Judges Opinions, — May 1, 2019 10:26 — 0 Comments

SARA SHUEY V. JULIE SHUEY NO. 2006 – 20423

Civil Action-Family Law-Custody-Preliminary Objections-Standing-Third Party-
Grandparent
Julie Shuey (“Mother”), who lived with Sara Shuey (“Grandmother”) and the child in this
case from the child’s birth until 2015 when Mother and the child moved in with Mother’s
boyfriend, filed Preliminary Objections to a Complaint in custody filed by Grandmother on
the basis that Grandmother lacks standing to seek partial custody of the child.
1. A preliminary objection should be sustained only where it appears with certainty that the
law will not allow the plaintiff to recover upon the facts averred.
2. Standing in a custody action is a threshold issue, as the Child Custody Act, 23 Pa.C.S. §
2321 et seq., does not permit third parties to seek custody of a child contrary to the wishes
of the child’s parent.
3. Parents have a fundamental right to raise their children without governmental interference.
4. Pursuant to § 5324(C) of the Child Custody Act, a grandparent who is not in loco
parentis to a child may seek any form of physical or legal custody if the child has, for a
period of at least twelve (12) consecutive months, resided with the grandparent, excluding
brief temporary absences of the child from the home, and is removed from the home by the
parents, in which case the action must be filed within six (6) months after removal of the
child from the home.
5. In light of the fact that Grandmother did not file the within Complaint until approximately
three (3) years after Mother removed the child from her household, Grandmother lacks
standing to pursue the current action pursuant to § 5324(C).
6. Under § 5325(2) and (3) of the Child Custody Act, a grandparent may file an action
for partial or supervised physical custody where the relationship with the child began
with the consent of a parent or under a court order and where the parents of the child:
(i) commenced a proceeding for custody and do not agree as to whether the grandparent
should have custody; or (ii) the child has, for a period of at least twelve (12) consecutive
months, resided with the grandparent, excluding brief temporary absences of the child from
the home, and is removed from the home by the parents, in which case the action must be
filed within six (6) months after removal of the child from the home.
7. While Mother does not challenge that the relationship with Grandmother began with her
consent, the current action was commenced by Grandmother, not a parent of the child, and
there is no indication that the parents of the child do not agree as to whether Grandmother
should have custody so as to establish a basis for standing pursuant to § 5325(2).
8. Grandmother failed to file the within action within six (6) months of the removal of the
child from her home so as to confer standing upon her alternatively under § 5325(3).

L.C.C.C.P. No. 2006-20423, Opinion by Samuel A. Kline, Judge, January 18, 2019.
IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

SARA SHUEY V. JULIE SHUEY NO. 2006 – 20423
IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY,
PENNSYLVANIA
CIVIL DIVISION
SARA SHUEY, Plaintiff,
v.
JULIE SHUEY, Defendant.
No.: 2006-20423
IN CUSTODY
AND NOW, to wit, this 18th day of January, 2019, upon Defendant’s Preliminary Objections
to Plaintiff’s Complaint, the parties’ briefs in support of their respective positions, and the
arguments thereupon, Defendant’s Preliminary Objections are hereby SUSTAINED.
Plaintiff is afforded twenty (20) days from the date of this Order within which to file an
Amended Complaint consistent with the Opinion attached hereto or the matter will be
dismissed with prejudice.
BY THE COURT
_________________J.
SAMUEL A. KLINE
APPEARANCES:
R. Scot Feeman, Esq. for Plaintiff
Edward J. Coyle, Esq. for Defendant

SARA SHUEY V. JULIE SHUEY NO. 2006 – 20423

SARA SHUEY V. JULIE SHUEY NO. 2006 – 20423

OPINION, KLINE, J., JANUARY 18, 2019
Before the Court are Defendant’s Preliminary Objections to Plaintiff’s Amended
Complaint. For the reasons set forth herein, Defendant’s Preliminary Objections are
sustained, as specified below.
FACTS AND PROCEDURAL HISTORY
On August 3, 2018, Plaintiff, Sara Shuey (“Grandmother”) filed her Complaint for
Custody seeking partial custody of her grandchild, J.S. The Complaint alleged that J.S. and
Defendant, Julie Shuey (“Mother”) lived with Grandmother from the child’s birth in 2005
until 2015, when Mother moved herself and J.S. in with her boyfriend. J.S.’s biological
father has not involved in J.S.’s life. The Complaint then alleged that granting partial
custody to Grandmother would be in the best interest and permanent welfare of J.S.
On August 16, 2018, Mother filed Preliminary Objections to the Complaint. Mother
first objected to the specificity of the Complaint for failure to detail the factual basis under
23 Pa.C.S.A. §§ 5324 and 5325 by which Grandmother sought custody. Mother next
objected to the Complaint in the nature of a demurrer as legally insufficient and for lack of
standing pursuant to Sections 5324 and 5325.
On October 8, 2018, Grandmother filed an Amended Complaint with further detail as
to her activities and relationship with J.S. Grandmother states that while J.S. and Mother
lived with her, Grandmother would care for J.S. while Mother was at work; Grandmother
said she rearranged her schedule to accommodate such care. When J.S. and Mother moved
out, Grandmother continued to care for J.S. on a daily basis, including picking J.S. up from
school every day and watching J.S. until Mother was off of work while school was in session,
and watching J.S. daily when school was not in session. Grandmother avers that she would
regularly take J.S. on day trips and on vacation and that J.S. would frequently stay overnight
at Grandmother’s house. Finally, Grandmother alleges that in 2017, her visitation with J.S.
abruptly stopped when Mother refused to let J.S. accompany Grandmother on vacation.
Grandmother alleges that the relationship between herself and J.S. began with the
consent of Mother and that they enjoy a close and special relationship. Grandmother again
asserts that granting her partial custody would be in the best interest and permanent welfare
of J.S.

Mother again filed Preliminary Objections on October 22, 2018. Mother continues to
object to the Amended Complaint due to insufficient specificity, legal insufficiency and for
lack of standing pursuant to Sections 5324 and 5325.
The matter was scheduled for the January Term of Argument Court. Grandmother
filed her brief in opposition on December 10, 2018, while Mother filed her brief in support
of the Preliminary Objections on December 13, 2018. On January 4, 2019, this Court heard
arguments from both parties. The matter is thus before this Court and ripe for disposition.
DISCUSSION
In deciding Preliminary Objections, the Court must accept as true all material facts set
forth in the complaint, as well as all inferences reasonably deducible therefrom. Santiago
v. Pennsylvania Nat’l. Mutual Casualty Ins. Co., 613 A.2d 1235, 1238 (Pa.Super. 1992). A
Preliminary Objection should be sustained only where it appears with certainty that upon
the facts averred, the law will not allow the plaintiff to recover. Milliner v. Enck, 709 A.2d
417, 418 (Pa.Super. 1998).
Critical to this matter is the issue of standing. While Mother has set forth several
objections, all of the objections relate to Grandmother’s lack of standing to bring the custody
claim. Consequently, we will examine the pleadings to determine whether Grandmother
has set forth sufficient factual allegations that would provide sufficient basis upon which
Grandmother could pursue such a custody action.
The concept of standing, an element of justiciability, is a fundamental one in our
jurisprudence: no matter will be adjudicated by our courts unless it is brought by a party
aggrieved in that his or her rights have been invaded or infringed by the matter complained
of. The purpose of this rule is to ensure that cases are presented to the court by one having
a genuine, and not merely a theoretical, interest in the matter. Thus the traditional test for
standing is that the proponent of the action must have a direct, substantial and immediate
interest in the matter at hand.
D.G. v. D.B., 91 A.3d 706, 708 (Pa.Super. 2014)(citations omitted).

Standing in a custody action is a threshold issue as “[g]enerally, the Child Custody
Act[, 23 Pa.C.S.A. §§ 2321-5340] does not permit third parties to seek custody of a child
contrary to the wishes of that child’s parents.” K.W. v. S.L., 157 A.3d 498, 504 (Pa.Super.
2017). It is well settled that parents have a fundamental constitutional right to parent their
children and that includes “the right to be free of custody litigation involving third parties.”
Id. However, the Child Custody Act provides for some narrow exceptions for grandparents.
Id.
Under Section 5324 of the Child Custody Act, a grandparent, who is not in loco parentis
to a child, may seek any form of physical or legal custody when one of the following
conditions is met:
(A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating
to juvenile matters);
(B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or
incapacity; or
(C) the child has, for a period of at least 12 consecutive months, resided with the grandparent,
excluding brief temporary absences of the child from the home, and is removed from the
home by the parents, in which case the action must be filed within six months after the
removal of the child from the home.
23 Pa.C.S.A. § 5324.
The first two conditions under Section 5324 are not met as no allegation has been set
forth indicating that J.S. has been determined a dependent child or that J.S. is substantially
at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity. Grandmother
has alleged that Mother and J.S. lived in Grandmother’s home from 2005 until 2015, which
would fulfill the requirement for residing with Grandmother for a period of at least twelve
months. However, as stated, an action in custody must be filed within six months after
removal of the child and Grandmother did not file this action until 2018 – approximately
three years after Mother removed J.S. from Grandmother’s home. Therefore, we find no
basis for standing of Grandmother to bring a custody action pursuant to Section 5324.
Alternatively, Section 5325 of the Child Custody Act provides for standing of grandparents
in custody actions stating that:
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:
(1) where the parent of the child is deceased, a parent or grandparent of the deceased parent
may file an action under this section;
(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:
(i) have commenced a proceeding for custody; and
(ii) do not agree as to whether the grandparents or great-grandparents should have custody
under this section; or
(3) when the child has, for a period of at least 12 consecutive months, resided with the
grandparent or great-grandparent, excluding brief temporary absences of the child from
the home, and is removed from the home by the parents, an action must be filed within six
months after the removal of the child from the home.
23 Pa.C.S.A. § 5325.
Clearly, the first situation in which a grandparent may bring a custody action pursuant
to Section 5325 is not satisfied as Mother, who is the daughter of Grandmother, is still living
and there has been no allegation that she is deceased. Grandmother’s Amended Complaint
alleges that the relationship between Grandmother and J.S. began with the consent of
Mother, and there is no indication that Mother challenges that fact. However, one of two
other conditions must still be satisfied. First, the parent must have commenced the custody
action and parents must not agree as to whether the grandparent should have custody.
Here, Grandmother initiated the custody action, not Mother. Moreover, subsections (i) and
(ii) deal with a situation in which separated parents are not making unitary decisions as
to third-party custody, and therefore, the grandparent, as a third party, may seek to assert
statutory rights thereunder. There is no indication that Mother and J.S.’s biological father
disagree as to custody. In fact, Grandmother asserts in her Amended Complaint, that J.S.’s
biological father is not involved in J.S.’s life. (Am. Complaint ¶ 5). The mere lack of J.S.’s
biological father’s involvement cannot sweep aside the condition that provides the basis for
standing.
Finally, as discussed in our analysis pursuant to Section 5324, it is alleged that Mother
and J.S. lived with Grandmother for approximately ten years prior to Mother and J.S.
moving in with Mother’s boyfriend. However, an action predicated on a child’s residence
with a grandparent must again be filed within six months of the removal of the child from
the residence and this action was filed almost three years later. As such, we find no basis
to provide Grandmother with standing to pursue this custody action on the facts alleged in
the Amended Complaint.
Grandmother urges this Court to examine the legislative intent of the Child Custody
Act and argues that the Legislature did not intend the Act to allow the destruction of a
healthy relationship between a grandparent and child. However, we read the statute to be
unambiguous and cannot disregard the plain meaning of the words in order to pursue the
purported spirit of the law. 1 Pa.C.S.A. § 1921(b).
To the extent that Grandmother recites the instances evincing her involvement in J.S.’s
life, we do not disagree and this Jurist recognizes that, according to the facts averred in
the Amended Complaint, Grandmother has clearly played a significant role in assisting
Mother in the care of J.S. Nevertheless, we are reminded of a matter before our Superior
Court in which the grandmother, who unlike in this matter asserted in loco parentis status,
submitted “a lengthy and exhaustive factual history of her daughter, a sixteen (16) year
old, and grandchild living in her household for the first year of the minor child’s life. . . .
[arguing] that she cared for the child on a daily basis, both in the presence and the absence
of her daughter [and] that she arranged for and instructed the child’s babysitter while her
daughter attended school and/or was away from the child for general purposes.” Argenio v.
Fenton, 703 A.2d 1042, 1043–44 (Pa.Super. 1997). The Superior Court, though applauding
grandmother’s participation in the care-taking of the child, found that grandmother acted in
the capacity of a frequent care-taker of the child, and that the mother’s actions in leaving
the child with grandmother and relying on her assistance “were consistent with that which
would be expected of a young, unwed mother who was trying to obtain an education, be
productive, and continue to develop socially” and fortunate enough to have the grandmother
“who was willing and able to help her with child care.” Id. at 1044.
In ruling that an earlier version of Section 5325 unconstitutionally infringed upon the Due
Process and Equal Protection rights of parents in favor of expanded standing of grandparents
to seek custody, the Pennsylvania Supreme Court recognized the presumption in the law
that “parents are fit and, as such, that their parenting decisions are made in their children’s
best interests.” D.P. v. G.J.P., 146 A.3d 204, 214 (Pa. 2016). Parents have a fundamental
right to raise their children without governmental interference. We are compelled by the
words of the United States Supreme Court, which stated that:
In an ideal world, parents might always seek to cultivate the bonds between grandparents
and their grandchildren. Needless to say, however, our world is far from perfect, and in
it the decision whether such an intergenerational relationship would be beneficial in any
specific case is for the parent to make in the first instance. And, if a fit parent’s decision
of the kind at issue here becomes subject to judicial review, the court must accord at least
some special weight to the parent’s own determination.
Troxel v. Granville, 530 U.S. 57, 70 (2000). Likewise, while we are sympathetic to a
grandparent’s desire to cultivate and continue a relationship with a grandchild, we find no
basis, other than that stated in law, from which standing is conferred upon Grandmother to
seek partial custody of J.S. As such, we sustain Defendant’s Preliminary Objections and
direct that Grandmother file an Amended Complaint with sufficient facts to support standing
or the matter will be dismissed. We will enter an order consistent with the foregoing.

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