R.H. v. J.H. ( 2018 )

J-A07037-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
J.H. :
:
: No. 1356 MDA 2017
APPEAL OF: R.H. :
Appeal from the Order Entered August 1, 2017
in the Court of Common Pleas of Luzerne County Civil Division at No(s):
11038-2014
BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 27, 2018
Appellant, R.H. (“Father”), files this appeal from the order dated July
28, 2017, and entered August 1, 2017,1 in the Luzerne County Court of
Common Pleas, awarding him shared legal and shared physical custody of his
minor sons M.H., born in July 2004, and J.H., born in April 2006 (collectively,
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* Former Justice specially assigned to the Superior Court.
1 The subject decree was dated July 28, 2017. However, the clerk did not
provide notice pursuant to Pa.R.C.P. 236(b) until August 1, 2017. Our
appellate rules designate the date of entry of an order as “the day on which
the clerk makes the notation in the docket that notice of entry of the order
has been given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further,
our Supreme Court has held that “an order is not appealable until it is entered
on the docket with the required notation that appropriate notice has been
given.” Frazier v. City of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113,
115 (1999).
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“the Children”) with J.H. (“Mother”). After review, we affirm the learned trial
court’s order.
The court conducted a custody trial on July 14, 2017, at which time both
Father and Mother, represented by counsel, testified on their own behalf.
Mother and Father were married in 1998. N.T. Custody Trial, 7/14/17, at 74.
While Father filed a Complaint for Divorce in 2014, which included a count for
custody, the parties and the Children continued to reside together until the
spring of 2016.2 N.T. at 8, 57. Father additionally filed a Complaint in Custody
in January 2016. Pursuant to an interim order by agreement dated March 2,
2016, and entered March 3, 2016, after a conciliation conference, the parties
were awarded shared legal custody. Order, 3/3/16; N.T. at 4. Thereafter, by
order entered March 17, 2016 by agreement, Mother was granted exclusive
possession of the marital home, located in Benton, Pennsylvania, where she
remained with the Children. Father moved to Shickshinny, Pennsylvania,
approximately twenty-five minutes away. Order, 3/17/16; N.T. at 6, 8.
The parties began following a physical custody schedule, which was not
the result of a court order, whereby Father exercised physical custody of the
Children every other weekend from Friday after school until Sunday at 7:00
p.m., every Tuesday overnight, and every other Thursday after school until
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2Mother and Father were still officially married at the time of the hearing.
N.T. at 8.
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7:00 p.m.3 N.T. at 13; Joint Exhibit 1 at 3. During the summer, Father had
additional physical custody on every other Thursday night until Friday at 3:00
or 4:00 p.m. and Sunday night until Monday until 3:00 or 4:00 p.m. Joint
Exhibit 1 at 3; Joint Exhibit 2. Subsequently, pursuant to an order dated
January 17, 2017, and entered on January 18, 2017, the parties were to
attempt to agree to increased custodial time for Father pending trial. Order,
1/18/17. In January 2017, Father began keeping the Children overnight on
Thursday nights and Sunday nights, without consultation with Mother or the
Children. N.T. at 30-32, 62, 65.
Father presented the testimony of two acquaintances, D.K. and R.D.
at the custody trial. Further, the parties offered and stipulated to the entry of
four joint exhibits, including the reports of the guardian ad litem, Gene M.
Molino, Esquire, and counselor, Matthew DiBiase, M.S., N.C.C., L.C.,
Cornerstone Counseling and Consulting Specialist, LLC.4 N.T. at 3-4. Mr.
Molino’s report is dated November 21, 2016. Mr. DiBiase’s report is undated,
but was recent in time to the hearing. N.T. at 3-4. The parties agreed not to
have the [C]hildren interviewed by the court in camera. Id. at 89-90.
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3 Despite some prior disparity as to Father’s Thursday custody and its
frequency, Father testified at trial that he exercised custody every other
Thursday. N.T. at 13.
4Notably, Mr. Molino was appointed by the trial court pursuant to order dated
May 12, 2016, and entered May 13, 2016. Order, 5/13/16. Further, the court
ordered counseling pursuant to order dated January 17, 2017, and entered
January 18, 2017. Order, 1/18/17.
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Following trial, by order dated July 28, 2017, and entered August 1,
2017, the trial court awarded the parties shared legal and shared physical
custody of the Children. Specifically, the court awarded physical custody on
an alternating weekly basis during the summer. During the school year, the
court granted Father physical custody on alternate weekends from Friday after
school until Monday return to school, alternate Tuesdays (preceding Father’s
weekend) after school until 8:00 p.m., and alternate Thursdays (after Father’s
weekend) after school until Friday return to school. The court additionally
issued a holiday and vacation schedule.
On August 28, 2017, Father 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 an order dated September 1, 2017, and entered
September 5, 2017, the court directed Father to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Father re-filed
his concise statement on September 14, 2017. Thereafter, the trial court
prepared its Supplemental Memorandum Issued Pursuant to Pa.R.A.P.
1925(a), dated October 12, 2017 and entered October 16, 2017, analyzing
each of the custody factors pursuant to 23 Pa.C.S.A. § 5328(a).
On appeal, Father raises the following issues for our review:
1. Did the trial court abuse its discretion or commit an error of law
in its July 28, 2017 Order in that it awards, grants and orders both
parties to have shared legal and shared physical custody of their
minor children, M.H. and J.H., but denies the [ ] [Father] actual
shared physical custody of the minor children in terms of time
spent with each parent?
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2. Did the trial court abuse its discretion or commit an error of
law, based upon the testimony of record below, in limiting the [ ]
Father's physical custody of his minor children without any
evidence or testimony that the [Father’s] time with his minor
children should be restricted or unequal to that of the [ ] Mother?
3. Did the trial court abuse its discretion or commit an error of
law, based upon the testimony of record below, in failing to follow
the mandates of 23 [Pa.C.S.A. § 5328(a)(10)] that the [c]ourt
must consider which party is more likely to attend to the daily
physical, emotional, developmental and special needs of the
children? Did the lower [c]ourt erred [sic] in not considering which
parent has the most flexible schedule and would be best able to
provide transportation and support to the children in attending
school and therefore erred [sic] in failing to find in favor of the [ ]
Father [ ]?
4. Did the trial court abuse its discretion or commit an error of
law, based upon the testimony of record below, in failing to find
that as [ ] Father resides in the same school district, owns his own
business, sets his own schedule, and that he would be able to
transport the [C]hildren to and from school each day, without
requiring them to be transported by school bus?
5. Did the trial court abuse its discretion or commit an error of
law, in failing to give to give appropriate weight to the testimony
of the Guardian Ad Litem in this case, Attorney Gene Molino, who
stated that the [C]hildren are not seeing [ ] Father enough, and
that the custody schedule should be modified to provide [ ] Father
with additional periods of custody?
6. Were the trial court’s conclusions unreasonable as shown by
the evidence of record?
7. Did the trial court abuse its discretion or commit an error of law
by failing to enter a custody order that is in the best interest of
the children?
Father’s Brief at 4-5.5
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5 We observe that Father states his issues somewhat differently than in his
Rule 1925(b) statement. We, nevertheless, find that Father has preserved his
challenges to the trial court’s custody order.
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In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.
§§ 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. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
the trial court’s conclusions are unreasonable as shown by the
evidence of record. We may reject the conclusions of the trial
court only if they involve an error of law, or are unreasonable in
light of the sustainable findings of the trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted); see
also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015) appeal denied, 635
Pa. 754, 135 A.3d 586 (2016).
This Court consistently has held:
[t]he 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 addition,
[a]lthough we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
as shown by the evidence of record, discretion is abused. An
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abuse of discretion is also made out where it appears from a
review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence.
M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa.Super. 2010) (en banc) (citations
omitted).
The paramount concern in any custody case decided under the Act is
the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section
5323 of the Act provides for the following types of awards:
(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it is in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S.A. § 5323(a).
Section 5328(a) sets forth the best interest factors that the trial court
must consider. See E.D. v. M.P., 33 A.3d 73, 79-80 n.2 (Pa.Super. 2011).
Specifically, Section 5328(a) of the Act provides as follows:
§ 5328. Factors to consider when awarding custody
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(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.A. § 5328(a).
Further, with regard to the custody, we have stated as follows:
. . . “All of the factors listed in [S]ection 5328(a) are required to
be considered by the trial court when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (emphasis
in original). . . . The record must be clear on appeal that the trial
court considered all the factors. Id.
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, [620 Pa. 727], 70 A.3d 808 (2013). . . .
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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.
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, 822-23 (Pa.Super. 2014) (emphasis in original).
We address Father’s issues raised on appeal together as they are related
and Father discusses them collectively in his appellate brief.6 Father
challenges the trial court’s order as it failed to award equally shared physical
custody. Father’s Brief at 17-18, 22. He asserts the trial court erred and or
abused its discretion as its findings are unreasonable and not in the Children’s
best interests. Id. at 16-17, 19, 21-22. Father points to the guardian ad
litem’s opinion that the Children should spend more time with Father and that
Father has a flexible schedule and ability to drive the Children to school and
avoid an unnecessary, burdensome, and lengthy bus ride.7 Id. at 17-18, 21-
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6 Father enumerated seven issues on appeal, but the argument portion of his
brief contains no subheadings or separation. We remind counsel such is in
violation of Pa.R.A.P. 2119(a) (“The argument shall be divided into as many
parts as there are questions to be argued; and shall have at the head of each
part—in distinctive type or in type distinctively displayed—the particular point
treated therein, followed by such discussion and citation of authorities as are
deemed pertinent.”). Rather, Father titles the section “Argument for the
Appellant Father” and under that heading presents a combined discussion of
his issues raised. Father’s Brief at 11-22. As we find Father’s issues are
interrelated, we do not find this defect to be substantial.
7 Notably, Father fails to recognize that Mr. Molino, while recommending
additional custodial time for Father, opines that “[t]he amount of said
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22. In this regard, Father maintains that Section 5328(a)(10), pertaining to
which party is more likely to attend to the daily physical, emotional,
developmental and special needs of the child, should encompass a
consideration of flexibility and the ability to provide transportation to school.
Id. at 21. Specifically, Father asserts:
. . . In the instant case, the lower [c]ourt . . . ignored factors
that would support [] Father’s case for equal primary physical
custody, and further ignored [] Father’s ability to transport the
[C]hildren to and from school, without the need of burdensome
and time-consuming school busing, which is not inconsequential.
In so doing, it ignored the best interests of the children.
...
For the reasons given below, the [ ] Father argues that [ ]
Mother did not meet her burden of proof, but that he has met his
burden of proof. [] Father further argues that the [c]ourt below
did not sufficiently consider and analyze all of the testimony, and
that the lower court drew conclusions that are either not based
on, or are controverted by the testimony. It is the position of []
Father that there was insufficient information in the record to
support the lower [c]ourt’s decision to provide for unequal
physical custody of the [C]hildren and require the [C]hildren to
undergo unnecessary and lengthy school busing for nearly 10
months a year. The [t]rial [c]ourt’s conclusions were
unreasonable as shown by the evidence of record. The [t]rial
[c]ourt abused its discretion and/or committed an error of law by
failing to enter a custody order that is in the best interest of the
children. . . .
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expansion and whether or not it should be a truly ‘shared’ physical custody
schedule will be for the [c]ourt to determine.” Joint Exhibit 1 at 4. Further,
in 2018, both of the Children will attend school in the same building in which
Mother works and she will be available to transport them to school, if they
desire. N.T. at 72. Also, despite Father’s bald assertions, no evidence was
presented to suggest any adverse consequences pertaining to school bus
transportation.
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...
Pennsylvania law specifically alludes to a child’s physical
well-being as one of the factors to be considered in making a
custody award based on the child’s best interests. 23 [Pa.C.S.A.
§ 5328(a)(10)] mandates the court to consider which party is
more likely to attend to the daily physical, emotional,
developmental and special needs of the children. This should
include which parent has the most flexible schedule and would be
best able to provide transportation and support to the [C]hildren
in attending school.
...
From the [t]rial [c]ourt’s Order, ignoring almost entirely the
Guardian Ad Litem’s report and the wishes of the children, and
further ignoring the fact that the [C]hildren will be required to
undergo unnecessary and lengthy school busing for nearly 10
months a year, it is clear that the record does not provide a basis
for the assumptions made by the lower [c]ourt. It is clear that
the [t]rial [c]ourt’s conclusions are unreasonable as shown by the
evidence of record. It is clear that the [t]rial [c]ourt abused its
discretion and committed errors of law by failing to enter a
custody order that is in the best interest of the children. It was
error for the lower [c]ourt to deny the actual and equal shared
physical custody of the [C]hildren, and constituted an abuse of
discretion.
Id. at 16-17, 19-22.
In its opinion in support of its order, the trial court carefully analyzed
and addressed each factor pursuant to Section 5328(a) and the Children’s
best interests as follows:
The [c]ourt enters its order in consideration of the applicable
and relevant factors contained in 23 Pa.C.S.[A. §] 5328[,] which
are listed as follows:
1. Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party[.]
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As previously mentioned, the parties had been functioning
without a custody order. As indicated, [] Father took it upon
himself to change the mutually accepted agreement in January,
2017 whereby he kept the [C]hildren on alternating Thursday and
Sunday evenings where previously he had been returning the
[C]hildren to the mother without an overnight visit. [] Father
admitted that he did not discuss this change with the [C]hildren.
[] Mother confirmed that [] Father started taking the overnights
without letting her know. Apparently, [] Mother did not object but
it is obvious from [] Father’s conduct that he is solely concerned
with the amount of time he spends with the [C]hildren and doesn’t
feel that it is necessary to discuss this issue with [] Mother.
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[.]
The [c]ourt does not find that the [C]hildren have suffered
from any past or present physical abuse.[8]
3. The parental duties performed by each party on
behalf of the children.
Both parties testified that during the initial 5 years of
marriage, [] Father worked and [] Mother stayed home with the
[C]hildren. She was responsible for taking the [C]hildren to
medical appointments and [] Father indicated that he may have
gone with the [C]hildren on some occasions. [] Father indicated
that they presently share the responsibility of taking the
[C]hildren to doctors and dentists appointments as well as
appointments with the school. After becoming self-employed, []
Father was able to take the [C]hildren to the doctors and the
dentist.
[] Mother testified that she is responsible for signing up the
[C]hildren for their activities, taking the [C]hildren to church and
participating with them in various activities. She indicated that
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8 The trial court did not separately address Section 5328(a)(2.1). However,
there was no evidence presented during the custody hearing which related
to this factor.
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she has always been the primary care giver. The [c]ourt
concludes that each parent is fully capable of performing the
parental duties required of a parent taking care of children of their
age.
4. The need for stability and continuity in the child’s
education, family life and community life[.]
[] Mother testified that she thinks that the [C]hildren need
structure in their lives. She further indicated that she knows that
[F]ather checks their homework but there have been many
occasions where she looks at one of the children’s homework and
it is done, but it is done wrong. This occurs on a regular basis.
Her concern is with the youngest child and she feels that he needs
to be monitored when he comes home from school with his
homework to make sure that it’s done and that it’s there. She has
noticed a decline in the youngest child’s grades since [] Father
changed the custody schedule without telling her. When in []
Father’s custody, the oldest child missed two Sundays when he
was scheduled to serve at church. As a result, she has been taking
them to church. She also indicated that during school she feels
that the [C]hildren need to wake up in the morning in the same
place. When the Father was asked whether he had taken the
children to two R-[r]ated movies he indicated that he did not
know. He indicated that he did not know the name of a movie that
he had taken them to and did not seem concerned about the
ratings of movies that he had gone to with the [C]hildren. When
asked about taking the [C]hildren to a movie that contained binge
drinking, drug use, crude sexual situations, strong language,
violence and sexual related scenes, he was asked if that sounded
like an appropriate movie to take an 11 and 12 year old child to.
He answered by saying “I don't know. You tell me what's
appropriate?[”] When asked again about taking the [C]hildren to
such a movie, he did not respond. He further went on to say that
he doesn't really pay attention to the movies and takes them to a
movie that they request. He further indicated that he thought
children can be taken to an R-rated movie if they are with an adult.
He further presumed that it was OK when the theater sold him
tickets to a movie and they knew that there were 2 kids and an
adult. He concluded by saying that an R-rated movie, if they're
with and adult, according to that rating, “they can go see the
movie.” He did not seem concerned about the contents of an R-
rated movie.
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5. The availability of extended family[.]
[] Mother testified that she lives in Benton and has three
siblings in the area all of which have children. They live relatively
close, within 15 to 20 minutes as well as the [C]hildren’s maternal
grandmother. The [C]hildren get to see the extended family
members on a weekly basis and even more so in the summer.
The family does many things together including cooking, reading,
watching movies, gardening, playing baseball and vacationing
together.
[] Father indicated that he lives in Shickshinny. He stated
that his mother lives in Wapwallopen which is 8 miles away and
that there are unidentified cousins living a mile from his mother.
He did not indicate what activities the [C]hildren share with his
relatives.
Based upon the testimony of the parties, it appears that the
[C]hildren have a close relationship with [] Mother’s relatives
living in the area of her home. The relationship of the minor
children with [] Father’s relatives is unknown.
6. The child’s sibling relationships[.]
Both parties indicated that the two children are very close to one
another.
7. The well-reasoned preference of the child, based
on the
child’s maturity and judgment[.]
The parties indicated that they did not want the [C]hildren
to be interviewed by the [c]ourt. However, there was evidence of
the [C]hildren’s preference on certain issues. The parties agreed
that there would be 4 joint exhibits, one of which was the report
of the guardian ad litem dated November 21, 2016. During his
testimony, the father read from that report which indicated that
both children stated that they want to maintain the current
schedule but the younger child indicated that he would like to
spend more time with his dad during the summer months. The
[c]ourt has taken the [C]hildren’s comments into consideration.
8. The attempts of a parent to turn the child against
the other parent, except in cases of domestic violence
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where reasonable safety measures are necessary to
protect the child from harm;
It is the [c]ourt’s opinion that neither parent has attempted
to turn either child against the other parent.
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[.]
The testimony indicates that both parents love the
[C]hildren and they satisfy the emotional needs of each child.
10. Which party is more likely to attend to the daily
physical,
emotional, developmental, educational and special needs
of the child[.]
[] Father testified that he has his own business allowing him
to create his own schedule which allows him to transport the
[C]hildren to and from their schools. [] Mother testified that she
works for the school district in which the [C]hildren are enrolled
and has a flexible schedule. She can take them to school or lets
them ride on the bus, which ever method they prefer. Beginning
in 2018, both children will be enrolled in the same school in which
she works.
She was asked when the boys have a problem and they are
crying about something and they come to you, do you both react
in the same way and she said no. She indicated that she listens
to what they have to say and she has seen the Father say things
like “Don’t be a baby” or “Like there’s no crying here[.”] The
guardian ad litem indicated that [] Mother had concerns about []
Father’s patience and his ability to assist the [C]hildren with their
school work claiming that the [C]hildren often state “Daddy
doesn’t understand math[.”] She also discussed the Father’s lack
of cooperation in taking the [C]hildren to church on Sunday. The
guardian ad litem also stated that he believed that [] Mother had
legitimate concerns and was not feigning concern about the
[C]hildren spending more time with their father. In fact, he
indicated that both parents should ensure that the [C]hildren
attend church on a regular basis.
11. The proximity of the residences of the parties[.]
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While the marital home is located in Benton, it is [F]ather
who has chosen to live in Shickshinny. The municipalities are
approximately 14 miles apart.
12. Each party’s availability to care for the child or
ability to make appropriate child-care arrangements[.]
Both parties are available to care for the [C]hildren and 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[.]
While generally speaking it appears that both parents are
able to cooperate to a certain extent, [] Father has acted in a
unilateral manner. The prime example is his change of the
previously agreed upon custody schedule to provide him with
additional overnight visits without consulting the [C]hildren or
[M]other.
14. The history of drug or alcohol abuse of a party or
member of a party’s household[.]
There is no evidence of drug or alcohol abuse by either
party.
15. The mental and physical condition of a party or
member of a party’s household.
There is no evidence of a mental or physical condition of
either [p]arent.
16. Any other relevant factor.
The [c]ourt has taken into consideration the report of Gene
Molino, Esq., Guardian Ad Litem, which is dated November 21,
2016 as well as the undated report of Matthew DeBiase, counselor
who met with the parents and the [C]hildren on several occasions.
The reports are similar and report no concerns by the guardian ad
litem or the counselor. Mr. DeBiase indicated that he had no
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concerns for either child’s safety or emotional well-being and they
had indicated they felt that the summer schedule stay exactly as
is. However, he did recommend that the [C]hildren have an extra
day with mom on Thursday or Sunday to help with their homework
and be returned home on the evening of those days. The report
of the guardian ad litem recommended that the custody schedule
be modified by giving [] Father additional periods of custody. He
further indicated that “the amount of said expansion and whether
or not it should be a truly shared physical custody schedule will
be for the [c]ourt to determine[.”] While a trial court is not
required to accept the conclusions of an expert witness in a child
custody case, this court found the counselor and guardian ad
litem’s input instructive considering the fact that both parties
stipulated to the admission of the reports of the counselor and
guardian a[d] litem. M.A.T. v. G.S.T, 989 A.2d 11 (Pa.Super.
2010)[.]
The [c]ourt has considered all of the relevant factors in the
case at hand and taking into consideration the paramount concern
in a child custody case, i.e., the best interests of the children, the
court has determined to increase the amount of time that the
father will have with the [C]hildren and has awarded shared legal
custody to both parents.
T.C.O., 10/16/17, at 7-17 (citations to record omitted).
In further support of its findings, the court reasoned:
Further, it is the [c]ourt’s opinion that issues two, three,
four, five, and six are in effect the same issue, that is, that the
[c]ourt’s failure to direct that the parties shall have an equal
amount of time with both children is an error in law and abuse of
discretion. It is the [c]ourt’s opinion that [Father] believes that
shared custody means equal custody. Clearly, that is not true. .
..
...
With respect to the eighth issue raised on appeal, [] Father
claims that this [c]ourt has not considered factor No. 10 which
deals with which party is more likely to attend to the daily
physical, emotional, developmental and special needs of the
children. Primarily, which parent has the most flexible schedule
and would be able to provide transportation and support to the
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children in attending school. To the contrary, the [c]ourt has
considered all factors, including number ten as addressed herein.
In his ninth issue, [] Father raised a similar issue directed
at the fact that [] Father owns his own business, sets his own
schedule and would be able to transport the [C]hildren to and from
school each day, without requiring them to be transported by
school bus. To the contrary, the [c]ourt did consider this issue
and also concluded that [] Mother’s schedule would be very
flexible especially considering the fact that she would be employed
in the same school district and school in which both children were
attending. Further, she indicated that it was her preference to let
the decision as to whether or not the [C]hildren should be
transported by the parents or by taking the school bus be left up
to the [C]hildren.
In the tenth issue raised on appeal, [] Father claimed that
the [c]ourt erred in law and abused its discretion in failing to give
appropriate weight to the testimony of the guardian ad litem in
this case who indicated the [C]hildren are not seeing [] Father
enough and that the custody schedule should be modified to
provide [] Father with additional periods of custody.
As previously mentioned, the guardian ad litem did indicate
that he felt that [] Father should be given additional periods of
custody also indicating that the additional period of time and
whether or not it should be a truly shared physical custody
schedule would be up to the [c]ourt to determine. The [c]ourt has
determined that the schedule should be greater but not equal. In
reaching its conclusion, the [c]ourt has given consideration inter
alia, to the reports of the guardian, as well as the counselor who
referred to the desires of the [C]hildren.
It should be noted that the [c]ourt did not hear directly from
the guardian ad litem, the counselor from Cornerstone Counseling
and Consulting Specialists, LLC and the two children. The two
experts did not testify but their reports were jointly admitted into
evidence. Further, both parties agreed that the [C]hildren would
not testify.
The [c]ourt enters its order in consideration of the applicable
and relevant factors contained in 23 Pa.C.S.[A. §] 5328 which are
listed.
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Id. at 18-21 (citations to record omitted).
This Court has stated that the trial court is required to consider all of
the Section 5328(a) factors in entering a custody order. J.R.M. v. J.E.A., 33
A.3d 647, 652 (Pa.Super. 2011). Although the court is required to give
“weighted consideration to those factors which affect the safety of the child”
pursuant to 23 Pa.C.S.A. § 5328(a), we have acknowledged that the amount
of weight a court gives any one factor is almost entirely discretionary. M.J.M.
v. M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013), appeal denied, 620 Pa. 710,
68 A.3d 909 (2013). Critically, as we stated in M.J.M.:
It is within the trial court’s purview as the finder of fact to
determine which factors are most salient and critical in
each particular case. See A.D. v. M.A.B., 989 A.2d 32, 35-36
(Pa.Super. 2010) (“In reviewing a custody order ... 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.”). Our decision here does
not change that.
Id. (emphasis added). Further, we have also noted that while the primary
caretaker doctrine is no longer viable, a court may still consider a parent’s role
as primary caretaker in its consideration of the custody factors.
We hasten to add that this conclusion does not mean that a trial
court cannot consider a parent’s role as the primary caretaker
when engaging in the statutorily-guided inquiry. As discussed
above, a trial court will necessarily consider a parent’s status as a
primary caretaker implicitly as it considers the [S]ection 5328(a)
factors, and to the extent the trial court finds it necessary to
explicitly consider one parent’s role as the primary caretaker, it is
free to do so under subsection (a)(16).
Id.
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Father’s claims on appeal essentially dispute the trial court’s findings of
fact and determinations regarding credibility and weight of the evidence,
particularly as they pertain to the issue of which party is in a better position
to transport the children to school. His appellate brief is comprised primarily
of general allegations of error in which Father questions the trial court’s
conclusions and assessments and seeks this court to re-find facts, re-weigh
evidence, and/or re-assess credibility to his view of the evidence; this we
cannot do.
Under the aforementioned standard of review applicable in custody
matters, the trial court’s findings of fact and determinations regarding
credibility and weight of the evidence are not disturbed absent an abuse of
discretion. See C.R.F., 45 A.3d at 443; see also E.R., 129 A.3d at 527.
As we stated in King v. King, 889 A.2d 630, 632 (Pa.Super. 2005):
It is not this Court’s function to determine whether the trial court
reached the “right” decision; rather, we must consider whether,
“based on the evidence presented, given [sic] due deference to
the trial court’s weight and credibility determinations,” the trial
court erred or abused its discretion in awarding custody to the
prevailing party.
(quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa.Super. 2005)). After a
thorough review of the record, we find no abuse of discretion. Further, to the
extent Father challenges the weight attributed to any factor by the trial court,
we likewise find no abuse of discretion, as the amount of weight that a trial
court gives to any one factor is almost entirely within its discretion. See
M.J.M., 63 A.3d at 339.
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In the case sub judice, the trial court exhaustively and reasonably
analyzed and addressed each factor under Section 5328(a). See T.C.O. at 7-
17. After careful review of the record, we determine that the trial court’s
findings and determinations regarding the custody factors set forth in Section
5328(a) are supported by competent evidence in the record, and we will not
disturb them. See C.R.F., 45 A.3d at 443; see also E.R., 129 A.3d at 527.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/27/18
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