T.B. and S.E. v. S.H. and K.W. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.B. AND S.E., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
S.H. AND K.W.,
Appellees No. 840 WDA 2015
Appeal from the Order entered April 27, 2015,
in the Court of Common Pleas of Allegheny County,
Family Court at No(s): 12-000134-001
BEFORE: OLSON, STABILE, and STRASSBURGER*, JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 06, 2016
T.B. (“Father”) and S.E. (“Paternal Grandmother”) (collectively,
“Appellants”) appeal from the order entered April 27, 2015, that awarded
shared legal custody of Father’s female child, T.B. (“Child”), who was born in
October of 2009, to Father and K.W., the third-party custodian of Child,
(“Custodian”). The order also awarded primary physical custody of Child to
Father and partial physical custody to Custodian. Finally, the order awarded
partial physical custody to Paternal Grandmother, as arranged with Father,
and partial physical custody to S.H. (“Mother”), as arranged with Custodian.
Although we agree with Appellants that the trial court should have
characterized the type of physical custody awarded to Custodian as
“shared,” and not “partial,” we affirm in all other respects the factual and
* Retired Senior Judge assigned to the Superior Court
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legal determinations made by the trial court with respect to the custody
awards (both legal and physical) entered in this case.
The trial court made the following findings of fact:
Much of the testimony at the hearing focused on establishing the
history of Child’s custody arrangements between her birth in
2009 and the initiation of litigation, approximately four years
later. Although it is undisputed that Child eventually came to
live exclusively with Custodian, the parties and witnesses
differed considerably in their accounts of how and when this
occurred. On balance, both at the time of the hearing itself[,]
and[,] after careful review of the transcripts, the [trial court
found] the history provided by Custodian and her witnesses
credible and more persuasive than Father’s version of events.
The [trial court] reconcile[d] the various versions of events as
follows:
At the time of Child’s birth and for a few months thereafter,
[Mother, Father,] and Child lived together in Paternal
Grandmother’s home. When Paternal Grandmother requested
that they leave her home, they moved as a family to the home
of [J.E., who is Child’s paternal great-aunt (“Paternal Great-
Aunt”)] for a few months. Father and Mother then lived together
in an apartment in the Carrick neighborhood of Pittsburgh until
[] 2011, when they separated. Mother next moved to an
apartment on Brownsville Road. Although Father did not live
with Mother there, he did spend time with Mother at that
address. In April 2012, Father got involved in a physical
altercation with Mother and her boyfriend at the Brownsville
Road apartment. Father was convicted of several charges
related to that incident and did not involve himself with Mother
after that [incident].
Custodian’s son, P.W., has been a close friend of Mother’s since
they were in high school[,] and was well-known to Father. P.W.
lives in Custodian’s household and served as a frequent
babysitter for Child. Starting in the summer of 2010, when Child
was approximately nine months old, Custodian also started to
provide care for Child in Custodian’s home. By the fall of 2010,
even though Mother and Father were still residing together, Child
was spending the majority of her time in Custodian’s care.
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Father was aware of these arrangements. Although Father’s
communications were always with P.W., he knew where
Custodian lived. He both picked up and returned Child to
Custodian’s home when Child was still quite young. He first met
Custodian when Custodian dropped off Child for a visit with him
at an address on Jucunda Street in Mt. Oliver.
Father occasionally arranged with P.W. to have visits, including
some overnights, with Child. Custodian arranged for Child to
visit Mother [when] Mother requested it. Because Father
remained in some form of relationship with Mother on and off
until spring of 2012, Father spent time with Child and provided
care for Child when Child was visiting Mother. Although none of
the witnesses provided specific dates for Father’s visits with
Child, Father had the opportunity to bring Child with him to
various family events during any of his visits. By Father’s own
account, he did not see Child at all for approximately [18
months] - from the spring 2012 altercation at the Brownsville
Road apartment to the initiation of court proceedings in the fall
of 2013.
In or around May 2013, Father, Paternal Grandmother, and the
police arrived at Custodian’s home. Father was seeking to take
custody of Child and may have obtained an emergency PFA order
authorizing this [action].1 Custodian explained to the police that
Child resided with her through an informal custody arrangement.
The police declined to remove Child from Custodian[,] and
informed Father that he should take appropriate action through
[the court system]. Paternal Grandmother first became aware of
Custodian as a result of this incident.
Following Custodian’s initial [c]omplaint for [c]onfirmation of
[c]ustody[,] and leading up to the hearing in this matter, the
[trial court] ordered Father to participate in reunification
counseling with Child[,] and granted Father and Paternal
Grandmother increasing periods of partial physical custody with
Child. On November 25, 2014, the parties consented to Father
exercising two weekly overnight visits and every other weekend
1
Father and Paternal Grandmother referred in their testimony to Father
obtaining a PFA [order]. They did not introduce any exhibit to document
this, and the [trial court] docket does not reflect the filing of any PFA action
by Father.
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partial physical custody of Child. That interim order also granted
Custodian primary physical custody of Child[,] and granted
shared legal custody to Father and Custodian. That custody
arrangement remained in effect until the [trial court] issued its
final order on April 27, 2015.
Trial Court Opinion, 7/24/15, at 4-7 (certain footnotes omitted).
The trial court set forth the procedural history of this case as follows:
On September 17, 2013, [Custodian] signed and verified a pro
se [c]omplaint for [c]onfirmation of [c]ustody/[c]omplaint for
[c]ustody in which she alleged [] Child had resided with her for
three years[,] and that she needed a custody order to establish
her authority to get Child vaccinated and enroll Child in pre-
school. . . .
On October 17, 2013, the day before Custodian was to present
her pleading in motions court, Father filed a complaint seeking
custody of [] Child. At motions court on October 18, 2013, the
presiding judge denied Custodian’s request to confirm custody,
granted Custodian in loco parentis standing, granted Custodian
interim primary physical custody and Father interim partial
physical custody, and ordered the matter to proceed through the
[trial court’s g]enerations custody program.2 The parties could
not reach an agreement through mediation[,] and proceeded to
a series of judicial conciliations.
On July 17, 2014, the [trial court] granted a motion allowing
[ ]Paternal Grandmother[] to intervene as a party and file a
complaint for partial physical custody of Child. Per that order,
Paternal Grandmother filed her complaint on July 31, 2014, and
the [trial c]ourt consolidated that action with Father’s and
Custodian’s complaints. Given the advanced stage of litigation,
the [trial c]ourt excused Paternal Grandmother from
participation in [g]enerations[,] and formally included her in the
parties’ ongoing judicial conciliations.
2
This matter was assigned to [Judge Eleanor L. Bush] in 2014, after the
previous judge completed his appointed term and [Judge Bush] began [her
judicial service].
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The parties could not reach an agreement on a final custody
arrangement through judicial conciliations, and the [trial court]
scheduled the matter for a hearing.
Trial Court Opinion, 7/24/15, at 1-3.
A custody hearing was held on February 5 and March 30, 2015. At
that hearing, the following individuals testified: Father; Custodian; Paternal
Great-Aunt; Paternal Grandmother; Custodian’s friend, V.S; Custodian’s
mother, B.W.; Mother; Custodian’s son, P.W.; and the executive director of
Anchorpoint Counseling Ministry, Ron Barnes. On April 10, 2015, the trial
court issued oral findings of fact and conclusions of law related to the 16
custody factors set forth in 23 Pa.C.S.A. §5328(a). On April 27, 2015, the
trial court awarded shared legal custody of Child to Father and Custodian.
The trial court also awarded primary physical custody of Child to Father,
partial physical custody to Custodian, and partial physical custody to Mother
and Paternal Grandmother. The order established a schedule for Father and
Custodian to exercise their periods of physical custody. The order further
provided for Mother to arrange her periods of partial physical custody with
Custodian, and for Paternal Grandmother to arrange her periods of partial
physical custody with Father. This timely appeal followed.3
Appellants present two issues for our review:
3
Appellants filed a concise statement of errors complained of on appeal
contemporaneously with their notice of appeal. See Pa.R.A.P. 1925(a)(2)(i).
On July 24, 2015, the trial court issued its Rule 1925(a) opinion. Both
issues raised on appeal were included in their concise statement.
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1. Did the trial court commit an error of law and/or abuse its
discretion by granting a non-biological third-party shared
legal and physical custody of [C]hild?
2. Did the trial court commit an error in not fashioning separate
[custody] time for Paternal Grandmother in the final [o]rder?
Appellants’ Brief at 2.
In custody cases, our standard and scope of review are as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard [of review] 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.
R.S. v. T.T., 113 A.3d 1254, 1257 (Pa. Super. 2015), appeal denied, 117
A.3d 298 (Pa. 2015) (citation omitted).
We have stated:
the discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an appellate court
by a printed record.
R.L.P. v. R.F.M., 110 A.3d 201, 208 (Pa. Super. 2015) (citation omitted).
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With any custody case, the paramount concern is the best interest of
the child. See 23 Pa.C.S.A. §§ 5328, 5338. Upon petition, a trial court may
modify a custody order if it serves the best interest of the child. 23
Pa.C.S.A. § 5338. Section 5328(a) sets forth the best interest factors that
the trial court must consider. See S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.
Super. 2014). Section 5323 provides for the following types of custody
awards:
(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S.A. § 5323(a).
Section 5322 defines the relevant forms of custody as follows:
“Legal custody.” The right to make major decisions on behalf
of the child, including, but not limited to, medical, religious[,]
and educational decisions.
***
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“Partial physical custody.” The right to assume physical
custody of the child for less than a majority of the time.
“Physical custody.” The actual physical possession and
control of a child.
“Primary physical custody.” The right to assume physical
custody of the child for the majority of time.
***
“Shared legal custody.” The right of more than one individual
to legal custody of the child.
“Shared physical custody.” The right of more than one
individual to assume physical custody of the child, each having
significant periods of physical custodial time with the child.
“Sole legal custody.” The right of one individual to exclusive
legal custody of the child.
“Sole physical custody.” The right of one individual to
exclusive physical custody of the child.
23 Pa.C.S.A. § 5322.
Section 5328(a) outlines the following best interest factors:
(1) Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a continued
risk of harm to the child or an abused party and which party can
better provide adequate physical safeguards and supervision of
the child.
(2.1) The information set forth in section 5329.1(a)(1) and (2)
(relating to consideration of child abuse and involvement with
protective services).
(3) The parental duties performed by each party on behalf of the
child.
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(4) The need for stability and continuity in the child’s education,
family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the other
parent, except in cases of domestic violence where reasonable
safety measures are necessary to protect the child from harm.
(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.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational[,] and special needs of
the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to
make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness
and ability of the parties to cooperate with one another. A
party’s effort to protect a child from abuse by another party is
not evidence of unwillingness or inability to cooperate with that
party.
(14) The history of drug or alcohol abuse of a party or member
of a party’s household.
(15) The mental and physical condition of a party or member of
a party’s household.
(16) Any other relevant factor.
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23 Pa.C.S.A. § 5328(a). Although a trial court must consider all of these
factors, “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.”
M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, 68
A.3d 909 (Pa. 2013).
Appellants first contend that the trial court committed an error of law
and/or abused its discretion by effectively granting Custodian shared legal
and physical custody of Child. Section 5327(b) provides:
In any action regarding the custody of the child between a
parent of the child and a nonparent, there shall be a
presumption that custody shall be awarded to the parent. The
presumption in favor of the parent may be rebutted by clear and
convincing evidence.
23 Pa.C.S.A. § 5327(b).
In its Rule 1925(a) opinion, the trial court discussed the section
5327(b) presumption in depth. It held that Custodian failed to prove by
clear and convincing evidence that she should receive primary physical
custody. For that reason, the trial court granted primary physical custody to
Father. On the other hand, the trial court found that Custodian proved by
clear and convincing evidence that she should have partial physical custody
of Child.
Appellants concede that the trial court recited the proper legal
standard, including the statutory presumption. Appellants’ Brief at 7. They
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take issue, however, with the trial court’s characterization of the type of
physical custody awarded to Custodian. Appellants contend that the trial
court, in effect, awarded Custodian “shared” (not “partial”) physical custody.
They assert that the schedule in the order reflects a standard week on/week
off shared physical custody schedule as between Father and Custodian. Id.
Furthermore, they contend that although the trial court recited the correct
legal standard, it in fact applied a less stringent standard when awarding
Custodian custody.
Although we conclude that the trial court erred in characterizing the
nature of the physical custody awarded to Custodian, we conclude that this
error was harmless and had no impact upon the presumption that favors
parents over third parties in custody disputes or the court’s analysis of
Child’s best interest. While the trial court awarded Custodian “partial”
physical custody of Child, the record reveals that Custodian was granted
custody of Child for approximately 24 weeks a year, or 46% of the year.
“[S]hared custody does not necessarily mean equal time.” V.B. v. M.L.T.B.,
467 A.2d 880, 883 (Pa. Super. 1983).4 Instead, all that is necessary for
shared legal custody is for more than one person to enjoy “significant
periods of physical custodial time with the child.” 23 Pa.C.S.A. § 5322(a).
4
We recognize that the statute in effect at the time of V.B. differs from the
statute currently in effect. Nonetheless, the plain language of section 5322
indicates that the General Assembly codified the rule set forth in V.B. when
it passed section 5322(a)’s definition of shared legal custody.
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Custody of Child for 46% of the year is a significant period. The trial court is
correct that it awarded primary physical custody to Father; however, that
does not foreclose the possibility of shared physical custody also being
awarded to another party. That is what occurred in this case. The trial
court awarded shared physical custody to Custodian while awarding primary
physical custody to Father. Nonetheless, we conclude that careful review of
the trial court’s consideration of the section 5328(a) factors supports the
trial court’s decision to award Custodian shared physical custody.
As to the first factor, the trial court found that “Custodian
acknowledges the importance of encouraging Child’s relationships with
Mother, Father, and Paternal Grandmother.” Trial Court Opinion, 7/24/15,
at 10. On the other hand, the trial court found that “Father and Paternal
Grandmother profess to recognize Child’s love for and attachment to
Custodian, yet deny the importance to Child of maintaining her relationship
with Custodian.” Id. at 11. Thus, the trial court concluded that the first
factor weighed heavily in favor of Custodian. The trial court found that
factors two and 2.1 were not applicable in this case. As to the third factor,
the trial court found that since “Father was re-introduced to Child in fall
2013, he has performed a typical range of parental duties during the time
Child spends with him.” Id. at 9.
As to the fourth factor, the trial court found:
Child has lived [] with Custodian for most of her life. Custodian
and her household represent the main source of stability that
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Child has experienced. During Child’s lifetime Father has moved
numerous times, changed jobs frequently, engaged in physical
violence in his relationship with Mother, and admitted to being
entirely absent from Child's life for [one and one-half] years.
Id. at 10. Therefore, the trial court found that the fourth factor weighed
heavily in favor of Custodian. As to the fifth factor, the trial court noted that
Father has extended family in the area, e.g., Paternal Grandmother, who
would be able to help when necessary.
The trial court weighed factor six in favor of Father because Child has an
older half-sibling, who is Father’s daughter. As to the seventh factor, the
trial court found Child too young for it to consider her preference. The trial
court also found that there was no evidence that the parties had attempted
to turn Child against another party, so factor eight was neutral. Regarding
“factors nine and ten . . . the evidence did not establish that Father is more
likely to meet Child’s needs. However, the evidence did not establish that
he cannot meet these needs.” Id. (emphasis removed). With regard to
factor 11, the trial court found that the parties lived in very close proximity,
which is positive for Child. The trial court found that “regarding factor 12,
. . . Father’s family members can assist him by providing care for Child if
Father is at work or unavailable.” Id.
With regard to factor 13, the trial court found that Custodian showed a
slightly more positive attitude toward cooperation than Father. With regard
to factor 14, the trial court found that there is a history of drug use on both
Father’s and Custodian’s sides. The trial court found that P.W., who lives
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with Custodian, is in recovery and that he has been “clean” of drug use for a
few years. The trial court also noted that Father has a history of marijuana
use, which may have included the sale of drugs. Accordingly, the trial court
did not weigh the factor against either Father or Custodian. The trial court
found factor 15 neutral. Finally, the trial court did not find any other
relevant factors.
Appellants first dispute the trial court’s evaluation of factors 2 and 14.
Specifically, Appellants argue that, because Child shares a room with P.W. at
Custodian’s residence, she is vulnerable to abuse. The trial court, however,
carefully considered this issue and found that the current arrangement was
temporary and that Child would have her own bedroom shortly. It further
found that Child was not vulnerable to abuse because of the current
arrangement. Our review of the record indicates that the trial court’s
findings were supported by the record. Children and Youth Services
examined the arrangement (with Child and P.W. sharing a bedroom) and
determined that it did not pose a threat to Child.5
With respect to factor 14, Appellants argue that P.W.’s past drug use
was overlooked by the trial court. The trial court, however, fully discussed
P.W.’s past drug use. It found P.W.’s testimony regarding his sobriety to be
5
In their brief, Appellants argue that Children and Youth Services’ review
occurred before the current arrangement; however, we find that the trial
court’s evaluation of the testimony regarding the Children and Youth
Services’ review is consistent with the testimony given at the hearing.
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credible. Furthermore, the trial court found that Father had drug problems
that were at least as serious as P.W.’s. The trial court noted that Father
may have been involved in the illegal sale of drugs. Thus, it found that
factor 14 was neutral because both Father and P.W. had past drug problems.
As the record supports the trial court’s evaluation of the second and
fourteenth factors, we may not make our own credibility determinations and
reach different conclusions as to those factors.
When weighing the section 5328(a) factors, the trial court found the
factors that weighed in favor of Father were far less important than the
factors that weighed in favor of Custodian. Specifically, as mentioned
above, the trial court found the first and fourth factors to be the most
important in its best interest determination and both of those factors
weighed in favor of Custodian. The trial court’s decision to award Father
primary physical custody of Child was based on a combination of the section
5327(b) presumption and the section 5328(a) factors.
Appellants rely on Jordan v. Jackson, 876 A.2d 443 (Pa. Super.
2005), in support of their argument that the trial court abused its discretion
in awarding Custodian shared physical custody. Jordan, however, is easily
distinguishable from the case at bar. Specifically, in Jordan there was “a
dearth of evidence” that the child’s interests were best served in the third-
party’s custody. Id. at 452. As noted above, in this case there was
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significant evidence, specifically with respect to the first and fourth factors,
that Child’s interests were best served in Custodian’s care.
The trial court’s weighing of the section 5328(a) factors was not
unreasonable. Instead, the trial court’s findings are well-supported by the
record and indicate a great deal of consideration of Child’s best interests. As
noted above, the trial court’s characterization of its physical custody award
was legally incorrect. Nonetheless, notwithstanding the terminology used by
the trial court, it determined, after careful consideration of the section
5328(a) factors, that Custodian should have physical custody for a
significant portion of time and Father should have physical custody of Child
for a majority of the year. Thus, the terminology used by the trial court did
not impact its award of shared physical custody to Custodian. Therefore, the
trial court’s legal error in characterizing the type of physical custody
awarded to Custodian was harmless.
Appellants also challenge the award of shared legal custody to
Custodian. We conclude that the trial court’s decision is supported by the
record and free of legal error. As noted by the trial court, Custodian “has
taken primary responsibility for ensuring Child’s safety and well-being,
including such matters as enrolling Child in pre-school and ensuring that
Child received needed immunizations.” Trial Court Opinion, 7/24/15, at 12.
Father, on the other hand, has undertaken none of these responsibilities.
The trial court determined that having Custodian, who is familiar with Child’s
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needs, should share legal custody with Father to ensure that Child’s needs
are satisfied. Partial legal custody is not an option in Pennsylvania. See 23
Pa.C.S.A. § 5323(a). Instead, the trial court determined that shared legal
custody was better for Child’s best interest than awarding Father sole legal
custody.
The trial court’s decision to award Custodian shared legal custody is
also supported by prior decisions of this Court. In McDonel v. Sohn, 762
A.2d 1101 (Pa. Super. 2000), third-party custodians were responsible for the
care of the child for most of the child’s life. Id. at 1103. The father was not
involved in the child’s life for an extended period of time until he opted to
exercise partial physical custody of child. Id. When the third-party
custodians filed suit to confirm custody, the father filed preliminary
objections. The trial court ultimately overruled the preliminary objections
and awarded the third-party custodians shared legal custody of the child.
This Court affirmed the trial court’s award of custody to the third-parties.
Critical to this determination was the fact that the father had not been
involved in the child’s life for an extended period of time and that the third-
party custodians had “historical involvement and participation in [the child’s]
life since birth.” Id. at 1108. The same situation is present in the case at
bar. Father was absent from Child’s life for an extended period of time and
only decided to take an active role in her life after the commencement of
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this action. On the other hand, Custodian has assisted Child for most of her
life.
Similarly, in Jones v. Jones, 884 A.2d 915, 918 (Pa. Super. 2005), this
Court affirmed the award of shared legal custody to a third-party and the
children’s mother. Critical in our decision was the fact that the “children’s
relationship with both parties would be better fostered if custody were
awarded to [the third-party].” Id. at 918. The trial court in the case sub
judice likewise found that Father was attempting to exclude Custodian from
Child’s life while Custodian wanted to develop a bond between Child and
Father. Therefore, based upon a careful review of the section 5328(a)
factors, we ascertain no abuse of discretion in the trial court’s determination
to award Custodian shared legal custody. Accordingly, Appellant’s first issue
on appeal is without merit.
In their second issue, Appellants contend that the trial court erred by
effectively ignoring Paternal Grandmother’s petition for partial physical
custody. Appellants acknowledge that the final custody order awards
Paternal Grandmother partial physical custody as arranged with Father.
They argue, however, that the order does not address Paternal
Grandmother’s rights, nor does it address Paternal Grandmother’s petition
for separate time with Child.
We find this issue waived. “Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
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In her complaint, Paternal Grandmother only requested that Father be
awarded primary physical custody of Child and that she be awarded
“reasonable partial physical custody with [Child].” Paternal Grandmother
Custody Complaint, 7/31/14, at 3. At the custody hearing, she elaborated
that the only reason she filed her custody complaint was to speed up the
process and assist Father in obtaining primary physical custody. See N.T.,
2/5/15, at 150. She further testified that she did not want to take over
parenting duties from Father. Id. As the trial court noted, the award of
partial physical custody to Paternal Grandmother, to be arranged with
Father, “essentially adopts Paternal Grandmother’s proposal and honors
Paternal Grandmother’s expressed intentions and wishes to support Father’s
position and defer to his role in Child’s life.” Trial Court Opinion, 7/24/15, at
14. As Paternal Grandmother did not seek time in the custody schedule at
the trial court level, this issue is waived on appeal.
Furthermore, even if this issue were not waived, we would find it to be
without merit. Trial courts possess wide latitude in fashioning a custody
schedule that is in a child’s best interest. In this case, the trial court
determined that minimizing changes in Child’s custody, and having a steady
schedule of custody for Father and Custodian, was in Child’s best interest.
Nonetheless, the trial court determined that Mother and Paternal
Grandmother should also have partial physical custody of Child but believed
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that time should be arranged through Custodian and Father, respectively.
We ascertain no abuse of discretion or error of law in this determination.
In sum, the trial court carefully considered Child’s best interest in
fashioning its custody award and schedule. The trial court properly and
thoroughly considered the presumption set forth in section 5327(b), and the
16 best interest factors set forth in section 5328(a). Although the trial court
mischaracterized the type of physical custody it awarded Custodian, that
error was harmless. Finally, Appellants waived their argument that Paternal
Grandmother should have been included in the custody schedule instead of
arranging her partial custody with Father. Accordingly, we modify the trial
court’s order to reflect that Custodian was awarded “shared” physical
custody instead of “partial” physical custody. See 42 Pa.C.S.A. § 706 (“An
appellate court may affirm, modify, vacate, set aside[,] or reverse any order
brought before it for review[.]”). We affirm in all other respects.
Order affirmed as modified.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2016
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