This custody case is a weird one, where, after four years of litigation, it turns out a grandfather is found to have never had standing.
The timeline is important. Mother and Father have a relationship where father functioned en loco parentis to one child and was natural father to another. In 2018 the relationship dissolved. In January 2019 there was an agreed order for shared legal custody and primary physical custody to dad. Things then went awry as dad was charged with sexual offenses involving minors (not these children). Mother then filed to secure both physical and sole legal custody. Paternal grandfather petitioned in August 2021 to intervene under 23 Pa. C.S. 5325(2). Mother filed preliminary objections. Before those were resolved, the Court held a “risk” hearing where it decided that father was not an imminent risk to his children despite a nolo contendre plea to numerous sexual offences involving unrelated minors including aggravated indecedent assault. Of signal importance to this case is that while grandfather’s intervention was pending mother and father filed an agreed order assigning to mother both legal and physical custody.
Father is next sent to prison and the Lebanon County court transfers the custody case to York County. As often happens the case goes through a series of pre-trial and/or settlement conferences. Mother indicates she does not oppose grandfather involvement but it becomes clear that there is lots of friction and missed visits. In February 2022 the York County court finds grandfather does have standing as to the natural grandchild and the case is scheduled for trial in April 2022 with his standing to the unrelated grandchild to be decided at that trial. At the trial, Father appeared via teleconference from prison. Grandfather was in court. Both father and grandfather offered testimony of the nature and scope of grandpa’s interaction with both children prior to father’s incarceration. The court appears to have not heard any part of mother’s case, but entered a temporary order pending further proceedings. It granted grandfather visits and access to school and health records. The trial resumed in June with mom denying that contacts with grandpa were happy. The June hearing concludes with the temporary order from April retained but the court schedules a September follow-up, apparently out of concern that mother was simply ignoring the limited custody rights grandfather had secured. At that September 22, review mother again asserted that grandfather lacked standing because of the August 2921 agreed order by which mother and father agreed she would have sole legal and physical custody.
Mother tried appealing each of the 2022 orders but the Superior Court quashed them holding that the orders were not final. 1417 MDA 2022. Enforcement proceedings continued into December, 2022.
In 2023 things really start to get off track in a world where dad is still incarcerated and the children are all of 6 & 8 years old. Mom filed a federal action again the judge and named parties claiming her civil rights were violated by the York County proceeding. She also sought recusal of Judge Menges and a venue transfer.
Grandfather filed for contempt of the order on the basis that his visits were denied. And, on May 11, 2023 the Court found mother in contempt. This may have prompted Grandfather to filed for shared custody of the children in July 2023. That was scheduled for October 7, 2024 more than a year after grandfather filed.
Once we arrive in court in October, Grandfather conceded that the custody statute does not allow him to pursue shared custody. But before the modification hearing began the court held mother in contempt of the existing orders and transferred custody of the children to grandfather while sending mother to jail pending compliance with the order. Mother was released after 10 days. It sounds like the actual incarceration began as the trial on the modification ended. The contempt order had some unusual purge conditions:
- Buy each kid a cell phone to talk to grandad
- Write a letter of apology to your kids which is approved by granddad’s lawyer
- Enroll the kids in a free counseling program.
The final order, entered while mom was behind bars gave her sole legal and primary physical subject to grandparent visits and telephonic visits with the father in jail. That was October 7, 2024. This is mother’s appeal of that order.
The Superior Court reversed, holding that mom was right. The Grandpa Custody Train stopped in August 2021 when mom and dad executed an agreed order conferring all custodial rights on mom as dad was headed for prison. The court construes that agreed or as a joint agreement to keep grandparents out. The problem here is that it took nearly half the childrens’ lives to find that conclusion. It is now mom’s right to turn off the cellphones after one last call to gramps to tell him he can pound sand.
There are two lessons here. Be careful that you don’t sign orders effectively locking grandparents out of the case unless that is a term of mutual agreement. It looks like father jumped on a plea agreement and it would not come as a surprise that part of the deal was giving mom exclusive custody because of the sexual violence charges. But in so doing, he thwarted his own dad’s custodial desire to be involved.
The second has to do with standards for custody appeals. The precedent has been parties kicked out of a custody case for want of standing are allowed to appeal because the order is final as to them. But here, the order allowed grandpa into the corrall beginning a multi-year slug fest. The problem is the breadth of the rule proscribing appeals where standing is granted. In this case, the Superior Court quoted its
memorandum quashing mother’s appeal from the trial court’s September 7, 2022, order. The Court then wrote that “a custody order will be final and appealable only if it is both: 1) entered after the court has completed its hearings on the merits; and 2) intended by the court to constitute a complete resolution of the custody claims pending between the parties.” 1417 MDA 2022 (unpublished memorandum at 4). Because “the trial court scheduled [a] December 13, 2022 hearing to consider granting legal custody to Grandfather and increasing physical custody…. we concluded that the September 7, 2022, order was not appealable.”
You can’t fault the reasoning but in our modern world, custody litigation never really ends. There are settlement conferences and pre-trial conferences. Few cases are scheduled for consecutive days so the trial that starts in June may still be underway in October. Then, as here, there are the intervening contempt petitions; some meritorious but often filed to try to drive a better result in the overall custody or relocation case. This case shows just how complex this can be with recusal motions, multiple appeals and a federal civil rights action to boot. All for naught, because dad and his attorney didn’t think through the consequence of an “all custody to mom” order by agreement.
In March, 2009 the Supreme Court tried to do the right thing by revising the rules of civil procedure to “fast track” child custody decisions. But those of us who sentence ourselves to read the appellate results are seeing that the procedures and delays such as that in S.P. v. K.H. and B.H 1654 MDA 2024 are finding that these cases become a kind of forever war. Ironically, the appellate court could have flagged the issue when it quashed the mom’s first appeal with a footnote. It might have quashed the appeal but added: “The matter is not concluded but the Superior Court notes that in its proceedings the trial court must abide by 23 Pa.C.S. 5352 if conferring standing.” That would have been a “yellow card” to the trial court that the agreed order from 2021 could color all future proceedings. That footnote might have been enough to signal to the trial judge that he should probably issue a quick, final and appealable order rather than devote months and years to trying to fix this tragically long custody dispute.
P.S. The same appellate panel also affirmed mom’s appeal of the contempt finding at 1558 MDA 2024. This is its own barrel of monkies. Mother contended absence of standing meant lack of jurisdiction. Meanwhile the appellate court is stating that you can still be in contempt of a court order where the party seeking to enforce that order is ultimately found to have had no right to secure the order you have violated. Hmmm…