T.A.S. v. A.C.D. ( 2017 )

J-A12039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.A.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
A.C.D. :
:
Appellant : No. 1617 WDA 2016
Appeal from the Order Entered September 21, 2016
In the Court of Common Pleas of Lawrence County
Civil Division at No(s): 11645 of 2010 C.A.
BEFORE: OLSON, SOLANO, and RANSOM, JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 7, 2017
A.C.D. (“Father”) appeals the order dated September 16, 2016, and
entered on September 21, 2016, awarding T.A.S. (“Mother”) primary
physical custody of the parties’ minor, male child, A.M.S. (“Child”). The
order also awarded partial physical custody to Father, in accordance with a
schedule, and shared legal custody to the parties. We affirm.
Mother and Father were never married. Child was born in August
2010. On October 20, 2010, Mother filed a complaint for custody of Child.
On October 25, 2010, Father filed a counterclaim in custody. In an order
entered on November 17, 2010, as amended by an order entered on
December 15, 2010, the trial court awarded Mother primary physical
custody, Father partial physical custody in accordance with a schedule, and
the parties shared legal custody. Subsequent to December 15, 2010, a
number of orders modifying the custody schedule were entered, including an
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order entered on May 22, 2013, however, in each instance Mother retained
primary physical custody of Child, Father had partial physical custody based
on a schedule, and the parties shared legal custody.
On January 29, 2016, Father filed a petition to modify custody,
requesting shared physical custody. After a continuance, the trial court held
an evidentiary hearing on Father’s petition on August 10, 2016 and August
11, 2016.
On August 10, 2016, Father presented the testimony of his current
wife (“Stepmother”) and her mother (“Paternal Step-Grandmother”) N.T.,
8/10/16, at 4-5. Paternal Step-Grandmother testified that Father and
Stepmother have a son, L.D., born in 2012. Id. at 7. Father, Stepmother,
Child, and L.D. plan to reside with Paternal Step-Grandmother, as they have
sold their house. Id. at 5, 12. Paternal Step-Grandmother testified that her
own mother, Child’s paternal step-great-grandmother, already resides in her
home. Id. Father also presented the testimony of Stephanie Muntean, the
realtor who sold Father and Stepmother’s previous home and has assisted
them in seeking a new home in the Laurel School District. Id. at 28-33.
Father’s counsel then questioned Mother as if on cross-examination. Mother
testified that she resides in the Laurel School District and that Child would be
attending full-day kindergarten in the fall of 2016. Id. at 37-38, 45. Father
testified on his own behalf. Id. at 51. Next, Father presented the testimony
of Kelli Chaffee, a speech language therapist employed by Midwestern
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Intermediate Unit IV who has been working with Child since January of
2016. Id. at 187-188.
At the hearing on August 11, 2016, Mother testified on her own behalf.
Mother testified that Child’s primary residence is with her. N.T., 8/11/16, at
4. Mother presented the testimony of her mother (“Maternal
Grandmother”). Id. at 57. Mother also presented the testimony of her
friend, B.M. Id. at 63. Father was called to testify on direct examination in
rebuttal to Mother’s testimony. Id. at 66.
The trial court set forth the factual background and procedural history
of the case, from the evidence in the record, as follows:
1. [Mother] and [Father] are the natural parents of [Child,] who
was born [in August of 2010].
2. The primary residence of [Child] since his birth has been with
[] Mother. . . [in] New Castle, Pennsylvania.
3. [Father] is married and has a child of that marriage, [L.D.],
who is 25 months younger than [Child]. [Father], [Stepmother],
and [L.D.] have resided in Ellwood City. [Father] and
[Stepmother] are in the process of closing the sale of their home
in Ellwood City and are temporarily residing with [Paternal
Step-Grandmother]. [Father] and [Stepmother] are looking for
a home in the Laurel School District, where [Mother] resides.
4. [Child] has a good and healthy relationship with both of his
parents and is a well[-]adjusted, healthy, and happy child.
5. [Mother] is employed by the Intermediate Unit as a
bookkeeper/accountant and during the summer months works
Monday through Thursday from 7:00 a.m. until 4:30 p.m.
During the school year, [Mother] works five days per week, from
8:00 a.m. to 4:00 p.m. and has a work schedule that mirrors
[Child’s] school schedule.
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6. [Father] works as a truck driver for Estes and leaves for work
between 7:30 p.m. and 8:00 p.m. and returns home
approximately 4:30-5:00 a.m. on the next day.
7. When [Mother] is unavailable to watch her son, [Maternal
Grandmother] is the primary babysitter. When [Father] is
working, [Stepmother] or [Paternal Step-Grandmother] babysits
[Child]. During [Child’s] lifetime, he has not been enrolled in
day care and when in either parent’s home, has been watched
by a competent relative.
8. In the fall, [Child] will be attending full time kindergarten in
the Laurel School District.
Trial Court Opinion and Order, 9/21/16, at 1-2.
In the order entered on September 21, 2016, the trial court awarded
Mother primary physical custody of Child, awarded partial physical custody
to Father in accordance with a schedule, and awarded shared legal custody
to the parties.
On October 11, 2016, Father filed a motion for reconsideration of the
September 16, 2016 decision. The trial court heard argument on the motion
and entered an order denying relief on October 11, 2016. On October 21,
2016, Father timely filed a notice of appeal, along with a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and
(b).
In his brief on appeal, Father raises the following issues:
A. Whether the trial court erred in failing to set forth its
reasoning for reducing Father’s custody time with [] [C]hild?
B. Whether the trial court abused its discretion in failing to
award shared custody and in reducing Father’s custody time with
[] [C]hild?
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C. Whether some of the trial court’s findings of fact contained in
the [o]rder of [c]ourt entered on September 21, 2016 fail to be
supported by the record?
D. Whether the trial court abused its discretion in entering a
custody order which is contrary to its analysis of the 23
Pa.C.S.[A.] § 5328 factors?
Father’s Brief, at 9.
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).
We have stated:
[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) (citation
omitted).
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In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we
stated the following regarding an abuse of discretion standard:
Although 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.
Id. at 18-19 (quotation and citations omitted).
Regarding the definition of an abuse of discretion, this Court has
stated: “[a]n abuse of discretion is not merely an error of judgment; if, in
reaching a conclusion, the court overrides or misapplies the law, or the
judgment exercised is shown by the record to be either manifestly
unreasonable or the product of partiality, prejudice, bias or ill will, discretion
has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super.
2007) (quotation omitted).
With any custody case decided under the Act, the paramount concern
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 in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
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(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.
Section 5338 of the Act provides that, upon petition, a trial court may
modify a custody order if it serves the best interests of the child. 23
Pa.C.S.A. § 5338. 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, 80-81 n.2 (Pa.
Super. 2011). 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).
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(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 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.
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(16) Any other relevant factor.
23 Pa.C.S.A. § 5328.
We shall address Father’s issues together, as they are interrelated.
Father argues that the trial court erred in not setting forth its reasoning for
reducing Father’s physical custody time, in contravention of Section 5323(d)
and Pa.R.C.P. 1915.10, when nothing in the record, the trial court’s findings,
or its analysis of the Section 5328(a) best interests factors would suggest or
support a reduction in Father’s physical custody time. Father’s Brief, at
13-17.
Father asserts that the trial court did not award equally shared
custody, which he requested.1 Id. at 16. Father alleges that the trial court
order significantly reduced his physical custody time by granting him one
fewer weekend overnight visit during the school year and two fewer
weekend overnight stays during the summer. Id. Father states that under
the 2013 custody order, he had physical custody of Child every other
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1
Father asserts that the trial court should have awarded equally shared
physical custody, as he requested in his modification petition. He fails to
support his request for equally shared physical custody with any discussion
and supporting statutory and case law, aside from arguing that the trial
court improperly applied the primary caretaker doctrine to give Mother
preferential treatment, and did not award equally shared physical custody.
Thus, we consider the issue of whether the trial court should have awarded
equally shared physical custody waived for purposes of our review. See
Chapman-Rolle v. Rolle, 893 A.2d 770, 774 (Pa. Super. 2006) (stating
that a failure to argue and cite to pertinent legal authority in support of a
claim constitutes waiver of the claim).
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weekend Friday to Monday, and, prior to 2013, he had physical custody
Saturday through Monday, because he does not work on Saturday and
Sunday evenings. Id. at 16 n.1. Father complains that the trial court’s
most recent order takes away all of his Sunday to Monday overnight physical
custody, despite the fact that he does not work on Sunday and Monday
evenings, and is available all day on Sunday and Monday. Id. Father also
alleges that the trial court reduced his weekday custody time from three
days each week to one evening each week so that Child will go from seeing
Father and his half-sibling, L.D., every other day to not seeing them for a
week at a time on alternating weeks. Id. at 16. Father states that,
although the trial court did add some weekday overnight custody in the
summer, the net effect of the trial court’s decision is a reduction of eleven
overnights per year. Id. at 16-17. Father contends that this reduction
amounts to a significant loss of overnight visits, as, under the existing order,
Father had Child for only 78 of the potential 365 nights a year. Id. Father
avers the trial court cut in half his number of days for custody time without
an overnight visit during the week. Id. at 17.
In his related second issue, Father asserts that the trial court abused
its discretion and failed to provide for Child’s best interest when it refused to
award the parties shared physical custody, and, instead, reduced Father’s
physical custody time. Id. at 13. Father argues that the trial court abused
its discretion in according Mother’s history of primary physical custody
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significantly more weight than other factors under Section 5328(a). Id. at
21-22. Citing M.J.M. v. M.L.G., 63 A.3d 331, 338-339 (Pa. Super. 2013),
Father states that the primary caretaker doctrine is no longer viable and that
under the Act, the trial court is required to analyze the parent’s caretaking
role as one of the 16 statutory best interest factors. Id. at 20-21. Father
asserts that the trial court erroneously weighed primary physical custody in
favor of Mother where Mother’s primary physical custody was overnight and
Father’s custody of Child was on a daytime basis; thus, Father contends he
performed more of Child’s care than Mother. Id. at 21-22.
In his third issue, Father contends that the record contradicts certain
Section 5328 findings made by the trial court. Id. at 13. Father claims that
the trial court erred in failing to consider the parties’ differing testimony
regarding their accommodation of Child’s participation in wrestling, as well
as Father’s encouragement of Child’s relationship with Mother. Id. at 24.
He, thus, urges that the trial court should have assigned neutral weight to
the Section 5328(a)(1) factor above. Id. at 23-24. Regarding the
aforementioned Section 5328(a)(3) factor, Father contends that the trial
court should have found that Father performed more parental duties for
Child, as Father spent more of Child’s awake time caring for him, such that
the court should have weighed the factor in favor of Father. Id. at 24-25.
Father also challenges the trial court’s finding with regard to the Section
5328(a)(5) factor, contending that the trial court should have found this
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factor to be neutral, as the trial court found that both parents have strong
family support that is more than adequate. Id. at 25. Father asserts that if
the trial court had reassessed the factors he currently challenges, the
custody best interest factors weigh in his favor. Id. at 25-26.
Finally, Father argues in the alternative that if this Court determines
that the trial court’s findings of fact and analysis of the Section 5328(a) best
interest factors was appropriate, the trial court’s findings of fact and analysis
does not support the custody award with the reduction of Father’s custodial
time. Id. at 13, 26. Father urges that the trial court found that Child has a
strong sibling relationship with L.D. and that Section 5328(a)(6) favors
Father. Id. at 26. Father also states that the trial court found that two
factors only slightly favored Mother under Section 5328(a)(1) and (a)(4).
Id. At the same time, the trial court found that Father has fostered an
environment in which Child is comfortable spending time with both parents
and their respective families, and that Father has never interfered in the
relationship between Mother and Child. Id. Father states that the trial court
also found that he had strong family support that is more than adequate to
provide all assistance needed in caring for Child. Id. Moreover, the trial
court indicated that it wanted to give both parties extensive and meaningful
time to be with Child. Id. at 26-27. Father contends that there is no logical
or reasonable nexus between the determinations that the trial court made in
its opinion and its custody order, in which it significantly reduced Father’s
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partial physical custody and impacted Child’s time to spend with Father and
Child’s half-sibling, L.D. Id. at 27. Accordingly, Father argues that the trial
court abused its discretion in reducing his custodial time. Id.
In its opinion and order, the trial court stated the following with regard
to the Section 5328(a) best interest factors:
FACTORS CONSIDERED WHEN AWARDING CUSTODY
[1]. Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
Both parties have fostered an environment in which [] [C]hild is
comfortable with spending time with both parents and their
respective families. Neither party has in any way interfered with
the relationship between the other party and [] [C]hild.
[Mother] was a coach for [Child’s] soccer team. She offered to
resign her coaching role to allow [Father] to coach [Child]. She
also made the decision to sit with [Father] at [Child’s] wrestling
matches so [] [C]hild would not feel torn between two parents.
Both parents have done exceptionally well in fostering a good
relationship between [] [C]hild and the other parent. [] Mother
has done slightly better than [] Father for the reasons stated
above. However, this factor only slightly favors [] 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.
There is no indication of abuse by either party. Both make
concerted efforts to treat each other with respect in front of []
[C]hild.
[2.1]. The information set forth in Section 5329.1(a)
(relating to consideration of child abuse with protective
services).
There is no indication of any type of abuse. This factor is
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neutral.
[3]. The parental duties performed by each party on
behalf of the child.
Both parties are very active in [] [C]hild’s life and take an active
role in performing the duties as a parent to [] [C]hild. Because
[] Mother has been the primary physical custodian of [] [C]hild,
she has performed more parental duties for [] [C]hild during the
first almost six years of life than [] Father. However, [] Father
has made special effort to be a part of [] [C]hild’s life and has
performed all of the duties of a father. This factor is neutral.
[4]. The need for stability and continuity in the child’s
education, family life and community life.
[] Mother and [] [C]hild have resided in the same home, across
the street from [] Mother’s sister and within one quarter to one
half mile of the Maternal Grandmother’s and Grandfather’s farm.
[]Mother’s two brothers live close by. [] [C]hild has made
friends and has cousins living in close proximity. When [Child]
goes to school, he will go to the bus stop with his cousins and
two neighboring friends. The area of [] Mother’s home is in the
same area where she grew up and has lived most, if not all, her
adult life. [Child] has stability and family roots in the home in
which he resides with [] Mother. [] Father has recently sold his
home in Ellwood City and is looking to buy a home in the Laurel
School District, where [] Mother and [Child] currently reside.
While [] Father does not yet have a home in the Laurel School
District, he has demonstrated a firm commitment to buying a
home in the Laurel School District and it is anticipated that he
will do so within the next several months or within the next year.
The fact that [Child] has primarily lived in [] Mother’s home all of
his life and the home is surrounded by family and friends, is a
factor that favors [] Mother.
[5]. The availability of extended family.
[] Mother has extended family including Mother, Step-
Father/Adoptive Father, two brothers, a sister, and nieces, all of
whom reside close to her home. [] Mother is close to her family
and the extended family, especially [] Maternal Grandmother, to
provide support and assistance to [] Mother in raising [Child]. []
Father, especially through his in-laws following his marriage to
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[Stepmother], has family support, especially through [Paternal
Step-Grandmother]. [] Father’s in-laws, especially [Paternal
Step-Grandmother], treat [Child] as one of their own and are
available to help [] Father at any time that he needs assistance
with his son. [] Father is married[,] and [Stepmother] is close
to [Child][,] and [Child] has a good relationship with his
step-mother and with his brother, [L.D.] Both parties have
strong extended families. [] Mother's extended family is more
extensive, but both have strong family support which is more
than adequate to provide all assistance needed. [] Mother has a
more extended network of family and therefore has a very slight
advantage in this factor.
[6]. The child’s sibling relationships.
[Child] has a very strong relationship with his brother [L.D.].
The time he spends with [] Father is important in maintaining
this relationship. When [] Father buys a home in the Laurel
School District, [Child] and his brother will be attending the
same school. [] Father has already made a step in this direction
by signing [L.D.] up for Laurel Soccer Programs and volunteering
for a coach in those programs. The fact that [Child] has a
brother living with [] Father is a factor in [] Father’s favor.
[7]. The well-reasoned preference of the child, based on
the child’s maturity and judgment.
Neither party called [Child] as a witness. [Child] has a good
relationship with both Mother and Father and has not expressed
any preference. This factor is neutral.
[8]. The attempts of a parent to turn the child against the
other parent, except in case of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
Whatever the relationship between [] Mother and Father, both
have taken great efforts not to do anything that would turn []
[C]hild against either parent. As a result, [Child] is happy and
well[-]adjusted and enjoys an excellent relationship with both
parents. This factor is neutral.
[9]. Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the
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child adequate for the child’s emotional needs.
Both parties have done well in maintaining a loving, stable, and
consistent and nurturing relationship with [] [C]hild. This factor
is neutral.
[10]. Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
Both parties have done well in attending to the daily physical,
emotional, development, educational and special needs of []
[C]hild. This factor is neutral.
[11]. The proximity of the residences of the parties.
[] Father is temporarily residing with [Paternal Step-
Grandmother] and his future address has not been determined.
It is anticipated that the parties will be residing in the same
school district so that the distance between the residences will
be a non[-]factor.
[12]. Each party’s availability to care the for the child or
ability to make appropriate child care arrangements.
In the summertime, [] Mother works 7:00 a.m. to 4:30 p.m.
Monday through Thursday; and during the school year she works
8:00 a.m. to 4:00 p.m. Monday through Friday. [] Father works
night shift and leaves the home between 7:30 p.m. and 8:00
p.m. returning home at 4:30-5:00 a.m. the next day. He works
Monday night through Friday night [and] into Saturday morning.
As a result, [] Father is more available to spend time with his
son during the weekday daylight hours than is [] Mother. During
the night time hours from 7:30 p.m. through the night and until
the morning, [] Mother is more available for [] [C]hild’s needs in
as much as she is home and [] Father is not. Both parents are
equally available to care for the child and make 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.
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Both parties have worked well together to cooperate in raising
[Child]. The differences that have arisen have been relatively
minor and are practically insignificant. Whatever differences the
parties have, neither party brings [] [C]hild into any
disagreement. This factor is neutral.
[14]. The history of drug or alcohol abuse of a party or
member of a party’s household.
There is no history of drug or alcohol abuse by either party or
any member of their household.
[15]. The mental and physical condition of a party or
member of a party’s household.
Both parties and all members of their household are physically
and mentally well[,] and this factor is neutral.
[16]. Any other relevant factor.
[Child] is five years and will soon be six. He has lived his entire
life primarily in one house and has developed friends in the
neighborhood[,] and [he] has relatives living close by. While he
attended preschool, [Child] is about to embark into full time
schooling in kindergarten in the Laurel School District. [] Mother
has had primary physical custody all of [Child’s] life and []
Father has been very actively involved in every aspect of
[Child’s] life, and will continue to do so into the future. Under
the current custody arrangements, [Child] has formed a strong,
healthy bond with both Mother and Father as well as with his
brother and step-mother, and extended families on both sides.
He is healthy and well[-]adjusted[,] and has developed healthy
bonds under the current custody arrangement. [Child] should
have as much stability and continuity as possible as he begins
his educational endeavors. [] Mother has deep roots in her
community and [Child’s] current home with [] Mother provides
definite stability and continuity. The fact that [] Mother is more
available during weekdays in the evenings and at night and []
Father has more availability during the daytime, allows the [trial
c]ourt to mold a [c]ustody [o]rder that gives both parents
extensive and meaningful time to be with their son and for
[Child] to have extensive time to be with his brother.
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Trial Court Opinion, 9/21/16, at 2-7.
Rule 1915.10 of the Pennsylvania Rules of Civil Procedure provides as
follows:
Rule 1915.10. Decision. Order.
(a) The court may make the decision before the testimony has
been transcribed. The court shall state the reasons for its
decision either on the record in open court, in a written opinion,
or in the order.
Pa.R.C.P. 1915.10.
Further, we have explained:
Section 5323(d) provides that a trial court “shall delineate the
reasons for its decision on the record in open court or in a
written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally,
“[S]ection 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328(a) custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, 70 A.3d 808 (Pa. 2013). . . .
In expressing the reasons for its decision, “there is no required
amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that
the custody decision is based on those considerations.” M.J.M.
v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, ,
68 A.3d 909 (Pa. 2013). A court’s explanation of reasons for its
decision, which adequately addresses the relevant factors,
complies with Section 5323(d). Id.A.V. v. S.T., 87 A.3d 818, 822-823 (Pa. Super. 2014).
In making a decision on whether to modify an existing custody order,
the court must consider all of the Section 5328(a) factors. J.R.M. v. J.E.A.,
33 A.3d 647, 652 (Pa. Super. 2011). Our case law is clear that the amount
of weight that a court gives to any one factor is almost entirely within its
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discretion. See M.J.M., 63 A.3d at 339 (citation omitted) (“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.”). However, the trial court is to
give “weighted consideration to those factors which affect the safety of the
child[.]” 23 Pa.C.S.A. § 5328(a).
After our careful review, we find that the trial court properly filed its
opinion pursuant to Rule 1915.10 and Section 5323(d) of the Act. The trial
court did not abuse its discretion and did effectuate the best interest of Child
in awarding primary physical custody to Mother, with partial physical custody
to Father, and shared legal custody. The trial court’s findings of fact in
analyzing the Section 5328(a) factors are supported by testimony and
evidence in the record. Although the trial court did not expressly make
credibility determinations in its opinion and order, it implicitly did in reaching
its conclusions on the points Father currently contests on appeal. As stated
above, 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. As there
were no issues related to the safety of Child in this case, we find no abuse of
the trial court’s discretion in its determination as to the weight to place on
the Section 5328(a) factors. In providing for Child to spend more overnight
time with Mother, the trial court set forth a balanced schedule that would
provide Child with more stability now that he will be attending school full-
time.
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As we have previously stated:
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, giv[ing] due deference to the
trial court’s weight and credibility determinations,’ the trial court
erred or abused its discretion. . . .
King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (internal citation
omitted).
Accordingly, we find no abuse of the trial court’s discretion in
rendering its partial physical custody schedule for Father as set forth in the
September 21, 2016 custody order. C.R.F., 45 A.3d at 443.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2017
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