Pierre, M. v. Alexander, N. ( 2021 )

J-A25021-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MONIA PIERRE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NICK ALEXANDER :
:
Appellant : No. 683 WDA 2021
Appeal from the Order Entered May 12, 2021
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 17-008637-009
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: DECEMBER 21, 2021
Appellant, Nick Alexander (“Father”), appeals from the order entered in
the Allegheny County Court of Common Pleas, which awarded Appellee, Monia
Pierre (“Mother”) primary physical custody of the parties’ minor child (“Child”).
We affirm.
The relevant facts and procedural history of this appeal are as follows.
Mother and Father met in Florida in 2009. The parties never married. Child
was born in July 2011. Five months later, the parties and Child moved to
Pennsylvania because Father received a favorable job offer. In 2015, the
parties separated.
The trial court opinion fully and correctly set forth the remaining
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* Retired Senior Judge assigned to the Superior Court.
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procedural history of this case:
On August 3, 2017, Father filed a Complaint for Custody,
seeking shared legal and physical custody. On January 23,
2018, Mother presented a Petition for Emergency Custody
of Child alleging Father took Child out of state without
Mother’s consent, withheld the child for thirteen days, and
had the child miss 3 days of school. On January 23, 2018,
[the trial c]ourt ordered that Mother and Father shall share
legal custody of Child, Child shall be primarily with Mother
and partially with Father as the parties agree, that neither
party shall remove the Child from Allegheny County without
the other [party’s] written consent, and the parties shall
proceed through Generations.
On February 13, 2018, Father presented a Motion for Special
Relief requesting [that the trial c]ourt grant him shared legal
and physical custody pending the conciliation with the
Domestic Relations Officer. On February 13, 2018, [the trial
c]ourt ordered that the parties would share legal custody of
Child, neither party would change the visitation schedule
without the other party’s consent, neither party shall
remove Child from Allegheny County without the other
party’s written consent, and the parties would proceed
through Generations.
On March 16, 2018, Father presented a Motion for Special
Relief seeking a modification of the order to grant not only
shared legal custody but also shared physical custody. On
March 16, 2018, [the trial c]ourt granted an interim court
order which provided as follows: the Child was with Mother
every Monday and Tuesday, and every other weekend; the
Child was with Father every Wednesday and Thursday and
every other weekend; the parties were to use Our Family
Wizard to communicate regarding co-parenting matters;
and neither party was permitted to leave Pennsylvania with
Child without prior written consent of the other parent.
After conciliation, on April 4, 2018, … the parties consented
and agreed to an Interim Order of Court that provided the
following: the March 16, 2018 order shall remain in full force
and effect with modifications; the parties would give at least
48-hour notice if either party wishes to remove the party
from Allegheny County for an overnight during their
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custodial time.
On May 16, 2018, Father filed a Notice of Proposed
Relocation to relocate with Child to Buford, Georgia. On May
18, 2018, Mother filed a Counter Affidavit Regarding
Relocation objecting to Father’s proposed relocation. On
May 18, 2018, Father filed a Motion for Special Relief
requesting the court consolidate the relocation and the
judicial conciliation on Father’s Complaint for Custody and
schedule a hearing on both matters as soon as possible. On
May 18, 2018, [the trial c]ourt ordered that an evidentiary
hearing … regarding Father’s relocation petition, coupled
with the judicial conciliation be heard on July 27, 2018. On
July 27, 2018, the first day of the hearing on Father’s
request to relocate with the Child and his Complaint for
Custody was held. On August 9, 2018, the parties
consented and agreed to an Order that a second trial date
was not needed, and that Child did not need to testify
regarding the relocation matter.
On October 6, 2018, [the trial c]ourt issued an Order of
Court regarding Father’s request to relocate with the Child
and his Complaint for Custody. The October 6, 2018 Order
provided, among other things, the following: Father’s
Petition to Relocate with the Child was denied1; Mother and
Father would share legal custody of the Child; the Child
would attend school in Mother’s school district, West
Allegheny; during the school year Father was entitled [to]
exercise custody of the Child in Allegheny County for any
weekend so long as Father gave Mother not less than 30
days’ notice; Father was entitled to exercise custody of the
Child in Pennsylvania or Georgia during any long weekend
where the Child did not have school on a Friday or Monday
so long as Father gave Mother 30 days’ notice; the parties
would provide the court a proposed summer schedule within
fourteen days of the Order; if the parties did not provide this
court with a proposed summer schedule, then the court
would issue a summer schedule; additionally the Child
would be with Father as the parties agreed; the Child would
alternate her Christmas, Thanksgiving, and Easter breaks
with Mother and Father every other year; Mother and Father
were entitled to two weeks of vacation with the Child; and
the parent the Child was not with would have a video call
with the Child within the half-hour before bedtime. On June
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26, 2019, after the parties were unable to agree on a
summer schedule and argument on Father’s Motion to Adopt
his Proposed Summer Schedule, [the trial c]ourt issued [an]
Order that provided the following: the Child would be with
Father for four weeks during the summer; in even years the
Child shall be with Father for the four full weeks preceding
and up to July 25th (so the Child would be with Father for
her birthday); and in odd years the Child would be with
Father for the four weeks preceding and up to July 23rd (so
the Child could be with Mother for her birthday).
1 Father had already relocated to Georgia.
On March 13, 2020, Mother filed a Petition to Modify the
Custody Order and Notice of Proposed Relocation. On
August 31, 2020 Father’s Counter-Affidavit which was dated
April 8, 2020 was filed and indicated that Father objected to
the relocation and was seeking an expedited conciliation.
On September 10, 2020, after Father failed to appear for
the expedited conciliation on Mother’s request to relocate
with the child, [the trial c]ourt issued an Interim Order of
Court which provided the following: the October 6, 2018 and
June 26, 2019 Orders of Court shall remain in full force and
effect with modifications; pending further order of court,
Mother may relocate with the Child to Winter Haven, Florida;
Father shall file a Praecipe (Request) for the court to
schedule a hearing within 60 days of this Order; and if
Father failed to file a praecipe for a hearing within 60 days,
then the Order would become a Final Order. On November
24, 2020 Father filed a Complaint to Modify Custody, and an
Emergency Petition for Special Relief Custody requesting the
Child be with Father for Thanksgiving break and Mother
cooperate with Father to make travel arrangements for the
Child for the Thanksgiving break. On November 24, 2020,
[the trial c]ourt issued an Order that provided the following:
the parties shall strictly follow the October [6, 2018] Order
of Court; Mother shall cooperate with Father in making
travel arrangements for the Child; after Father failed to
appear for the expedited conciliation on Mother’s request to
relocate with the Child, Mother was permitted to reside in
Winter Haven, Florida pending further order of court; and
the parties would receive a scheduling order on Mother’s
Petition to Modify and relocate by separate order. On
December 7, 2020 Mother filed a Counterclaim for Primary
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Custody. On January 11, 2021 and April 9, 2021 [the trial]
court held a trial on Mother and Father’s Petitions to Modify
the Custody Order.[1] On May 12, 2021 [the trial] court
issued an Order of Court on Mother and Father’s Petitions to
Modify the Custody Order which provided, among other
things, the following: Mother and Father would share legal
custody of the Child; the Child would attend school in
Mother’s school district; during the school year Father shall
be entitled to exercise custody of the child in Ocala, Florida
for any weekend so long as Father gives Mother 30 days’
notice; Father also is entitled to exercise custody of the
Child in Florida or Georgia during any long weekend where
the Child does not have school on a Monday or Friday so
long as Father gives Mother 30 days’ notice; during the
summer the Child shall be with Mother for a week after
school ends, a week before school begins, and two weeks in
the middle, and with Father for the remainder of the
summer; the Child shall be with Mother for her birthday in
odd years and with Father in even years; additionally the
Child shall be with Father as the parties agree; the Child
shall alternate her Christmas, Thanksgiving, and Spring
breaks with Mother and Father; the Child shall be with
Mother on Mother’s Day weekend and Father on Father’s
Day weekend; the Child shall have a video call with the
parent she is not with in the half-hour before bedtime; and
the parties shall communicate via email regarding co-
parenting matters except in a bona fide emergency.
(Trial Court Opinion, filed July 9, 2021, at 2-6). Father timely filed a notice of
appeal and concise statement of errors on June 8, 2021.
Father now raises three issues for our review:
Whether the trial court’s analysis of the sixteen (16) custody
factors set forth in 23 Pa.C.S.A. § 5328(a) was unreasonable
in light of the sustainable findings of the trial court.
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1 When the trial commenced, the parties stipulated that Father was no longer
objecting to Mother’s relocation to Florida. (See N.T. Trial, 1/11/21, at 3).
Rather, Father was proceeding on his request for custody modification only.
(Id. at 4).
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Whether the trial court’s mistaken analysis of the ten (10)
relocation factors set forth in 23 Pa.C.S.A. § 5337(h)
prejudiced the trial court’s subsequent analysis of the
sixteen (16) custody factors set forth in 23 Pa.C.S.A. §
5328(a).
Whether the trial court prejudiced the parties by causing an
undue delay that violated due process and Pa.R.C.P. 1915.4.
(Father’s Brief at 3).
In his first issue, Father contends that the court’s analysis for three of
the statutory custody factors was unsupported by the evidence adduced at
trial. Regarding which party is more likely to encourage and permit frequent
and continuing contact between Child and the other party, Father asserts that
the court “placed unreasonable weight on Father’s ‘withholding’ of Child”
during the COVID-19 pandemic. (Id. at 11). Father claims that he and Mother
mutually agreed that Father “should keep Child for an extended period” during
the pandemic, and it was unreasonable for the court to characterize Father’s
action as withholding Child from Mother. (Id.) On another occasion, Father
insists that he was unable to bring Child to a custody exchange due to his
attendance at his own father’s funeral. Father submits that these incidents
pale in comparison to Mother’s own behavior, which included “frequent and
abrupt moves about the State of Florida with no notice nor consideration to
Father’s custodial rights.” (Id.) Likewise, Father complains that Mother
consistently interferes with the court-ordered telephone contact between Child
and Father.
Regarding the availability of extended family, Father argues that the
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court “improperly characterized Father’s relocation in a negative manner while
commending Mother’s similar relocation.” (Id. at 14). Father emphasizes
that his move to Georgia placed him closer to his extended family, including
Child’s half-brother. In light of these additional familial resources, Father
claims that the court improperly criticized his move as creating instability for
Child.
Regarding which party is more likely to attend to Child’s daily needs,
Father again submits that the court used his move to Georgia against him.
Father disputes the court’s conclusion that his relocation made it impossible
for him to attend to Child’s daily needs. Instead, Father relies on the evidence
he presented at trial, which established that: 1) Father is the primary actor
attempting to help Child obtain speech therapy; 2) Child is “dirty, unkept, and
with rashes” when Mother delivers her to custody exchanges; and 3) Mother
places Child in danger by living in a residence she shares with family members,
some of whom have “suspected ties to criminal and gang activity.” (Id. at
16, 17). Based upon the foregoing, Father concludes the court’s custody
decision was unsupported by the evidence. We disagree.
The following principles apply to our review of a custody order:
In reviewing a custody order, our scope is of the broadest
type and our standard is abuse of discretion. We must
accept findings of the trial court that are supported by
competent evidence of record, as our role does not include
making independent factual determinations. In addition,
with regard to issues of credibility and weight of the
evidence, we must defer to the presiding trial judge who
viewed and assessed the witnesses first-hand. However, we
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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.
E.C.S. v. M.C.S., 256 A.3d 449, 457-58 (Pa.Super. 2021) (quoting S.T. v.
R.W., 192 A.3d 1155, 1160 (Pa.Super. 2018)).
With any child custody case, the paramount concern is the
best interests of the child. This standard requires a case-
by-case assessment of all the factors that may legitimately
affect the physical, intellectual, moral and spiritual well-
being of the child.
M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.Super. 2013), appeal denied, 620 Pa.
710, 68 A.3d 909 (2013) (quoting J.R.M. v. J.E.A., 33 A.3d 647, 650
(Pa.Super. 2011)).
The Child Custody Act provides:
§ 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.
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(2.1) The information set forth in section
5329.1(a) (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.
(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
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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.A. § 5328(a).
Further:
The parties cannot dictate the amount of weight the trial
court places on the evidence. Rather, the paramount
concern of the trial court is the best interest of the child.
Appellate interference is unwarranted if the trial court’s
consideration of the best interest of the child was careful
and thorough, and we are unable to find any abuse of
discretion.
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (quoting S.M.
v. J.M., 811 A.2d 621, 623 (Pa.Super. 2002)).
Instantly, the trial court thoroughly explained its decision-making
process for each of the disputed custody factors. Regarding which party is
more likely to encourage and permit frequent and continuing contact between
Child and the other party, the court found that Child “went with Father in
March of 2020 for Spring Break and Father withheld the child from returning
to Mother.” (Order, entered 5/12/21, at 8). Here, Mother’s testimony
supports the court’s finding. Specifically, Mother testified that a custody
exchange occurred in March 2020. (See N.T. Trial, 1/11/21, at 143). While
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Child was with Father, Mother planned to travel. (Id.) Mother further
explained:
[Child] would only be with her dad for the timeframe that I
was going to be gone, and I was—[Father] was going to
bring her back. That’s what [Father] had said, but when I
asked [Father] to bring [Child] back, [Father] didn’t want to
bring [Child] back. [Father] said it’s COVID.
(Id. at 144). Upon learning more about the COVID-19 pandemic, Mother
stopped insisting that Father return Child to Mother’s custody. Nevertheless,
Mother’s testimony demonstrates that the parties did not reach an
understanding about this scheduled exchange until after Father withheld Child.
Mother also testified about another incident where the parties were
supposed to exchange custody at the airport in Orlando. (Id. at 138-39).
Mother explained to Father that she had planned a small birthday party for
Child after the exchange. Despite the parties scheduling the exchange to
occur on July 23rd, Father did not bring Child to the airport until July 25 th.
Mother attempted to explain Father’s actions stating, “[T]hat’s just him being
him.” (Id. at 140).2
Regarding the availability of extended family, the court did not find that
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2 To the extent Father also argues that Mother interferes with Child’s court-
ordered telephone contact, Father testified that he contacts Child once a day
on her cell phone. (See N.T. Trial, 1/11/21, at 76). Although Father also
claimed that Mother stays in the room with Child during these phone calls,
Mother expressly denied this allegation. (Id. at 142). Mother also denied
taking any other actions to interfere with Child’s telephone contact with
Father. (Id. at 137).
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this factor favored either party. Instead, the court noted: “The evidence
presented at trial established that both Mother and Father have extended
family available to assist them in caring for the child.” (Order, entered
5/12/21, at 9). Father now emphasizes that his relocation to Georgia brought
him closer to extended family, but the court characterized Father’s relocation
in a negative manner. While our review of the record confirms that the court
did not view the parties’ relocations in the same light, the court provided
adequate reasoning for differentiating between the relocations:
[T]he facts and circumstances surrounding Mother and
Father’s respective moves are not the same. Mother and
Father lived together in Florida and Mother got pregnant.
Approximately in December of 2011, Mother, Father, and
the Child moved from Florida to Pittsburgh because of a
better job opportunity for Father when the Child was 5
months old. In 2018 Father moved to Georgia with his Wife
(they were not married when Father moved). In October of
2020 Mother returned to Florida with her immediate family.
There is no evidence of record that in 2018 when Father
relocated to Georgia that he had any extended family
available in Georgia except for his girlfriend at the time who
he ultimately married. The evidence of record clearly
established that Mother was left alone with the Child in
Allegheny County, and in October of 2020 she returned to
Florida where she was from and where she had a significant
amount of immediate and extended family available.
(Trial Court Opinion at 10-11) (internal record citations omitted).
Regarding which party is more likely to attend to Child’s daily needs, the
court also focused on Father’s decision to relocate:
Father moved away from the child in 2018 making it
impossible for him to attend to the daily needs of the child.
Mother continued to attend to the daily needs of the child
from 2018 to the present. Father alleges that Mother does
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not attend to the educational needs of the child specifically
regarding moving the child’s school and regarding speech
therapy. The evidence is contrary to Father’s allegation.
Any change in school made by Mother was necessary. And
Mother has been engaged and attentive to the child’s speech
needs.
(Order, entered 5/12/21, at 10). Again, the record supports the court’s
findings. Mother testified that Child’s new school was evaluating her speech
therapy needs. (See N.T. Trial, 1/11/21, at 136). Although Mother does not
believe that Child needs speech therapy, Mother testified that she would agree
to therapy if the evaluation indicated that Child needed it. (Id. at 137).
Likewise, the record belies Father’s assertions about Child’s hygiene.
Mother testified that Child suffers from eczema, and doctors advised her that
Child would exacerbate the condition if she bathed every day. (Id. at 149-
50). Further, doctors have prescribed medication for Child’s condition. (Id.
at 150). The medicines, however, do not always work, and Child appears to
have a rash when she repeatedly scratches the affected areas. (Id.)
Mother also provided ample testimony about her residence and its
occupants, which the court summarized as follows:
The evidence of record established the following: Mother
resides with her immediate and extended family who serve
as a support system for Mother; Mother and the Child have
their own room in the home; the Child has a strong bond
with her extended family and spends significant quality time
with her cousins who are close in age; the Child feels safe
with her extended family and has never felt unsafe with any
members of her extended family in her household; and the
record is devoid of any evidence that a maternal uncle has
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ties to criminal and gang activity.[3]
(Trial Court Opinion at 13) (internal record citations omitted). Mother and
Child’s testimony supports the court’s findings about their current living
situation. (See N.T. Trial, 1/11/21, at 127-29; N.T. Trial, 4/9/21, at 13-14,
29-30).
In summary, Father essentially asks this Court to reweigh certain
Section 5328(a) factors in his favor. However, we have carefully reviewed the
record in this case, and it supports the trial court’s findings. See E.C.S.,
supra. Because we cannot say that the court abused its discretion in
assigning weight to these factors, Father is not entitled to relief on his first
claim. Id.
In his second issue, Father asserts that the custody order included an
analysis of the statutory relocation factors even though Father dropped his
objection to Mother’s move to Florida. Father criticizes language from the
court’s relocation analysis, wherein it stated that “Father was attempting to
relitigate his request to relocate the child to Georgia….” (Father’s Brief at 18)
(quoting Order, entered 5/12/21, at 6). Father insists that “the trial court’s
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3 Father testified that one of Mother’s brothers was involved in “drug-related
activity,” including a shooting. (See N.T. Trial, 1/11/21, at 36-37). Father
attempted to corroborate this testimony by seeking admission of a 2017
newspaper article about the shooting. Mother’s counsel initially objected to
the admission of this article, but counsel subsequently withdrew the objection.
(Id. at 39, 116). Thereafter, Child’s testimony established that she and
mother did not actually live with the relative who was mentioned in the
newspaper article. (See N.T. Trial, 4/9/21, at 22).
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characterization of Father’s efforts as an attempt to relitigate a failed request
for relocation is both mistaken and prejudicial.” (Id. at 19). Moreover, Father
maintains that the court’s analysis of the statutory custody factors “repeatedly
refers to its analysis of the relocation factors which are highly prejudicial
against Father.” (Id.) Under these circumstances, Father concludes that the
court abused its discretion by rendering a custody decision that was the
product of prejudice and bias. We disagree.
“Relocation” is defined as, “[a] change in a residence of the child which
significantly impairs the ability of a nonrelocating party to exercise custodial
rights.” 23 Pa.C.S.A. § 5322(a). “The legislature enacted section 5337
specifically to deal with relocation matters.” D.K. v. S.P.K., 102 A.3d 467,
472 (Pa.Super. 2014). Section 5337 provides, in relevant part, as follows:
§ 5337. Relocation
* * *
(h) Relocation factors.—In determining
whether to grant a proposed relocation, the court shall
consider the following factors, giving weighted consideration
to those factors which affect the safety of the child:
(1) The nature, quality, extent of involvement
and duration of the child’s relationship with the party
proposing to relocate and with the nonrelocating
party, siblings and other significant persons in the
child’s life.
(2) The age, developmental stage, needs of
the child and the likely impact the relocation will have
on the child’s physical, educational and emotional
development, taking into consideration any special
needs of the child.
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(3) The feasibility of preserving the
relationship between the nonrelocating party and the
child through suitable custody arrangements,
considering the logistics and financial circumstances
of the parties.
(4) The child’s preference, taking into
consideration the age and maturity of the child.
(5) Whether there is an established pattern of
conduct of either party to promote or thwart the
relationship of the child and the other party.
(6) Whether the relocation will enhance the
general quality of life for the party seeking the
relocation, including, but not limited to, financial or
emotional benefit or educational opportunity.
(7) Whether the relocation will enhance the
general quality of life for the child, including, but not
limited to, financial or emotional benefit or
educational opportunity.
(8) The reasons and motivation of each party
for seeking or opposing the relocation.
(9) The present and past abuse committed by
a party or member of the party’s household and
whether there is a continued risk of harm to the child
or an abused party.
(10) Any other factor affecting the best interest
of the child.
23 Pa.C.S.A. § 5337(h).
This Court has not held “that a trial court cannot or should not consider
the factors of section 5337(h) in a case where a request for modification of
the custody order involves the change of residence of the child to a
significantly distant location.” D.K., supra at 474. This Court has also noted,
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“[s]everal of the factors of section 5337(h) are encompassed, either directly
or implicitly, by the custody factors of section 5328(a).” Id. at 476-77.
Instantly, the court acknowledged that it mistakenly analyzed the
Section 5337(h) factors after Father withdrew his objection to Mother’s
relocation. (See Trial Court Opinion at 17). The court insisted, however, that
such analysis “did not prejudice Father in any way as to the court determining
the best interest of the child by considering all relevant factors set forth in 23
Pa.C.S.A. § 5328(a).” (Id.) We agree with this assertion. Regardless of
whether Father objected to Mother’s relocation, the court was left to decide
whether Child should primarily reside with Father in Georgia or Mother in
Florida. Either option represented a change to a new residence that was
significantly distant from Child’s prior home in Pittsburgh. See D.K., supra.Additionally, many of the Section 5337(h) factors overlapped with the custody
factors of Section 5328(a) and were part and parcel of any “best interests”
analysis. Id. Under the unique circumstances of this case, we conclude that
the court’s additional evaluation of the Section 5337(h) factors did not amount
to an abuse of discretion. See E.C.S., supra.
In his third issue, Father emphasizes that the custody trial commenced
on January 11, 2021, but the court did not conduct an in camera interview
with Child until April 9, 2021. Father posits that the delay between the start
of trial and the in camera interview violated Pa.R.C.P. 1915.4(c), which
requires that a trial be concluded within forty-five (45) days. Father argues
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that the court compounded its error by failing to enter its decision within
fifteen (15) days of the date when trial concluded. Father insists that the
court’s noncompliance with Rule 1915.4 deprived him of a constitutional right
without due process of law. Specifically, Father maintains that the delays in
this case deprived him of the right to make decisions concerning the care and
control of Child. Father concludes that he suffered prejudice due to the court’s
violation of his due process rights. We disagree.
“A question regarding whether a due process violation occurred is a
question of law for which the standard of review is de novo and the scope of
review is plenary.” Interest of M.Y.C., 230 A.3d 500, 509 n.13 (Pa.Super.
2020) (quoting Interest of S.L., 202 A.3d 723, 729 (Pa.Super. 2019)).
“[T]he right to make decisions concerning the care, custody, and control of
one’s children is one of the oldest fundamental rights protected by the Due
Process Clause.” Id. at 510 (quoting In re D.C.D., 629 Pa. 325, 348-49, 105
A.3d 662, 676 (2014)). “Accordingly, any infringement of that right by the
state must be reviewed by this Court pursuant to a strict scrutiny analysis,
determining whether the infringement is narrowly tailored to effectuate a
compelling state interest.” D.C.D., supra at 349, 105 A.3d at 676.
Additionally, Rule 1915.4 provides, in pertinent part, as follows:
Rule 1915.4. Prompt Disposition of Custody Cases
* * *
(c) Trial. Trials before a judge shall commence within
90 days of the date the scheduling order is entered. Trials
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and hearings shall be scheduled to be heard on consecutive
days whenever possible but, if not on consecutive days, then
the trial or hearing shall be concluded not later than 45 days
from commencement.
(d) Prompt Decisions. The judge’s decision shall be
entered and filed within 15 days of the date upon which the
trial is concluded unless, within that time, the court extends
the date for such decision by order entered of record
showing good cause for the extension. In no event shall an
extension delay the entry of the court’s decision more than
45 days after the conclusion of trial.
Pa.R.C.P. 1915.4(c), (d).
Instantly, the record belies Father’s claim that the trial delays resulted
in the deprivation of his right to make decisions concerning Child’s care.
Between January 11, 2021 and April 9, 2021 as well as
between April 9, 2021 and May 12, 2021, the October 6,
2018 and June 26, 2019 Orders of Court regarding custody
of the child were in full force and effect. Pursuant to those
orders, Mother and Father shared legal custody the child,
and physical custody was as follows: the child would
continue to reside primarily with Mother in Allegheny
County; the child would be with Father, who relocated to
Buford, Georgia from Allegheny County, during the school
year on any weekend in Allegheny County as well as in
Pennsylvania or Georgia during any long weekend the child
did not have school on a Friday or Monday so long as Father
gave Mother notice; during the summer for four full weeks
including on the child’s birthday every other year; and with
Father every other year on Christmas break, Thanksgiving
break, and Easter/Spring break. Furthermore, between
January 11, 2021 and April 9, 2021 Father continued to
exercise his custody pursuant to said orders and the child
continued to spend time with her Father.
(Trial Court Opinion at 16) (internal record citations omitted).
We do not condone the court’s failure to comply with the timeliness
requirements of Rule 1915.4. Father, however, does not cite any relevant
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authority to support his claim that noncompliance with Rule 1915.4 resulted
in the deprivation of a constitutional right without due process.4 See M.Y.C.,
supra. On this record, Father is not entitled to relief on his third claim.
Accordingly, we affirm the custody order.
Order affirmed. Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2021
____________________________________________
4 Father cites In re Adoption of T.M.F., 573 A.2d 1035, 1043 (Pa.Super.
1990), appeal denied, 527 Pa. 634, 592 A.2d 1301 (1990), for the following
proposition:
The Supreme Court recognizes a psychological determinate
in child custody proceedings having to do with the child’s
sense of time, which is measured by a different and faster
clock than an adults, and the fact is that children evolve,
grow, acquire new attachments and have differing needs
which cannot be sublimated to the niceties of legal
proceedings and the sometime dubious vagaries of the
attacks on a decree.
Significantly, Adoption of T.M.F. is distinguishable, as it dealt with
constitutional issues in the context of a termination of parental rights
proceeding.
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