A recent grandparent custody case developed a schism among the judges of the Superior Court in an unpublished opinion, two judges voting in favor of the grandparents and one judge dissenting. In M.M. and M.M. v. A.M. and B.M., No. 2308 EDA 2012 (February 20, 2012), a custody dispute pitted the mother of an 8 year old child against the child’s grandparents, who had been Mother’s adoptive foster parents. The child was born when Mother was 16 years old and spent its entire life up to that time with the grandparents. By the time Mother was 24 years old in 2012, she had graduated high school, completed a pharmacy tech certificate, and was engaged to be married. She had custody of two other children by different fathers. Mother had gradually expanded her visitation to overnight custody on alternating weekends and 2-2-5-5 during the summer, and now she sought primary physical custody of her child.
The Superior Court affirmed the trial court’s decision to maintain custody with the grandparents, holding that Mother was genuinely interested in her child’s best interests but not sufficiently mature, and also placing substantial weight on the status quo and continuity. The controversy among judges arose in its application of the statutory presumption that honors the parents’ constitutionally-protected interest in raising their own children, creating a evidentiary burden that is “tipped hard” in favor of parents in custody cases against grandparents.
Two judges found that the overall weight of the evidence on the grandparents’ side was sufficient to overcome the rebuttable presumption in favor of Mother. However, in a dissenting opinion, Judge Christine Donohue wrote a scathing criticism, rebuking the other two judges for failing to appreciate the gravity of a parent’s constitutional right. In particular, Judge Donohue highlighted a sentence in the trial judge’s opinion stating that giving Mother an advantage over the grandparents “was our law many, many years ago. That is not the law anymore.” Judge Donohue indicated that our Legislative made that advantage part of our law today by enacting an explicit presumption in its 2011 amendments to the custody statute. Judge Donohue criticized the other judges for placing too much weight on Mother’s history and the status quo, without adequately considering her current circumstances and the importance of maternal bonding.