Z.S. v. J.L. ( 2019 )

J-A03026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Z.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
J.L. : No. 1305 WDA 2018
Appeal from the Order Entered August 17, 2018
In the Court of Common Pleas of Beaver County Civil Division at No(s):
No. 10567 OF 2015
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER*, J.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 15, 2019
Z.S. (“Father”) appeals from the order that denied his exceptions to the
proposed custody order of the hearing officer and maintained shared legal
custody in Father and J.L. (“Mother”) of their daughter, H.S. (“Child”) (born
in December of 2007). The order awarded primary physical custody of Child
to Mother and partial physical custody to Father. After careful review, we
affirm.
The trial court provided the following factual background:
The parties married in [September of 2006, separated in
September of 2012, and divorced in May of 2016]. [See N.T.,
7/20/18, at 110, 199–200.] One (1) child was born of the
marriage: H.S., age ten (10). After the parties’ separation,
Mother resided in Mount Washington in Pittsburgh, [Allegheny
County,] while Father moved in with Paternal Grandparents in
Beaver County. Thereafter, Father and [Child] moved in with his
then-fiancé[e] and her daughter in Moon Township[, Allegheny
County]. Father and [Child] then moved into their own apartment
in Moon Township after the previous living situation grew
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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unsustainable. According to Father, due to [Child’s] behavior,
Father and his then-fiancé[e] ended their relationship. In 2015,
Father began dating his now wife, [J.S.] (“Wife”) [or
(“Stepmother”)], who then[]resided in West Virginia. [Father and
Stepmother] wed in December of 2017. Father had begun his
employment [in Greene County], Pennsylvania, which resulted in
a one and one-half (1½) hour commute from Moon Township.
Because Father worked a variety of shifts, [Child] began to spend
long periods of time with Paternal Grandparents in Beaver County
while still attending school in Moon Township, in [Allegheny
County]. . . .
* * *
After the parties separated, the parties operated under a
shared custody agreement, created independent[ly] of the
[c]ourts. However, after Father filed a Complaint for Custody in
2015, the parties were able to come to an agreement as to
custody. The parties, in an Agreed Order, agreed that[,] due to
the better schools in Moon Township, Father, who then[]resided
in Moon Township, would have custody Monday until Friday at
5:30 p.m. with Mother having custody on the first, second, third,
and any fifth weekend of every month from Friday at 5:30 p.m.
to Monday morning when [Child] was dropped off at school. On
the week preceding Father’s weekend custody, Mother would be
granted partial custody with [Child] from Wednesday at 5:30 p.m.
to Friday morning[,] when [Child] was dropped off at school.
During the summer months, custody was shared on a week
on/week off basis, with Mother having an additional seven (7)
days during the summer months.
Trial Court Opinion, 8/17/18, at 6–7, 9.
The trial court set forth the procedural background, as follows:
[Father] filed a Complaint for Custody on May 5, 2015,
seeking primary physical custody of H.S. ([Child]). As a result, a
Custody Conciliation Conference was scheduled for May 21, 2015.
On May 14, 2015, [Mother] filed a Petition for Special Relief,
requesting custody be returned to the custody schedule the
parties had been operating under independent of the [c]ourts.
Additionally, Mother stated Father was withholding [Child] from
her as a result of an incident in October of 2014, whereby [Child]
had an inappropriate interaction with another child. Mother was
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aware of the incident at the time and did not tell Father about it.
Rather, Father learned of the incident through a comment made
to him by [Child] around the time he filed the Custody Complaint.
In response to Mother’s Petition for Special Relief, the [c]ourt
entered a Temporary Order directing the parties to resume the
status quo custody schedule, whereby Mother had custody of
[Child] from 5:30 p.m. every Friday to the beginning of school on
Monday morning. On May 22, 2015, the parties entered into a
Custody Agreement, whereby [primary] physical custody of
[Child] was awarded to Father[,] with partial [physical] custody
rights vested in Mother. During the school year, Mother was
granted partial custody with [Child] on the first, second, third, and
any fifth weekend of every month from 5:30 p.m. on Friday to the
beginning of school on Monday morning. Additionally, during the
week preceding Father’s weekend custody, Mother was granted
partial custody with [Child] from 5:30 p.m. on Wednesday to the
beginning of school on Friday morning. In the summer months,
the parties shared custody on a week on/week off basis. Mother
also consented to Father relocating to Moon Township,
Pennsylvania[,] in the Agreement. Additionally, the parties
share[d] legal custody of [Child].
On August 17, 2017, Mother filed a Petition for Modification
and a Petition to Prevent Relocation and Return of Child, stating
Father unilaterally removed [Child] to West Virginia. The [trial
court] fashioned an [o]rder prohibiting Father from removing
[Child] from Moon Township, Pennsylvania[,] without following
the proper procedures for relocation. Additionally, custody was to
immediately transfer to Mother should Father move without
proper authority[,] and a Custody Conciliation Conference was
scheduled for September 27, 2017.
On January 29, 2018, Mother filed a Petition for Contempt,
alleging Father was living in West Virginia and that [Child] was
residing with Paternal Grandparents on a full-time basis in
violation of the August 17, 2017 [o]rder. Also on January 29,
2018, Father filed a Petition for Modification, stating the parties
disagree as to [Child’s] need for ADHD [(“Attention Deficit
Hyperactivity Disorder”)] medication and alleging that Mother is
unfit in managing her custody time. As a result of both petitions,
a Custody Conciliation Conference was scheduled for March 8,
2018.
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On or around the date of the scheduled [m]otion to set a
Custody Conciliation Conference, [the trial court] received a typed
letter signed by [Child] in this matter. The letter was delivered
and addressed to [the trial court’s] Chambers. The letter was
forwarded to the Hearing Officer assigned to the Custody
Conciliation Conference. [The trial court] did not, at that time,
read the letter, as it deemed it an inappropriate ex-parte [sic]
communication[,] and[,] as its contents could be potentially
prejudicial . . ., and[,] eventually[,] [the trial court], spoke with
[Child] in person.
On March 21, 2018, a Proposed Order was entered [by the
Hearing Officer,] awarding physical custody of [Child] to Mother,
with partial custody rights vested in Father, whereby Father has
custody of [Child] on the first, second, third, and fifth weekends
of every month from 5:30 p.m. on Friday to the beginning of
school on Monday during the school year. Additionally, on the
week preceding Mother’s weekend custody, Father [was] granted
partial custody with [Child] from 5:30 p.m. on Wednesday to the
beginning of school on Friday morning. During the summer
months, custody [was to be] shared on a week-on/week-off basis,
with custody exchanges to take place at 5:30 p.m. on Sundays.
Legal custody was directed to be shared by the parties.
On April 9, 2018, Father filed Exceptions to the Proposed
Custody Order of March 21, 2018, stating the Hearing Officer
erred by not reducing Mother’s physical custody as: Mother failed
to disclose to Father a sexual abuse incident that occurred in
2014; Mother takes [Child] to bars and/or leaves her in the care
of neighbors during Mother’s custody time; [Child] is tardy to
school during Mother’s custody time; Mother refuses to consider
ADHD medication as recommended by [Child’s] therapist; and
Mother discusses this custody case with [Child]. Additionally,
Father stated he does not desire to relocate to West Virginia, nor
has he already relocated himself or [Child]. In response to
Father’s Exceptions, [the trial court] scheduled a Pre-Trial
Conference for May 21, 2018. After the failure of the parties to
reach an agreement at the Pre-Trial Conference, a Custody Trial
was scheduled for July 20, 2018.
On June 7, 2018, Father filed a Petition to Consolidate his
request to relocate with the [c]ustody [t]rial, as Father served a
“Notice of Proposed Relocation” requesting permission to relocate
to Washington County, Pennsylvania[,] on May 25, 2018 [on]
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Mother’s counsel. As a result, an [o]rder was entered by [the trial
court] stating the Relocation Hearing was to be held
contemporaneously with the scheduled [c]ustody [t]rial on
July 20, 2018. However, as a result of [the trial court’s] inquiry
at [t]rial, Father, through his counsel, stated on the record that
Father already [had] physically relocated to his new residence in
Washington County. Mother, on the record through her counsel,
did not object to his relocation. As such, both parties agreed that
the statutory relocation factors were not required to be addressed
[at trial or] in [the trial court’s opinion and order].
Trial Court Opinion, 8/17/18, at 1–4.
At the custody trial on July 20, 2018, the trial court questioned Child, in
camera, with counsel for both parties present. Thereafter, Father’s counsel
questioned Child on direct examination, and Mother’s counsel conducted
cross-examination of Child. N.T. (in camera), 7/20/18, at 4–111. Father and
Mother testified on their own behalves. N.T., 7/20/18, at 9–192, 195–257.
At the commencement of the second day of the custody trial, on
August 1, 2018, counsel for Father presented a “Motion in Limine-Inclusion of
Expert Testimony,” and counsel for Mother presented an Answer to Father’s
motion. The trial court denied the motion, and Mother’s testimony continued.
N.T., 8/1/18, at 5–14, 15–67. Father then presented the testimony of his
wife, J.S. and, via telephone, his mother, R.S. (“Paternal Grandmother”). Id.
at 67–106, 109–127. Mother presented the testimony of her mother, C.L.
(“Maternal Grandmother”); Father’s aunt, K.T.; the director of admissions at
Trinity Christian School, Brenda Kirkland; and the scheduling specialist for the
standardized patient program at the University of Pittsburgh, April Arnone.
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Id. at 127–152, 154–164, 168–184, 188–194. Father then testified on
rebuttal. Id. at 196–224.
Based on the testimonial and documentary evidence presented at the
hearing, the trial court set forth its findings of fact:
At [t]rial, Father admitted that he obtained a [United States Post
Office Box] in Moon Township[,] as Father testified there was a
pattern of stolen mail at his apartment in Moon Township, but
[Father] maintained at [t]rial that he also maintained a residence
in Moon during that time. In May of 2018, Father signed a six
(6)[-]month lease for a new apartment in Moon Township after
[Child’s] school questioned Father’s residence within the district.
The actual details of where Father and [Child] resided in the last
year were difficult to ascertain at [t]rial, except that a minimal
amount of time was actually spent in Moon Township. Mother
testified she filed a Petition to Prevent Relocation in August of
2017, as [Child] told her that she and Father had relocated to
West Virginia, suggesting that they were spending large amounts
of time in [Stepmother’s] former residence. Additionally, Paternal
Grandmother testified that[,] during the 2017-2018 school year,
[Child] resided with Paternal Grandparents frequently[,] as Father
was at work. What periods of time Father and [Child] were
residing in Father’s Moon Township apartment or with Paternal
Grandparents or with [Stepmother] were difficult to ascertain.
However, Father testified that he was only spending one (1) night
“here and there” with [Stepmother] in West Virginia[,] and a
substantial amount of time at Paternal Grandparents’ home in
Hopewell, Beaver County, Pennsylvania.
[Child] attended elementary school in Moon Township,
Pennsylvania[,] from 2016 to the end of the 2018 school year,
where she was successful in her studies. (Defendant’s’ Ex. 2).
[Child] did have some behavioral issues. [Child] was transported
to and from school frequently by Paternal Grandparents.
However, [Child] did have a notable amount of tardies and
absences, both excused and unexcused. Many of the days when
[Child] was tardy corresponded to the days in which it was
Mother’s responsibility to transport [Child] to school. Mother
testified that she had a difficult time anticipating traffic on such
mornings and did not adequately budget the appropriate amount
of time.
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[Child’s] behaviors were contested by the parties at [t]rial
and involved the larger disagreement between the parties
surrounding whether or not [Child] should take medication for
[ADHD]. Father, [Stepmother], and Paternal Grandmother all
testified as to concerns with [Child’s] behavior, such that she has
a difficult time focusing and can be irritable. Conversely, Mother
and Maternal Grandmother testified that they do not observe any
issues with [Child] focusing or any concerning behaviors to
suggest she should be taking ADHD medication.
In June of 2018, Father, [Stepmother], [his] two (2) step-
children[,] a daughter, age nine (9) and a son who has autism,
age eleven (11), purchased a home and moved to Washington
County, Pennsylvania. This move was contrary to the existing
Court Order dated March 21, 2018. [Stepmother] and her children
had previously resided in Wheeling, West Virginia. Father testified
at [t]rial that he moved to Washington County to maintain the
current distance between Father’s and Mother’s residences and
shorten his commute to work, as the new commute from his home
in Washington County to his job in Greene County was
substantially decreased. [Stepmother] works as a nurse in
Columbus, Ohio. Both Father and [Stepmother] work long shifts.
Because [Stepmother] now works three (3) back-to-back twelve
(12)[-]hour shifts in Columbus, she often stays with friends or in
[Airbnbs] overnight during these periods. Due to her schedule,
Father, who also works extended shifts, coordinates his time
around [Stepmother’s] to ensure that one of them is home and
available to the three (3) children in their household.
Mother works a variety of jobs, including [as] a tour guide
on the Gateway Clipper Fleet, a performance artist, and a
standardized patient with the University [o]f Pittsburgh School
[o]f Medicine. While she has no set schedule, Mother does have
a lot of flexibility in formulating her weekly work shifts[,] and has
worked various positions at these jobs for substantial periods of
time. For example, Mother has worked as a standardized patient
for seven (7) years. Her employer verified her dedication and
ability to perform her job. Mother often brings [Child] with her to
some of her workplaces when appropriate[,] and when she can
ensure proper supervision of [Child]. Mother has many artistic
interests and friends in such communities. Mother often attends
events and sometimes goes on out-of-state trips, both with and
without [Child], that are connected to these interests, such as
attendance at a Cirque du Solei [sic] production.
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* * *
At [t]rial, Father proposed that he have primary custody of
[Child] Sunday night through the beginning of school on Fridays[,]
with Mother exercising partial custody every other weekend.
Additionally, Father proposed [Child] be enrolled in elementary
school in the Washington County School District. Mother proposed
that she have primary custody of [Child], with Father exercising
partial custody during the school year three (3) weekends a
month, as well as mid-week visitation. Mother also proposed the
parties continue to share legal custody and that summers be
shared between the parties. Additionally, Mother proposed [Child]
attend Trinity Christian School in Pittsburgh.
Currently, the parties operate under the Agreed Order[,]
with Father exercising primary custody during the school year[,]
and Mother having partial custody. The parties share custody
during the summer months on a week-on/week-off basis.
Trial Court Opinion, 8/17/18, at 7–10.
The trial court entered an order on August 17, 2018, denying Father’s
exceptions to the Hearing Officer’s recommendation, maintaining shared legal
custody in the parties, awarding Mother primary physical custody and Father
partial physical custody. Pursuant to the custody schedule, Father would have
partial physical custody of Child during the school year for the first, second,
and fourth weekend of each month from 6:00 p.m. on Friday until 6:00 p.m.
on Sunday. The first weekend meant the first full weekend of the month
beginning on a Friday. During the summer, Father was to have partial physical
custody on a week-on/week-off basis. The parties were to exchange physical
custody every Sunday at 6:00 p.m. Both parties were to exercise their
vacation during their custodial time. The trial court awarded Father one
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additional week of partial physical custody during the summer months. Trial
Court Opinion and Order, 8/17/18, at 24–27.
Thereafter, Father filed a motion for reconsideration on September 19,
2018. After oral argument on the motion, the trial court denied
reconsideration in an order entered on September 19, 2018. In the meantime,
on September 4, 2018, Father timely filed a notice of appeal, along with a
concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
In his brief on appeal, Father raises the following issues:
A. Whether the [trial court] erred by failing to admit relevant
testimony of Sarah Dean, [Child’s] treating therapist, when
[Mother] was willfully uninvolved in the treatment process, did not
request contact information until much later in therapy despite
having the therapist’s name, and did not seize the opportunity to
make contact after being provided with said information.
B. Whether the [trial court] erred by considering [Father’s] move
to Washington County a “relocation” under PA Custody Relocation
Rule [Pa.R.C.P.] 1915.17(a), even though [Father’s] new
residence was located only slightly further than his previous
residence to [Mother’s] residence, ultimately failing to
“significantly impair” [Mother’s] custodial rights. Also, even if the
[trial court] was correct in its characterization, whether the [trial
court] failed to consider the benefit of the move on [Child].
C. Whether the [trial court] erred by giving little weight to the
letter written [by Child] to the [trial court] when all parties
testified that [Child] took it upon herself to write without her
father’s influence.
D. Whether the [trial court] erred by not giving any weight to
[Child’s] preference articulated in chambers to remain with her
father.
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E. Whether the [trial court] erred by failing to consider Mother’s
behavior in the presence of and causing safety concerns for
[Child], including driving [Child] while intoxicated on Mother’s
Day.
F. Whether the [trial court] erred by failing to give proper weight
to [Mother’s] inability to take [Child] to school on time and her lax
attitude towards [Child’s] schooling and absenteeism.
G. Whether the [trial court] erred by giving primary or
considerable weight to school choice, thereby deflecting
[Mother’s] history of poor behavior and judgement while [Child]
was in her care.
H. Whether the [trial court] erred by determining that [Father’s]
relationship with [Child] was inadequate for [Child’s] well-being
when the record supports the opposite conclusion.
Father’s Brief at 2–3.
In custody cases filed under the Child Custody Act (“the Act”), 23
Pa.C.S. §§ 5321–5340, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest
type and our standard is abuse of discretion. This Court 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. We defer to the credibility
determinations of the presiding trial judge, who viewed and
assessed the witnesses first-hand. We, however, are not bound
by the trial court’s deductions or inferences from its factual
findings, and ultimately, the test is whether the trial court’s
conclusions are unreasonable as shown by the evidence of record.
We may reject the trial court’s conclusions only if they involve an
error of law, or are unreasonable in light of the sustainable
findings of the trial court.
P.J.P. v. M.M., 185 A.3d 413, 417 (Pa. Super. 2018) (internal quotation
marks, citations, and brackets omitted).
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We have defined abuse of discretion as “not merely an error of
judgment; if, in reaching a conclusion, the court overrides or misapplies the
law, or the judgment exercised is shown by the record to be either manifestly
unreasonable or the product of partiality, prejudice, bias or ill will, discretion
has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super.
2007) (quoting Arbet v. Arbet, 863 A.2d 34, 39 (Pa. Super. 2004)).
Regarding the trial court’s exercise of discretion, 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.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).
In his first issue, Father argues that the trial court erred when it
excluded relevant expert testimony of Child’s treating therapist without
examining the probative value it would have provided to the trier of fact.
Father’s Brief at 2. Father asserts that, because the trial court refused to
consider the therapist’s expert report, as well as her recommendations within
the report, the trial court totally discounted uncontradicted expert testimony.
Id. at 17. According to Father, the trial court abused its discretion when it
focused exclusively on Father’s actions in choosing the therapist rather than
on Mother’s willful non-involvement. Id.
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Pursuant to Pa.R.E. 703, we observe that the decision of whether to
admit or exclude evidence is committed to the sound discretion of the trial
court. Buchhalter v. Buchhalter, 959 A.2d 1260, 1263 (Pa. Super. 2008).
The admission of evidence, including expert scientific testimony, is within the
purview of the trial court’s discretion. In re C.M.T., 861 A.2d 348, 355 (Pa.
Super. 2004). “The decision to admit or to exclude evidence, including expert
testimony, lies within the sound discretion of the trial court. Generally, we
review a trial court’s evidentiary rulings for abuse of discretion[.]” Id.(internal quotations and citations omitted). As stated above, “[a]n abuse of
discretion is not merely an error of judgment; if, in reaching a conclusion, the
court overrides or misapplies the law, or the judgment exercised is shown by
the record to be either manifestly unreasonable or the product of partiality,
prejudice, bias or ill will, discretion has been abused.” Bulgarelli, 934 A.2d
at 111.
Here, in excluding Ms. Dean’s testimony and expert report, the trial
court reasoned as follows:
At the commencement of the second day of [t]rial on August
1, 2018, counsel for Father presented a “Motion in Limine-
Inclusion of Expert Testimony.” Counsel for Mother also presented
an Answer to Father’s Motion. In his Motion, Father alleged that
the testimony of [Child’s] therapist, Sarah Dean, should be
included at [t]rial as Father notified Mother of [Child’s] change in
therapist and later provided Mother with Ms. Dean’s contact
information. Additionally, Father argued that Mother failed to
contact Ms. Dean before [t]rial and present a Motion in Limine
seeking to exclude Ms. Dean’s expert testimony. Father also
argued that the law does not require a therapist to have the
consent of both parents in order to treat a minor child. In her
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Answer, Mother stated that she only consented to [Child’s]
therapeutic treatment with her previous therapist, referred to
during [t]rial as Claudia, and not with Ms. Dean. Mother also
stated that she requested information concerning Ms. Dean from
Father on numerous occasions[] but was not provided with such
information from Father until the Conciliation Conference and after
such time as [Child] had been in counseling at Father’s sole
discretion. Mother also argued that the inclusion of Ms. Dean’s
testimony would be prejudicial, as Ms. Dean was unilaterally
selected by Father, only seen by Father and [Child], and Father
did not provide Mother with Ms. Dean’s information [or] include
Mother in any appointments. Counsel for Mother stated, on the
record, her office attempted to contact Ms. Dean on several
occasions and received no response.
After both parties stated their arguments and positions
concerning Father’s Motion in Limine on the record, [the trial
court] denied Father’s Motion. As per Rule 403 of the
Pennsylvania Rules of Evidence, a court may “exclude relevant
evidence if its probative value is outweighed by a danger of . . .
unfair prejudice. . .” Here, [the trial court] determined that Ms.
Dean’s testimony would be unfairly prejudicial, as it would be one-
sided since Mother was not included in the decision to employ Ms.
Dean as [Child’s] therapist, nor was Mother involved in [Child’s]
therapy. Additionally, while Mother was aware and in support of
[Child] receiving therapeutic treatment, she was not made aware
by Father of Ms. Dean’s information, which Mother requested.
Mother was originally only told that the therapist was from Ohio.
As such, any probative value Ms. Dean’s testimony or report would
have produced is outweighed by its inherent unfair prejudice to
Mother.
Even more, this [c]ourt opined that to grant Father’s Motion
would be to condone Father’s violation of the parties’ Custody
Order in which it states both Mother and Father share legal
custody. “Legal Custody” is defined by our statute as “the right
to make major decisions on behalf of the child, including, but not
limited to, medical religious and educational decisions.” 23
Pa.C.S. § 5322. Deciding to take [Child] to a particular therapist
is such a decision that falls within the scope of legal custody.
Because the parties share legal custody, this was not Father’s
decision alone to make. Father failed to include Mother in not only
the decision to employ Ms. Dean and permit Mother to be involved,
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but also failed to provide Mother with Ms. Dean’s contact
information within a reasonable time.
Trial Court Opinion, 8/17/18, at 4–6.
Upon review, we find no abuse of discretion or error of law. The record
supports the trial court’s factual findings regarding Father’s unilateral choice
of a therapist. N.T., 7/20/18, at 142–147, 183–188; 229–233; N.T., 8/1/18,
at 32–35, 219; Defense Exhibit 7. Moreover, its conclusion that the proffered
expert testimony and report were not admissible is without error. Father
admittedly “spent a lot of time and money trying to have [the therapist] come
in [to court] and criticize [Mother’s] moral turpitude.” N.T., 8/1/18, at 219.
By choosing to take Child to a therapist without Mother’s prior knowledge and
approval, Father violated the parties’ agreement to shared legal custody,
which agreement was made an order of court. Custody Agreement, 5/21/15,
at ¶ I.B.; Order of Court, 5/21/15. Rather than acknowledge his violation,
Father blames Mother for not contacting the therapist and participating in
Child’s therapy, a position we consider disingenuous. By acting unilaterally,
Father undermined any argument that the therapist’s testimony and report
were probative as to whether Mother has emotionally manipulated Child.
Father’s second through eighth issues challenge the trial court’s
application of the statutory custody factors. With any custody case decided
under the Act, the paramount concern is the best interests of the child. See
23 Pa.C.S. § 5328. Section 5328(a) sets forth the best interest factors that
the trial court must consider:
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§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors which
affect the safety of the child, including the following:
(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.
(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.
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(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.
23 Pa.C.S. § 5328. Trial courts are required to consider “[a]ll of the factors
listed in [S]ection 5328(a) . . . when entering a custody order.” J.R.M. v.
J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original).
Furthermore:
Section 5323(d) provides that a trial court “shall delineate the
reasons for its decision on the record in open court or in a written
opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally,
“[S]ection 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328(a) custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, 70 A.3d 808 (Pa. 2013). . . .
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.” M.J.M. v.
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M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, [620
Pa. 710], 68 A.3d 909 (2013). A court’s explanation of reasons
for its decision, which adequately addresses the relevant factors,
complies with Section 5323(d). Id.A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014).
The Act provides for seven types of physical and legal custody awards
to achieve the child’s best interests. 23 Pa.C.S. § 5323(a)(1–7). Accord
S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014) (“When a trial court
orders a form of custody, the best interest of the child is paramount.”)
(citation omitted). Moreover, upon petition, a trial court may modify a custody
order if it serves the best interests of the child. 23 Pa.C.S. § 5338.
In the opinion accompanying its August 17, 2018 order, the trial court
addressed all of the Section 5328(a) factors.1 Trial Court Opinion, 8/17/18,
at 10–23. Based on its Section 5328(a) analysis, the trial court reached the
following conclusion:
In summation, and in light of the foregoing application of
the Section 5328(a) factors, this [c]ourt determines the following
to be in the best interest of [Child].
Mother is granted primary physical custody of [Child].
Father shall be granted partial physical custody as outlined in the
attached Order. Additionally, [Child] shall be enrolled in Trinity
School for the 2018-2019 school year, as the quality of the school
will best serve [Child] in her future academic success. While it is
____________________________________________
1 The trial court found that factors (1), (4), (8), (9), and (13) favor Mother;
factors (2), (2.1), (5), (10), (11), and (12) are neutral; factor (3) is largely
neutral but slightly favors Father; factor (6) slightly favors Father; factors (7),
(14), and (15) are not applicable; additional concerns under factor (16) are
neutral. Trial Court Opinion, 8/17/18, at 10–22.
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clear both parties love [Child], this [c]ourt believes it is in [Child’s]
best interest to be in the primary custody of Mother.
Id. at 22.
In his second issue, Father argues that the trial court erred by
considering his move from Moon Township to Washington County to be a
“relocation” under Pa.R.C.P. 1915.17(a), although his new residence is located
only slightly farther than his previous residence from Mother’s residence and
thus, did not “impair” Mother’s custodial rights. Father’s Brief at 18. Father
complains that, even if relocation was not an issue at the time of the custody
trial, the trial court should have focused on Mother’s inappropriate parenting
abilities and her inappropriate behavior. Id. at 20.
Following the trial, the trial court characterized Father’s relocation from
Moon Township to Washington County as a non-issue, and the parties agreed.
N.T., 8/1/18, at 228–230, 238–239. Nevertheless, it addressed how the move
impacted Child as part of its Section 5328(a), subsections (4) and (11)
analyses:
[A]t the conclusion of the two (2)[-]day [t]rial, the parties stated
on the record that Plaintiff/Father’s request for relocation is no
longer at issue[,] as Father has moved and purchased a house[,]
and Mother no longer objected, as he had already relocated; thus,
only his Exceptions to the Proposed Custody Order of March 21,
2018 are the subject of [t]rial and this decision.
* * *
(4) The Need for Stability and Continuity in the Child’s
Education, Family Life, and Community Life
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This factor favors Mother. This factor is paramount in this
case as [Child’s] school will change for the 2018-2019 school year
regardless of the custody arrangement, as [Child] will no longer
be attending her agreed[-]upon previous school district due to
Father’s move. For the past two (2) years, [Child] has attended
the Moon School District in Moon Township. [Child] performed
well academically. As previously discussed in this Opinion, Father
and Mother agreed to Father having primary [physical] custody of
[Child] so that she could attend school in Moon, as it has high
educational standards and Mother wanted [Child] to have the best
educational opportunity. Presently, Mother proposes that [Child]
attend Trinity, a private Christian school in the Wilkinsburg
neighborhood of Pittsburgh. Conversely, Father proposes that
[Child] attend school in the Washington County School District,
where he now resides.
At [t]rial, there was much evidence and testimony
presented by Mother surrounding the qualifications of both
schools, with Mother posturing that Trinity has more educational
advantages than the elementary school in Washington County.
For example, Brenda Kirkland, Director of Admissions at Trinity,
testified that the school has approximately three–hundred (300)
total students enrolled in the school, which is comprised of all
grades from kindergarten to twelfth grade. Ms. Kirkland also
stated that the school has higher standardized test scores as
compared to the rest of the state. Additionally, in 2017, all
members of the graduating class matriculated into colleges or
universities. The school would provide busing to [Child] from
Mother’s neighborhood, as Mother lives approximately twenty
(20) minutes from the school. Mother is an alumnus of the
school[,] and Maternal Grandmother was employed by the school
as a teacher for twenty (20) years.
Ms. Kirkland also confirmed that [Child] had toured the
school and passed the entrance exam around the time of [t]rial,
meaning she would be offered admission. Tuition for the school
is approximately Eight Thousand and 00/100 Dollars ($8,000.00)
per year. Mother testified that she, along with the assistance of
Maternal Grandparents, would be responsible for paying tuition,
and hoped to also qualify for financial aid from the school. Ms.
Kirkland also explained to the [c]ourt that the administration
works well with children with two (2) households to ensure that
both parents are given independent access to the school computer
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system where they can keep abreast of [Child’s] grades,
schedules, and activities.
Mother presented profiles of both schools obtained through
online school summaries.3 Mother presented a school profile of
the proposed elementary school, Washington Park, in Washington
County. The profile ranked the school 1,148 of 1,547 elementary
schools in the state[,] according to www.schooldigger.com.
(Defendant’s Ex. 1) The profile also stated that in 2017,
“Washington Park Elementary School ranked worse than 74.2% of
elementary schools in Pennsylvania.” Id. Conversely, Mother
presented a school profile of Trinity stating the school ranked 42
of 75 private K-12 schools in the state according to “Niche.” Id.
3 Father did not present ample evidence at [t]rial to
discuss the merits of [Child’s] proposed elementary
school in Father’s new location, nor [sic] contradict
the statistics Mother presented.
* * *
(11) The Proximity of the Residences of the Parties
This factor is neutral and favors neither party. However, it
should be noted that Father relocated in contravention of the
current Court Order and, while his new residence is comparable to
the distance between his previous residence and Mother’s, the
motivation for his move as evidenced on the record was to be
closer to his job. Father’s move was not for the benefit of [Child],
as the school district he relocated to, according to the statistics
presented, is academically inferior to [Child’s] previous district,
where Father resided.
Trial Court Opinion, 8/17/18, at 1, 12–13, 17–18.
Our review confirms support in the record for the trial court’s factual
findings regarding Father’s living arrangements in Moon Township, West
Virginia, and Washington County. N.T. (in camera), 7/20/18, at 80–85; N.T.,
7/20/18, at 74–89, 110–113, 160–162; 220–222; N.T., 8/1/18, at 69–72,
85–86, 117–118. Moreover, we discern no error in the trial court’s legal
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conclusion that the move from Moon Township to Washington County was not
motivated by Child’s best interests. Father’s decision to move was in
contravention of a custody order, which prohibited Father from moving out of
Moon Township. Order, 8/17/17. Father testified that he knew he would have
“been in violation” if he moved without court permission. N.T., 7/20/18, at
117, 183–184. As justification for violating the court order, Father testified
that he moved the family to Washington County so they could all live together
and so he would be closer to his job in Greene County. N.T., 7/20/18, at 79;
N.T., 8/1/18, at 17-18. Father’s wife testified that they moved to Washington
County “because of work.” N.T., 4/1/18, at 71, 72, 82. Father explained that
he rented an apartment in Moon Township and provided Child’s school with a
Moon Township post office box number, even though they did not consistenly
live in the Moon Township apartment. N.T., 7/20/18, at 84, 122–125. He
also acknowledged that the distance from the school in Washington County to
Mother’s house is twice the distance from the school in Moon Township. Id.
at 181. Father did not dispute Mother’s testimonial or documentary evidence
that the school district in Washington County is academically inferior to Child’s
previous school district in Moon Township. N.T., 7/20/18, at 189–191; N.T.,
8/1/18, at 53–54, 139–142, 168-184, 191–192, 208–209, Defense Exhibit 1.
Contrary to Father’s argument, the trial court did not consider the
instant matter to be a custody relocation case. Trial Court Opinion, 8/17/18,
at 1. However, to the extent that the trial court used the word “relocated” in
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relation to Father’s move to Washington County, the trial court did, in fact,
consider the motivation behind Father’s move and determined that it was
contrary to Child’s best interest. Thus, we discern no basis for relief.
As for Father’s alternative argument about Mother’s behavior, the record
supports the trial court’s finding that Mother provided a stable, loving
environment for Child. N.T., 7/20/18, at 196–200, 203, 234–238, 242–247,
250–251, Defense Exhibits 3, 4. Therefore, we discern no error in the trial
court’s conclusion that Mother’s parenting skills were not a factor that favored
Father. Trial Court Opinion, 8/17/18, at 7-8, 12-13, 17.
In his third issue, Father complains that the trial court placed too little
weight on a letter allegedly written by Child to the trial court. Father’s Brief
at 21. After describing the pro-Father contents of the letter, Father argues
the letter was entitled to greater weight as “part of [Child’s] expression of
preference.” Id. at 23.
The trial court addressed the letter in its Section 5328(a), subsection
(16) analysis:
[T]his [c]ourt finds it necessary to address the letter that was sent
by [Child] directly to the Chambers of this Judge on the exact date
of a scheduled Motion which scheduled the Custody Conciliation
Conference in this matter. While the contents of the letter will not
be discussed in this Opinion, this [c]ourt is troubled by the very
existence of the letter itself. [Child] is ten (10) years old. This
[c]ourt would be concerned if any minor child who is the subject
of a custody case before this [c]ourt independently submitted a
letter for consideration. For example, here, [Child], who had
never been acquainted with this [c]ourt, learned the name of this
Judge, the address of the Courthouse, the Courtroom of
Chambers, and the specific date when a Motion would be
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presented to this [c]ourt. Father testified that he did in fact tell
[Child] the name of this Judge. However, both parties testified
they did not help [Child] write the letter. Paternal Grandmother
later testified at [t]rial that [Child] wrote the letter at school while
in her care. According to Paternal Grandmother, [Child] asked the
Paternal Grandparents to help her type, address, and mail the
letter, to which the Paternal Grandparents obliged.
During the in-camera interview with [Child], [Child] testified
that it was her idea to write the letter and that no one helped her
with the actual writing. [Child] did acknowledge that Paternal
Grandparents helped her mail the letter and that she did ask
Father where to send it. The mature nature and specifics of the
letter are troubling to this [c]ourt. [Child] does well in school, but
this [c]ourt doubts that she composed the letter alone and that
she also independently took the initiative to submit a letter to this
[c]ourt. While this [c]ourt will not articulate an opinion as to the
origins of the letter, it does appropriately consider its existence
and gives it its proper weight in reaching its conclusions.
Trial Court Opinion, 8/17/18, at 21–22.
We discern no abuse of discretion or legal error in the trial court’s ruling.
The record supports the trial court’s factual findings about the letter. N.T. (in
camera), 7/20/18, at 55–62; N.T., 7/20/18, at 136–141, 184–185; 8/1/18,
at 113–114, 116–119. Moreover, the trial court was in the best position to
assess the maturity and credibility of Child—as well as Father’s and Paternal
Grandmother’s backstories about the letter—and to determine the weight it
should accord to the letter. C.R.F., 45 A.3d at 443; Ketterer, 902 A.2d at
540. We will not substitute our judgment for that of the factfinder. P.J.P.,
185 A.3d at 417.
Father’s fourth issue challenges the trial court’s failure to give greater
weight to Child’s articulated preference during her in camera interview to live
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with Father. Father’s Brief at 23. While acknowledging “[t]he weight
attributable to a child’s testimony can best be determined by the judge before
whom the child appears,” Father questions the trial court’s characterization of
Child as immature and her testimony incredible. Id. at 26.
The trial court addressed this issue in the context of Section 5328(a),
subsection (7):
(7) The Well-Reasoned Preference of the Child, Based on
the Child’s Maturity and Judgment
This [c]ourt conducted a lengthy in-camera interview with
[Child] before [t]rial commenced with counsel for both parties
present. From this outset, this [c]ourt notes that [Child’s]
maturity and judgment was concerning, thus making the
credibility of her statements in the interview questionable. [Child]
was described at [t]rial as a “people pleaser[,]” and that
characterization was clear during the interview, as some of her
answers appeared formulated as to not anger one of her parents.
For example, [Child] had a selective memory when asked certain
questions and struggled when giving full accounts on both simple
and more complex matters. In a similar vein, some of the
language and phrases used by [Child] were used by Father during
his testimony. Additionally, [Child] appeared to be aware of
things regarding this case and the parties’ relationship that are
inappropriate for her to know and have learned, unless by being
told. Despite the above information, it was clear to this [c]ourt
that [Child] loves both of her parents, enjoys her time while in
both of their care, and is appropriately cared for in both of their
care. She was attentive to questioning, focused, and calm during
the lengthy in camera questioning by the [c]ourt and both
counsel. While [Child] has been exposed to adult topics and
behaviors inappropriate for a child of her age, it was too difficult
for this [c]ourt to fully ascertain who has told her what, as [Child]
was not clear in her answers and accounts of past events, where
her accounts and opinions were inconsistent. Therefore, based
upon the observations by this [c]ourt and the lack of maturity of
[Child], she was not asked specifics about her desired living
arrangements.
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Trial Court Opinion, 8/17/18, at 14–15.
Again, we discern no abuse of discretion or error of law. The record
supports the trial court’s factual findings regarding Child’s testimony. See
N.T. (in camera), 7/20/18, at 50–55, 62–65. Moreover, the trial court was in
the best position to observe Child’s demeanor, assess her maturity, and
determine the weight to be accorded her preference testimony. C.R.F., 45
A.3d at 443; Ketterer, 902 A.2d at 540. Faced with a cold record, we will
not substitute our judgment for that of the factfinder.
Father’s fifth issue concerns the trial court’s failure to consider Mother’s
behavior of driving while intoxicated on Mother’s Day, which posed a safety
risk to Child. Father’s Brief at 29. According to Father, the trial court
“conflated two separate events occurring at Mother’s one (1) workplace[,]”
when Mother was “roofied”2 and, on the second occasion, “almost wrecked the
car with [Child] in it.” Id. at 29, 30.
Our review of the record confirms that Child referred to Mother being
“roofied” on two occasions, one of which was on Mother’s Day. N.T., 7/20/18
(in camera), at 71–72. Mother described getting sick while hosting a Mother’s
Day event at Hambone’s Bar. N.T., 7/20/18, at 255–256; N.T., 8/1/18, at
____________________________________________
2 “Flunitrazepam is a powerful sleep-inducing drug, which is commonly known
as a “roofie” or a “date-rape” drug.” Inna Zazulevskaya, CARACHURI-ROSENDO
V. HOLDER: TO BE DEEMED CONVICTED OF AN AGGRAVATED FELONY, AN ACTUAL
CONVICTION IS REQUIRED, 44 Loy. L.A. L. Rev. 1215, 1232 (2011) (citing Jerrold
S. Meyer & Linda F. Quenzer, Psychopharmacology: Drugs, the Brain, and
Behavior 371 (2005)).
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19–20. She also described being “roofied,” i.e. drugged, at Hambone’s Bar
on one occasion when Child was not with her. N.T., 8/1/18, at 19. Mother
denied posting on Facebook that she was “roofied” again on Mother’s Day,
that she drove home on Mother’s Day while impaired, or that she almost
“wrecked” the car. N.T., 8/1/18, at 21–22. The trial court refers to only one
incident of Mother being “roofied,” in May of 2018, with no mention of Mother’s
Day:
(14) The History of Drug or Alcohol Abuse of a Party or
Member of a Party’s Household
This factor is inapplicable and favors neither party, as
neither party alleged at [t]rial a history of drug or alcohol abuse
by the other party. However, it should be noted that Mother was
“roofied” while working one (1) of her regular jobs in May of 2018
at a restaurant/bar in which she frequently hosts events. The
minor child was not present at the event. However, Mother
unknowingly being drugged does not evidence a drug issue even
though Father, during testimony, blames Mother for this
unfortunate event.
Trial Court Opinion, 8/17/18, at 19.
We discern no abuse of discretion or error of law. Contrary to Father’s
allegation on appeal that Mother was “roofied” on Mother’s Day, he testified
at trial that Mother “went out to a bar for Mother’s Day and had too much to
drink, got sick and had to have somebody come pick her up, her and [Child]
up from the bar.” N.T., 7/20/18, at 70. As the factfinder, the trial court was
free to credit Mother’s contrary version of the Mother’s Day event. Even if the
trial court believed Child’s and Father’s allegations about the Mother’s Day
incident, Section 5328(a)(14) concerns a history of drug or alcohol abuse, not
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a single allegation of impaired driving. Here, Father presented no evidence
that Mother had a history of drug or alcohol abuse, and the trial court—as
factfinder—was free to resolve in Mother’s favor the allegation that she drove
on Mother’s Day while impaired. Thus, we discern no basis for relief.
In his sixth issue, Father contends that the trial court failed to give
proper weight to Mother’s inability to take Child to school on time and her lax
attitude toward Child’s schooling and absenteeism. Father’s Brief at 30.
According to Father, “[b]y skirting the issue of Mother’s habitual lateness, the
[t]rial [c]ourt did not properly consider [Child’s] daily educational needs.” Id.
at 31.
The trial court addressed Father’s concerns in the context of Section
5328(a), subsections (3) and (10):
(3) The Parental Duties Performed by Each Party On Behalf
of the Child
This factor is largely neutral, but slightly favors Father. . .
[T]here was evidence that Mother struggled with getting [Child]
to school on time due to miscalculating traffic. Also, Mother
appeared more lenient when determining what constitutes good
cause to allow [Child] to be absent from school. While Mother’s
actions will be given the appropriate weight, both parties
performed parental duties on [Child’s] behalf.
* * *
(10) Which Party is More likely to Attend to the Daily
Physical, Emotional, Developmental, Educational, and
Special Needs of the Child
This factor is largely neutral. Both parties can and do
support [Child’s] daily physical, emotional, developmental,
educational, and special needs. Father and Paternal Grandparents
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have mainly attended to [Child’s] daily needs, due to Father’s
primary custody, such as transportation to and from school the
majority of time, providing food for [Child], as well as helping her
with homework.
Similarly, Mother has, with some difficulty, transported
[Child] to school during her custody time, assists in helping [Child]
explore her artistic side, and teaches her practical skills, such as
cooking. Both parents monitor [Child’s] needs at school and are
involved in her interests.
Trial Court Opinion, 8/17/18, at 11–12, 17.
We discern no abuse of discretion or error of law. Mother acknowledged
that Child was sometimes tardy during Mother’s custody and that Mother
allowed Child to stay home from school when she was unwell, when school
was not mandatory, or when Child was up late the night before at a family
function. N.T., 7/20/18, at 244–245; N.T., 8/1/18, at 40–43. However,
Father frequently relied on his own parents to assist him in transporting Child
to and from her school in Moon Township and caring for her approximately
fifty percent of the time due to his work schedule. N.T., 7/20/18, at 76, 119–
121; N.T., 4/1/18, at 80, 111. Moreover, Child testified that she arrived late
to school sometimes while in Father’s custody because they drove from West
Virginia to Moon Township. N.T. (in camera), 7/20/18, at 25. Father also
acknowledged that he was responsible for some of Child’s tardiness because
he drove her to school from Greene County where he was working. N.T.,
7/20/18, at 112. Moreover, Child testified that she earns good grades in
school. N.T. (in camera), 7/20/18, at 75. Father, Mother, and Stepmother
all testified that Child’s tardiness and absences have not impeded her grades.
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Father’s Brief at 31; N.T., 7/20/18, at 131–133; N.T., 8/1/18, at 41, 81.
Contrary to Father’s assertions, we find nothing in the record to disaffirm the
trial court’s conclusion that Mother’s parenting style did not weigh in favor of
Father. Trial Court Opinion, 8/17/18, at 11–12, 17.
In his seventh issue, Father complains that the trial court gave
considerable weight to school choice,3 “thereby deflecting [Mother’s] history
of poor behavior and judgement [sic] while [Child was] in her care.” Father’s
Brief at 31. According to Father, “school choice was a consideration, but not
the sole consideration.” Id. at 33.
We agree with Father that school choice was a factor for the trial court’s
consideration. We disagree with Father that school choice was the sole
consideration by the trial court in awarding Mother primary custody. Rather,
the trial court clearly considered school choice in the context of its
determination of best interests and its examination of the Section 5328(a)
factors in light of the testimony and documentary evidence. Trial Court
Opinion, 8/17/18, at 10–22. Essentially, Father invites us to reweigh the
evidence in an attempt to convince us to arrive at a different result. We
decline the invitation to substitute our judgment for that of the trial court.
P.J.P., 185 A.3d at 417.
____________________________________________
3 See S.W.D. v. S.A.R., 96 A.3d 396, 403 (Pa. Super. 2014) (“[T]he choice
of a child’s school may factor into a trial court’s decision to award a form of
custody when the trial court is addressing a request to establish or change
legal or physical custody in connection with the choice of school.”).
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Lastly, Father argues that the trial court erred in concluding that Father’s
relationship with Child was inadequate to support her well-being as primary
custodian. Father’s Brief at 33. Providing instances of his proactive approach
to raising Child versus Mother’s “laid-back position,” Father concludes that,
“[i]f Father did not advance [Child’s] well-being, the case never would have
been brought to trial.” Id. at 35.
The trial court addressed Father’s conduct in the context of Section
5328(a), subsections (8) and (9):
(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
This factor favors Mother. Testimony and evidence at [t]rial
illustrated Father’s attempts to turn [Child] against Mother. For
example, Father told [Child], a now ten (10)[-]year-old, that
Mother cheated on him and [that] was the reason for their divorce.
Such information is not only inappropriate to share, but, whether
intentional[] or not, prejudices [Child] against Mother.
Additionally, Father, in light of a custody[-]exchange incident that
transpired during the pendency of [t]rial, testified that he willingly
disobeyed the Custody Order according to [Child’s] “judgment.”
This action was after Mother accommodated Father’s request for
a change in exchange time, which required her to have assistance
with someone else picking up [Child] for her. The current
operating Order does not place limitations on the individuals who
may conduct exchanges.
Similarly, at [t]rial, Father turned all experiences [Child]
shares with Mother into a negative. For example, Father voiced
numerous concerns that Mother brings [Child] with her to work,
even though she provides adequate supervision for [Child] on
such occasions[,] and the places and experiences are appropriate
for and enjoyable [to Child]. Additionally, Father characterized
[Child] bringing Mother breakfast in bed as evidence that Mother
is hungover, when[,] in actuality, [Child] enjoys cooking.
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Moreover, whether obvious or subtle, Father attempts to turn
[Child] against Mother, whereas this [c]ourt was presented with
no testimony of any similar actions of Mother.
(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
This factor favors Mother. Father attempts to prevent
Mother from having a consistent, stable, and nurturing
relationship with [Child]. Mother is more likely to maintain a
loving and stable relationship with [Child] that will support
[Child’s] emotional needs. While it is clear that both parents love
[Child], Father is not willing to understand or support the
relationship [Child] has with Mother. As such, his attitude
influences [Child] and impedes his ability to sustain an emotionally
nurturing relationship with her. For example, Father hindered
Mother’s ability to support [Child] when he changed [Child’s]
counselor without having Mother be involved in the decision or
future therapy. Additionally, as previously discussed, Father has
withheld [Child] from Mother on several occasions and has
exposed [Child] to inappropriate details of both the parties’
personal relationship and this custody matter. These actions
affect [Child’s] emotional well-being. As such, Father does not
maintain a relationship with [Child] adequate for her emotional
needs.
Trial Court Opinion, 8/17/18, at 15–17.
We discern no abuse of discretion or error of law. The record supports
the trial court’s finding that Father maintained a disapproving, hostile attitude
toward Mother, was unable to cooperate with her, and manipulated his living
arrangements to serve his own needs. N.T., 7/20/18, at 147–154, 161–162,
217–218. The trial court heard all of the testimony and reviewed all of the
evidence presented at the two-day custody trial. It was in the best position
to assess the credibility of the witnesses and the best interests of Child.
C.R.F., 45 A.3d at 443; Ketterer, 902 A.2d at 540. Once again, we decline
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J-A03026-19
Father’s invitation to reexamine the evidence and reach a conclusion that
favors him. P.J.P., 185 A.3d at 417.
The trial court’s award of primary physical custody to Mother is
supported by competent evidence in the record; it is not unreasonable or an
error of law. C.R.F., 45 A.3d at 443. Accordingly, we affirm the order of the
trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2019
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