R.L. v. M.A.

209 A.3d 391

R.L.

v.M.A., Appellant

No. 2740 EDA 2018

Superior Court of Pennsylvania.

Argued March 13, 2019

Filed May 3, 2019

Michael R. Shelton, Doylestown, for appellant

BEFORE: OLSON, J., DUBOW, J., and STEVENS,^* P.J.E.

OPINION BY DUBOW, J.:

Appellant, M.A., who is the biological mother of V.L. ("Child"), appeals from the August 28, 2018 Order, which awarded shared legal and physical custody of Child to Appellant and R.L., Child's non-biological mother and Appellant's former paramour. Upon careful review, we affirm.

The relevant factual and procedural history is as follows. Appellant and R.L. were involved in a committed romantic relationship in 2012 when they made a decision together to conceive Child by impregnating Appellant via artificial insemination using sperm from R.L.'s brother. The couple planned and prepared for Child's birth together, including decorating a nursery and shopping for baby supplies. R.L. was present at Child's birth, R.L. chose Child's first name, and the couple decided together to give Child R.L.'s surname. Soon after Child's birth, the couple broke up.

Under an informal agreement, Child lived with Appellant and spent every other weekend with R.L. until June 2014, when Appellant and R.L. agreed to share 50/50 custody of Child. Child spent alternating weeks with Appellant and R.L. until an incident in February 2018, when R.L. called the daycare where Appellant worked and Child attended. R.L. complained that Appellant was having too much contact with Child, including taking Child off the premises during the day. As a result of the phone call, Appellant stopped the weekly custody rotation.

On May 10, 2018, R.L. filed a Complaint for Custody of then-5-year-old Child. On June 29, 2018, after a hearing, the trial court granted R.L. "in loco parentis " status, and therefore standing, to pursue any form of physical or legal custody of Child pursuant to 23 Pa.C.S. § 5324(2).¹ On August 23, 2018, after a pre-trial conference, the trial court held a custody hearing.

On August 28, 2018, the trial court awarded Appellant and R.L. shared legal and physical custody of Child, and, inter alia , ordered Child to spend alternating weeks with Appellant and R.L. On the same day, the trial court issued a Memorandum of Factors, which reviewed and made findings regarding the 23 Pa.C.S. § 5328 Custody Factors. This timely appeal followed.²

Appellant raises the following issues on appeal:

[1.] Has the [nonparent] litigant met her burden of proof under [ 23 Pa.C.S. § 5327(b) ] by presenting clear and convincing evidence that [nonparent] should have the same amount of physical custodial time as a parent in a case where the parent seeks primary physical custody of the child?

[2.] Did the Court err as a matter of law when it awarded equal physical custodial time to a parent and [nonparent] after weighing all relevant factors evenly between the parties in its Memorandum and Opinion?

Appellant's Brief at 3.

The Child Custody Act, 23 Pa.C.S. §§ 5321 - 5340, governs all custody proceedings commenced after January 24, 2011. E.D. v. M.P. , 33 A.3d 73, 77 (Pa. Super. 2011). The Custody Act requires a trial court to consider all of the Section 5328(a) best interests factors when "ordering any form of custody." 23 Pa.C.S. § 5328(a). A trial court must "delineate the reasons for its decision when making an award of custody either on the record or in a written opinion." S.W.D. v. S.A.R. , 96 A.3d 396, 401 (Pa. Super. 2014). See also 23 Pa.C.S. § 5323(a) and (d). However, "there is no required amount of detail for the trial court's explanation; all that is required is that the enumerated factors are considered and that the custody decision is based on those considerations." M.J.M. v. M.L.G. , 63 A.3d 331, 336 (Pa. Super. 2013).

"The paramount concern in child custody cases is the best interests of the child." C.G. v. J.H. , ––– Pa. ––––, 193 A.3d 891, 909 (2018). "The best-interests standard, decided on a case-by-case basis, considers all factors which legitimately have an effect upon the child's physical, intellectual, moral and spiritual well-being." M.J.N. v. J.K. , 169 A.3d 108, 112 (Pa. Super. 2017).

This Court reviews a custody determination for an abuse of discretion. In re K.D. , 144 A.3d 145, 151 (Pa. Super. 2016). We will not find an abuse of discretion "merely because a reviewing court would have reached a different conclusion." Id. (citation omitted). Rather, "[a]ppellate courts will find a trial court abuses its discretion if, in reaching a conclusion, it overrides or misapplies the law, or the record shows that the trial court's judgment was either manifestly unreasonable or the product of partiality, prejudice, bias or ill will." Id.

Further, when this Court reviews a trial court's "best interests" analysis in custody matters, our scope of review is broad, but we are "bound by findings supported in the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court." Saintz v. Rinker , 902 A.2d 509, 512 (Pa. Super. 2006) (quotation and citation omitted). Importantly, "[o]n issues of credibility and weight of the evidence, we defer to the findings of the trial judge who has had the opportunity to observe the proceedings and demeanor of the witnesses." K.T. v. L.S. , 118 A.3d 1136, 1159 (Pa. Super. 2015) (citation omitted). We can only interfere where the "custody order is manifestly unreasonable as shown by the evidence of record." Saintz , 902 A.2d at 512 (citation omitted).

In her first issue, Appellant avers that R.L., the non-biological mother, did not present clear and convincing evidence that she should have equal custodial time as Appellant, the biological mother. Appellant's Brief at 6-7. Appellant argues that 23 Pa.C.S. § 5327 requires a trial court to apply a presumption in favor of a "biological parent" as opposed to a "nonparent litigant" and that R.L. did not meet her burden of proof to overcome the presumption in favor of Appellant. Id. at 7. Appellant argues that the "scale was already tipped hard" to Appellant before the trial and that it was R.L.'s burden as a nonparent litigant to "tip the scale in favor of [R.L.]" rather than "tip the scale only to equal" in order to obtain shared physical custody with equal custodial time. Id. Finally, Appellant asserts that the trial court erred when it considered the previous informal custody arrangement between Appellant and R.L as dispositive evidence in determining whether R.L. met her burden of proof. Id. For the following reasons, Appellant is not entitled to relief.

The parent has a prima facie right to custody, "which will be forfeited only if convincing reasons appear that the child's best interest will be served by an award to the third party." V.B. v. J.E.B. , 55 A.3d 1193, 1199 (Pa. Super. 2012) (quoting Charles v. Stehlik, 560 Pa. 334, 744 A.2d 1255, 1258 (2000) ). Section 5327 of the Custody Act pertains to cases "concerning primary physical custody" and provides that, "[i]n any action regarding the custody of the child between a parent of the child and a nonparent, there shall be a presumption that custody shall be awarded to the parent. The presumption in favor of the parent may be rebutted by clear and convincing evidence." 23 Pa.C.S. § 5327(b). This Court has defined clear and convincing evidence "as presenting evidence that is so clear, direct, weighty, and convincing so as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue." M.J.S. v. B.B. v. B.B. , 172 A.3d 651, 660 (Pa. Super. 2017) (citations and internal quotation marks omitted).

Accordingly, "even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the biological parents' side." V.B. , 55 A.3d at 1199 (quoting Charles, 744 A.2d at 1258 ). When making a decision to award primary physical custody to a nonparent, the trial court must "hear all evidence relevant to the child's best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party's side." Id. (quoting McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000) ).

These principles do not preclude an award of custody to the nonparent but simply instruct the trial court that the nonparent bears the burden of production and the burden of persuasion and that the nonparent's burden is heavy. Jones v. Jones , 884 A.2d 915, 918 (Pa. Super. 2005). It is well settled, "[w]hile this Commonwealth places great importance on biological ties, it does not do so to the extent that the biological parent's right to custody will trump the best interests of the child. In all custody matters, our primary concern is, and must continue to be, the well-being of the most fragile human participant—that of the minor child." Charles , 744 A.2d at 1259. "Once it is established that someone who is not the biological parent is in loco parentis , that person does not need to establish that the biological parent is unfit , but instead must establish by clear and convincing evidence that it is in the best interests of the children to maintain that relationship or be with that person." Jones , 884 A.2d at 917 (emphasis in original).

The crux of Appellant's first argument is that R.L. failed to present clear and convincing evidence to rebut the statutory presumption in favor of awarding primary physical custody to Appellant as opposed to R.L. Appellant's Brief at 7-8.

Instantly, R.L. filed a Custody Complaint seeking shared physical and legal custody, to memorialize the informal custody agreement that had been in place between her and Appellant for several years. In response, Appellant stated on the record that she was seeking primary physical custody. N.T. Custody Hearing, 10/16/18, at 100-01. The trial court recognized a statutory presumption in favor of Appellant but...