The April 26 decision in Hoover v. Lewis v. Cohen is emblematic of the slow moving crisis Pennsylvania and other family courts are experiencing. Not only are American families hard to manage today but we are having challenges identifying just who qualifies as family. And, as this case graphically illustrates, the courts are taking years trying to sort through who gets to litigate and what is in a child’s best interests.
This case involves a teen pregnancy which produced a child in 2010. A year later Thomas Hoover filed for partial physical custody. From 2010 to 2015 Mother Alicia Lewis lived with her own mother. In 2015 she married William Smith. Mr. Smith, mother and child returned to grandmother’s property, occupying a trailer located near grandmother’s house. The child is reported to have lived with both his grandmother and his mother, keeping bedrooms at each property.
During this time, while the child’s father was in court asserting rights, the opinion informs us that he was essentially do this a proxy for his own parents. Father had kind of “moved on” having married another woman and siring three additional kids.
In 2020 the William and Alicia Smith marriage disintegrated. Alicia was having problems not only with her husband but her own mother; problems reflecting a willingness to harm herself. This begot an intervention petition by maternal grandmother because her daughter was moving the now 10 year old child away from the school, physicians and counseling the child worked with. Note well that this is an emergency petition in July, 2020. Curiously they sought only partial physical custody.
This filing was managed by video conference because of the pandemic but, it produced a settlement in late August. The settlement awarded shared legal; and physical custody to the PATERNAL grandparents. That’s right, people who hadn’t even filed for any custody rights. This has an element of “Sue me for custody mom and I’ll teach you a thing or two.” The agreement was made an order but the maternal grandmother says she was never notified. Maternal grandmother asked for a guardian ad litem to help sort this out. They also right suggested that an order granting shared custody to a non-party (paternal grandparents) can’t be sustained.
From October 2020 to April 2021 nothing substantive happened although different attorneys became involved. In April 2021 Mother had reached an impasse with paternal grandmother and wanted her out of the cases she had never been a party to. Bear in mind the court had done nothing to address the July 2020 petition of maternal grandmother to intervene nor the request for a guardian ad litem.
Three weeks after mother sought to sever her custody agreement with paternal grandmother, she took her own life. This leaves us with an uninvolved father as plaintiff, a deceased mother, a maternal grandmother trying for eight months to get in the case and a paternal grandmother who has actual custody but is not a party to the custody case. Still with us?
On May 14, 2021 there is a live hearing with both grandmothers and uninvolved father. Testimony was taken before the court sorted out who had standing in the proceeding. Maternal grandmother had filed for primary custody in the wake of her daughter’s demise.
For the next two years matters kept on rolling with four evidentiary hearings. The hearings did not sort through who was a party nor why. They did not specify which pleadings the court was acting on. By Summer 2021 the child was back living with maternal grandmother. In September, the father of the child and paternal grandmother asked to vacate that temporary order claiming the maternal grandmother lacked standing to intervene.
The next hearing is July 2022; a year having transpired and standing not being decided. On that day the judge granted the intervention giving maternal grandmother standing. The Court indicated that it was about to issue a final ruling on the substantive issues. Meanwhile, paternal grandma tried to appeal the proceedings to contest standing but that was quashed in October as there was no final order to appeal from. Meanwhile, a final order waited another seven months. Even as of that date the Guardian had not interviewed all the parties in the 19 months since the appointment in October 2021.
It probably comes as no surprise that a 12 year old child who has been immersed in grandparent litigation where his father is absent and his mother takes her life is not doing well. The grandparents blame each other for this condition.
On June 7, 2023, almost three years after this litigation began to boil a final order was entered. Primary custody to maternal grandmother even though technically her request for primary was untimely under 23 Pa.C.S. 5324(3)(iii)(C). The trial court found that she had clearly sought a form of custody and was effectively before the court because of intervention request.
The majority of appellate the panel is unpersuaded. To have standing premised upon the death of a parent the grandparents must have had the child in their care for 12 consecutive months prior to any removal. Then they have but six months to file for primary custody. The Superior Court finds on the evidence that the child lived with his mother and not his grandmother from 2015 to 2020 when mother moved away. Then mother shared custody with paternal grandparents until Mother died. It was only then that the maternal grandmother filed her action for primary custody. The Court noted that maternal grandmother conceded that even while her daughter and former son in law lived on her property (2015-2020), the residences were separate. It then finds that the separate trailer on the same parcel is not “living with” a grandparent.
While granting that 2020 was a difficult year for everyone in the world, the appeals court found there was simply no excuse for the trial court to fail in 2021 and 2022 to decide who had standing and to assess best interests of the child. The opinion notes that standing is not a best interest-based test but an objective one. Judge Bowes, in dissent, asserts there is standing under Section 5324(3)(iii)(B) because, in her judgment, the father of this child has neglected the child by taking no positive steps to parent during the first 13 years of his eldest child’s life. This apathy has put this child at significant risk and Bowes sees a parallel in a 2018 case G.A.P. v. J.M.W. 194 A.3d 614, 618 (Pa.Super. 2018).
The criticism of the trial judge is unusually crisp and from the appellate docket that may be because he was a senior judge, now retired. What is otherwise concerning is that the assigned judge was drawn from Somerset County.* Even a gifted senior judge is handicapped by the absence of any fixed schedule, assignments that can be in several locales, and no dedicated staff or clerk. We can fill our bookshelves with rulebooks directing judges how fast they should rule but senior judges work at the beck and call of the Administrative Office of Pennsylvania Courts and the court administrators in the counties where they draw assignments. Unless the case garners lots of publicity, there is a tendency to leave matters hanging. So, the criticism may not lie entirely with the judge assigned.
The death of the mother in this case should have prompted the immediate scheduling of hearings to chop through the standing issue, ascertain whether father’s attitude was changed by mother’s death and to evaluate instant needs of a grieving 11 year old. The majority seems to be right on the law, but this child has been floating without a sense of parental direction for at least three years and now will be back in court in Altoona with a new judge who knows nothing about this case except what he or she can draw from the prior opinions. Sadly, that’s a fast track without a destination.
*The confusion over parties persists even in the appeal. Apparently one of the grandparents is a Blair County attorney. He’s portrayed as be “around” the case but never files to intervene in his own right. That may explain why a senior judge from another county was brought into the case.
The case: https://www.pacourts.us/assets/opinions/Superior/out/J-A29025-23dm%20-%20105917251264021639.pdf?cb=1
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