed within
                six months after the removal of the child
                from the home.

23 Pa.C.S.A. § 5324. Here, it is undisputed that Paternal Grandparents were

not eligible to seek primary physical custody in their own right, as they

cannot satisfy any of the subsections of section 5324.

     However, section 5325 of the Act provides, in relevant part, as follows:


        grandparents and great-grandparents may file an action

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        under this chapter for partial physical custody or supervised
        physical custody in the following situations:

                                   ***

              (2) where the parents of the child have been
              separated for a period of at least six months or
              have commenced and continued a proceeding to
              dissolve their marriage[.]

23 Pa.C.S.A. § 5325(2); see also Hill v. Divecchio, 625 A.2d 642, 645-48

(Pa. Super. 1993) (addressing whether grandparents had standing to sue for

partial physical custody in their own right under section 5312 of the former

                                3 Pa.C.S.A. § 5312 (i.e., the predecessor

statute to the standing provisions set forth at sections 5324 and 5325)).



at least six months, and they were never married. Thus, we determine that

the trial court properly granted Paternal Grandparents standing to seek

partial physical custody pursuant to 23 Pa.C.S.A. § 5325(2).

     Mother argues that Paternal Grandparents have not met their burden

                                   prima facie custody when Mother, as a

parent, is ready, willing, and able to assume custody. See Brief for Mother

at 10-12.                                      -established legal principal that

natural parents have a rebuttable presumption against third parties,

including grandparents, in custody disputes.     See 23 Pa.C.S.A. § 5327(b)

(providing

parent of the child and a nonparent, there shall be a presumption that


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custody shall be awarded to the parent.     The presumption in favor of the

                                                              see also V.B.

v. J.E.B., 55     A.3d 1193, 1199     (Pa. Super. 2012) (discussing the

presumption in section 5327(b) and stating th

preclude an award of custody to a non-parent. Rather they simply instruct

the [trial] judge that the non-parent bears the burden of production and the

burden of persuasion and that the non-

omitted)).

     In its Opinion, the trial court found that Paternal Grandparents had

met this heightened burden, and discussed its reasons for entering the

Custody Order, stating as follows:

           In this case, the dispute was not between the parents on
     one side and the grandparents on the other.         Father and
     [P]aternal Grandparents [jointly] filed their Complaint against
     Mother, and[,] thus, there was a parent on either side. This
     [c]ourt awarded primary physical custody to Father, and granted
     [P]aternal [G]randparents partial physical custody during the


     detail on the record. Mother focuses on the fact that, because
                           exercise custody, she should be granted
     primary physical custody over Father, and over any third party.

             This [c]ourt stands by its findings that granting Mother



                                     ***

             This [c]ourt cannot simply ignore the bigger picture

     sought to neglect his parental responsibilities due to any kind of
     personal selfishness.      This [c]ourt found no evidence

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      arrangements were made for reasons other than what was in

      on the record that Father will not be permitted to simply coast
      along, making no effort to obtain a different work schedule, one
      that would permit him to spend time with [C]hild weekly. This
      [c]ourt was required to render a determination regarding

      relation to a fixed standard, but by determining what is best for
                                                  Commonwealth ex
      rel. Batturs v. Batturs, 60 A.2d 610, 611 (Pa. Super. 1948).]
      This [c]ourt examined the entirely of the circumstances, taking
      into account all

      been, and found that awarding Father primary physical custody


Trial Court Opinion, 4/15/14, at 7, 9 (emphasis in original).

      However, this case also involves considerations of relocation. 5 While

the trial court considered and discussed the sixteen section 5328(a) best

interest factors on the record, it did not consider the ten relocation factors

on the record, nor did it set forth any findings regarding section 5337(h) in

its Pa.R.A.P. 1925(a) Opinion.



cases involving proposed relocation, this Court has stated as follows:

      Section 5337(h) requires courts to consider all relocation factors.
      The record must be clear on appeal that the trial court
      considered all the factors.

5
   As discussed above, Mother sought primary physical custody and to
relocate Child to live with her and her boyfriend in Conneaut Lake. Father
also sought primary physical custody; however, primary physical custody
under an arrangement whereby Child would not relocate from Paternal

custody for Father would i
Shippensburg, which he shares with his girlfriend and their daughter.
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            Section 5323(d) [of the Act] provides that a trial court



      and relocation.

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014) (emphasis added;

citations to case law and quotation marks omitted).

      We determine that the trial court committed an error of law when it

failed to consider the section 5337(h) relocation factors, either on the record

or in a written opinion or order. See E.D., 33 A.3d at 81, 82 (vacating the

custody order and remanding to the trial court where the court had failed to

consider the relocation factors in a case involving relocation, and stating that

                                       the trial court to consider each of the

factors set forth in section 5337(h), and to state both its reasoning and

                                               see also A.M.S. v. M.R.C., 70

A.3d 830, 836 (Pa. Super. 2013) (stating that the trial court must consider

all ten relocation factors, and all sixteen best interest factors, when making

a decision on relocation that also involves a custody decision). Therefore,

we must remand the matter to the trial court for further proceedings and a

consideration of the relocation factors. See E.D., 33 A.3d at 82; see also

A.V., 87 A.3d at 825. On remand, the trial court should consider all of the




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best interest and relocation factors, and set forth its analysis in a written

opinion.6

      Finally, Mother argues that the Custody Order is improper in that it

essentially

      awarded primary physical custody of [C]hild to [] Paternal
      Grandparents[,] while couching it [the award] in language that
      they were actually awarded partial physical custody. This was
      done despite the
      Grandparents were only entitled to partial physical custody
      under [the Act] and under the facts of this case.



                                                                  th Paternal

Grandparents (while Father resides with his girlfriend in Shippensburg), and

Paternal Grandparents are not entitled to an award of primary physical

custody. See 23 Pa.C.S.A. § 5324. Accordingly, on remand, we instruct the

trial court that it may not award primary physical custody to Father and, at

the same time, have Child reside at the home of Paternal Grandparents, if

that is not where Father is going to be residing during his workweek.

      Based upon the foregoing, we vacate the Custody Order and remand

the case to the trial court for further proceedings and the entry of a new


6
   Moreover, on remand, the trial court should ensure that it does not
consider any inappropriate factual matter developed by Paternal
Grandmother questioning witnesses or making objections at the custody
trial, as she was not able to serve as an attorney for any of the pro se
plaintiffs but herself. This Court has observed that the right to self-
representation in a civil case does not give leave for the party to fail to
comply with rules of procedure and substantive law.         Winpenny v.
Winpenny, 775 A.2d 815, 817 n.1 (Pa. Super. 2001).
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custody order and a supplemental Pa.R.A.P. 1925(a) Opinion, consistent

with this Memorandum.

      Order vacated.      Case remanded for further proceedings.   Superior

Court jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/28/2014




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