Lauer, A. v. Lauer, L. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANDREW S. LAUER IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
LAUREN LAUER
Appellant No. 1140 MDA 2022
Appeal from the Order Entered July 27, 2022
In the Court of Common Pleas of York County
Civil Division at No.: 2020-FC-000908-03
BEFORE: STABILE, J., DUBOW, J. and MCCAFFERY, J.
MEMORANDUM BY STABILE, J.: FILED: APRIL 3, 2023
In this child custody dispute, Appellant, Lauren Lauer (“Mother”),
appeals from an order awarding Appellee, Andrew Lauer (“Father”), partial
physical custody over their child, S.L. (“Child”). Mother argues that the trial
court failed to address whether this award is in Child’s best interests under
the sixteen-factor test articulated in 23 Pa.C.S.A. § 5328. We vacate the order
awarding partial physical custody to Father and remand for a new evidentiary
hearing.
Mother and Father are the natural parents of Child who was born in
2017. On July 27, 2020, Father filed a complaint seeking custody of Child.
On February 2, 2021, the parties entered into a stipulation that, inter alia,
provided Mother with primary physical custody of Child and Father with partial
physical custody of Child on alternating weekends. The same stipulation also
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provided Mother sole legal custody. On March 1, 2021, the court adopted the
stipulation as a final order of custody.
On May 28, 2021, Mother filed a petition for special relief to suspend
Father’s physical custody rights, alleging that Father possibly sexually abused
Child. The thrust of Mother’s claim was that (1) Father and Child engaged in
“sexualized play,” and (2) Child made statements that linked such play with
things she might have seen or experienced while with Father. Father filed a
responsive answer and counter-petition for contempt.
On June 22, 2021, the court held the first of several hearings on the
parties’ petitions. On June 23, 2021, the court entered an interim order
modifying the portion of the order relating to the form of Father’s custody
from partial physical custody to supervised physical custody, pending
completion of proceedings on Mother’s petition for special relief. The
remainder of the March 1, 2021 order remained in place.
On July 26, 2021, the court held a second hearing. A Lancaster County
Children and Youth Services (“CYS”) caseworker testified that CYS
investigated the sexualized play and statements Child had allegedly made in
play therapy and deemed Mother’s allegations unfounded. An Ephrata Police
Department detective testified that she conducted a criminal investigation of
the allegations, including a forensic interview with Child in which Child made
no disclosures nor used the language alleged by Mother and Child’s therapist.
The detective determined that Mother’s allegations were entirely fabricated.
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On September 1, 2021, the court entered an order prescribing location
and transportation requirements for Father’s supervised partial physical
custody.
On November 18, 2021, the court held a third hearing. Among other
witnesses, a York County CYS caseworker testified that the agency had
investigated, and deemed unfounded, Mother’s allegations.
On December 8, 2021, the court ordered Father’s partial physical
custody to remain supervised. The court added, however, that Father would
have a basis to request reconsideration of the supervision requirement by
undergoing an evaluation and successfully completing a denial polygraph from
Pennsylvania Counseling.
Father obtained an evaluation from Jamie Raubenstine, a Specialized
Outpatient Therapist at Triad Treatment Specialists who often performs sex
offender evaluations for courts in central Pennsylvania. On May 2, 2022,
Raubenstine authored an assessment that Father passed a denial polygraph
and did not pose a risk or threat of harm to Child. On May 17, 2022, Father
filed a petition to reinstate partial physical custody rights.
On July 22, 2022, the court held a hearing in which Father, Mother and
Raubenstine testified. The court admitted Raubenstine as an expert “in the
field of threat of harm evaluations with the component of denial polygraphs.”
N.T., 7/22/22, at 8. Based on information provided by Father, including but
not limited to a polygraph, Raubenstine concluded that Father did not present
a risk of harm to Child. Raubenstine emphasized that even if court had not
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asked for a denial polygraph, her conclusion that Father did not present a risk
of harm would have remained the same. Id. at 52.
In an order docketed on July 27, 2022, the court changed the form of
Father’s custody from supervised physical custody to partial physical custody.
The July 27, 2022 order did not address whether this modification was in
Child’s best interests.
On August 16, 2022, Mother filed a timely appeal to this Court from the
July 27, 2022 order. Mother did not appeal any order entered before July 27,
2022. Mother complied with Pa.R.A.P. 1925. On August 26, 2022, the court
filed a Pa.R.A.P. 1925 opinion which stated that it was not necessary to
address whether the change in the form of Father’s custody was in Child’s best
interests. Opinion, 8/26/22, at 4.
On August 29, 2022, Mother filed an application for supersedeas to stay
the July 27, 2022 order. On August 30, 2022, this Court granted the
application for supersedeas, stayed the July 27, 2022 order and directed the
trial court to reinstate its December 8, 2021 custody order.
Mother raises the following issues in her appeal:
I. Whether the trial court abused its discretion and/or erred as a
matter of law in failing to consider the sixteen (16) relevant
factors set forth in 23 Pa.C.S.[A.] § 5328(a)(1-16) when awarding
Appellee/Father unsupervised partial physical custody?
II. Whether the trial court abused its discretion and/or erred as a
matter of law in considering the results of polygraph examinations
of the Appellee/Father in awarding Appellee/Father unsupervised
partial physical custody?
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III. Whether the trial court abused its discretion and/or erred as a
matter of law in permitting Appellee/Father’s expert witness to
testify despite Appellant/Mother never having been provided the
expert’s curriculum vitae prior to the hearing, preventing
Appellant/Mother from a full and fair opportunity to properly
challenge said expert’s qualifications?
Appellant’s Brief at 4.
The lone order under review in this appeal is the July 27, 2022 order
awarding Father partial physical custody over Child. In her first argument,
Mother asserts that this award is defective because the trial court failed to
apply the sixteen-factor “best interests” test prescribed in 23 Pa.C.S.A. §
5328(a). We agree.
In an appeal from a custody order, we apply the following scope and
standard of review:
[T]he appellate court is not bound by the deductions or inferences
made by the trial court from its findings of fact, nor must the
reviewing court accept a finding that has no competent evidence
to support it.... However, this broad scope of review does not vest
in the reviewing court the duty or the privilege of making its own
independent determination.... Thus, an appellate court is
empowered to determine whether the trial court’s incontrovertible
factual findings support its factual conclusions, but it may not
interfere with those conclusions unless they are unreasonable in
view of the trial court’s factual findings; and thus, represent a
gross abuse of discretion.
C.M. v. M.M., 215 A.3d 588, 591 (Pa. Super. 2019).
In Pennsylvania, custody disputes are governed by the Child Custody
Act, 23 Pa.C.S.A. §§ 5321-5340. The primary focus in any custody case is
the best interests of the child. “The best-interests standard, decided on a
case-by-case basis, considers all factors that legitimately have an effect upon
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the child’s physical, intellectual, moral, and spiritual well[-]being.” Saintz v.
Rinker, 902 A.2d 509, 512 (Pa. Super. 2006).
A series of provisions in the Child Custody Act are relevant to the present
custody dispute. 23 Pa.C.S.A. § 5323, entitled “Award of Custody,” provides
in relevant part:
(a) Type 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.
In turn, 23 Pa.C.S.A. § 5328 provides:
§ 5328. Factors to consider when awarding custody.
(a) Factors. - In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors which
affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member
of the party’s household, whether there is a continued risk of harm
to the child or an abused party and which party can better provide
adequate physical safeguards and supervision of the child.
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(2.1) The information set forth in section 5329.1(a)(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.
(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.
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Id. The court must “expressly consider all of the Section 5328(a) factors”
when deciding a request to modify custody. M.J.M. v. M.L.G., 62 A.3d 331,
336 (Pa. Super. 2013) (emphasis added).
When the court enters a custody order, 23 Pa.C.S.A. § 5323 requires
the trial court to “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,
section 5323(d) requires the trial court to set forth its mandatory
assessment of the sixteen Section 5328 custody factors prior to
the deadline by which a litigant must file a notice of appeal.
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. A court’s
explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with Section 5323(d).
C.M., 215 A.3d at 592-93 (citations and quotation marks omitted).
The court has the duty to consider Section 5328(a)’s best-interest
factors when any party requests a change in the “form of physical custody.”
C.M., 215 A.3d at 593. This duty exists “even in cases where the trial court
merely reaffirms its prior custody order.” Id. at 593. Furthermore, we
interpret “form of custody” to mean “the seven types of custody listed at 23
Pa.C.S.A. § 5323(a).” S.W.D. v. S.A.R., 96 A.3d 396, 402 (Pa. Super. 2014).
Thus, “a trial court must apply the § 5328(a) factors and issue a written
explanation of its decision when it orders any of the seven forms of custody
provided for by the [Child Custody] Act.” Id.
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Consideration of the Section 5328 factors is not necessary, however,
when the custody decision “merely modifie[s] a discrete custody-related
issue” instead of changing the form of custody. M.O. v. J.T.R., 85 A.3d 1058,
1063 (Pa. Super. 2014). In a recent memorandum, we fleshed out when
custody disputes involve mere “discrete custody-related issues” instead of a
change to the form of custody:
[I]t makes little sense for a trial court to analyze each of the
sixteen 5328(a) factors when arbitrating, for example, a dispute
over a custody-exchange location; which youth sports the children
should play; or whether a parent should be required to have
children’s toys, beds, or other things in his or her house. Rather,
when read as a whole, it is apparent that the [Section] 5328(a)
factors were designed to guide the best-interest analysis when a
trial court is ordering which party has the right to a form of
custody. S.W.D., 96 A.3d at 403 (emphasis in original; footnote
omitted). Thus, we have not required a trial court to address the
Section 5328(a) factors when considering the following disputes
between the parties: (1) “whether Father was required to be off
from work while the Children stayed with him” during part of the
summer; (2) which primary school Child would attend; and (3)
whether to grant Mother permission for Child to receive the
COVID-19 vaccination. The issue presented in the present appeal
— how the parties will pay for Child’s therapy sessions — is the
same type of discrete custody related issue that does not involve
an “award of custody.” See M.O., 85 A.3d at 1063.
Bowman v. Bowman, 2022 WL 17258587, *4 (Pa. Super., Nov. 29, 2022)
(emphasis in original; footnotes omitted).1
In the present case, the July 27, 2022 order changed Father’s custody
from supervised physical custody to partial physical custody. This was a
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1 Although Bowman is not a published opinion, we may unpublished
memoranda filed by this Court after May 1, 2019 for their persuasive value.
Pa.R.A.P. 126(b).
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change in the form of custody, see 23 Pa.C.S.A. § 5323(a), not a mere
modification of a discrete custody-related issue such as those catalogued in
Bowman. Consequently, the court was required to examine whether this
change was in Child’s best interests by analyzing the sixteen Section 5328
factors. S.W.D., 96 A.3d at 402. The court erred by failing to undertake this
analysis in its July 27, 2022 order or in its Pa.R.A.P. 1925 opinion.
Our decision in C.M. confirms that a Section 5328 analysis is necessary.
There, the original child custody order awarded Mother primary physical
custody and Father supervised physical custody on alternating Saturday
afternoons. Subsequently, the court modified the custody order to provide
Father partial physical custody on the first weekend of each month from
Saturday at 10:00 a.m. through Sunday at 5:00 p.m. Mother appealed,
objecting to the court’s failure to consider the Section 5328 factors in its
modification order. We reasoned:
[T]he trial court modified Father’s supervised physical custody and
removed the requirement that Mother was to supervise Father’s
custodial period. The subject order modified the existing custody
order by awarding Father “partial physical custody,” rather than
“supervised physical custody.” In addition, the order increased
Father’s custodial time by granting him overnight custody on the
first Saturday of each month from 10:00 a.m. until Sunday at 5:00
p.m. Erroneously, the trial court offered no explanation as to how
Father’s partial physical custody award was in Child’s best
interests. We reiterate that the trial court was required to
consider Child’s best interests and assess the Section 5328(a)
custody factors.
Id., 215 A.3d at 593-94. Thus, we remanded the case for the court to
consider the Section 5328 factors on the record or in a written opinion. In the
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present case, as in C.M., the trial court ordered a change in the form of
Father’s custody from supervised physical custody to partial physical custody.
Therefore, the trial court was required to consider Child’s best interests and
assess the Section 5328(a) custody factors. Id.
The trial court claims that analysis of the Section 5328 factors was
unnecessary because the “sole issue . . . was whether Father’s visitation rights
should be restored to what was stipulated to by the parties” in March 2021.
Opinion, 8/26/22, at 4. The custody rights that Father enjoyed in March 2021
were not relevant at the time of the court’s order on July 27, 2022. The only
issue on July 27, 2022 was whether to change supervised physical custody,
the form of custody then in place, to partial physical custody. This issue
required examination of the Section 5328 factors to determine what was in
Child’s best interests. C.M., 215 A.3d at 593.
The trial court then stated that “to the extent review of the Section 5328
factor was necessary,” there “were no changes in the case dynamics” after
March 2021 “outside of the issue whether Father’s custody should be
supervised or not.” Opinion at 4. In our view, the change from supervised to
partial physical custody was a significant “change in case dynamics” that
required analysis under Section 5328. To perform this task satisfactorily, the
court must “expressly consider all of the Section 5328(a) factors” either in its
order or its Pa.R.A.P. 1925 opinion. M.J.M. v. M.L.G., 62 A.3d 331, 336 (Pa.
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Super. 2013) (emphasis added). This analysis is missing from the trial court’s
opinion.
Under these circumstances, we are constrained to remand this case to
the trial court for a new evidentiary hearing concerning the form of Father’s
custody. A new hearing is necessary because Child’s best interests might
have changed between the July 27, 2022 order and the present date. Due to
the already protracted nature of this case, the hearing shall take place within
45 days after the return of the certified record to the trial court. At the
conclusion of the new hearing, the trial court shall consider all of the Section
5328 factors to determine the proper form of Father’s custody. Our decision
to remand makes it unnecessary to review the other issues raised in Mother’s
appeal.
Case remanded for further proceedings in accordance with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/03/2023
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