“Experiments” in Custody Arrangements May Confer In Loco Parentis Standing.

Fox Rothschild LLP

Fox Rothschild LLP

One of the most challenging areas of child custody laws in this century has been the debate over who gets to litigate rights to custody. The technical term is “standing” and states across the country have continued to struggle who gets to participate in brawls over child custody.

            The child in controversy in Findley v. Kennedy was born in July 2016 to an unwed couple who share addiction problems. Father also had some periods of incarceration. Beginning in March 2017 the parents agreed to allow the paternal grandparents to take custody. This arrangement was eventually embodied in some form of guardianship agreement of unspecified date. The paternal aunt and uncle also seem to have been enlisted to help provide care for the child.

            For much of the time the paternal aunt and uncle were involved, a niece, Taylor Findley, was also resident with them and also took on child care responsibilities. The actual facts of residency for the now eight-year-old seem murky. The trial court opinion tells us paternal grandparents have been “primary caretakers” since March 2017. Then we are told that the 25 year old person seeking custody is a cousin of the child who the proceedings involve, who lived with the aunt and uncle for roughly 20 months from late 2018 through August, 2020. Her name is Taylor Findley. During this time the Superior Court informs us that the subject child was in the aunt and uncle’s home nearly every night where the child had regular contact with Ms. Findley.

            Ms. Findley began to live on her own in August 2020. At first she saw the child infrequently at the paternal aunt and uncles house when she returned to visit. But then, in the Summer 2021 Findley began to take the child Tuesday to Thursday and on alternate weekends. On those occasions Ms. Findley was primary caretaker although the opinion does not tell us whether the paternal grandparents knew or consented to this arrangement. They seem to have asserted that they were not aware the degree to which Findley had the child after August 2020. (Slip opinion, p. 10). Equally unclear is the knowledge or consent of the actual parents.

            In March 2022 Ms. Findley approached the paternal grandparents about the now 5 1/2 year old child staying full time with her. The response of the grandparents was hostile to this, prompting Findley to bring this action for custody. The matter was heard on a preliminary basis and the Lancaster County court awarded custody to Findley and paternal grandmother on a joint legal basis pending trial with Findley also having partial physical custody. This conference occurred two weeks after the initial filing. At this initial proceeding it appears that the paternal grandparents revealed they had a long history with drug addiction while asserting this was a problem they had addressed. The natural parents were also awarded visits supervised by the paternal grandmother.

            A few weeks after these temporary orders were issued the paternal grandparents filed preliminary objections challenging the standing of Ms. Findley to seek custody. These objections were heard five months after they were filed in April 2022. That hearing was attended by the parents, paternal grandparents and Ms. Findley. The Court sustained the objections to standing on September 26 but the order was not docketed for another week. Findley filed a timely appeal.

            As we noted, “standing” is the legal right to present claims to the court. In response to Supreme Court concerns expressed in its 2017 ruling in D.P. v. G.J.P. 146 A.3d 204 (Pa.), the Custody Act was amended in 2018 to better define who could and could not present claims for custody of a child. As the appellate opinion points out, standing is ordinarily conferred upon grand and great grand-parents but third parties may also seek an award of custody where they act in loco parentis (i.e., in the place of a parent). 23 Pa.C.S. 5324(4). The benchmark to qualify for this form of standing is a sustained relationship with the child and circumstances where the parents have no “form of care or control” of the subject child.

            Standing is an issue reviewed by the courts on a de novo basis, meaning that the trial court’s determination is subject to a complete review without any presumption that the trial court order was correct. Raymond v. Raymond, 279 A.3d 620, 627 (Pa.Super. 2022).

            The Superior Court reversed and remanded, directing the trial court to re-instate the case with Findley as a party as she had shown that she was significantly involved in the life of the child and that the natural parents were not, although they were named as parties to the litigation and had rights to supervised visits. What may have also contributed to this ruling was the fact that until Ms. Findley filed her action, neither the grandparents, nor the parents nor the aunt and uncle had taken any action to secure judicial confirmation of a custody arrangement. The clear signal from the Superior Court panel seems to be that Ms. Findley seemed to be the “adult in the room” when it came to basic health services like dental care or basic judicial arrangements like an order specifying where the child would live.

            This case is emblematic of the emerging trend of “tribal child rearing.” The natural parents have no capacity to do the job and the grandparents seemed content to offload these burdensome responsibilities to an aunt and uncle who then permitted Ms. Findley to have Tuesday to Thursday plus alternate weekends. When the paternal grandparents started to re-assert their controls, Findley struck back with a custody proceeding to protect her rights. Ironically, while the Supreme Court opinion in D.P. v. J.G.P. sought to thin the herd of potential custody litigants, this case will return to Lancaster County with five named parties and a bevy of claims.

Findley v. Kennedy, et al. 1482 M.D.A. 2022 (6/15/2023)


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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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