J.T.H. v. H.H. Appeal of: H.H., n/k/a H.W.

J-A10031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.T.H., Jr. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
H.H., n/k/a H.W.,
Appellant No. 1960 MDA 2014
Appeal from the Order entered July 28, 2014,
in the Court of Common Pleas of Lancaster County,
Civil Division, at No(s): CI-13-06575
BEFORE: GANTMAN, P.J., MUNDY, and JENKINS, JJ.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 07, 2015
H.H., n/k/a H.W. (“Mother”), appeals from the custody order dated
July 25, 2014, and entered on July 28, 2014, that awarded J.T.H., Jr.
(“Father”) and Mother shared legal and physical custody of their minor male
child, M.E.H., (born in July of 2001), and their minor female child, C.M.H.,
(born in December of 2004) (collectively, “the Children”). Upon careful
review, we affirm.
We summarize the factual and procedural history of this case as
follows. Mother and Father are the natural parents of the Children. Mother
and Father divorced in 2011. Mother is currently married to J.W., the
Children’s stepfather (“Stepfather”), with whom she recently had a son, S.W.
(“Half-Brother”), in April of 2014. Mother lives in a six-bedroom house in
Strasburg, Pennsylvania, with the Children, Stepfather, Half-Brother, the
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Children’s paternal uncle, and the Children’s maternal grandmother. Prior to
giving birth to Half-Brother, Mother worked as a server at Red Lobster, but is
now a stay-at-home caretaker.
Father is currently married to F.H., the Children’s stepmother
(“Stepmother”). Father lives in a three-bedroom townhouse in Lancaster,
Pennsylvania, with the Children, Stepmother, and Stepmother’s children.
Father works as a certified nurse’s aide from 3:00 p.m. to 11:00 p.m. with a
two-week rotating work schedule. Based on his work schedule, Father is off
on Sunday, works Monday through Thursday, is off on Friday, works
Saturday through Monday, is off on Tuesday, works Wednesday through
Friday, and is off on Saturday.
On June 28, 2013, Father filed an initial pro se complaint in custody,
seeking primary physical custody of the Children. Thereafter, the parties
submitted their criminal history affidavits. Mother indicated that Stepfather
committed an enumerated offense. Consequently, the trial court conducted
a risk of harm hearing on August 5, 2013. After the risk of harm hearing,
the trial court found Stepfather was not a risk of harm to the Children.
The matter proceeded to trial because the parties could not reach an
agreement on the issue of custody at the custody conciliation conference
held on August 28, 2013. Prior to trial, the custody conciliator entered a
temporary custody order on September 10, 2013, granting primary physical
custody to Mother and partial physical custody to Father. The trial court
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held a custody hearing on October 21, 2013. On November 7, 2013, the
trial court entered a final custody order, awarding both parties shared legal
and physical custody of the Children on a two-week rotating basis in order to
accommodate Father’s work schedule so he could maximize his custodial
time with the Children on the days he has off. The two-week rotating basis
was as follows:
Week One- Monday from after school to Thursday at 5:00 p.m.
with Mother;
Thursday at 5:00 p.m. to Friday at 8:00 p.m. with Father;
Friday at 8:00 p.m. to Monday at 5:00 p.m. with Mother.
Week Two- Monday at 5:00 p.m. to Wednesday before school
with Father;
Wednesday after school to Friday at 5:00 p.m. with
Mother;
Friday at 5:00 p.m. to Monday before school with Father.
Trial Court Opinion, 11/7/13, at 6. The trial court ordered “Week One” to
begin on Monday, November 11, 2013.
On April 11, 2014, Mother filed a petition to modify custody, seeking
primary physical custody. On June 3, 2014, the parties attended a custody
conciliation conference with the Children. On June 17, 2014, the custody
conciliator issued a temporary custody order, granting primary physical
custody to Mother and partial physical custody to Father on a similar,
simplified two-week rotating basis.
On July 11, 2014, Father appeared pro se and Mother appeared with
counsel at a custody hearing. At the custody hearing, the trial court heard
the testimony of the Children, Father, Mother, the Children’s maternal uncle,
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and the Children’s maternal aunt. By opinion and order entered July 28,
2014, the trial court awarded the parties shared legal and physical custody
of the Children, on a two-week rotating basis and ordered co-parent
counseling. The trial court ordered the two-week rotating basis to give
Father custody of the Children on his days off during his two-week schedule
as follows:
Week One- Father shall have custody of the Children from after
school on the Tuesday he has off from work until Monday after
school.
Week Two- Mother shall have custody of the Children from after
school on Monday until the Tuesday of Week One after school.
Trial Court Opinion, 7/28/15, at 8.1
On August 28, 2014, Mother filed a notice of appeal, which this Court
quashed as untimely filed on October 9, 2014. On October 20, 2014, Mother
filed a petition to appeal nunc pro tunc from the custody order of July 28,
2014. The trial court entered an order on November 13, 2014, granting
Mother’s petition to appeal nunc pro tunc. On November 19, 2014, Mother
filed a notice of appeal nunc pro tunc, along with a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On August 19, 2015, this Court remanded with instructions that the
trial court author a more complete Pa.R.A.P. 1925(a) opinion addressing all
1
The trial court’s order and opinion specified further custody details
including custody start times and holiday and vacation schedules, which we
need not reproduce here.
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required custody factors. On August 25, 2015, the trial court filed a new
Pa.R.A.P. 1925(a) opinion as directed.2, 3
On appeal, Mother presents the following issues for our review:
1. Did the [t]rial [c]ourt err in that it did not give adequate
consideration to the well-reasoned preference of the [C]hildren
to maintain Father’s every other weekend custody schedule?
2. Did the [t]rial [c]ourt err in its determination that a shared
custody schedule is appropriate where Father is not available for
three of the six days during his period of custody and Mother is
not working?
3. Did the [t]rial [c]ourt err in its determination that a shared
custody schedule is appropriate when Father does not encourage
and permit [ ] continued contact between the [C]hildren and
Mother during his periods of custody?
4. Did the [t]rial [c]ourt err in that it did not give adequate
consideration to the strong relationship that the [C]hildren share
with [Half-Brother] in Mother’s home?
5. Did the [t]rial [c]ourt err in its determination that a shared
custody schedule was appropriate when Father is not flexible
with Mother when it comes to issues of co-parenting?
Mother’s Brief at 14.
2
A clerical error in the Lancaster County Court of Common Pleas’
prothonotary’s office prevented the trial court’s new Pa.R.A.P. 1925(a)
opinion from being forwarded to this Court until November of 2015.
3
The trial court’s new Pa.R.A.P. 1925(a) opinion includes a new custody
order dated August 25, 2015. Ordinarily, the issuance of a new order would
reset an appeals period and require appeal of the new order. However,
given the clerical miscues involved in this matter, and because the trial
court’s new order is nearly identical to the July 28, 2014 order (the new
order omits a prior co-parent counseling requirement that has no bearing on
our determination herein), we will consider Appellant’s August 28, 2014
notice of appeal of the original order applicable to the August 25, 2015 order
attached to the new Pa.R.A.P. 1925(a) opinion.
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In custody modification cases, 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) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa.Super.2004)).
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
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support the court’s findings or that there is a capricious disbelief
of evidence.
Id. at 18-19 (quotation and citations omitted).
With any custody case decided under the Child Custody Act (“Act”),
the paramount concern is the best interests of the child. See 23 Pa.C.S. §§
5328, 5338.
Section 5323 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.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S. § 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.
§ 5338. Section 5328(a) of the Act sets forth the sixteen best interest
factors that the trial court must consider. See 23 Pa.C.S. § 5328(a); see
also E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa.Super.2011).
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Section 5328(a) 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)
(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.
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(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).
In A.V. v. S.T., 87 A.3d 818 (Pa.Super.2014), this Court explained the
following:
“All of the factors listed in section 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.[] § 5323(d). Additionally,
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“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.” C.B. v. J.B., 65 A.3d 946, 955 (Pa.Super.2013),
appeal denied, [] 70 A.3d 808 ([Pa.]2013). Section 5323(d)
applies to cases involving custody and relocation. A.M.S. v.
M.R.C., 70 A.3d 830, 835 (Pa.Super.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., 87 A.3d at 822-23.
With regard to the section 5328(a) factors, the trial court found the
following:
1. Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party.
[M.E.H.] testified that he does not call to talk to [] Father while
at Mother’s house and that Father does not call to talk to the
Children while they are at their Mother’s home. He also believes
that he does not talk to Mother over the phone while at Father’s
house because “If she calls, he doesn’t really tell us.” [C.M.H.]
testified that when she is at her Father’s house, she similarly
does not speak to [] Mother on the phone. She states that the
reason for this is that Mother calls Father early in the morning or
late at night, when the Children are asleep. She also stated that
Father does not call the Children at Mother’s home and that they
do not call him from Mother’s home. The parties testified that
their telephone communications leave much to be desired from a
co-parenting standpoint as both Mother and Father have an
affinity for pushing each other’s buttons. It is this issue with
communication that the [c]ourt sought to address when it
ordered the parties to attend co-parenting counseling. While
their communications are not ideal, in consideration of co-
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parenting issues as a whole, the [c]ourt finds these conflicts to
be minor. Further, the parties have generally been diligent to
shield the Children from their communication issues. The
parties’ issues with telephone communication can be addressed
with proper counselling. Neither party has withheld the
[C]hildren from the other party[,] and [each has] demonstrated
a history of encouraging frequent and continuing physical
contact of the other party with the Children.
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 of an abused party and which party can better
provide adequate physical safeguards and supervision of the
child. There is not a present risk to the Children of abuse by
either party or any of their current household members.
2.1 The information set forth in section 5329.1(a) (relating to
consideration of child abuse and involvement with protective
services). There is no evidence of the involvement of child
abuse or child protective services and none was presented at
any hearing in this matter.
3. The parental duties performed by each party on behalf of the
child. Both parents perform parental duties for the Children
when they are in their custody; Mother relies on maternal
grandparents when necessary.
4. The need for stability and continuity in the child’s education,
family life, and community life. The Children’s need for stability
and continuity in their education, family, and community life will
be satisfied under a shared schedule[] because of the proximity
of the parties’ residences and because they will not be changing
school districts[.]
5. The availability of extended family. Both maternal and
paternal grandparents either live with or within a reasonable
driving distance to see the Children. Moreover, both sets of
grandparents and various aunts and uncles are available to the
Children when the Children are at either Mother or Father’s
house.
6. The child’s sibling relationships. The Children’s relationship
with each other as well as with their half-brother is healthy and
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normal for their respective ages. Mother has a four-month-old
Son, [S.W.]. Mother and the Children all testified that the
Children enjoy bonding with their baby brother. Father also
testified that he believes it to be important for the Children to
know and develop meaningful relationships with both sides of
their family, which includes the Children’s newborn brother. It is
not the [c]ourt’s intent to disrupt the relationship that the
Children have with their baby brother. The [c]ourt must
consider all of the relevant child custody factors and not just this
factor when making a custody determination. In a perfect world,
Children would be able to spend 100% of the time with both
parents and all siblings; however, when the circumstances are
such that the Children are not part of an intact family, but
instead have two blended households, the Children’s time and
other relational resources are divided. In consideration of all of
the relevant child custody factors, the [c]ourt determines that a
shared custody schedule, whereby both Children spend equal
time at both households is in the best interests of the Children.
7. The well-reasoned preference of the child, based on the
child’s maturity and judgment. The well-reasoned preference of
the Children, based on their maturity and judgment, is to not
return to the custody schedule set forth by the [c]ourt in the
November 6, 2013 Order. The main reason for this is because
they feel like they had to go back and forth too often between
Father’s house, paternal grandparents’ house, and Mother’s
house. The Children would like to maximize their time with their
parents without having to go back and forth as often. The stated
preference of the Children was to continue with the every other
weekend schedule as set forth in the temporary custody order
dated June 17, 2014. However, when asked why [M.E.H.] did
not like the November 6, 2013 Order which provided for equal
time with both parents, he stated specifically, “I don’t really like
going back and forth all the time, because it feels like I’ll be here
for, like two days, then I have to leave for a few days.” He
further stated to the [c]ourt that the biggest concern with the
November 6, 2013 custody schedule was the “going back and
forth all the time.”
Under Pennsylvania child custody law, when there are two
parents involved, the test as to the best interests of the Children
is to evaluate on a scale that is initially weighed equally as to
each parent. In the instant case, both Mother and Father are fit
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parents. Both Mother and Father, despite their difficulties with
each other, have an excellent and loving relationship with both
of the Children. Here, the issue before the [c]ourt is not the
best interests of the Children in shielding them from adverse
effects from developing a relationship with their biological
parents, but instead concerns logistical problems presented by
Father’s work schedule and childcare for the Children with
paternal grandparents. It is upon the conclusion that both
parents are fit, loving parents and that the Children do not like
being carted back and forth many times during the week that
the [c]ourt orders a shared custody schedule where Mother and
Father essentially have a week on/week off schedule.
Both Children really enjoyed their weeks at the Black Rock Camp
and want to go back again next year. [M.E.H.] enjoys Boy
Scouts with his current troop down in Delta, PA and would like to
continue participating with that troop. The [c]ourt finds that it is
reasonable for [M.E.H.] to continue to participate in Boys Scouts
in Delta, Pennsylvania with his uncle.
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.
There was no evidence presented demonstrating any attempts of
a parent to turn the Children against the other parent.
Testimony was presented demonstrating that Father disparages
Mother’s home to the younger Child by attributing stupidity to
verbal communications within Mother’s household.
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. Both parties have demonstrated
that they are likely to maintain a loving, stable, consistent, and
nurturing relationship with the Children adequate for their
emotional needs. The Children appeared to be well-balanced
and happy children – a credit to both parents. The Children love
both of their parents and benefit from continuing to develop their
relationship with them under a shared custody schedule.
10. Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the
Children. The Children have no special needs. Both parties have
demonstrated that they are likely to attend to the daily physical,
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emotional, developmental, and educational needs of the
Children. The conflict over the Children’s involvement with the
Black Rock Camp, Boy Scouts of America, and other
extracurricular activities is not because Father does not want the
Children to participate in such activities. He testified credibly
that he wants his Children to engage in various activities to be
well-rounded and would not prevent the Children from
[participating in] activities that they truly wanted to participate
in. The parties’ conflict regarding extracurricular activities is
because the parties struggle to communicate effectively and
respectfully with each other. These parental communication
struggles will only hinder the Children’s ability to freely engage
in activities because either they will be chilled from asking about
participating or they will ask but will be prevented from
participating because of their parent’s [sic] conflicts.
11. The proximity of the residences of the parties. The parties
reside 22 miles apart. Father lives in Columbia[,] Pennsylvania,
and Mother lives in Strasburg, Pennsylvania.
12. Each party’s availability to care for the child or ability to
make appropriate child-care arrangements. Both parties have
demonstrated their availability to care for the Children and to
make appropriate child-care arrangements when they are
unavailable to care for the Children. Both parties mainly use
relatives, like grandparents, aunts, and uncles [] to provide
child-care for the Children.
13. The level of conflict between the parties and the willingness
and the 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. The level of conflict between the parties is relatively low
in that they are not violent or excessively harassing toward each
other. However, because of their personality conflicts and their
ability to push each other’s buttons, their willingness and ability
to cooperate with one another has been significantly diminished.
Both parties will benefit from co-parent counseling.
14. The history of drug or alcohol abuse of a party or a member
of a party’s household. Neither party has been shown to have a
problem with drug or alcohol abuse. Mother’s husband, [J.W.],
had a DUI from 2007. The [c]ourt held a risk of harm hearing
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on August 5, 2013 and found [J.W.] to not pose a risk of harm to
the Children.
15. The mental and physical condition of a party or member of a
party’s household. Both parties and the members of their
households are in good mental and physical health.
16. Any other relevant factor. The [c]ourt notes that Father has
his struggles with co-parenting; however, the previous failures in
the parties’ co-parenting relationship is the product of both
Father and Mother’s conduct. Surely, Father has his
eccentricities such that he tends to complicate simple issues,
make issues out of non-issues, and has a habit of talking down
to Mother. On the other hand, Mother makes unilateral decisions
regarding the Children without consulting Father, such as signing
[M.E.H.] up for Boy Scouts in a non-convenient location, signing
both Children up for summer camp, and making non-emergency
medical decisions without telling Father. She admittedly
engages in passive aggressive behavior to avoid having to deal
with Father. The [c]ourt notes both parties’ struggles in the co-
parenting relationship, which is why the [c]ourt has previously
ordered co-parenting counseling for the express purpose of
“improv[ing] communication between the parents . . . and to
reduce the antagonism and animosity between the parents.”
Thankfully, and to the credit of both parents, the parties have
shielded their Children from their co-parenting struggles.
Further, the parties do not have extended verbal or physical
altercations – the extent of their conflict is derogatory
statements and passive aggressive behavior. When considering
the spectrum of parental feuds in the arena of child custody, the
parties’ conflicts with each other are moderate. The [c]ourt finds
that a shared custody schedule[] is most appropriate because
both parents have demonstrated that they are fit parents who
seek to be involved in their Children’s lives.
Trial Court 1925(a) Opinion, August 25, 2015, pp. 6-13 (record citations
omitted). Based on its assessment of the 5328(a) factors, the court
concluded:
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Under the presumption that a shared custody schedule is
appropriate in a situation where the Children have two fit, loving
parents and operating within the confines of the Children’s
stated preference to not feel like they are constantly going back
and forth between their parent’s [sic] homes, there are few
options available logistically to maximize the Children’s time with
both parents without shuffling them between Mother and
Father’s homes.
Father testified that he has suitable childcare options for the
times when he has custody of the Children but has to work;
either the paternal grandparents or the Children’s stepmother
will watch the Children at Father’s residence. On his work days,
Father will be able to see the Children before school and during
the days in the summer and other breaks when the Children are
not in school during the day. The Children will be able to
develop meaningful relationship[s] with both sides of their
families at their parent’s [sic] respective homes. Upon
consideration of these statutory factors, the [c]ourt finds that it
is in the best interests of the Children for Mother and Father to
share legal and physical custody of the Children.
Id. at 13.
Mother’s issues challenge whether the trial court abused its discretion
in continuing shared physical custody instead of granting the modification
petition to award her primary physical custody. See Mother’s Brief, at 17.
In her first and second issues, Mother contends that the trial court
inadequately considered section 5328(a)(7) and section 5328(a)(12) in its
opinion. See id. at 18-22. In her third, fourth, and fifth issues, Mother
complains that the trial court failed to address sections 5328(a)(1), (6), and
(13), respectively. See id. at 23-29.
A review of the trial court’s reasoning supra reveals the trial court
considered each of the factors Mother alleges the court either failed to
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address or inadequately addressed. In short, the trial court concluded that
the complained-of factors did not weigh heavily in favor of either Mother or
Father.4
We find the trial court adequately considered all the required section
5328(a) factors. Further, we find ample, competent evidence in the record
to support the trial court’s decision regarding the equal shared custody
arrangement. Thus, we find no error of law or abuse of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2015
4
Specifically, as to 5328(a)(1), the trial court reviewed testimony regarding
the parties’ specific co-parenting deficiencies, but concluded “[n]either party
has withheld the [C]hildren from the other party[,] and [each has]
demonstrated a history of encouraging frequent and continuing physical
contact of the other party with the Children.” Trial Court 1925(a) Opinion,
August 25, 2015, pp. 6-7. As to 5328(a)(6), the Children’s sibling
relationships, the trial court acknowledged the Children’s baby half-brother,
as well as Father’s testimony that he believes the Children should develop
meaningful relationships with both sides of their family, in determining that
this factor weighed in favor of shared custody with equal time spent at each
parent’s residence. See id. at 8. Regarding section 5328(a)(7), the child’s
well-reasoned preference, the trial court noted that the Children’s only real
preference was to avoid being moved between residences multiple times a
week, and accordingly a shared custody schedule on a week-on/week-off
basis was appropriate. Id. at 9. The trial court did not view either of the
factors contained in section 5328(a)(12) or (a)(13) as favoring either
parent. Id. at 11.
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