R.B. v. B.L.C.C. ( 2020 )

J-A28037-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.H.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
B.L.C.C. : No. 1821 EDA 2019
Appeal from the Order Entered May 31, 2019
in the Court of Common Pleas of Montgomery County Domestic Relations
at No(s): No. 2010-14041
BEFORE: PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 04, 2020
Appellant, R.H.B. (“Father”), files this appeal from the order dated and
entered May 31, 2019, in the Montgomery County Court of Common Pleas,
with regard to custody of his child with B.L.C.C. (“Mother”), daughter E.G.C.B.,
born in December 2009 (“Child”). The order maintained shared legal custody
and awarded resumption of shared physical custody on a week-to-week basis
with exchanges on Fridays after school or at 5:00 p.m., as initially set forth in
the Agreed Custody Order of August 1, 2013, and confirmed by Order of
September 22, 2016. After review, we affirm the trial court’s order.
The trial court summarized the procedural and factual history as follows:
The case commenced on May 27, 2010, with Father’s
Complaint for Custody. The [c]ourt entered an Interim Agreed
Order of Custody on January 3, 2012, which provided that the
parties with [sic] shared legal custody and Mother had primary
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* Former Justice specially assigned to the Superior Court.
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physical custody of [Child]. Father was provided alternate
weekends from Friday at 6:00 P.M. to Sunday at 6:00 P.M. The
Order further set forth a summer schedule which granted Father
alternating weeks beginning Sunday at 6:00 P.M. to the following
Sunday at 6[:00] P.M.
On August 1, 2013[,] the parties entered into an Agreed
Order providing the parties with equal physical custody of the child
year-round. The custody schedule followed an alternating weekly
schedule.
The [c]ourt issued Findings of Fact and an accompanying
Custody Order on September 22, 2016, pursuant to 23 Pa.C.S.[]
§ 5328, after hearings on February 3, 2016, August 22, 2016, and
September 6, 2016, an in camera interview of the child on
February 5, 2016, and after review of the transcripts of the
proceedings before the Honorable Patricia E. Coonahan from April
2, 2015.
Those Findings noted that Father filed three Emergency
Petitions for Modification of the Agreed Order of January 3, 2012,
all of which sought sole physical and legal custody of [Child]. Of
note, this [c]ourt stated that, should Father be granted sole
physical and legal custody, he would likely completely remove
Mother as an influence from [Child]’s life. Moreover, Father has
expressed no interest in maintaining the child’s relationship with
her step-brothers or Mother’s extended family. On the other
hand, Mother felt the child’s relationship with Father was
important and that she would encourage continuing contact
between Father and [Child]. This [c]ourt’s in camera interview of
the child in 2016 revealed her desire for the 50/50 schedule to
remain the same.
Almost six months later, on February 1, 2017, Father filed
an Emergency Petition for Special Relief, which simply stated that
Mother failed to respond to his request that she switch an
aggregate of thirteen (13) days with him due to his need to seek
immediate medical attention. That same day, an Order was
issued directing the parties to co-parenting counseling[,] where
they resolved the matter.
Shortly after, however, on February 15, 2017, Mother filed
a Petition for Contempt, in which she requested a shift in [Child]’s
school from private to public school. Mother alleged that Father
has repeatedly failed to transport [Child] to school and that he
completely refuses to share any information or documentation
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relating to [Child]’s medical, educational or extracurricular
activities. Mother further alleged that Father has actively resisted
all of her attempts to cooperate and co-parent, as directed in the
[c]ourt Orders of February 4, 2016, April 22, 2016, September 22,
2016 and February 1, 2017.
Following a Short List proceeding on June 5, 2017, the
undersigned again directed the parties to co-parenting counseling
to address the school issue, which was unsuccessful.
In the August 8, 2017, Agreed Order, following partial
testimony, the parties agreed that Mother would have primary
physical custody of [Child] due to Father’s abrupt decision to
accept a teaching assignment in Poland for the 2017-18 academic
year. The parties further agreed that [Child] would attend
McKinley Elementary School in the Abington School District for
2017-18 academic year. Father was also to provide Mother with
[Child]’s CHIP card so that she could enroll [Child] under her
medical insurance, and Mother was to notify Father upon obtaining
a dentist for [Child]. The parties also agreed to find a mutually
acceptable therapist for co-parenting counseling.
On November 29, 2017, Father filed yet another Petition to
Modify, as he was abruptly returning from Poland on December
21, 2017, and requested primary physical custody of [Child].
Following another Short List proceeding, the January 30,
2018, Interim Order directed the parties to commence family
therapy “FORTHWITH” to focus on enabling Father to have a
gradually increased custodial schedule. The Order also provided
Father with partial physical custody every Wednesday after school
overnight through Thursday morning, as well as alternate
weekends from Friday after school overnight through Sunday at
6[:00 P.M.]
Rather than focus on resolving their issues, and despite
being represented by counsel, Father personally filed three
additional Petitions on February 14, 2018. The first was a Petition
for Contempt, alleging that Mother has abused alcohol during her
custodial time, that she has failed to follow through with
contacting the co-parenting counselor, and that Mother
purposefully disabled [Child]’s cellphone (given to her by Father
before leaving for Poland) so as to obstruct their ability to
communicate. Father claimed that this interference was the main
reason he returned early from his overseas teaching assignment.
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The second was yet another Emergency Petition to Modify
Custody, requesting that the August 1, 2013, Agreed Order (which
provided shared legal and equal physical custody) be reinstated.”
His Petition, again, alleged Mother that [sic] disabled [Child]’s
cellphone, and he pointed to specific instances where Mother has
come in contact with law enforcement (yet notably, Father did not
provide actual police reports or records otherwise to substantiate
these allegations).
Father’s third pleading was a Petition for Special Relief,
which “demanded” the undersigned recuse himself based on
perceived disrespect toward Father.
Following a Short List proceeding, the April 16, 2018,
Interim Order noted the parties had not yet commenced family
therapy as directed in the numerous aforementioned Court Orders
and directed the parties to select a therapist or to submit two
names to the undersigned for selection.
Due to the parties’ inability to reach a consensus, the May
1, 2018, Order was entered in which the [c]ourt appointed Harry
Carl Amarnick and it was anticipated that at least four (4) joint
therapy sessions would occur prior [to] the June 2018 Short List.
A few days later, the May 7, 2018, Order was entered which
denied Father’s Motion for Recusal.
Following yet another Short List proceeding, the June 27,
2018, Interim Order noted the parties had still not yet commenced
family therapy and directed the parties to agree upon a
replacement therapist for Harry Carl Amarnick; however, this
never occurred.
The Order also specifically directed that a protracted hearing
would be scheduled only upon the following: (i) the parties’
attendance of an aggregate of six (6) months’ of co-parenting
sessions; (ii) Father’s verification that he provided Mother with
[Child]’s dental and CHOP medical records; and (iii) the parties’
utilization of the “Our Family Wizard” program as an exclusive
means of communication.
Several months later, on January 18, 2019, Father filed
another Emergency Petition to Modify, requesting sole legal and
physical custody of [Child]. He alleged that he attempted to
attend joint co-parenting sessions but that Mother interfered with
scheduling future appointments after the second session. Once
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again, Father also pointed to the same law enforcement contact
Mother and household members have had, yet again still failed to
provide any documentation of those alleged incidents.
The January 24, 2019, Order directed the parties to an
expedited Custody Conciliation Conference, in which the February
5, 2019, Conciliator’s Report summed up the dynamics of this case
in a nutshell: “[t]hese parties require more than co-parenting
counseling. Their joint inability to attempt to work together
indicates fundamental issues that both parties need to work
through. Mother believes that she is right. Father believes that
not only is he right, but that Mother is wrong. This child is caught
in their web of distrust.”
On March 4, 2019, Mother failed to appear for a Short List
proceeding and an Order that day directed the parties to
participate in one additional co-parenting session with Harry
Amarnick prior to the protracted [h]earing.
On April 4, 2019, the undersigned presided over a
protracted [h]earing on five (5) of Father’s [p]etitions and
Mother’s Petition for Contempt (related to co-parenting).1 On
April 10, the undersigned conducted an in[]camera interview of
[Child].
After a review of the pleadings and consideration of all the
testimony and Exhibits presented at the April 4th Hearing, as well
as the [in camera] interview of [Child], the undersigned entered
the May 31, 2019, Order which maintained shared legal custody
and reinstated the alternating weekly physical custody schedule
per the parties’ Agreed Order of August 1, 2013, and as later
confirmed by the undersigned in the Court Order of September
22, 2016.
Aside from the custodial schedule, the Order also delineated
the parties’ need for co-parenting and individual therapy, as the
large majority of the issues brought before this [c]ourt clearly
stem from this underlying problem: their joint inability to attempt
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1 Mother and Father were present and represented by counsel, and each
testified on their own behalf. In addition, Mother presented the testimony of
S.P., maternal aunt.
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to work together which indicates fundamental issues that both
parties need to work through.
In essence, the [c]ourt realized that little to nothing had
changed since the issuance of its comprehensive September 22,
2016, Findings of Fact. The parties simply refuse to cooperate
and co-parent in the best interest of [Child], but rather continue
to blame each other without seeing how their own refusal to work
together has detrimentally affected [Child]. In the May 31, 2019,
Order, the undersigned provided that if the parties desired
Findings of Fact, either could request so within five (5) days, and
both parties timely did so. As a result, comprehensive Findings of
Fact, consisting of twenty-five (25) pages, were issued on July 1,
2019.
Trial Court Opinion (“T.C.O.”), 7/23/19, at 1-7 (emphasis in original)
(footnotes omitted).
Father, through counsel, filed a timely notice of appeal on June 21,
2019, along with a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Father raises the following issues for our review:
A. Whether the trial court erred in entering a custody order after
a trial without issuing Findings of Fact?
B. Whether the trial court erred in entering a custody order after
a trial without issuing an opinion setting forth a discussion of the
sixteen factors required by 23 Pa.C.S.[] section 532[8] in the
custody determination?
C. Whether the trial court erred in entering an order for shared
legal and physical custody of the child?
D. Whether the trial court erred and/or abused its discretion in
requiring the child to remain in the Abington [S]chool [D]istrict
despite evidence which favored private school for the child?
E. Whether the trial court erred and/or abused its discretion in
ordering that the child remain in [M]other’s home despite
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evidence of drug use, neglect and truancy by household
members?
F. Whether the trial court abused its discretion and demonstrated
a clear bias against [Father] during the [c]ourt proceedings and
in the Findings of Fact prepared by the trial judge?[2]
Father’s Brief at 2-3.
In custody cases 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. 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, 129 A.3d 521 (2016).
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2 While Father did not raise his sixth issue related to bias in his Rule 1925
concise statement, to the extent that Father’s issues are interconnected and
the issue of bias was raised therein and in conjunction with his other issues,
we find it preserved and address it below. See Krebs v. United Refining
Co., 893 A.2d 776, 797 (Pa.Super. 2006) (stating that a failure to preserve
issues by raising them both in the concise statement of errors complained of
on appeal and statement of questions involved portion of the brief on appeal
results in a waiver of those issues).
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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
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. §§ 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.
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(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S. § 5323(a).
Section 5328(a) sets forth the best interest factors that the trial court
must consider in awarding custody. 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
(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.
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(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for
the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by another
party is not evidence of unwillingness or inability to cooperate with
that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
Further, with regard to the Custody Act, 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.”
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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.[] § 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). . . .
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).
In its Findings of Fact, the trial court thoroughly addressed the custody
factors pursuant to Section 5328(a). Findings of Fact, 7/1/19, at 1-24. Of
particular importance to the trial court throughout its analysis of the custody
factors was Father’s attitude towards Mother’s role in Child’s life. Id. By way
of summary and conclusion, as to factor 16, the court stated:
(16) Another relevant factor.
The relevant factor that permeates this case above all else
is the continuing concern by the [c]ourt regarding Father’s
dismissal of Mother’s role in [Child]’s life. As stated in the 2016
Findings, “Father fails to see that there can be other approaches
to parenting issues and that rarely is there a “right way” or a
“wrong way”.
Father’s disdain for Mother and Mother’s family, the very
people in [Child]’s life that also love her, is so palpable as to
influence [Child] as she begins to pick up on Father’s cues.
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Notably, Father is not close to any of his own family
members. His negative attitude towards Mother’s family, and
towards Mother, on a continuous basis lead to the very clear belief
that Father desires to create a world where only he exists for
[Child]: no one else is relevant, no one else is as competent to
care for her, [Child] only needs Father. This worldview is severely
misplaced and potentially damaging to a child if not reversed.
This type of behavior leads the [c]ourt to believe that Father
has embarked on a pattern of conduct that is symptomatic of
parent alienation.
Parent alienation involves the “programming” of a child by
one parent to denigrate the other “targeted” parent. The
alienation involves a set of strategies including, but not limited to,
bad-mouthing the other parent, creating the impression that the
other parent is dangerous or incompetent and belittling the
targeted parent.
Every parent has a fundamental right to have a loving and
unthreatened relationship with their child (absent neglect or
abuse). To be denied that right by the other parent, without any
justification, is itself a form of child abuse. Unfortunately, Father
is incapable of seeing the impact that his behavior is having on
[Child]. The damage to a child in this situation can be life-long
and irreversible if proactive measures are not implemented.
As indicated in the September 22, 2016, Order and the May
31, 2019, Order accompanying these Findings, Father is
encouraged to pursue individual therapy. If he is genuinely intent
upon improvement, for his child’s benefit, he will do so (and
provide copies of the 2016 Findings and these Findings to the
professional).
The accompanying Order also, once again, strongly
encourages co-parenting “which is vitally important to the ongoing
best interest of [Child]”. The ability to work respectfully and
collaboratively for [Child] going forward is essential.
A question remains as to whether Father will truly reflect
upon these Findings, and address the issues that are identified, in
the best interest of his child.
In the event the reinstatement of 50/50 custody is not
successful, in the end, a shift of primary custody back to Mother
may be necessary (or a more limited or even supervised custodial
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schedule and/or a formal parental alienation program for the
child).
Id. at 22-24 (emphasis in original).
Turning to Father’s issues raised on appeal, we address his first two
issues together as they are interrelated and Father combines them in his brief.
Father argues that the trial court failed to address the sixteen custody factors
set forth by 23 Pa.C.S. § 5328(a) in its May 31, 2019, custody order. Father’s
Brief at 3. Father further asserts that the court failed to issue Findings of Fact
until July 1, 2019, the last day either party was able to file a timely appeal.
Id. at 39-41.
As to these issues, the trial court reasoned as follows:
Here, Father’s first and second [i]ssues are both entirely
moot, as the [c]ourt held a protracted [h]earing on April 4, 2019,
conducted an in camera interview of the minor child on April 10,
2019, and issued the May 31, 2019, Custody Order which
delineated what it considered to be the most glaring issue in this
ongoing custody litigation: the parties’ complete inability to
communicate and co-parent. The May 31st Order strongly
encouraged the parties to participate in co-parenting counseling
as well as individual counseling. As previously stated, little to
nothing has changed within this family dynamic since the 2016
litigation other than the need, now more than ever, for the parties
to learn to work together in [Child]’s best interests.
The May 31st Order specifically noted that extensive Findings
of Fact, consisting of thirteen (13) pages, accompanied the prior
Custody Order of September 22, 2016 (which resulted after a
three-day protracted Hearing and a previous in-camera interview
of [Child]). In addition, the Order also provided that either party
could submit a request for Findings of Fact within five (5) business
days of the May 31st Order, which both parties timely did.
As a result, this [c]ourt issued its Findings of Fact on July 1,
2019. These extensive Findings, at twenty-five (25) pages, fully
delineated each of the custody factors as the [c]ourt’s rationale
for maintaining the shared legal and reinstating the shared
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physical custody schedule as set forth in the August 1, 2013,
Agreed Order (and confirmed by the undersigned in the
September 22, 2016 Order).
Notably, interspersed throughout the July 2019 Findings
(and as previously noted in the May 31st Order) are references to
the September 22, 2016, Custody Order and Findings of Fact, as
almost every instant issue was analogous or identical to those
discussed in 2016; in particular, again, the parties’ complete
inability to communicate, even via email or the “Our Family
Wizard” program, which has clearly had an adverse effect on every
aspect of their approach to custody of the minor child.
It cannot be overstated that the parties are stuck in an ever-
revolving [c]ourtroom door over the power dynamics in their
relationship with [Child]. Although Mother attempts to co-parent
with Father, her efforts have been repeatedly and completely
rejected by him as he sees himself as the “superior” or “better”
parent. In this sense, Father appears directed at the complete
alienation of [Child] towards Mother, which is evident based on
his pleadings alone, as well as his substantive testimony
throughout multiple courtroom proceedings over a three (3) year
time period.
In any event, Father’s first and second [i]ssues are entirely
moot, as the [c]ourt timely issued extensive Findings of Fact,
consisting of twenty-five (25) pages, which addressed each §
5328 custody factor and fully delineated its reasoning for
maintaining an equally shared legal and reinstatement of a shared
physical custody schedule.
Accordingly, the within [i]ssue is without merit, is not
supported by the facts in this matter, is deemed moot, and should,
therefore, be dismissed.
T.C.O. at 9-11.
With this, we agree. For the reasons stated by the trial court, Father’s
claims are without merit.
With the remainder of his issues, which we consider together as they
are interrelated, Father further challenges the trial court’s determinations as
to the Section 5328(a) factors and award of custody. Father’s Brief at 42-48.
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In so arguing, Father highlights concerns as to Mother and her household. Id.
at 42-45. Specifically, Father indicates concern as to members of Mother’s
household, including Mother’s boyfriend, and Mother’s son, Child’s half-
brother, and his girlfriend. Id. at 44-45. Additionally, Father asserts bias on
the part of the trial court in its analysis of the custody factors.3 Id. at 46-53.
Notably, Father concludes,
The tone of the [c]ourt’s Order, Findings of Fact, and
Opinion is consistently anti-Father to the extent that the [c]ourt
has difficulty with crediting Father with the few things even the
Judge must admit favors [] Father’s request for custody. In
discounting the chaos at Mother’s home, and failing to incorporate
testimony that favored Father’s request for full custody, the Judge
became a participant in this custody case rather than the arbiter.
The fact that Father is retired, able to provide reliable
transportation, willing to help [] Child with homework and
transport and support [] Child in extracurricular activities are all
discounted by the Judge as factors in Father’s favor. Instead[,]
the Judge views these facts as evidence of Father’s controlling
nature. Meanwhile, [] Mother’s many difficulties and chaotic
household are minimized wherever possible, allowing the Judge to
feel justified in leaving her with 50% of the custodial time. . . .
Id. at 53-54.
With regard to the custody factors, we have stated that the trial court
is required to consider all of the Section 5328(a) factors in entering a custody
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3 Father himself states in his brief, “Again, many of the matters complained of
on appeal cross over into, and are intertwined with, others.” Father’s Brief at
42. As such, Father addresses his third, fourth, and fifth issues together. Id.
at 42-46. While arguing bias throughout this discussion, he does, however,
provide a separate discussion of his sixth issue of bias. Id. at 47-53. As we
find this largely a challenge to the trial court’s analysis of the custody factors,
as are his challenges to his third, fourth, and fifth issues, we consider the
remainder of Father’s issues together.
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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. § 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).
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.
As we construe this issue, we interpret the issue at its core as a dispute
to the trial court’s findings of fact and determinations regarding credibility and
weight of the evidence, as well as the weight attributed to certain factors.
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Father, in essence, 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. . . .” (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.
In the case sub judice, the trial court exhaustively and reasonably
analyzed and addressed each factor under Section 5328(a). See Findings of
Fact, 7/1/19, at 1-24. 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. As such, Father’s claims are without merit.
Accordingly, for the foregoing reasons we affirm the trial court’s order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/20
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