S.G.C. v. K.R.H. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.G.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
K.R.H. :
:
Appellant : No. 1460 MDA 2020
Appeal from the Order Entered October 14, 2020,
in the Court of Common Pleas of Dauphin County,
Civil Division at No(s): 2014-CV-11133-CU.
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 05, 2021
Following a consolidated hearing on cross-petitions for contempt and
cross-petitions for custody modification, K.R.H. (Father) appeals the trial
court’s decision to award primary physical custody of the parties’ 7-year-old
son K.H. (Child) to S.G.C. (Mother). Mother had previously exercised primary
physical custody of the Child for most of the preceding five years. At the
commencement of the instant litigation, however, the parties agreed to share
custody on an interim basis pending a final hearing - about four months.
Ultimately, the court denied all requests for contempt, restored Mother’s
primary physical custody, and ordered the parties to mediate prior to engaging
in any future litigation. Father only appeals the custody award and mediation
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* Former Justice specially assigned to the Superior Court.
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requirement. After careful review, we affirm the restoration of Mother’s
primary custody, but we vacate the order’s provision requiring mediation.
The record discloses the relevant factual and procedural history: The
parties separated in late 2014 and settled their custody dispute by consent
order in May 2015, whereby Mother received primary physical custody and
Father partial physical custody. Specifically, the parties agreed Father would
exercise physical custody every Wednesday and every weekend. The parties
shared legal custody at all times throughout this case. Following the 2015
consent agreement, however, Father stopped exercising his custodial rights
and only saw Child “here and there.” See N.T., 9/29/20, at 10. However,
Mother pushed for a more consistent schedule, and so the parties informally
agreed Father would see Child on alternating weekends. Id. The informal
arrangement began either late 2015 or 2016, when Child was three years old,
and lasted until Spring 2020.
In April 2020, Mother and Child were exposed to COVID-19, so Mother
withheld Child while they quarantined without first seeking Father’s input. In
May, Father withheld custody to make up his lost time. These actions
precipitated cross-contempt petitions, and evidently cross-petitions to modify
custody.1 Following a pre-hearing conciliation, the parties agreed, on an
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1 At the hearing, the court began with Mother’s case-in-chief as she was
moving party seeking contempt and modification. Counsel for Father averred,
“I think they both filed custody technically, but…” N.T. at 5. As the docket
does not contain an explicit petition for modification filed on behalf of Father,
Father’s cross-petition was presumably treated as a petition for contempt and
modification. The discrepancy is irrelevant to our disposition.
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interim basis, to share physical custody (on a week-on-week-off schedule)
until the court issued a final custody order.
The court held a consolidated contempt and modification hearing, via
videoconference, on September 29, 2020. The court denied the cross-
petitions for contempt; although the court was troubled by the unilateral
decisions of the parties, the court opined Mother was right to quarantine, while
Father was entitled to make-up time.2 Neither party appealed the contempt
decisions. The court also denied Father’s request to finalize the interim shared
custody arrangement. Instead, the court reverted custody back to the
primary/partial arrangement, in Mother’s favor. But in doing so, the court
increased Father’s partial custody. Specifically, the court awarded Father
some form of custodial time every weekend: in Week A, Father’s custody
would last from Friday morning until Saturday evening; in Week B, Father’s
custody would last from Friday morning until Sunday evening. Finally, the
court ordered the parties to mediate with a paid professional prior to litigating
future disputes. Father timely filed this appeal.
He presents the following issues, which we reorder for ease of
disposition:
1. Whether the trial court erred as a matter of law and
abused its discretion when it restored primary physical
custody to Mother instead of continuing the shared
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2We note that make-up time is not an authorized sanction for contempt under
23 Pa.C.S.A. § 5323(g)(1)(i)-(v). See also G.A. v. D.L., 72 A.3d 264, 269
(Pa. Super. 2013).
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physical custody scheduled that was in the best
interests of the child?
2. Whether the trial court erred as a matter of law and
abused its discretion when it ordered that the parties
must file a certificate of having participated in
mediation prior to filing a petition for modification to
request a new schedule?
3. Whether the trial court showed a definite biased
against Father’s interests?
4. Whether the trial court’s custody order is not
supported by competent evidence in the record?
5. Whether the trial court erred/abused its discretion by
improperly weighing the custody factors in favor of
Mother but contrary to the best interest of the Child?
Father’s Brief at 4.
We begin by observing our well-settled scope and standard of review
concerning custody matters:
In reviewing a custody order, our scope is the broadest type
and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with
regard to issues of credibility and weight of the evidence,
we must defer to the presiding trial judge who viewed and
assessed the witnesses first-hand. However, we are not
bound by the trial court’s deductions or inferences from its
factual findings. Ultimately, the test is whether the trial
court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the
trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial
court.
S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted).
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In his first issue, Father argues the court erred when it reverted custody
back to Mother’s primary care, even though the parties had been sharing
custody for several months. Father’s Brief merely lists the court’s findings
and faults the trial court for not “clearly explain[ing] why it decided to remove
[Child] from 50/50 equal custody and restore primary physical custody to
Mother.” See generally Father’s Brief 8-11. But Father does not specify how
the court erred, nor could the trial court decipher Father’s contention. T.C.O.,
12/7/20, at *3. Father cites no legal authority and only cites to the trial
court’s opinion, in contravention of our Rules of Appellate Procedure. See
Pa.R.A.P. 2119(a) (relating to contents of appellate briefs). “When a court
has to guess what issues an appellant is appealing, that is not enough for
meaningful review.” See, e.g., C.H.L. v. W.D.L., 214 A.3d 1272, 1278 (Pa.
Super. 2019) (citation omitted). If Father suggests the court’s findings do not
support a primary/partial arrangement, Father has already preserved that
contention in his fourth and fifth appellate issues, and we address his
arguments below.
If, on the other hand, Father argues the court did not adequately
delineate its reasons for the award, we disagree. When deciding a petition to
modify custody, a court must conduct a thorough analysis of the best interests
of the child based on the relevant factors as provided by the Child Custody
Act. A.V. v. S.T., 87 A.3d 818, 822 (Pa. Super. 2014) (citation omitted); see
also 23 Pa.C.S.A. § 5328(a)(1)-(16). Furthermore, Section 5323(d) provides
that a trial court “shall delineate the reasons for its decision on the record in
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open court or in a written opinion or order.” 23 Pa.C.S.A. § 5323(d). Section
5323(d) requires the trial court to set forth its mandatory assessment of the
custody factors prior to the deadline by which a litigant must file a notice of
appeal. A.V., 87 A.3d at 823 (citation omitted). In expressing the reasons for
its decision, “there is no required amount of detail for the trial court’s
explanation; all that is required is that the enumerated factors are considered
and that the custody decision is based on those considerations.” Id. (citation
omitted). A court’s explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with Section 5323(d). Id.Here, the trial court satisfied its obligation to delineate its reasons when
it issued contemporaneously with its custody award a memorandum itemizing
its Section 5328(a) findings. See Memorandum, 10/14/20, at 1-9. Following
Father’s notice of appeal and concise statement of errors complained of on
appeal, the court then issued its opinion pursuant to Pa.R.A.P. 1925(a). See
Trial Court Opinion (T.C.O.), 12/7/20, at 1-6* (not paginated). As Father
observes, many of the custody findings favored neither parent, and the court’s
level of detail was sometimes minimal. Still, the court’s ultimate rationale was
sufficiently clear; the court restored Mother’s primary custody, because it was
in Child’s best interests to regain the stability and continuity he enjoyed in her
care. See Memorandum at 9. Even if the court’s findings were not clear, the
appropriate remedy would be to remand for a supplemental opinion. See
C.M. v. M.M., 215 A.3d 588, 594 (Pa. Super. 2019). Contrary to Father’s
position, such an error is not necessarily a basis for reversing the trial court’s
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ultimate award. Nor can it be said, here, that the court’s minimalistic findings
impeded Father’s ability to thoroughly appeal the court’s decision. Notably,
Father preserved his challenge to the court’s substantive decision in his fourth
and fifth appellate issues. Thus, we conclude Father’s first issue is without
merit.
In his second appellate issue, Father contends the court erred when it
ordered the parties to mediate, with a trained mediator, “prior to engaging in
[any future custody] litigation.” See Father’s Brief at 11-12; see also Order
of Court, 10/14/20, at ¶36 (Paragraph 36). Because we must interpret our
statutes and rules of procedure to resolve this issue, we note the applicable
standard of review is de novo, and our scope of review is plenary. C.H.L. v.
W.D.L., 214 A.3d at 1280 (citation omitted).
Paragraph 36 of the custody order provides, verbatim:
Any proposed changes to this order which cannot be agreed
upon or any disputes about the interpretation or practical
application of this order and any alleged breaches of this
order shall, prior to engaging in litigation, first be attempted
to be resolved through mediation with a trained mediator,
the costs to be shared equally between the parents. Free
mediation is available for self-represented litigants through
the Neighborhood Dispute Settlement at (717) 233-8255.
If a parent is represented by a pro bono lawyer, they are
eligible to request free mediation through the Dauphin
County Bar Association Civil Dispute Resolution Program at
(717) 232-7536.
Order of Court, 10/14/20, at ¶36.
The trial court maintained its inclusion of Paragraph 36 was authorized
by our Rules of Civil Procedure, which govern “voluntary mediation in custody
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actions.” See Pa.R.C.P. 1940.1 – 1940.9; see also T.C.O. at *4-5. The court
opined that the Rules allow for court-ordered mediation, “at least as far as an
original orientation session; continuation of mediation is voluntary.” Id. at *5.
The court concludes it “has not required the parties in this case or any other
to attend or complete the mediation prior to the filing of a petition for
modification.” Id. In response to Father’s argument, Mother does not take a
position on mandatory mediation. Rather, she is satisfied with the trial court’s
explanation that it did not intend to order anything beyond the initial
orientation session. However, Mother argues in the alternative, that we
should strike the offending Paragraph 36 if we determine it is erroneous. See
Mother’s Brief at 3.
In order to promote the resolution of custody disputes, without the
parties having to resort to adversarial litigation, the Domestic Relations Code
authorizes the establishment of a mediation program for actions brought
under the Child Custody Act. 23 Pa.C.S.A. § 3901(a). “When a program has
been established […], the court may order the parties to attend an
orientation session to explain the mediation process. § 3901(b) (emphasis
added). The Pennsylvania Rules of Civil Procedure define “orientation session”
as “the initial process of educating the parties on the mediation process so
that they can make an informed choice about continued participation in
mediation. This process may be mandated by the court and may be structured
to include either group or individual sessions. An orientation session may also
include an educational program for the parents and children on the process of
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divorce and separation and the benefits of mediation in resolving custody
disputes.” Pa.R.C.P. 1940.2.
Thereafter, “should the parties consent to mediation, the court may
order them to mediate such issues as it may specify.” 23 Pa.C.S.A. § 3901(b)
(emphasis added). See also Pa.R.C.P. 1940.3(c) (“Following the orientation
session and with the consent of the parties, the court may refer the parties
to mediation.”) (emphasis added). The court may assess additional costs of
mediation on either party. 23 Pa.C.S.A. § 3902(b).
Finally, “[t]he court shall adopt local rules for the administration of the
mediation program….” § 3901(c)(1). In Dauphin County, each petition for
modification or contempt must include a template order for an “educational
seminar,” i.e., the orientation session. See D.C.C.R. 1915.3.1(b)(1);
1915.3.2(b)(1); 1915.15(c). Furthermore, “[i]n all Custody actions, the
parties shall complete a four-hour educational seminar (Seminar for Families
in Change and Conflict) if a party has not attended the Seminar in the prior
twelve (12) months and in such other cases as the Court my order.” D.C.C.R.
1930(a).
In its Rule 1925(a) opinion, supra, the trial court accurately
summarized its limited authority to promote mediation. The trial court
acknowledged it may only order the parties to attend the orientation session
to learn about mediation. And we add that a court may nevertheless order
the session “at any time upon…the court’s own initiative,” notwithstanding the
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wisdom or futility of making the parties repeat the session. 3 Pa.R.C.P.
1940.3(a); see also D.C.C.R. 1930(a) (“[T]he parties shall complete [the]
seminar…in such other cases as the Court may order.”); and see D.C.C.R.
1930(c) (“In a Petition for Contempt or a Petition for Special Relief (Emergency
Custody) or other similar Custody actions, the parties shall attend the Seminar
as ordered by the Court.”). But this is where a court’s authority stops. As the
learned trial court recognized in its Rule 1925(a) opinion, the court may order
mediation after the orientation session, but only if the parties consent.
Yet, the actual text of Paragraph 36 extends far beyond what is
allowable. See Order of Court at ¶36. We accept entirely the trial court’s
word that it did not intend for such ramifications, as well as its guarantee that
it had never ordered any parties to mediate in the past. But Paragraph 36 did
not merely direct the parties to attend the orientation program upon a future
petition for modification or contempt (something which is already provided for
in the Dauphin County Local Rules of Procedure). Rather, Paragraph 36
ordered the parties to employ a mediator (at their own expense if they did not
forgo legal representation). And it ordered the parties to first attempt to
resolve their disputes privately before seeking any relief from the court. As
written, either party may willfully disobey the custody order and then force
the expense of mediation upon the other party, before the aggrieved may
seek legal recourse. As written, neither party may bring any custody motion,
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3 Of course, the court may not order the orientation session if either a party
or the child has been subjected to domestic violence. Pa.R.C.P. 1940.3(b).
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emergency or otherwise, without first seeking justice elsewhere, via mediation
from a third-party. Until then, Paragraph 36 locks the courthouse doors. This
was an error.4
Therefore, we vacate Paragraph 36 of the court’s custody order. While
we agree with Father that the text is erroneous, Mother is correct that the
remedy is simply to strike the provision. No remand is warranted because, as
the trial court observed, it only meant to order what was already provided for
by the Rules of Procedure. The remedy is not to reverse the trial court’s entire
award.
In Father’s third issue, we consider whether the court exhibited a
“definite bias” against Father. We review challenges to a court’s impartiality
for an abuse of discretion. See Lewis v. Lewis, 234 A.3d 706, 722 (Pa.
Super. 2020).
The appearance of bias or prejudice can be as damaging to
public confidence in the administration of justice as the
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4 Although Father is correct on this issue, we caution the parties not to
foreclose mediation in the future. We underscore the purpose of alternative
dispute resolution, which is invaluable in custody disputes. As the Explanatory
Comment to these Rules provides: “Courts are ill-equipped to mandate
particular visitation schedules and custodial arrangements, the wisdom of
which depend on the situations of the parents and children rather than on
legal rules.” The potential for successful co-parenting is so often undercut by
the adversarial nature of family court. No one knows their children better
than the parents, which is why our Judiciary, Legislature, and Rules of
Procedure encourage the litigants to resolve their custody disputes without
court intervention. But when the parents cannot agree, Pennsylvanians have
established, through legislation, a hyper-specific process for determining the
best interests of the child, while simultaneously protecting the rights of the
parents. Courts may not foreclose that process.
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actual presence of bias or prejudice. However, simply
because a judge rules against a party does not establish bias
on the part of the judge against that party. Along the same
lines, a judge’s remark during a hearing in exasperation at
a party may be characterized as intemperate, but that
remark alone does not establish bias or partiality.
Id. (internal citations omitted).
“Discretion is abused when the course pursued represents not merely
an error of judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the action is a
result of partiality, prejudice, bias or ill will.” Commonwealth v. Goldman,
70 A.3d 874, 879 (Pa. Super. 2013) (quoting Commonwealth v. Widmer,
744 A.2d 745, 753 (Pa. 2000)).
Instantly, Father contends the court displayed bias against Father
because “[n]othing in the record support[ed] the trial court’s decision to
remove the [C]hild from the 50/50 custody of his parents where he was
thriving and doing well.” See Father’s Brief at 12. Father argues the court did
not make factual findings against him, but weighed each factor equally upon
the parents. Id.To the contrary, the court did make findings against Father and did not
weigh the factors evenly, as we discuss in Father’s next issues. But even if
the court erred, such errors do not equate to bias. Quite obviously, Father’s
allegation stems from the court’s decision to rule in Mother’s favor, even
though it could have weighed the same evidence in his favor. As noted in
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Lewis, supra, such a reason simply does not establish bias. Father’s third
issue is meritless.
In Father’s final two issues, we review the crux of the court’s custody
decision. The primary concern in any custody case is the best interests of the
child. To determine a child’s best interests, the Child Custody Act lists specific
factors the court must consider. See 23 Pa.C.S.A. §5328(a)(1)-(16). As such,
the Act intends for these disputes to be decided on a case-by-case basis.
Father’s penultimate issue asks whether the court’s decision is
supported by competent evidence. See Father’s Brief at 13. Again, Father
provided no citation to either the record, nor relevant legal authority. See
Pa.R.A.P. 2119(a), supra. Essentially, Father argues that because the court
did not find his testimony to be incredible, such testimony – that shared
custody is in Child’s best interests – must be accepted as gospel truth. See
Father’s Brief at 13. This argument speaks not to the competency of
evidence, however, but to the weight of the trial court placed on the evidence.
Still, as we mentioned above, the finer points of Father’s first issue may
be transposed here. See id. at 10-11. Because the court’s decided the Child’s
need for stability was the reason Mother’s primary custody should be
restored, we review whether there was competent evidence to allow the court
to make such a determination.
Section 5328(a) of the Child Custody Act provides, in relevant part:
In ordering any form of custody, the court shall determine
the best interest of the child by considering all relevant
factors…including the following:
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[…]
(4) The need for stability and continuity in the child’s
education, family life and community life.
[…]
(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the
child adequate for the child’s emotional needs.
[…]
23 Pa.C.S.A. § 5328(a)(4), (9) (emphasis added).
Here, the trial court determined:
Factor 4: The need for stability and continuity in the
child’s education, family life and community life.
[Child] is doing well in his current school…. Father lives in a
different school district, but was unsure which school district
that is, how his school district compares to the child’s
current school district, and how that school district is
responding to the COVID-19 pandemic.
When in Mother’s physical custody, [Child] is enrolled in
many activities throughout the community including judo,
soccer, swimming, Spanish boot camp, and community
fundraising events. It is unclear how Father facilities
[Child’s] participation in these activities. Father testified
that he does not take [Child] to judo because they are not
taking, in his view, proper COVID-19 precautions. Mother
noted that Father did not facilitate [Child’s] participation in
the Spanish boot camp virtual classes. Father responded
that he was not made aware of any virtual classes but did
facilitate completion of the worksheets provided by Mother.
It was also revealed that some of the exhibits showing
Mother and Child at fundraising events were photographed
by Father.
[…]
Factor 9: Which party is more likely to maintain a
loving, stable, consistent and nurturing relationship
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with the child adequate for the child’s emotional
needs.
By all accounts, [Child] is a respectful, responsible child who
is doing well, although Mother testified that [Child] has been
less focused recently. Mother testified that she intentionally
encourages an open relationship with [Child] in which he
can trust her and confide in her. Mother also testified that
she has special time with [Child] in addition to routine family
duties and processes. Father testified that he is consistently
with [Child], taking him along when working on Father’s
design business and nurturing the relationship through that
consistent presence.
Memorandum at 5; 6-7.
Notwithstanding the court’s emphasis on the contributions of both
parents, the court did make a clear finding that it was in Child’s “best interest
for Mother to regain primary physical custody to provide him with stability….”
Id. at 9. Father argues this finding was not support by the record:
The trial court did not find one parent was more likely to
maintain a loving, stable, consistent and nurturing
relationship with the child adequate to his emotional needs.
Instead, the trial court pointed out positive points about
each parent concerning this factor but failed to note that
Father testified that the child is focused when he has
custody.
Father’s Brief at 10.
When reviewing whether the court’s findings are supported by the
record, we must be careful not to make independent factual determinations.
See S.T., 192 A.3d at 1160. “However, we are not bound by the trial court’s
deductions or inferences from its factual findings.” Id. Ultimately, the test is
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whether the trial court’s conclusions are unreasonable as shown by the
evidence of record. Id.
Here, the parties consented to a primary/partial arrangement after they
separated in 2014. Soon thereafter, Father only sporadically exercised his
rights, in large part due to the instability in his own life. See N.T., at 9-10.
According to Mother, Father lived with a girlfriend with whom he fought in
front of Child.5 People smoked in Father’s home; Mother had to bring Child
food and clothing when Child was in Father’s custody; and Father would not
take Child to his daycare program, which jeopardized his enrollment when
Mother had primary custody. Id. And only when Mother pressed for more
consistency did Father agree to see Child on a regular schedule – every other
weekend, less than half of what he originally consented to. Id. Child was
three years old at the time.
Since then, Mother has been the driving force in Child’s life. Mother was
the parent responsible for all medical appointments; Father had not gone to
any since the parties separated. Mother instituted a reward system to
promote Child’s development; i.e. Child receives points for doing chores,
performing personal hygiene without Mother asking, and the like until Child
accumulates enough points to merit a reward. Id. at 27. Mother also ensured
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5 Presumably, Mother meant Father had verbal arguments, not physical
altercations.
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Child met his educational needs, whereas Father has never attended a parent-
teacher conference. Id. at 12. The parties operated this way for years until
they tried, on an interim basis, a shared custody arrangement pending a final
hearing.6
But even during the interim arrangement, Mother remained the
household manager, ensuring Child’s stability and continuity. For instance,
Father did not facilitate one of Child’s extra-curricular activities during the
COVID-19 pandemic, because he was not made aware the activity had virtual
sessions. See Memorandum at 5. Such an excuse echoes Father’s explanation
that he had not attended parent-teacher conferences, because Mother did not
make him aware of them. N.T. at 75. Likewise, Father would ensure Child did
his assignments, if Mother provided the worksheets to Father. Implicit in
these acknowledgements is that Mother is the parent responsible for attending
to the Child, and that Father may also attend to Child, if Mother provides the
direction.
Critically, this inconsistency between the parents’ standards of care has
had an adverse effect on Child. Mother testified that, during Father’s custodial
time, Child turned in his assignments late at night. Id. at 44. Mother also
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6 Mother suspected the impetus for the litigation was not her COVID-19
quarantine, but the fact she recently obtained a formal child support order
against Father, the inference being that Father sought to reduce his obligation
by obtaining more custody. See id. at 32.
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stated Child began having trouble sleeping and waking up on time. Id.
Moreover, Mother testified:
[Child had] been a lot more agitated lately. He has not been
focused. He actually has been talking back to me, and
[Child] doesn’t do that. He’s very respectful. He doesn’t,
you know – I don’t think that he’s adjusting how I would
want for him to.
Id. at 21.
We may infer that Child’s maladjustment could be attributed to Child’s
unstable living situation while in Father’s custody. At the beginning of the
interim arrangement, Father was living with Paternal Grandmother, but
Mother understood that Paternal Grandmother kicked Father out of her home,
and that Father has been staying at a hotel since. Id. at 22. Mother also
suspected that Child slept in Father’s bed or on the couch, because he did not
have a bed of his own while in Father’s care. Id. at 41. Father disputed this,
testifying that he lives with his fiancé and her two-year-old daughter. Father
conceded that he rents a room at a hotel, but only so he can unburden the
fiancé and her daughter with his graphic design business, which involves
odorous chemicals. Id. at 77.
Even if the court accepted Father’s explanation for the hotel room, the
court was clearly not assuaged by the Father’s inconsistent schedule. Father
testified some nights he slept at the hotel with Child and had Child do his
schoolwork there. Id. at 80. Other nights, Child slept at the apartment Father
shared with his fiancé; Father testified Child has his own room at the
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apartment, because the two-year-old slept either in the master bedroom with
Father and the fiancé or in her playpen in the main area. Id. at 77; 102; 69.
Perhaps as a consequence, Child was not always keen on going into Father’s
care. Mother testified that Child had “ups and downs,” and sometimes asked
if he could go to his cousin’s house instead of going with Father. Id. at 34-35.
In response to Mother’s testimony on the stability factors, Father stated
he is “maintaining things” for Child and that he is “doing what I need to do be
doing, taking care of [Child.] That’s all that matters.” Id. at 80. In terms of
performing the routine parental duties, Father testified he cooks food for Child,
“[b]ut other than that, [Child, who was nearly 8 years old] knows how to do
a lot of things on his own.” Id. at 80. Father did testify about the beneficial
ways he spends time with Child, which included playing sports and LEGOs. Id.
at 74. But in highlighting those attributes on appeal, Father conflates the
competency of the evidence with the weight of evidence.
In our review, the record reveals there was competent evidence to
support the court’s decision. Child lacked a certain degree of stability and
consistency during the interim, shared arrangement; Child was negatively
affected by the same; and it was in his best interest to revert back to the
primary/partial arrangement that Child had known virtually all of his life. We
also should not ignore that the court accepted Father’s argument that a more
equitable division of custodial time was in Child’s best interest. The court
awarded Father more time than what he had been utilizing for the previous
four years, evidently in the hope that this increased time would foster the
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relationship between Father and Child, without incurring the negative
consequences of a truly shared custody arrangement. The court added that
its increase of Father’s partial custody was meant to maintain Father’s
relationship with Child, and that the court “will look to provide Father with
significant custodial time to enhance [Child’s] ability to have an emotional
connection with Father.” See Memorandum at 9.
As Father reiterates throughout his Brief, the rest of the court’s findings
favored neither parent over the other. Thus, it was not unreasonable that the
trial court’s conclusions turned on the stability issue. See S.T., supra (“[T]he
test is whether the trial court’s conclusions are unreasonable as shown by the
evidence of record.”). Therefore, we conclude Father’s fourth appellate issue
is without merit.7
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7 Although we focused on court’s stability findings, we note the court’s
application of two other custody factors. The court declined to interview Child
or otherwise seek to obtain his preference, nor did the court consider Child’s
potential sibling relationship. In his Brief, Father states in passing: “It was
unclear from the trial court opinion why the court opined that [Child] lacked
the maturity to form a well-reasoned preference [pursuant to Section
5328(a)(7)]”; and that “[t]he trial court erroneously found that [Child] has no
sibling relationship while acknowledging that Father has a two-year old
[daughter] with his fiancé [pursuant to Section 5328(a)(6)].” Father’s Brief
at 10. We conclude neither of these mistakes warrant a reversal of the court’s
decision, in this case.
First, Father did not request that the court interview Child, nor did Father
object to the court’s procedure during the hearing; and Father may not raise
the issue for the first time on appeal. See Pa.R.A.P. 302.
Second, although Father is not the biological parent of this daughter, the
daughter stood to be a “step-sibling” imminently. For purposes of Section
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Finally, we address Father’s fifth appellate issue, which asks whether
the court’s weighing of the custody factors was erroneous. See Father’s Brief
at 13. Once more, Father provides no citation to the record, nor legal
authority to support his argument. He merely argues the court found both
parents to be equally capable and concludes that Mother’s restoration of
primary custody was erroneous. Id.In reviewing a weight claim, we observe the great deference we bestow
to the trial court on matters of custody:
[O]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.
The parties cannot dictate the amount of weight the trial
court places on evidence. Rather, the paramount concern of
the trial court is the best interest of the child. Appellate
interference is unwarranted if the trial court's consideration
of the best interest of the child was careful and thorough,
and we are unable to find any abuse of discretion.
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citation omitted).
We can appreciate the Father’s frustration with the court’s minimalistic
findings, even if a remand under Section 5323(d) is unwarranted. Father is
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5328(a)(6), “sibling” is intended to include “full-blood siblings, half-blood
siblings, step-siblings and adoptive siblings.” See 23 Pa.C.S.A. § 5328,
Comment – 2010. In any event, Father provided virtually no testimony about
Child’s relationship with the fiancé’s daughter.
Third, and most importantly, Father ultimately concedes “the trial court did
address all relevant factors[.]” See Father’s Brief at 11. Father did not directly
appeal these errors, and he makes no argument that the court’s best interest
analysis was erroneous based on its omissions under Section 5328(a)(6)-(7).
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correct that the court’s findings mostly recounted the ways in which both
parents were similarly situated. Although the court could have provided more,
its rationale was sufficiently clear: “The [c]ourt concludes that it is in [Child’s]
best interest for Mother to regain primary physical custody to provide him
with stability while still maintaining a close relationship with Father.” See
Memorandum at 9 (emphasis added). The court clearly weighed heavily in
Mother’s favor those factors concerning stability. See 23 Pa.C.S.A.§
5328(a)(4); (9), supra.
Had the history of this case not been one of Mother’s primary care,
perhaps we might have shared Father’s skepticism that such an incongruent
amount of custody time may be awarded based on a single reason, especially
when the stability factors do not directly affect the safety of this Child. See
23 Pa.C.S.A.§ 5328(a)(“[T]he court shall…giv[e] weighted consideration to
those factors which affect the safety of the child[.]”). But even then, we would
have to be mindful of our role. We defer weight issues to the trial court, and
our interference is unwarranted so long as the court’s consideration was
“careful and thorough.” See A.V., 87 A.3d at 820. And we reiterate that
“parties cannot dictate the amount of weight the trial court places on
evidence.” Id. Here, the court thoroughly addressed all the relevant factors
and reached a thoughtful conclusion. Father does not allege otherwise, so
much as he contends such findings also support the shared custody
arrangement he desires. He is not wrong. Had the trial court made the same
findings, but reweighed the factors in Father’s favor, our deference to the trial
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court would almost certainly have precluded our interference just the same.
Father’s final issue is without merit.
In sum, we affirm the trial court’s ultimate physical custody award. The
trial court adequately delineated its reasons for its decision; the court did not
evince any sort of bias or even the appearance thereof; there was competent
evidence of Child’s need for stability; and the court’s weighing of those
stability factors in its best interest analysis was neither an error nor an abuse
of discretion. However, Paragraph 36 of the court’s custody order, which
demanded the parties mediate prior to future litigation, exceeded the court’s
authority. Because the trial court indicated in its Rule 1925(a) opinion that it
only meant to direct the parties to the orientation session, and because such
mandatory attendance is already provided for by the local rules, we may strike
Paragraph 36 from the rest of the custody order without remanding the matter
back to the trial court.
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Paragraph 36 of the court’s order, dated 10/14/20, vacated. In all other
respects, the order is affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2021
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