K.T. v. L.S.

• Decision Date: 17 June 2015
• Docket Number: No. 2072 MDA 2014,2072 MDA 2014
• Citation: 2015 PA Super 141,118 A.3d 1136
• Parties: K.T. and M.R.T., Appellants v. L.S. f/k/a L.R., Appellee.
• Court: Pennsylvania Superior Court

118 A.3d 1136

2015 PA Super 141

K.T. and M.R.T., Appellants

v.L.S. f/k/a L.R., Appellee.

No. 2072 MDA 2014

Superior Court of Pennsylvania.

Submitted March 31, 2015.

Filed June 17, 2015.

David C. Schanbacher, York, for appellants.

Meredith R. Allie–Gordon, York, for appellee.

BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

Opinion

OPINION BY GANTMAN, P.J.:

Appellants, K.T. (“Paternal Grandmother”) and M.R.T. (“Paternal Grandfather”) (collectively, “Paternal Grandparents”), appeal from the order entered in the York County Court of Common Pleas, which denied their request for partial physical custody of their minor grandchildren, K.A.T. (born in September 2007) and K.W.R. (born in March 2009) (“Children”), in this custody action. We reverse and remand for further proceedings.

The certified record indicates the relevant facts and procedural history of this case as follows. Appellee, L.S. f/k/a L.R. (“Mother”), and D.T. (“Father”) are the natural parents of Children. Mother gave birth to K.A.T. while she was in high school and living with her mother (“Maternal Grandmother”). Maternal Grandmother would not permit Father to live with Mother because they were unmarried, so Mother moved in with Father in Paternal Grandmother's home in December 2007, when K.A.T. was approximately two months old.¹ Mother and Father did not marry, but they maintained a relationship until early 2009. In January 2009, when Mother was pregnant with their second child, K.W.R., Mother and Father separated and Mother moved with K.A.T. out of Paternal Grandmother and W.B.'s home.² At that time, Mother moved in with a co-worker for several months.

Beginning in January or February 2009, Mother and Father split custody of K.A.T. During Father's periods of physical custody, Children resided with Father in Paternal Grandmother and W.B.'s home. Mother gave birth to K.W.R. in March 2009. Mother and Father subsequently split custody of K.W.R. as well. In April 2009, Mother met D.S. In May 2010, Mother married D.S. (“Mother's Husband”) in Hawaii; Father and Mother agreed Father would take custody of Children while Mother was in Hawaii to marry. In the summer of 2010, Father anticipated imminent deployment to Iraq. Based on his expected deployment, Father agreed Mother could take Children to live in Hawaii with Mother's Husband.³ Mother and Father agreed Father would have custody of Children during the summer months and holidays, and that Father could communicate with Children via phone calls and social media. Around August 2010, Mother and Mother's Husband moved with Children to Hawaii. Mother obtained a new telephone number, but she did not disclose her new phone number to any of Father's family members, including Paternal Grandparents, and limited Children's telephone communication only to Father. After Mother had already moved to Hawaii with Children, Father learned his anticipated deployment would not occur, but he continued to permit Mother to live with Children in Hawaii. Mother and Father agreed that if Mother moved back to Erie County, they would again split physical custody of Children on an equal basis.

In November 2011, Mother and Mother's Husband returned from Hawaii with Children and moved to Clymer, New York.⁴ The parties dispute whether Mother told Father she had moved back from Hawaii with Children. In August 2012, Mother and Children moved with Mother's Husband to Wisconsin. Mother obtained a new phone number upon moving, which she did not give to Father or Paternal Grandparents. On February 17, 2013, while Mother and Children were still living in Wisconsin with Mother's Husband, Father died in an automobile accident. Mother and Children did not attend Father's funeral. Around March 2013, Mother and Mother's Husband moved with Children to York County, Pennsylvania, where they currently reside.

On September 6, 2013, Paternal Grandparents filed a joint petition in York County seeking partial physical custody of Children.⁵ At the time Paternal Grandparents filed their petition, Mother had denied them any access whatsoever to Children. By order dated October 4, 2013 and entered October 7, 2013, the court issued an interim custody order granting sole legal and primary physical custody of Children to Mother. The court awarded Paternal Grandparents the following periods of partial physical custody, beginning with a “phase-in” schedule:⁶ (1) Friday, September 27, 2013, from 5:30–7:30 p.m., in York County, with Mother present; (2) Saturday, September 28, 2013, from 9:30 a.m. until 12:00 p.m., in York County, with Mother present; (3) December 27–29, 2013, at Paternal Grandmother's home in Erie County, phasing out Mother's presence during the scheduled visits; and (4) two weekends between January 1, 2014 and June 1, 2014, in York County. The interim custody order provided the following regular schedule of partial physical custody thereafter: (1) three weeks over the summer (one week in June, July, and August) in the summer of 2014 and each following summer; (2) two weekends each in the fall and spring to occur in York County; (3) four overnight periods during Children's Christmas break, between December 27th through December 31st each year; and (4) any other times agreed to by the parties. The interim custody order also included a provision for Skype communication between Children and Paternal Grandparents to occur each Sunday at 7:00 p.m., beginning on October 6, 2013.

After Paternal Grandparents commenced their custody action, Mother's Husband started proceedings to adopt Children. The court initially granted the adoption, but Paternal Grandparents intervened on or around November 4, 2013, when they learned of the proceedings. Because Mother and Mother's Husband failed to notify Paternal Grandparents about the adoption proceedings, the court vacated the adoption decree.⁷

The court held a custody trial on February 10, 2014. At the start of trial, the court announced it was the first custody trial the court had presided over in approximately five years. The court expressed dissatisfaction with the legislature's enactment of the Custody Act since the court had last presided over a custody trial. The court stated:

Frankly, I'm not sure how I want to do this. But since this is the first custody trial that I have to sit on—fortunately, the other cases assigned to me have been resolved by agreements.

That being so, I think it fair to counsel to advise them that I did sit and try and figure out when the last custody trial I had and I think it was about five years ago having other assignments in the interim.

And during that period of time, the legislature enacted a big comprehensive custody act, bunch of stuff that they did. They determined that they needed to help the courts in deciding these cases by telling them what factors they have to consider in determining what the best interest of the child or children is.

Honestly, I've taken a look at the statute. I have personal reservations as to whether the legislature can tell me how to make a decision. But I'm told that's the way we do it.

So counsel should be on the alert that I haven't studied these things. I haven't gone and looked and figured out whatever. So touch base on those things that you think are important to decide what is in the best interest[s] of these children.

(N.T. Trial, 2/10/14, at 11–12; R.R. at 9a).

Paternal Grandmother testified, inter alia, as follows.⁸ Mother moved into her home when K.A.T. was approximately two months old. Paternal Grandmother and Mother had a nice relationship while Mother lived with her and W.B. During this time, Mother wrote Paternal Grandmother and W.B. a “thank you” card expressing gratitude for their kindness and generosity, as well as a Valentine's Day card.⁹ Mother also wrote Paternal Grandmother a “get well” card after Paternal Grandmother had surgery. On February 7, 2008, Mother executed an “authorization for treatment of a minor” form, which gave Paternal Grandmother and W.B. authority to accompany K.A.T. to doctor's appointments and to consent to K.A.T.'s medical examinations and/or treatment.

Mother moved out in January 2009. When Mother and Father split custody of Children, Father was living with Paternal Grandmother, so Children stayed at Paternal Grandmother and W.B.'s home during Father's periods of physical custody. Paternal Grandmother testified Mother refused to let Paternal Grandparents communicate with Children when they lived in Hawaii. Paternal Grandmother explained Mother threatened Father while in Hawaii that if Father disclosed Mother's phone number to Paternal Grandparents, or allowed anyone else on the phone line during Father's phone calls with Children, that Mother would disconnect the call. Mother also “un-friended” Paternal Grandmother on Facebook.

Paternal Grandmother testified that Mother failed to tell Father when she moved from Hawaii to Clymer, New York. In February 2012, Father learned that Mother was in Clymer, and when Father confronted Mother about moving from Hawaii, Mother claimed she was back in town for a short time on vacation. Paternal Grandmother explained Mother agreed Father could visit Children once during this “vacation” period. Paternal Grandmother testified that Father visited Children again in July 2012, when Father discovered through Maternal Grandmother that Mother was still living with Children in Clymer. In August 2012, Father returned to Clymer to visit Children again, but Mother had already moved away.

Following Father's sudden death in February 2013, Paternal Grandmother hired a private investigator to locate Mother and Children. When the private investigator discovered Mother had an address in Wisconsin, Paternal Grandmother hired a second private investigator in Wisconsin. Ultimately, Paternal Grandmother located Mother and Children in York County, Pennsylvania. Upon finding Mother and Children, Paternal Grandparents served Mother with the custody complaint.

Paternal Grandmother testified that Mother was uncooperative...