J-S24031-23
2023 PA Super 160
VICTOR TAYLOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KAREEM SMITH : No. 368 MDA 2023
Appeal from the Order Entered March 1, 2023
In the Court of Common Pleas of Lycoming County Civil Division at
No(s): FC-2021,20728-CU
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: SEPTEMBER 6, 2023
Victor Taylor (“Father”) appeals from the order dated and entered March
1, 2023, awarding shared legal and physical custody of K.J. (“Child”), a male
child born in April of 2020, to him and Kareem Smith, the nonbiological father
who stood in loco parentis to Child. After a careful review, we affirm.
Child was born to S.J. (“Mother”). At the time, Mother was in a
relationship with Mr. Smith. Mr. Smith thought he was Child’s father and
raised Child with Mother until Mother’s death in May of 2021. See N.T.,
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* Former Justice specially assigned to the Superior Court.
J-S24031-23
2/7/23, at 79-82. Thereafter, on July 12, 2021, it was confirmed that Father
is Child’s biological father.1 See id. at 12, 14.
On August 17, 2021, Father filed a complaint for custody against Mr.
Smith seeking sole legal and physical custody of Child. Then, as set forth by
the trial court,
[o]n September 30, 2021, March 1, 2022, and April 26, 2022, the
parties engaged in custody conferences to establish a plan to
permit Father to be introduced into Child’s life….Those
conferences finally resulted in the [o]rder dated April 29, 2022,
[(“interim custody order”)], which provided for shared legal
custody and shared physical custody on a 50/50 basis.[2]
Trial Court Opinion, 3/7/23, at 1 (footnote added). Throughout these
proceedings, Mr. Smith was found to be in loco parentis with respect to Child.3
See id.
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1 We glean from the record that Father sought court approval to perform a
paternity test. Mr. Smith does not dispute Father’s paternity. See N.T.,
2/7/23, at 12.
2 Specifically, the interim custody order, which was entered by agreement,
provided for shared physical custody following a 2/2/5/5 schedule. Order,
filed 4/29/22.
3 In K.W. v. S.L., 157 A.3d 498 (Pa.Super. 2017), this Court stated:
“The term in loco parentis literally means ‘in the place of a
parent.’” Peters v. Costello, 586 Pa. 102,
891 A.2d 705, 710
(2005) (citing Black’s Law Dictionary, 791 (7th Ed. 1991)). A
person stands in loco parentis with respect to a child when he
“assum[es] the obligations incident to the parental relationship
without going through the formality of a legal adoption. The
status of in loco parentis embodies two ideas; first, the
assumption of a parental status, and, second, the discharge of
parental duties.” Id. (quoting T.B. v. L.R.M.,
567 Pa. 222, 786
(Footnote Continued Next Page)
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The trial court conducted a hearing on February 7, 2023. Father and
Mr. Smith each testified on their own behalf. In addition, Father presented
the testimony of his live-in girlfriend, V.C., and Mr. Smith recalled Father as
on cross-examination.4, 5 Father reiterated his request for sole legal and
physical custody. See N.T., 2/7/23, at 28, 35-36, 43. Mr. Smith, however,
requested the trial court maintain shared legal and physical custody. See id.
at 83, 99.
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A.2d 913, 916–17 (2001)). Critical to our discussion here, “in loco
parentis status cannot be achieved without the consent and
knowledge of, and in disregard of[,] the wishes of a parent.” E.W.
v. T.S., 916 A.2d 1197, 1205 (Pa.Super. 2007).
K.W.,
157 A.3d at 504-05 (citation omitted). Father does not challenge Mr.
Smith’s in loco parentis status.
4 Father also marked and admitted two exhibits during this hearing, including
a photograph of Child. See N.T., 2/7/23, at 17, 59-60. While not included
with the certified record, we do not find this omission detrimental to our
review. We, however, stress and remind counsel, “[an] [a]ppellant has the
responsibility to make sure that the record forwarded to an appellate court
contains those documents necessary to allow a complete and judicious
assessment of the issues raised on appeal.” Commonwealth v. Wint,
730
A.2d 965 (Pa.Super. 1999). See Pa.R.A.P. 1921 Note (stating, “Ultimate
responsibility for a complete record rests with the party raising an issue that
requires appellate court access to record materials.”) (citation omitted)).
Further, despite references to the lack of notes of testimony for this
hearing at the time of the submission of the briefs and reproduced record, we
observe that notes of testimony were submitted as a supplement to the
certified record and, therefore, available to this Court for review.
5 Due to Child’s young age, the trial court did not speak with Child. See N.T.,
2/7/23, at 6.
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By order dated and entered March 1, 2023, the trial court memorialized
its findings and maintained the interim order awarding the parties shared legal
and physical custody. On March 6, 2023, Father filed a timely notice of appeal,
along with a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court filed a Rule 1925(a) opinion
on March 7, 2023.6
On appeal, Father raises the following sole issue for our review:
“Whether the court erred in granting an [in loco parentis] party shared
physical and legal custody of the child when the weight of the evidence
presented was against a decision of that nature.” Father’s Brief at 4
(unnecessary capitalization omitted).
We review custody orders for an abuse of discretion. See R.L. v. M.A.,
209 A.3d 391, 395 (Pa.Super. 2019). We will not find such an abuse merely
because we would have reached a different conclusion. See
id. Rather, an
abuse of discretion occurs only if the trial court overrode or misapplied the law
in reaching its conclusion, or the record shows the trial court’s judgment was
manifestly unreasonable or the product of partiality, prejudice, bias, or ill will.
See
id.
____________________________________________
6 The trial court referenced its reasoning placed on the record at the conclusion
of the hearing and discussed infra. See Trial Court Opinion, 3/7/23, at 2.
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Moreover, our scope of review is broad. See id. Because this Court
does not make independent factual determinations, however, we must accept
findings of the trial court that are supported by competent evidence of record.
See S.C.B. v. J.S.B.,
218 A.3d 905, 913 (Pa.Super. 2019). Importantly, we
defer to the trial court on matters of credibility and weight of the evidence, as
the trial court viewed and assessed witnesses firsthand. See
id. We are not,
however, bound by the trial court’s deductions or inferences. See
id.
“Ultimately, the test is whether the trial court’s conclusions are unreasonable
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.” E.D. v. M.P.
33 A.3d 73, 76
(Pa.Super. 2011) (quoting A.D. v. M.A.B.,
989 A.2d 32, 35–36 (Pa.Super.
2010)). As this Court has held, “[i]t is not this Court’s function to determine
whether the trial court reached the ‘right’ decision; rather, we must consider
whether, ‘based on the evidence presented, given [sic] due deference to the
trial court’s weight and credibility determinations,’ the trial court erred or
abused its discretion[.]” King v. King,
889 A.2d 630, 632 (Pa.Super. 2005)
(quoting Hanson v. Hanson,
878 A.2d 127, 129 (Pa.Super. 2005)).
“When a trial court orders a form of custody, the best interest of the
child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014).
“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,
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moral and spiritual well-being.” M.J.N. v. J.K., 169 A.3d 108, 112 (Pa.Super.
2017). To that end, the Child Custody Act sets forth sixteen factors that a
court must consider before making any custody determination. See E.B. v.
D.B.,
209 A.3d 451, 460 (Pa.Super. 2019). “It is within the trial court’s
purview as the finder of fact to determine which factors are most salient and
critical in each particular case.”
Id. (citation omitted). The statutorily
required factors are as follows:
§ 5328. Factors to consider when awarding custody.
(a) Factors. – In ordering any form of custody, the court
shall determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a continued
risk of harm to the child or an abused party and which party can
better provide adequate physical safeguards and supervision of
the child.
(2.1) The information set forth in section 5329.1(a)(1) and
(2) (relating to consideration of child abuse and involvement with
protective services).
(3) The parental duties performed by each party on behalf of
the child.
(4) The need for stability and continuity in the child’s education,
family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child's maturity and judgment.
(8) The attempts of a parent to turn the child against the other
parent, except in cases of domestic violence where reasonable
safety measures are necessary to protect the child from harm.
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(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for
the child's emotional needs.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the
child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to
make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness
and ability of the parties to cooperate with one another. A party’s
effort to protect a child from abuse by another party is not
evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member
of a party’s household.
(15) The mental and physical condition of a party or member of
a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 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 23 Pa.C.S.[A.] § 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).
R.L.,
209 A.3d at 395.
As it relates to parents and third parties, we have further explained:
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
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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.[A.] § 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
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).
R.L., 209 A.3d at 396 (emphasis in original).
Instantly, the trial court analyzed the custody factors set forth in Section
5328(a) on the record at the conclusion of the hearing. See N.T., 2/7/23
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(factors analysis), at 2-10. The trial court suggested the factors in Section
5328(a)(2),7 (7), and (16)8 are inapplicable. See id. at 4-6. The trial court
found the remaining factors weighed evenly. See id. at 4-6, 9-10. The trial
court found salient Section 5328(a)(4), the need for stability and continuity in
the child’s education, family life, and community life. In this regard, the trial
court indicated the following:
So[,] I find by clear and convincing evidence that the overarching
factor under Section 5328 is the need for stability and continuity
in this child’s education, family life, and community life….[B]oth
of you are doing a terrific job of raising this child….[T]he best thing
I can do, frankly, is nothing. That is, to leave the existing order
in place.
Id. at 3, 10. As such, while the trial court recognized the statutory
presumption in favor of biological parents set forth at 23 Pa.C.S.A. § 5327(b),
the trial court found clear and convincing evidence that Child’s best interests
dictated maintaining shared legal and physical custody:
The [c]ourt is mindful that 23 Pa.C.S.[A.] Section 5327(b)
provides that Father is entitled to a presumption over Smith. That
presumption may be rebutted by clear and convincing evidence.
[T]he [c]ourt finds by clear and convincing evidence that the
need for stability and continuity in [] Child’s life is sufficient to
overcome the presumption contained in 23 Pa.C.S.[A.] Section
5327(b). Based upon that need for continuity, and based upon
the fact that the parties are successfully co-parenting [] Child
under the Order dated April 29, 2022, the [c]ourt finds by clear
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7 While the trial court did not separately address Section 5328(a)(2.1), the
court noted the lack of involvement of a children’s services agency at the
beginning of its discussion. See N.T., 2/7/23 (factors analysis), at 2-3.
8 We find the trial court’s lack of discussion of Section 5328(a)(16) suggestive
of its determination that it was not applicable.
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and convincing evidence that there is no basis for changing
custody as established by that Order. For that reason, the Order
of April 29, 2022, is affirmed, and incorporated herein by
reference as if more fully set forth, herein.
Trial Court Order, 3/1/23, at 2. See Trial Court Order, 3/7/23, at 2.
Father, however, asserts there is a lack of clear and convincing evidence
to rebut the statutory presumption in his favor. See Father’s Brief at 8-10.
However, Father does not dispute the equal weight the court placed on the
custody factors between him and Mr. Smith. See id. at 9. As discuss infra,
Father misapprehends the law, and his claim fails.
Significantly, we find R.L. instructive. In R.L., where the trial court
concluded the custody factors weighed evenly, and the evidentiary scales were
tipped to even,9 the trial court awarded shared legal and physical custody to
the child’s mother and mother’s former paramour, R.L., whom the trial court
found to be in loco parentis. On appeal, this Court affirmed the trial court’s
award of shared legal and physical custody. R.L., 209 A.3d at 393, 397-98.
Addressing the mother’s challenge to the evidentiary burden and assertion of
a lack of clear and convincing evidence to rebut the statutory presumption,
this Court held:
Our precedent merely requires the scale to tip to the third
party’s side prior to awarding primary physical custody to the
third party and, thus, we find no error in the trial court’s finding
that, in this case, when the scale was “tipped to even,” an award
of shared [] custody was in [the] [c]hild’s best interest.
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9 In R.L., the trial court found, in part, that the child was doing well under the
existing 50/50 custody arrangement. R.L., 209 A.3d at 397.
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Id. at 398.
Similarly, here, the record supports the trial court’s conclusion that the
factors weighed evenly between the parties. For example, at the time of the
subject proceeding, Father and Mr. Smith had been exercising 50/50 shared
custody for almost one year. See Order, 4/29/22. Father and Mr. Smith both
reside in Williamsport in the same school district. See N.T., 2/7/23, at 45-
46, 79. Father testified things are going well, and he and Mr. Smith are
working together “perfectly” and as “civilized parents.” Id. at 36. See id. at
29. Mr. Smith agreed. See id. at 83, 103-104. Further, Child is happy and
doing well. He has half-siblings and extended family, with whom he is close,
associated with each home. See id. at 17-24, 62, 65-67, 83-84, 86-89.
Following an analysis of the Section 5328(a) custody factors, the trial
court concluded the factors weighed evenly between the parties. Upon review,
the trial court did not abuse its discretion in determining that an award of
shared legal and physical custody was in Child’s best interest. See R.L., 209
A.3d at 398. In challenging the trial court’s conclusions and assessments,
Father seeks to have this Court re-find facts, re-weigh evidence, and re-assess
credibility. However, we will not disturb the trial court’s findings of fact and
determinations regarding the credibility and weight of the evidence absent the
trial court’s abuse of discretion. See King,
supra. Here, there was no such
abuse of discretion.
For the foregoing reasons, we affirm the trial court’s order.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/2023
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