United States: Supreme Court Decides When Ruling On Standing Is Appealable

In our haste to report on last week's Pennsylvania Supreme Court case on support duties of non-parents, we overlooked another case decided on December 21, clarifying when an order conferring standing on a party in a custody case becomes appealable.

"Standing" is the legal term for the right to be a party in a lawsuit. The kid next door may be cute but that doesn't give me the right to seek custody of him just because I would be a better parent.  There has to be a recognized legal nexus between the natural or adoptive parents of a child and the right of some non-parent to claim custodial rights.

The case we last reported on offers a good example. The Serbian father of the children was no longer involved once the children arrived in America and birth mother married step-father.  Step-father took on the role of parent for several years and when that relationship ended step-father stepped forward and asserted that because he had acted as a parent, he had the rights of a parent.  The Supreme Court of Pennsylvania offered no comment on whether this gentleman was or wasn't a substitute parent, but faced with a lower court decision awarding him joint legal and physical custody of the children, they decided he was eligible to pay child support for children he had half the time.

K.C. and V.C. v. L.A. is a little different. The defendant is the natural mother of L.A., who was born in 2011.  The natural parents did not do so well and a child welfare agency in Northampton County sought to have L.A. declared dependent, meaning that the child was not having basic needs met by the biological parents.  The agency secured an award of physical custody and then placed the child with a maternal aunt of the mother and a friend with whom the maternal aunt resided.  In Spring, 2013 the Court vacated the dependency placement and awarded custody to the biological father.  The aunt and her friend were given partial physical custody of the child on alternate weekends.  The Father lived with his own mother and her current husband.

Two months after being awarded custody and when the child was only 18 months old, the natural father passed away. The decedent's mother and her husband filed to assume custody.  At that point the child had been with them for nine months although they were not part of the custody order, as Father was the actual person awarded custody.  The maternal aunt and friend filed a claim of their own noting that they had physical custody of the child for seven months under the aegis of the dependency finding. Typically when a child is found dependent as L.A. was, the agency is awarded legal and physical custody subject to their right to place the child wherever the agency deems suitable.

When aunt and friend filed to intervene, the deceased Father's mother and her current husband objected noting that the only custody maternal aunt and friend had was under the dependency award. In other words, no court had deemed them to be fit parents. They were merely the choice placement of the agency that had taken the children away from the natural parents because basic needs were not met.

The request of aunt and friend to intervene was denied by the trial court. We don't have that decision, but typically, the placement of a very young child with a maternal aunt is not any more than a convenience for agencies that are overwhelmed with demands just like these.  The argument of the agency goes: "Look your honor, the child is two months old and the natural parents are not getting the job done.  We don't have a lot of places to send a two month old child and the maternal aunt and her friend seem able and sincere and we will keep an eye on them while we try to correct the problems that forced us to take the child away from his/her natural parents." In this case, natural Father seems to have stepped up to the plate and ended up with primary custody.  Unfortunately, he died almost immediately after he won custody.

The request of aunt and friend for "standing" to try to resume custody in the wake of natural father's death being denied, the aunt and friend filed an appeal. The Superior Court quashed (i.e., dismissed) the appeal because it was not a final adjudication of the custody action brought by paternal grandmother and her husband.  The Superior Court ruling had a precedential foundation.  It has long been the law that appeals from custody orders must relate to orders that "dispose of all claims."  See G.B. v. M.M.B. 670 A.2d 714 (Pa. Super. 1996).  The goal here is to avoid piecemeal disposition of custody claims on appeal.

Aunt and friend were not taking no for an answer. After all, they had physical custody of L.A. for seven months and Father (while resident with his mother and stepfather) had custody for perhaps nine months.

While the basic premise of appellate rules is to not decide cases piecemeal, a large body of law has evolved concerning what are termed "collateral orders". These are orders which do not dispose of the whole case but which may change the course of the entire litigation.  In this case, paternal grandmother was seeking custody premised upon the rights awarded to her deceased son.  Her son held those rights for nine months before he died.  The parties who had physical custody of the child for the preceding seven months asserted that they should have custody and the Superior Court said they could not even make a case.

In an opinion authored by Madame Justice Todd, the Court notes that the prevailing public policy is to avoid appellate review of cases before they have been fully decided. But, the exception to that rule is invoked where failure to permit the appeal effectively "kills" the case.  In a unanimous opinion, the Supreme Court finds that dismissal of aunt and friend's claim was appealable because the dismissal "killed" the case.  In effect, natural Father being dead and natural mother otherwise "absent without leave" (AWOL) there were effectively only two real contestants for this infant child; the paternal grandmother whose rights arose purely from the fact that the natural father lived with her when he secured custody and the aunt whose right to custody was also "derived" from the decision of the Office of Children and Youth to place the child awarded to them with the aunt.

Unless granted the right to intervene, the aunt and her friend asserted that the petition of paternal grandmother and her husband would never be contested because there was no one with standing to contest it except for the absent natural mother. The appellants had enjoyed custody for seven months. The paternal grandmother had never had custody.  The child was awarded to her son who happened to be resident with her when he got custody and when he died.

The Supreme Court decided that (a) the order putting the aunt and friend out of court was severable from the rest of the custody case because there was no one else who sought custody and (b) any claims they might have asserted were lost because they can't appeal from a custody order to which they were never afforded the status of parties. The Court distinguishes this from other civil orders affecting standing because there is an important and immediate impact on children.  In particular it cites In re Barnes Foundation, 871 A.2d 792 (Pa. 2005) where the Court held that the intervenors lost their right to appeal the final decision because they had not preserved an appeal on the issue of intervention.  The Court reasoned that while Barnes does not involve an issue as prescient as child custody, the principle of early intervention is all the more important where children are involved.

So the principle is clear. If a party seeking custodial rights is denied the opportunity to participate, the appeal is collateral and must be taken within thirty days of the date the order denying intervention or standing is entered.  The applicable rule is Pa. R.A.P. 313.

But let's also consider the collateral impact of the collateral appeal doctrine with an eye cast in the direction of the announced goal of affording child custody decisions a "fast track" for disposition. The subject child was born in December, 2011.  The child is placed with aunt and friend in February, 2012.  In September, 2012, Father secures shared custody.  In April 2013, the child is awarded to Father.  He dies. In June, 2013 his mother files to be custodian.  Later that month aunt and friend file to intervene.  It takes more than 18 months for the trial court to decide that the intervention should be denied.  In 90 days, the Superior Court quashes the appeal.  The Petition for Allowance had to have been filed in April-May 2015, if timely.  The case is reported as "submitted" on October 21 and was disposed of with opinion by the Supreme Court in 60 days.  So, effectively from June 6, 2013 (date of primary custodian's death) until December, 2015, the life of a then 18 month old child is in limbo.  That's 31 months to decide that the folks who had physical custody for seven months did have standing to challenge the custody action of the folks who had physical custody for nine months.  We have written law telling us that these matters need to be expedited.  But this child lost a father at 18 months and still doesn't know where he will live almost three years after father died.  The appellate process through two such courts consumed a little more than 8 months.  But it took the trial court an extraordinary eighteen months to decide whether aunt and friend had standing.  Query, if you are the trial judge on remand and looking at the factors explicated in the custody statute, does the 2.5 year status quo since father died count as a stability factor for a child whose life was little more than a series of disruptions prior to Father's death. Under a pure "best interests" analysis that would seem to be true.  But, in a world where fairness is also a factor at some level, does the belated and ultimately erroneous ruling of the trial and Superior Courts count against the prevailing party in the subsequent proceedings?  In this case, it is difficult to justify eighteen months to decide whether a party has standing.  That delay created a status that will be difficult to undo unless the paternal grandmother and spouse have completely dropped the proverbial custodial ball.  On this record, they will defend a case against another set of claimants (aunt and friend) who have not so much as seen the subject child since April, 2013.  That amounts to 31 of the 48 months young L.A. has been alive.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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