This week the Montgomery Bar Association is presenting a seminar on third parties in divorce, support and custody litigation as part of its annual series to celebrate the life of Judge Toby Dickman. The Superior Court made its own offering to the topic on October 21 when a three judge panel issued an opinion affirming Westmoreland County’s decision that an unrelated third party can still have partial custody of a six year old child over the objections of that child’s mother.

            The child was born in August 2016 and by October mother turned the child over to her mother (Maternal Grandmother or “MG” as we shall label her). It seems that while Mom left, her boyfriend, Frank Howell continued to live with MG. When the child was a year old (8/2017) MG filed an emergency petition and secured an order awarding her legal and physical custody with mom to have supervised visits. Natural Father was named as a party but did not participate.

            In 2018 MG told Mr. Howell he was not having more contact with the child although its not clear when he actually stopped living in MG’s household. Howell filed a petition claiming custody rights as an in loco parentis party. For those who eluded Latin in grade school the word mean “in the place of a parent.” Howell said he had lived with and provided support to the child until August 2017.  Mother knew about the proceedings but chose not to take any position on them.

            After hearing the case the trial court awarded non parent Howell shared legal and primary physical  custody of the child. MG got partial and natural mother continued with supervised visits because she wasn’t following orders that were intended to increase her contact. Meanwhile, in October 2018 Mother (the supervised one) filed a pleading alleging Howell had inappropriately touched the now two year old. The emergency order gave Mom primary custody and stripped Howell and MG of contact. When this was finally heard, relief was denied and the child bounced back to the former schedule. Wow.

            In January 2019 the parties agreed to expand mother’s contact. The appellate cse suggests MG’s role began to wane and by November 2019 she withdrew from the case. Meanwhile by August 2020 (child now age 4) Howell and mother agreed that mother had come far enough that she would assume primary legal and physical custody. Howell went to partial physical custody. Not satisfied with a win, mother filed eight months later to seek dismissal of Howell from the case as he was no longer in loco parentis. When that motion was denied Mom appealed and the Superior Court quashed the appeal as interlocutory. (750 WDA 2021). Another hearing yielded little change. Mother had primary and legal custody and Mr. Howell continued with partial custody over Mom’s objections.

            The appeal before the Court comes from an order dated January 2022. Mom undoubtedly looked at the trend in Pennsylvania jurisprudence beginning with D.P. v. G.J.P. 146 A.3d 204 (Pa. 2017) (holding that the grandparent custody statute invaded family privacy) and continuing with K.W. v. S.L. & M.L. v. G.G ,  2017 Pa. Super. 56 (2017) (adoptive parents dismissed from custody case where both natural parents wish to raise the child). Her argument was essentially that once Mr. Howell turned over the baton of primary custody to Mother, he abdicated his in loco parentis standing and that loco status had to be measured not based on prior conduct but his contacts at the time of hearing.

            The argument was too clever. The trial court noted that Howell was the “one and only person who always cared” for the child and that his conduct as partial custodian continued through the 2021 trial.

            In a sense one could say this was an easy call for the courts. But no one has really evaluated when and how in loco rights can be lost nor is there any indication whether Howell’s support has a financial aspect. If mom sued Howell for support can he object? Would his objection to paying support have relevance to his in loco status? If he began to cancel or fail to appear for his partial physical custody time, does his prior intense involvement help to preserve his status? PG walked away from the case. But would the result have been different if we continued to have three parties vying for custody with two being in loco parentis? And suppose natural father appeared asking for some time? Can a court find that four is one too many parentes?

            The docket reflects that the case was submitted without argument in August. Mom’s brief was filed before Dobbs v. Jackson Women’s Health Organization 597 U.S. — on June 24. We have observed that Dobbs called into question the line of cases holding that families have privacy rights which include telling third parties to “butt out” of their child custody matters. Tis’ no longer clear where the privacy line is drawn or if it even exists.

            Reconsideration has been requested in this non-precedential case. Suffice to say the facts in this one demonstrate that third parties are getting plenty of opportunity to help the natural parents. But just when and how that translates to “standing” to intervene in custody disputes remains a murky area. The opinion seems to suggest that Howell’s standing is based in part on “best interests.” How that squares with the published opinion in K.W. v. S.L. & M.L. v. G.G ,  2017 Pa. Super. 56 (2017) is an interesting question.

Cathers v. Aldrich, Anderson and Howell, 213 WDA 2022 (Oct. 21, 2022). Reconsideration sought 10/28/22