A.F. and S.M. v. R.F. and S.F. ( 2014 )

J-A25015-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
A.F. AND S.M., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellees :
:
v. :
:
R.F. AND S.F., :
:
Appellants : No. 238 EDA 2014
Appeal from the Order entered December 20, 2013,
Court of Common Pleas, Bucks County,
Civil Division at No. A06-2009-62286-C-33
A.F. AND S.M., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellees :
:
v. :
:
R.F. AND S.F., :
:
Appellants : No. 1013 EDA 2014
Appeal from the Order March 21, 2014,
Court of Common Pleas, Bucks County,
Civil Division at No. A06-09-62286-C-33
BEFORE: DONOHUE, WECHT and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 03, 2014
g sole
*Retired Senior Judge assigned to the Superior Court.
J-A25015-14
Pursuant to the Child Custody Act, a trial court must consider specific
factors when entering or modifying a custody order:
§ 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.
(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.
-2-
J-A25015-14
(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.A. § 5328(a).1
This Court has repeatedly emphasized that when making a
determination involving custody issues, the trial court must address, at a
minimum, all of the best interest factors under section 5328(a), plus any
other factors it considers relevant. See, e.g., S.W.D. v. S.A.R., 96 A.3d
1
Pursuant to the Act of Dec. 18, 2013, P.L. 1167, No. 107, § 1, the
legislature added an additional factor, numbered 2.1, relating to
consideration of child abuse and involvement with protective services.
M.E.V. v. F.P.W., 2014 Pa. Super. 204, at 2 & n.2 (Pa. Super. September 19,
2014). Because the trial court granted sole legal and physical custody of
Child to the Parents on December 20, 2013, and because the amendment
adding section 2.1 did not become effective until January 1, 2014, factor 2.1
has no application in this case.
-3-
J-A25015-14
396, 401 (Pa. Super. 2014); A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa.
Super. 2013); M.J.M. v. M.L.G., 63 A.3d 331, 335-36 (Pa. Super. 2013);
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011). This requires, at a
minimum, an analysis of each factor, with appropriate discussion of the
credible evidence introduced by the parties and articulation of the trial
neither). As we just reiterated in M.E.V.
decided on a case-by-case basis, considers all factors [that] legitimately
-
Id. at 4 (quoting Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super.
2006)). Mere conclusory statements that the section 5328(a) factors were
considered will not suffice. E.D. v. M.P., 33 A.3d 73, 81 (Pa. Super. 2011).
In this case, in its written opinion pursuant to Rule 1925(a) of the
Pennsylvania Rules of Appellate Procedure, the trial court provides a detailed
analysis of certain of the section 5328(a) factors, including principally those
dealing with the sexual abuse of Child, false allegations of wrongdoing by
Grandparents, Fa
health issues, and the relative abilities of the parties to provide Child with a
loving and stable home environment. Attention to these factors is both
necessary and appropriate under section 5328(a), particularly given its
instruction to provide weighted consideration to those factors that affect the
safety of the child. The introductory language of section 5328(a) as a
-4-
J-A25015-14
whole, however, expressly requires consideration of all 15 listed factors (at a
minimum), even when the trial court weighs certain of the factors more
heavily than others.
these important factors, section 5328(a) nevertheless requires the trial court
to address all of its listed factors seriatim. For the section 5328(a) factors
cour the record in attempts to intuit the
E.D., 33 A.3d at 81. Effective
ery section
5328(a) factor. Id.
Therefore, within 30 days of the date of this memorandum
decision, the trial court shall supplement its current Rule 1925(a) written
opinion to add a factor-by-factor analysis of all of the factors in section
5328(a), setting forth its reasons and relevant evidence with respect to each
factor. The trial court need not repeat the analyses in its current written
opinion, and may instead incorporate by reference as appropriate.
Case remanded. Jurisdiction retained.
-5-
J-A25015-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/2014
-6-