HomeMy WebLinkAbout2016-05508 (2)
KELSEY E. BAER, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. CIVIL ACTION
TERRY A. DAWSON, NO. 2016-5508 CIVIL TERM
Defendant
v.
JENNIFER BAER, CUSTODY
Intervenor
IN RE: OPINION PURSUANT TO Pa.R.A.P. 1925(a)
HYAMS, J., JULY 22, 2020
Maternal Grandmother and Intervenor, Jennifer Baer, filed an action to have primary
custody over the minor child. Defendant Terry A. Dawson (hereinafter “Father”) filed a Motion
to Dismiss Intervenor’s Petition to Modify Custody Due to Lack of Standing (hereinafter the
“Motion to Dismiss”). This Court entered an order on May 26, 2020 denying the Motion to
Dismiss and finding that Maternal Grandmother had standing to petition the Court to modify the
existing custody Order. On June 23, 2020, Father filed a Notice of Appeal, which is being
handled through the Children’s Fast Track system, along with a Concise Statement of Matters
Complained of on Appeal. Specifically, Father bases his appeal on the following issues:
1. The Honorable Trial Court erred in denying Defendant’s Motion to
Dismiss and finding that Intervenor has standing to pursue any form of
physical custody pursuant to 23 Pa.C.S.A. § 5324(3) where the finding
was made based on allegations rather than evidence put on the record.
2. The Honorable Trial Court erred in denying Defendant’s Motion to
Dismiss and finding that Intervenor has standing to pursue partial or
supervised physical custody pursuant to 23 Pa.C.S.A. § 5325(2) where the
finding was made based on allegations rather than evidence put on the
record.
3. The Honorable Trial Court erred in finding that Intervenor has standing to
pursue custody where there is no evidence in the record to support such a
finding.
4. The Honorable Trial Court erred in finding Intervenor has standing to
pursue primary physical custody based on a prior grant of joinder pursuant
to a March 5, 2013 Necessary Party Order.
Concise Statement of Matters Complained of on Appeal, Dkt. No. 85, June 23, 2020.
Statement of Facts and Procedural History
This custody action was initiated on September 13, 2012, by Plaintiff Kelsey E. Baer
(hereinafter “Mother”) in Dauphin County, Pennsylvania. On March 11, 2013, the Court ordered
that Maternal Grandmother be joined as a “necessary party to this custody action.” Maternal
Grandmother has remained a party to this matter since the March 11, 2013 Order.
Mother and Maternal Grandmother filed an Emergency Petition for Modification of
Existing Custody on September 26, 2016, alleging that Father had been abusing and selling
drugs, and that the minor child had been physically abused by her uncle while in the custody of
her Father. In addition, Mother and Maternal Grandmother alleged that Father threatened to kill
Mother if she called the police.
Also on September 26, 2016, Father filed a Petition for Civil Contempt of a Custody
Order alleging, inter alia, that Mother had been soliciting drugs and violating the Custody Order
with regard to his attempts to speak with the minor child by phone.
On September 27, 2016, the Honorable Jeannine Turgeon issued an Order directing that
this custody action be transferred to Cumberland County.
Upon consideration of the Emergency Petition for Modification of Existing Custody, the
Honorable Jessica E. Brewbaker granted sole physical and legal custody of the minor child to
Maternal Grandmother “and/or” Mother on October 5, 2016, and referred the matter to
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conciliation on the underlying custody action. Subsequently, a Custody Conciliation Report was
prepared, and on October 21, 2016, Judge Brewbaker ordered that the parties have shared
physical custody of the minor child “on a 5-week on/5-week off schedule,” and that they attend
another conciliation conference scheduled for February 7, 2017.
The status quo with regard to custody was maintained following the conciliation
conference on February 7, 2017. A third conciliation conference took place on April 11, 2017. In
the Custody Conciliation Summary Report that followed, Mother’s stated position was that she
wanted shared legal and primary physical custody, with Father having custody for large portions
of the summer and school holidays. The Report further stated that Mother had concerns with
regard to the minor child’s safety in Father’s home. Father’s position was the opposite of
Mother’s, with himself having primary physical custody. Father’s concerns about the minor
child’s safety in Mother’s custody were also included. As a result of the parties’ conflicting
positions regarding custody of the minor child, the Court scheduled a pretrial conference and a
hearing for May and June, respectively.
A custody trial was held on June 14, 2017. In comparing the two households, Judge
Brewbaker pointed to the positive influences on the minor child’s life with Mother and Maternal
Grandmother, and contrasted them with the potential problems of Father’s household, including
his brother’s past abuse of the minor child and Father’s friends engaging in “questionable
activities.” The evidence presented at trial revealed that Mother and Maternal Grandmother, who
were represented by the same counsel and living in the same house, provided “the more stable
and consistent home for the child.”
As a result, Judge Brewbaker issued an Order on June 23, 2017, granting Mother primary
physical custody of the minor child during the school year. Father would have physical custody
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during the summers and legal custody would be shared by Mother and Father.
In accordance with the new custody arrangement, the minor child spent the remainder of
the summer with Father in Ohio, and returned to Pennsylvania for the school year in August to
live with Mother and Maternal Grandmother. The minor child spent the entire school year with
Mother, and spent the 2018 summer with Father. Subsequently, the minor child returned to live
with Mother in August of 2018.
On December 4, 2018, Cumberland County Children and Youth Services contacted
Father to come and get the minor child. Mother, who had just given birth to her most recent
child, was dealing with issues of post-partum depression and was not in the right mental state to
take care of her children. As a result, Father was given temporary custody of the minor child and
returned to Ohio with her on December 4, 2018.
On December 6, 2018, Father filed a Petition for Emergency Relief and Judge Brewbaker
issued an Order scheduling a hearing for December 12, 2018. Neither Maternal Grandmother,
nor her counsel received notice of Father’s Petition for Emergency Relief or the December 12,
2018 hearing. Therefore, Maternal Grandmother did not have the opportunity to be heard at the
hearing. Mother, who was in the hospital at that time, was unrepresented by counsel at that
hearing. As a result, Father was awarded temporary sole legal and physical custody of the minor
child on December 13, 2018.
Maternal Grandmother then contacted her current counsel to look into the status of the
minor child and soon learned of the December 13, 2018 Order granting Father temporary
custody. Father and Maternal Grandmother discussed the custody of the minor child, and Father
assured Maternal Grandmother that she would be allowed to have telephone and physical contact
with the minor child.
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Maternal Grandmother alleges that since the December 2018 Order granting Father sole
physical custody, she had made numerous attempts to speak with and visit the minor child, but
Father had refused. Maternal Grandmother alleges only limited telephone contact had been
allowed with the minor child, which had been monitored and controlled by Father.
Maternal Grandmother desires to continue to develop the close relationship she has
established with the minor child. She also fears for the safety of the minor child due to Father’s
recent and past alleged actions. Accordingly, on June 28, 2019, Maternal Grandmother filed a
Petition for Modification of an Existing Custody Order (hereinafter “Maternal Grandmother’s
Petition”).
On July 17, 2019, Father filed Preliminary Objections to Maternal Grandmother’s
Petition. On July 24, 2019, the Honorable Edward E. Guido issued an Order directing the parties
to attempt to resolve Father’s Preliminary Objections at a Conciliation Conference. The parties
attended the Conciliation Conference on July 30, 2019, but were unable to agree to a resolution
regarding Father’s Preliminary Objections. After holding a hearing on August 29, 2019, Judge
Guido overruled Father’s Preliminary Objections, stating that it appeared to the Court that
Maternal Grandmother was not given notice of the Emergency Custody Hearing on December
12, 2018. Judge Guido also stated that the Order following the December 12, 2018 hearing listed
Father’s custody as “temporary.”
On September 4, 2019, Judge Brewbaker issued an order appointing a guardian ad litem
for the minor child. A pretrial conference was scheduled for October 30, 2019, and a trial on
November 20, 2019.
While Maternal Grandmother initially sought partial custody of the minor child, she
notified the parties at the October 30, 2019 pretrial conference that she would now be seeking
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primary custody. Maternal Grandmother alleges that the reason for the change is due to Father’s
history of physical violence and drug and alcohol abuse, as well as more recent concerns of the
same behavior while in the presence of the minor child. Maternal Grandmother asserts that the
new incidents of drug and alcohol abuse and physical violence were brought to her attention by
both the minor child and by certain other witnesses that are willing to testify at a trial.
Upon learning that Maternal Grandmother was seeking primary custody of the minor
child, Father requested a continuance of the custody trial, which was granted by Judge
Brewbaker on November 22, 2019. An Order was issued to state that Maternal Grandmother’s
Petition shall be interpreted to include her claim for primary physical custody of the minor child,
“in addition to the claim for partial physical custody,” and that Maternal Grandmother would not
be required to amend the Petition accordingly. Father reserved the right to contest Maternal
Grandmother’s claim for primary custody and advised the Court that he does not believe she has
that right. Furthermore, the Order provided that Maternal Grandmother would have partial
custody of the minor child from December 21, 2019, until January 1, 2020.
Since January 1, 2020, Mother and Maternal Grandmother have made numerous attempts
to speak with the minor child, most of which were denied by Father. According to Maternal
Grandmother, the minor child has conveyed that she is unhappy living with Father.
On January 10, 2020, Father’s Motion to Dismiss was filed, alleging that Maternal
Grandmother’s Petition should be dismissed because she does not have standing for any form of
physical or legal custody. The Court issued a Rule to Show Cause on January 14, 2020, ordering
that an answer to Father’s Motion to Dismiss be filed within twenty (20) days. Maternal
Grandmother filed an Answer (hereinafter the “Answer”) on February 3, 2020, and Argument
was held on February 25, 2020. Father filed a Brief in Support of Defendant’s Motion to Dismiss
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(hereinafter “Father’s Brief”) on March 16, 2020. Maternal Grandmother filed a Brief in
Opposition to Defendant’s Motion to Dismiss (hereinafter “Maternal Grandmother’s Brief”) on
April 6, 2020.
On May 26, 2020, this Court denied Father’s Motion to Dismiss and found that Maternal
Grandmother had standing to pursue any form of physical custody. Father then filed a Notice of
Appeal on June 23, 2020, and his Concise Statement of Matters Complained of on Appeal
(hereinafter “Concise Statement”) contemporaneously therewith.
Discussion
In examining Father’s Concise Statement, he is essentially questioning the sufficiency of
the evidence upon which the Court based its determinations regarding Maternal Grandmother’s
standing to seek physical custody of the minor child pursuant to Sections 5324 and 5325 of the
Pennsylvania Child Custody Statute. In addition, Father asserts that this Court erred in
referencing the prior orders of a court in Dauphin County as part of its finding that Maternal
Grandmother has standing to seek primary physical custody.
A. The evidence to support the determination that Maternal Grandmother has standing to
pursue physical custody was sufficient.
Three of the four issues presented by Father in his Concise Statement concern the amount
of evidence available to support a finding that Maternal Grandmother has standing to seek
physical custody of the minor child. The first issue focuses on standing to pursue primary
physical custody under 23 Pa.C.S. § 5324, while the second issue focuses on partial or
supervised physical custody pursuant to 23 Pa.C.S. § 5325. The third issue is a more generalized
assertion that the Court erred in its determination on standing where there was “no evidence in
the record to support such a finding.” For the following reasons, this Court’s May 26, 2020
Order, denying Father’s Motion to Dismiss and finding that Maternal Grandmother has standing
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to seek physical custody pursuant to Sections 5324 and 5325, should properly be affirmed.
1. Standing under § 5324
In his Concise Statement, Father asserts that the Court erred in finding that Maternal
Grandmother has standing to pursue any form of physical custody pursuant to 23 Pa.C.S. §
5324(3) “where the finding was made based on allegations rather than evidence put on the
record.”
In pertinent part, Section 5324(3) of the Pennsylvania Child Custody Statute extends
standing to pursue any form of physical or legal custody as follows:
(3) A grandparent of the child who is not in loco parentis to the child:
…
(iii) when one of the following conditions is met:
…
(B) the child is substantially at risk due to parental abuse, neglect,
drug or alcohol abuse or incapacity; … .
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23 Pa.C.S. § 5324(3).
The “interpretation and application of a statute is \[\] a question of law.” G.A.P. v. J.M.W.,
194 A.3d 614, 617 (Pa. Super. 2018). Here, the critical question with regard to standing under
subsection 5324(3) is whether the child is “substantially at risk due to parental abuse, neglect,
drug or alcohol abuse or incapacity.” 23 Pa.C.S. § 5324(3)(iii)(B). As this Court stated in the
May 26, 2020 Order, Maternal Grandmother’s Brief, her Answer and the record provide
sufficient evidence to satisfy § 5324(3)(iii)(B).
i. Evidence Regarding Physical Abuse
In September of 2016, while staying at Father’s home, the minor child was subjected to
physical abuse by Father’s brother, Justin. Custody Opinion at 2, Dkt. No. 41, June 23, 2017.
More specifically, after being alone with Justin, the minor child was found with slap marks on
1
Specific parts of § 5324(3) have been omitted because both Father and Maternal Grandmother have stated that they
were not at issue in this case. See, e.g., Father’s Brief at 10.
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her body. Id. After Justin admitted to causing the minor child’s injuries, both he and Father were
“arrested and investigated by the local children’s services agency.” Id. at 2-3. As part of that
same incident, Mother stated “under penalty” that both Father and his brother prevented her from
calling the police by using threats and physically taking away her phone. See Emergency Petition
for Special Relief in Custody at 2, October 3, 2016. On the following day, Mother and the minor
child were transported to a domestic violence shelter by the Oak Hill Police, where they waited
until Maternal Grandmother could transport them back to Pennsylvania. Id. at 2-3.
In addition to the abusive conduct of Father’s brother, Mother has testified that she was
physically, sexually and mentally abused by Father. See Custody Opinion at 5, Dkt. No. 41, June
23, 2017. As a result of that abuse, Mother had an active Protection from Abuse Order against
Father in 2017. Id.
More recently, during a pre-trial conference on October 30, 2019, Maternal Grandmother
notified the Court that she was concerned about the minor child’s health, safety and welfare
while in Father’s custody, as a result of newly received information regarding allegations of
abuse in the presence of the minor child. See Answer ¶ 7. Maternal Grandmother has also
recently asserted that Father is “once again acting out on his violent tendencies through physical
violence while in the presence of the child.” Maternal Grandmother’s Brief at 8. See also Answer
¶ 15. In fact, Maternal Grandmother stated that she and Mother have received such information
regarding Father’s continued use of physical violence “directly from the minor child and from
friends of Father.” Maternal Grandmother’s Brief at 8. See also Answer ¶ 15.
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Father also testified that a disturbing incident took place while the minor child was in his custody, involving his
brother’s eight-year-old son having the three-year-old minor child on top of him. See Custody Opinion at 4, Dkt. No.
41, June 23, 2017.
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ii. Evidence Regarding Drug and Alcohol Abuse
In the past, the minor child has been subjected to drug and alcohol abuse by both of her
parents. In 2013, Children and Youth Services was forced to intervene on behalf of the minor
child as result of drug use by Father. See Emergency Petition for Special Relief in Custody at 2,
Dkt No. 25, September 26, 2016. Moreover, as noted by Judge Brewbaker in June of 2017,
Mother testified that Father “sold, and continues to sell marijuana and pills in support of his own
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drug habit.” Custody Opinion at 2, Dkt. No. 41, June 23, 2017.
In February of 2017, Father tested positive for marijuana after a drug test. Id. at 4. Father
also tested positive for alcohol after taking a drug test at the June 5, 2017 pre-trial conference
with Judge Brewbaker. Id.
Recently, Maternal Grandmother has stated that Father is “once again abusing drugs and
alcohol while in the presence of the minor child.” Maternal Grandmother’s Brief at 7. See also
Answer ¶ 13. Moreover, Maternal Grandmother asserts that she and Mother have similarly
received information regarding Father’s continued abuse of drugs and alcohol “directly from the
minor child and from friends of Father.” Maternal Grandmother’s Brief at 8. See Answer ¶ 15.
With regard to both the physical abuse and the drug and alcohol abuse, Maternal
Grandmother has asserted that the evidence of similar conduct in the past establishes the merit of
the recent concerns about Father’s actions. Maternal Grandmother’s Brief at 8.
Furthermore, while Father might try to assert that the documented issues related to
physical abuse, as well as drug and alcohol abuse in his home are in the past, such an assertion, if
true, is not enough to deny Maternal Grandmother standing and the opportunity to seek custody
of the minor child. In fact, the Court in Martinez v. Baxter stated that the alleviation of
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Judge Brewbaker also stated in the June 23, 2017 Custody Opinion that Mother and Maternal Grandmother’s
house was “clearly the more stable environment” for the minor child, in part because of the “concern about Father’s
drug dealing and/or drug use.” Custody Opinion at 6, Dkt. No. 41, June 23, 2017.
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“immediate safety concerns” does not negate a grandparent’s standing to seek custody where it is
still possible for a parent to create an ongoing risk to the child. 725 A.2d 775, 778 (Pa. Super.
1999) (interpreting a previous version of the statute with similar language). In this case, where
Father has a documented history of his own physical violence and drug and alcohol abuse, in
addition to his brother’s past abuse of the minor child, it certainly appears that it is possible for
Father to create an ongoing risk to the minor child.
Referring specifically to § 5324(3)(iii)(B), the Court in G.A.P. v. J.M.W. stated that “\[t\]he
words of this provision are clear and unambiguous,” and the “plain language of the statute
confers standing to grandparents when a child is substantially at risk due to ongoing parental
behaviors.” 194 A.3d 614, 618 (Pa. Super. 2018).
In this case, given the multitude of documented evidence on the record, the ongoing
parental behavior by Father and the “plain language” of the statute, the Court’s May 26, 2020
Order denying Father’s Motion to Dismiss and granting standing to Maternal Grandmother
pursuant to 23 Pa.C.S. § 5324(3) should be properly affirmed.
2. Standing under § 5325
In his Concise Statement, Father asserts that the Court erred in finding that Maternal
Grandmother has standing to pursue partial or supervised physical custody pursuant to 23
Pa.C.S. § 5325 “where the finding was made based on allegations rather than evidence put on the
record.”
In pertinent part, Section 5325 confers standing upon grandparents to seek partial or
supervised physical custody, as follows:
In addition to situations set forth in section 5324 (relating to standing for any form
of physical custody or legal custody), grandparents and great-grandparents may
file an action under this chapter for partial physical custody or supervised physical
custody in the following situations:
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…
(2) where the relationship with the child began either with the consent of a
parent of the child or under a court order and where the parents of the
child:
…
(ii) do not agree as to whether the grandparents or great-
grandparents should have custody under this section; or
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23 Pa.C.S. § 5325.
As both Father and Maternal Grandmother have agreed that the dispute with regard to
standing to seek partial or supervised physical custody is over § 5325(2)(ii), the issue here is
whether the parents of the minor child “do not agree as to whether the grandparents … should
have custody under this section.” 23 Pa.C.S. § 5325(2)(ii).
Although he claims that both he and Mother “agree that Maternal Grandmother should
have custody” of the minor child, Father also argues that “Maternal Grandmother does not meet
her burden to establish standing to pursue custody” before the Court. Father’s Brief at 13.
Maternal Grandmother’s position is that she had to file a petition for custody because
Father was not permitting her “any form of contact with the minor child.” Maternal
Grandmother’s Brief at 10. Not only was Maternal Grandmother being denied contact with the
minor child, but also Father was telling Maternal Grandmother that he believed the minor child
was not safe in her care and control due to “things being told to him.” Id. at 4 (citing Custody
Dkt No. 2018-09510).
Moreover, on June 25, 2019 at 1:30 p.m., Maternal Grandmother asserts that the minor
child was reprimanded by Father, who had demanded to monitor all calls between Maternal
Grandmother and the minor child. Maternal Grandmother’s Brief at 5. Maternal Grandmother
also asserts that Father, at times, would agree to certain forms of contact or visitation, but would
4
Specific parts of § 5325 have been omitted because both Father and Maternal Grandmother have stated that they
were not at issue in this case. See, e.g., Father’s Brief at 13.
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ultimately “\[make\] up excuses, cancel\[\] visits, and decline\[\] to allow” any visitation. Id. at 11.
Furthermore, the minor child has conveyed to Maternal Grandmother that she believes she is not
old enough to see her and that she has to be 18 years old to do so. That belief, understandably, is
concerning to Maternal Grandmother. Id. at 5.
It appears that Father’s actions in response to Maternal Grandmother’s attempts to have a
relationship and contact with the minor child are not entirely new. In fact, in the past, while
Maternal Grandmother and Mother had allowed the minor child to keep pictures of Father in
their house, Father, on the other hand, had admittedly been blaming Mother for the family’s
inability to “be together.” Custody Opinion at 7, Dkt. No. 41, June 23, 2017. Moreover, Judge
Brewbaker in her June 23, 2017 Custody Opinion noted that “the evidence suggests that it is only
Father who actively attempts to turn Child from Mother.” Id.
Here, the plain language of § 5325(2)(ii) requires a party to show that the parents of the
child do not agree on whether the grandparent(s) should have custody. 23 Pa.C.S. § 5325(2)(ii).
While Father claims on paper that he is in agreement with Mother that Maternal Grandmother
should have custody, his actions and the evidence on record has demonstrated just the opposite.
Accordingly, the Court’s May 26, 2020 Order finding that Maternal Grandmother has standing to
seek partial or supervised physical custody pursuant to 23 Pa.C.S. § 5325(2) should be properly
affirmed.
Furthermore, when interpreting and applying any statute, such as Section 5324 or 5325,
courts in Pennsylvania “must presume that the General Assembly does not intend a result that is
absurd, impossible of execution, or unreasonable and does intend to favor the public interest over
any private interest.” G.A.P. v. J.M.W., 194 A.3d 614, 617 (Pa. Super. 2018) (citing 1 Pa.C.S. §
1922(1) and (5)) (emphasis in original). In this case, it would be absurd and unreasonable to deny
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Maternal Grandmother standing to seek physical custody of the minor child, with whom she has
already had both legal and physical custody of in the past, and where the Court, in a previous
opinion, determined that Maternal Grandmother’s presence in the home provides a more stable,
consistent, structured and supportive environment for the minor child. See Custody Opinion at 4-
9, Dkt. No. 41, June 23, 2017.
Moreover, for the same reasons stated above, this Court asserts that the third issue
included in Father’s Concise Statement, which broadly states that there is “no evidence in the
record” to support a finding that Maternal Grandmother has standing, is without merit.
Therefore, this Court’s May 26, 2020 Order granting Maternal Grandmother standing to seek
primary physical custody under § 5324(3) and partial or supervised physical custody under §
5325(2), should be properly affirmed.
B. Standing was not granted or based upon the March 5, 2013 Necessary Party Order.
The final issue raised by Father in his Concise Statement mischaracterizes this Court’s
May 26, 2020 Opinion. Father suggests that this Court granted standing to Maternal
Grandmother based on a prior Order declaring her to be a necessary party to the custody action.
As specifically stated in the Opinion, the March 5, 2013 Necessary Party Order was not binding
on the issue of standing, but it did provide some context to pertinent background information
including the fact that after Maternal Grandmother was joined as a necessary party she was
awarded aspects of both legal and physical custody. Although noteworthy, the March 5, 2013
Order was just one piece of a complex procedural history puzzle and was not the basis for the
ultimate standing decision. Rather, after careful analysis of 23 Pa.C.S. §§ 5324, 5325 and the
record in its entirety, this Court found that Maternal Grandmother did indeed have standing.
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Conclusion
This Court’s Order, filed May 26, 2020, denying Father’s Motion to Dismiss and granting
Maternal Grandmother standing to seek primary physical custody and partial or supervised
physical custody of the minor child, should properly be affirmed.
BY THE COURT:
Carrie E. Hyams
Carrie E. Hyams, Judge
Distribution:
Kara W. Haggerty, Esquire, L AW O FFICES OF P ETER J. R USSO, P.C., 245 Grandview Avenue, Suite 102,
Camp Hill, Pennsylvania 17011, Attorneys for Defendant
Diane G. Radcliff, Esquire, 1207 Scenery Drive, Mechanicsburg, Pennsylvania 17050, Guardian Ad
Litem
Fawn E. Kehler, Esquire, P.O. Box 122, Etters, Pennsylvania 17319, Attorney for Intervenor
nd
Kelsey E. Baer, 402 North 2 Street, Apt. 2, Harrisburg, Pennsylvania 17101, Pro Se Plaintiff
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