Varner, L. and D. v. Hocker, F.

J-S26029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DALE L. & LINDY L. VARNER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FELICITY DAWN HOCKER, :
DECEASED, AND DANIELLE HOCKER :
: No. 453 MDA 2022
:
APPEAL OF: DANIELLE HOCKER, :
:
Intervenor :
Appeal from the Order Entered February 14, 2022
In the Court of Common Pleas of Huntingdon County Civil Division at
No(s): CP-31-CV-235-2021
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: SEPTEMBER 29, 2022
Intervenor, Danielle Hocker (Appellant), files this appeal from the order
dated and entered February 14, 2022, in the Huntington County Court of
Common Pleas, with respect to custody of the male child, C.J.H. (Child), born
in January 2021. The order awarded sole legal and physical custody to Dale
L. Varner (Dale) and Lindy L. Varner (Lindy) (collectively, Appellees). The
order further granted Appellant two non-overnight visits per year in
Huntington County, Pennsylvania. After review, we affirm the trial court’s
order.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S26029-22
This matter arises from a tragic incident in which Felicity Dawn Hocker
(Mother) was struck and killed by a freight train in Northumberland County,
Pennsylvania, in March 2021, at 21 years old. N.T., 2/11/22, at 6. Mother
had given birth to Child approximately two months prior to her death. Id. at
3. Child’s biological father is unknown.
Appellant is the sister of Mother’s father, and, therefore, Child’s
maternal great-aunt. N.T., 8/20/21, at 5-6, 51-52. Appellees are the half-
sister and brother-in-law of Mother’s mother, and, therefore, also Child’s
maternal great-aunt and great-uncle. N.T., 2/11/22, at 3, 33-34; N.T.,
8/20/21, at 6. Appellant and Appellees were not aware of each other and
never met prior to the present litigation. N.T., 2/11/22, at 14, 33, 38, 40;
N.T., 8/20/21, at 6.
The trial court set forth the following background regarding Mother’s
familial relationships and upbringing.
[Mother] was born [in] 1999. She lived with her sister [ ]
and their parents [ ] in Florida for a time. At some point in or
around 2001 or 2002 the family moved to Huntingdon County,
Pennsylvania. . . . This was the first time that Lindy met [Mother],
and was the first time that Lindy met [Mother’s mother] as well —
Lindy had not even known that she had [a half-]sister prior to this
point.
The family’s time in Pennsylvania was a turning point for
[Mother]. While the precise details are unknown, [Mother’s
parents] lost custody of both [Mother] and [her sister] in 2002,
apparently after the girls were found locked in the trunk of a car.
[Mother’s grandparents] took custody of [Mother], and at three
years of age, she went to live with them in [the State of]
Washington. [Mother’s father] returned to Florida, where he still
-2-
J-S26029-22
lives, and [Mother’s mother] now lives in Altoona, Blair County,
Pennsylvania.
[Appellant], then age twenty-three, was not living at home
when [Mother] came to live with [her grandparents, who are
Appellant’s parents]. She was living nearby, and was involved in
[Mother]’s life as her aunt. [Appellant] saw [Mother] more
frequently during [Mother]’s first two years in Washington. Their
interactions became more infrequent around the time that
[Mother] was five because: (i) [Appellant] became quite busy,
attending college while continuing to work full-time; and (ii) the
relationship between [Appellant] and [her father] became
strained. . . . It was also around this time that [Appellant] moved
to Colorado.
[Mother’s grandparents] and [Mother] continued to live in
Bremerton, Washington, until [Mother] was in her early teens, at
which point [Mother’s grandfather] retired and the family moved
to Colorado as well. [Appellant] visited [Mother] while they were
both living in Colorado, and then moved back to Bremerton when
[Mother] was fourteen or fifteen. [Appellant] had minimal contact
with [Mother] for the next few years, until after [Mother] turned
eighteen and was no longer living with [her grandparents].
. . . Per [Mother’s grandfather]’s testimony, [Mother] was
diagnosed with bipolar disorder at age sixteen. This led to a lot
of friction between her and her grandparents, and at age
seventeen she was placed in [a Christian] girls’ home in Colorado
Springs, Colorado. When [Mother] turned eighteen the supervisor
of the home sent [Mother] to a similar facility for adults in Corpus
Christi, Texas. This move occurred at a time in which [Mother]
was apparently avoiding contact with [her grandfather] (who
testified that the move occurred without his knowledge), but did
have some contact with [Appellant], as [Appellant] was contacted
as being a possible resource for [Mother]. Regardless, after
spending a few months in Texas, [Mother] got in touch with
[Appellant]. In December 2017[, Appellant] bought a bus ticket
for [Mother] to travel to Washington. [Mother] stayed with
[Appellant] in Bremerton for about a week, until [Appellant]
caught her in a lie regarding her claimed plan to earn her GED and
get a job. [Mother] then moved to Pennsylvania.
Trial Ct. Op., 4/28/22, at 3-5 (footnotes omitted).
-3-
J-S26029-22
Upon her return to Pennsylvania, Mother again visited with and
commenced a relationship with Lindy and extended family in Pennsylvania.
N.T., 2/11/22 at 6, 31-32, 66-67, 74. Over the next few years, before her
untimely death, Mother maintained occasional contact with Appellant, Lindy,
as well as her grandfather, among other family. N.T., 2/11/22, at 32, 66-67,
74-75; N.T., 8/20/21 at 18-20, 55. Both Appellant and Lindy knew of Mother’s
pregnancy, and Mother sought Lindy’s advice regarding same.1 N.T., 2/11/22,
at 4; N.T., 8/20/21, at 18. Appellant last spoke to Mother just prior to Child’s
birth. N.T., 8/20/21, at 19-20. Noting that Mother had been “struggling” and
was “busy making sure [Child] was okay,” Appellant was aware Child had been
born but confirmed that she had not received any communication from Mother
after Child’s birth. Id. at 19-20, 40. Lindy indicated that her last contact with
Mother involved Mother sending her a picture following Child’s birth. N.T.,
2/11/22, at 3, 31.
Two days after Mother’s death, in the early morning hours of March 3,
2021, Northumberland County Children and Youth Services (CYS) placed Child
with Appellees, who reside in Huntingdon County, Pennsylvania. 2 N.T.,
2/11/22, at 7-8. Child has remained in Appellees primary custody since this
____________________________________________
1Lindy testified, “I knew she was pregnant and how she got pregnant. Then
she asked me what to do.” N.T., 2/11/22, at 4.
2 Lindy testified that, after discussions between her, her sister, and her
mother, Child was placed with her and her husband at approximately midnight
on March 3, 2021. N.T., 2/11/22, at 7-8, 31, 35-37, 65-66. Initially, it was
thought the placement was to be temporary. Id. at 36-37, 65-66.
-4-
J-S26029-22
time. On March 11, 2021, Appellees filed an emergency custody complaint
for the purpose of obtaining legal authority to treat Child's medical problems.
Id. at 13-14. Specifically, at the time of placement, Child was “severely
malnourished, underweight, [and] dehydrated.” N.T., 2/11/22, at 10.
Additionally, as Lindy explained, Child has kidney issues, potential vision
issues, and is being monitored for autism as a result of a genetic disorder.
Id. at 12-13, 26. He also has orthopedic issues and gastro-intestinal issues.
Id. at 13, 18. As a result, Child sees various medical specialists. Id. at 12-
13, 26. Lastly, Child receives early intervention services due to developmental
delays. Id. at 24. Lindy described these services as physical therapy and
indicated that Child may also be referred for speech therapy. Id. at 24-25.
In the meantime, after learning of Mother’s death from her father,
Appellant, who resides in Washington, contacted the police in Pennsylvania
seeking information as to Child’s whereabouts and care. The police then put
Appellant in touch with CYS. N.T., 8/20/21, at 19-20. After locating Child,
Appellant filed a petition to intervene in the underlying custody matter on April
12, 2021, wherein she also requested legal and physical custody.3 See
Appellant’s Petition to Intervene, 4/12/21, at 1-4 (unpaginated).
____________________________________________
3 Appellant testified that she did not know how to contact Appellees. N.T.,
8/20/21, at 20-21, 41.
-5-
J-S26029-22
The trial court conducted a hearing on May 27, 2021, on both petitions.4
By order entered that same day, the court granted Appellant's request to
intervene, and awarded the parties shared legal custody and Appellees
primary physical custody. See Order, 5/27/21. Despite the award of shared
legal custody, the court provided that Appellees may make medical decisions
without Appellant’s consent. See id. The court further scheduled a hearing
regarding the custody factors. See id. Around this time, Appellant had her
only in-person visit with Child prior to the conclusion of the custody hearings.5
N.T., 2/11/22, at 16-17; N.T., 8/20/21, at 33.
The trial court conducted custody hearings on August 20, 2021, and
February 11, 2022. At the conclusion of the hearings, Child was approximately
thirteen months old. Both Appellant and Appellees were present and
represented by counsel.6 On August 20, 2021, Appellant presented her
testimony and that of her common-law husband, M.B. Appellees presented
the testimony of Mother’s grandfather, R.H. On February 11, 2022, Appellees
both testified on their own behalf and presented the testimony of Lindy’s half-
____________________________________________
4 A transcript of the May 27, 2021, hearing is not included in the certified
record.
5Appellant met Appellees and Child at an Ollie’s store for about two hours.
N.T., 2/11/22, at 16-17; N.T., 8/20/21, at 33.
6 Appellant participated in the February 11, 2022, hearing via Zoom. N.T.,
2/11/22, at 1.
-6-
J-S26029-22
sister, L.C. Notably, both Appellant and Appellees expressed their ultimate
desire to adopt Child. N.T., 2/11/22, at 29-30, 62; N.T., 8/20/21, at 30.
By order dated and entered February 14, 2022, the trial court awarded
Appellees sole legal and physical custody. Finding visitation with Appellant
“not feasible,” the court further directed Appellees to provide Appellant regular
updates regarding Child and granted Appellant non-overnight visits with Child
twice each year in Huntingdon County with thirty days advance notice.7
Critical to the court in its determination was “the distance between the parties,
the limited resources of the parties for travel, the child’s young age, and the
child’s medical needs.” Trial Ct. Op. at 1.
Thereafter, on March 14, 2022, Appellant filed a timely 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). The trial court then issued a Rule 1925(a)
opinion on April 28, 2022, in which it explained:
Review of the record shows that this case, which arose out
of a particularly tragic set of circumstances, presented the [c]ourt
with an unenviable scenario. Because of the distance between the
parties, the limited resources of the parties for travel, the child’s
young age, and the child’s medical needs, shared custody is not
____________________________________________
7 We observe that the Child Custody Act (“the Act”), 23 Pa.C.S. §§ 5321-5340,
does not provide for an award of visitation. See 23 Pa.C.S. § 5323(a). Rather,
the Act provides for “[p]artial physical custody,” defined as “[t]he right to
assume physical custody of the child for less than a majority of the time. 23
Pa.C.S. § 5322(a). With the trial court’s disposition, we therefore identify the
award of custodial time to Appellant, however limited, as that of partial
physical custody.
-7-
J-S26029-22
an option at this time. Similar considerations also preclude an
arrangement that would provide for extensive in-person visitation.
Thus, the custody decision to be made by the [c]ourt was, by
necessity, a binary choice, and the granting of custody to one of
the households seeking to raise [Child] would significantly limit
the involvement of the other. With the best interests of [Child],
serving as the lodestar, it is readily apparent that keeping [Child]
in his current home with [Appellees] is the right outcome here[.]
Trial Ct. Op. at 1.
On appeal, Appellant raises the following issues for our review:
1. Whether the [t]rial [c]ourt erred and/or abused its discretion in
awarding sole legal and physical custody of [Child] to the
Appellees under all the facts and circumstances of this case and
the law applicable thereto[?]
2. Whether the [t]rial [c]ourt erred and/or abused its discretion in
awarding sole legal and physical custody of [Child] to the
Appellees as the Appellant has standing relating to the minor child
and the [t]rial [c]ourt only provided for limited visits with
Appellant[?]
3. Whether the [t]rial [c]ourt erred and/or abused its discretion in
failing to consider and appropriately weigh all the factors set forth
in 23 [Pa.C.S. § 5328(a)] including but not limited to the
consanguinity relationship between Appellant and
Defendant/Biological Mother of [Child] in awarding sole legal and
physical custody to Appellees[?]
4. Whether the [t]rial [c]ourt in awarding sole legal and physical
custody to the Appellees erred and/or abused its direction in
finding that Appellant could only see the child twice a year with no
overnight visits[?]
Appellant’s Brief at 4.8
____________________________________________
8 We note that Appellant listed a fifth issue in her concise statement in which
she challenged the trial court’s determination that “visitation with Intervenor
was not feasible.” See Appellant’s Concise Statement of Errors Complained
of on Appeal, 5/14/22, at 2 (unpaginated). However, she asserts in her brief
that she “combine[d] matters (4) and five (5) . . . into one overarching
argument concerning[.]” Appellant’s Brief at 34.
-8-
J-S26029-22
In custody cases under the Act, 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).
This Court has consistently 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) (citation omitted).
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
-9-
J-S26029-22
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. “The best-
interests standard, decided on a case-by-case basis, considers all factors that
legitimately have an effect upon the child’s physical, intellectual, moral, and
spiritual wellbeing.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006)
(citation omitted). Section 5328(a) sets forth the best interest factors that
the trial court must consider in awarding custody.9 See E.D. v. M.P., 33 A.3d
73, 79-80 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.
____________________________________________
9 We note that as between two non-parent, third parties, there is no
presumption favoring one party over another. 23 Pa.C.S. § 5327(c)
(providing, “In any action regarding the custody of the child between a
nonparent and another nonparent, there shall be no presumption that custody
should be awarded to a particular party.”).
- 10 -
J-S26029-22
(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.
(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.
- 11 -
J-S26029-22
23 Pa.C.S. § 5328(a).
Further, with regard to the Custody Act, we emphasized:
“All of the factors listed in [S]ection 5328(a) are required to be
considered by the trial court when entering a custody order.” The
record must be clear on appeal that the trial court considered all
the factors.
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.” . . .
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).
A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014) (some citations omitted;
emphasis in original).
With regard to the custody factors, we have emphasized that the trial
court is required to consider all such factors. J.R.M. v. J.E.A., 33 A.3d 647,
652 (Pa. Super. 2011). While the court is required to give weighted
consideration to factors affecting the safety of the child pursuant to 23 Pa.C.S.
§ 5328(a), 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.” (citation omitted).
- 12 -
J-S26029-22
In the instant matter, the trial court addressed and analyzed the best
interest factors pursuant to Section 5328(a).10 Trial Ct. Op. at 12-24. The
court found that the factors in Section 5328(a)(2), (2.1), (6), (7), (8), (14),
and (15) were not applicable; the factors in Section 5328(a)(3), (5), (9), (10),
and (12) were neutral; and the factors in Section 5328(a)(1), (4), (11), (13),
and (16) favored Appellees.
In her first and third issues, which we review together, Appellant
disputes the trial court’s analysis as to the best interest factors. Appellant’s
Brief at 12, 30. Specifically, Appellant challenges the trial court’s analysis
regarding the Section 5328(a)(1), (4), (11), (13), and (16) factors, which the
court found favored Appellees. Id. at 12. As to these factors, the court
opined:
1. Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party. At
the [February 11, 2022, hearing,] the [c]ourt noted that its
primary concern with respect to this factor was crafting a visitation
____________________________________________
10 We note the trial court did not render a decision on the record at the
conclusion of the February 11, 2022, hearing. While the trial court addressed
the Section 5328(a) best interest factors in a cursory fashion at the conclusion
of the hearing, see N.T., 2/11/22, at 77-81, the court failed to reference
and/or include this or any discussion related to the factors and its reasoning
with its February 14th order. Rather, the court provided a full analysis of the
Section 5328(a) best interest factors, on which it based its order, in its Rule
1925(a) Opinion. Because Appellant does not assert error or claim prejudice,
we do not address this issue. We remind the court, however, of the necessity
to abide by the case law interpreting Section 5323(d). See A.V. v. S.T., 87
A.3d 818, 823 (Pa. Super. 2014) (emphasizing Section 5323(d) requires trial
court to “delineate the reasons for its decision on the record . . . or in a written
opinion and order . . . prior to the deadline” for filing appeal).
- 13 -
J-S26029-22
schedule that would work for the parties, in light of the distance
between them, their limited resources for travel, and [Child]’s
specialized needs. The [c]ourt believed that the relationship
between the parties was a secondary consideration, because there
was not a concern that either of the parties would “stonewall” the
other.
Upon further review of the record and consideration of the
evidence presented, the [c]ourt finds that this factor weighs in
favor of [Appellees], and against [Appellant]. The [c]ourt’s basic
finding that both sides will “continue to cooperate” regardless of
the custody arrangement still holds true, but Lindy is much more
willing to foster an open and healthy relationship between [Child]
and [Appellant] than [Appellant] is with respect to Lindy and her
family.
The most significant factors in this regard are: (i)
[Appellant]’s strained relationship with [her father, Mother’s
grandfather]; and (ii) her implicit belief that her relatives in
Pennsylvania are somehow “tainted.”
It is clear from the testimony that [Appellant]’s openness to
contact with [her father] is a matter of degree, and varies
depending on her perception of his actions at any given time. On
the whole, she seeks to limit such contact as much as possible.
This is in contrast to [her father], who appears to want as much
contact with [Appellant] as she will allow, but also seeks to
minimize conflict with her and to give her space so that she does
not cut off all contact with him. Because [Appellees] have reached
out to [Mother’s grandfather], have been friendly toward him, and
have involved him in [Child]’s life, [Appellant] appears to extend
her dislike for [her father] toward them.[11] However, even
absent [Appellant]’s feelings toward [her father], it is clear that
she views the entirety of her extended family in Pennsylvania with
suspicion. Pointedly, [Appellant]’s motives in seeking custody of
[Child] appear to arise just as much from a desire to stamp out
____________________________________________
11Appellant admitted that she did not have a good relationship with her father,
Child’s maternal great-grandfather, but stated that she would permit him to
see Child, if granted custody. N.T., 8/20/21, at 39. Appellant however did
not reach out to Appellees to see Child when in Pennsylvania for the August
2021 hearing as Appellant did not want to see her father whom she was told
was with Appellees. Id. at 35; see also N.T., 2/11/22, at 22.
- 14 -
J-S26029-22
any further influence her Pennsylvania relatives may have on
[Child] as they do a desire to raise [Child] herself.[12] This causes
her to discount [Appellees’] judgment with respect to raising
[Child], as shown by the parties’ testimony. Subjectively, Lindy
credibly testified that [Appellant] has been critical and dismissive
of [Appellees’] actions with respect to [Child]’s medical care, even
accounting for Lindy’s (at times) defensive posture toward
[Appellant]. Objectively, [Appellant]’s view of how [Appellees]
have performed as [Child]’s caregivers is insupportably negative.
The ultimate concern here is not so much that [Appellant],
if given custody, would cut off all contact between [Child] and
[Appellees], but rather that she would seek to limit it to only a
nominal degree, and would not encourage contact beyond that
which might be ordered by this [c]ourt.[13] This stands in stark
contrast to Lindy’s testimony, which revealed that [Appellees] will
seek to maintain a relationship between [Child] and [Appellant],
and that [Lindy] has the potential to become more open and
relaxed in communications with [Appellant] as Lindy gets to know
her better.
The above also factors into the [c]ourt’s finding that shared
custody is not possible at this time. While [Appellees] appear
open to the possibility of co-parenting [Child] (including being
receptive to concerns that [Appellant] has raised regarding
[Child]’s medical care), that possibility is not reciprocated by
[Appellant].
* * *
____________________________________________
12When questioned why she wants custody of Child, Appellant responded,
“Because [Mother] ended up with some pretty severe problems just from the
years — few years she was [in Pennsylvania] and I would like to — I’d like to
keep [Child] from having those kinds of issues as well.” N.T., 8/20/21, at 29.
13 In discussing her willingness to maintain family relationships, Appellant
stated, “That doesn’t mean that I have to have constant contact with her.
There’s other ways to keep a relationship than to have constant contact. I
don’t know what kind of contact you expect[,] but people are allowed to live
their lives.” N.T., 8/20/21, at 35. Appellant confirmed that she would send
photos and information. Id. at 27. She further explained that she would “send
on the school cards, Christmas cards . . . the same things [her] parents did
when [she] was younger.” Id. at 42. When asked, she then acknowledged
she would do video calls, if requested. Id.
- 15 -
J-S26029-22
4. The need for stability and continuity in the child’s education,
family life and community life. The [c]ourt’s initial finding was
that this factor is neutral, given that both sides can give [Child] a
stable, secure home. However, on further consideration, the
[c]ourt finds that this factor weighs in favor of [Appellees].
[Appellant] is certainly capable of providing [Child] with a stable
and secure home, and at his young age, he has not formed strong
community attachments yet. However, community and education
includes [Child]’s specialized medical and developmental needs.
The [c]ourt finds that [Child] is in good hands in this regard, and
does not believe that a wholesale shift in both service providers
and treatment plans would be in his best interest at this time.
* * *
11. The proximity of the residences of the parties. This is a key
factor with respect to the possibility of both shared custody and
regular visitation. The distance between the residences and the
limited resources available for travel simply do not allow for a
shared custody arrangement or regular in-person visitation.
* * *
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.
At the [February 11th hearing,] the [c]ourt generally found that
this factor was neutral, but noted that it had admonished Lindy
during part of her testimony when it began to veer into portraying
[Appellant] in a poor light.[14] Upon further review, this factor
weighs in favor of [Appellees], and against [Appellant]. At [that
____________________________________________
14Lindy was admonished by the trial court for speaking negatively of
Appellant. The court stated:
Ma’am, I’m going to stop you. I’m just going to tell you.
[Appellant] hasn’t done anything wrong in my analysis in
this case because she didn’t message you on one time. Your
frustration or — you continue to attempt to shed a negative
light on [Appellant]. She hasn’t done anything wrong in the
situation. This is a tough situation. . . .
N.T., 2/11/22, at 47.
- 16 -
J-S26029-22
h]earing the [c]ourt focused on the issue of conflict, but did not
address the willingness and ability of the parties to cooperate with
one another. Based on the analysis set forth for the first factor,
supra, the [c]ourt is much more concerned about [Appellant]’s
willingness to cooperate with [Appellees] than it is [Appellees’]
willingness to cooperate with [Appellant]. This will hopefully
change with time as [Child] grows older.
* * *
16. Any other relevant factor. The [c]ourt noted two additional
factors at the [s]econd [h]earing.
The first is that Lindy has a criminal conviction. On
September 27, 2018, she pleaded guilty to one count of receiving
stolen property, graded as a misdemeanor of the first degree, and
was sentenced to five years’ probation. However, this conviction
is relevant only as a consideration with respect to the truthfulness
of Lindy’s testimony. Even if it were not, it is not the sort of
offense that automatically raises concerns with respect to
childrearing. On the whole, the [c]ourt believes that this factor is
neutral in light of the significant evidence presented with respect
to the quality of care and the quality of the home environment
provided by [Appellees] for [Child].
The second is that [Appellant] objectively had a closer
relationship with [Mother] over the years than Lindy did, given her
involvement in [Mother]’s life when she was younger.[15] Upon
further review and consideration, the [c]ourt finds that this factor
actually weighs in favor of Lindy, and against [Appellant].
Specifically, while [Appellant] knew [Mother] starting when
[Mother] was young, their relationship was strongest when
[Mother] was younger, and waned as [Mother] grew older. While
[Mother] did stay in touch with [Appellant] after she moved to
Pennsylvania, the testimony established that this was more social,
and [Mother] did not rely on her as a resource. Conversely, while
[Mother] did not know Lindy while she was younger, she stayed
in touch with Lindy regularly after visiting her in 2018, and she
____________________________________________
15 Appellant testified that she and Mother had a “good relationship.” N.T.,
8/20/21, at 16; see also Intervenor Exhibit 1. Discussing Mother’s younger
years, Appellant stated that Mother “looked up to me. [Mother] and I were
close.” Id. at 9.
- 17 -
J-S26029-22
reached out to Lindy for advice when she became pregnant with
[Child].
There is a third, additional factor here that the [c]ourt did
not discuss at the [s]econd [h]earing, but which does bear
consideration. Respectfully, the [c]ourt has reservations with
respect to [Appellant]’s willingness and ability to persevere in the
face of the reasonably anticipatable difficulties and struggles that
whomever has custody of [Child] will face as he grows older.
When [Mother] first came to live with [her grandparents] in
Washington, [Appellant] took no significant action to help
[Mother] despite her belief that [her father] was emotionally
abusive.
* * *
Much later, when [Mother] turned eighteen, [Appellant]
declined to take custody of her from the girls’ home in Colorado,
despite having been contacted by the home and knowing that
there were no other good options for [Mother].
A few months later, [Appellant] changed her mind, reached
out to [Mother] in Texas, and sent [Mother] a bus ticket to come
to Washington. However, that help was conditional, because as
soon as it became clear that [Mother] was not doing exactly as
[Appellant] wanted her to do, [Appellant] confronted her about it
and [Mother] moved to Pennsylvania (i.e., the help was only on
[Appellant]’s terms).
* * *
The [c]ourt fully acknowledges the all too common reality of
family members having to make the hard decision not to help a
relative because they lack the resources or capacity to do so. It
is also aware of the unrealistic and unhealthy societal trope that
in order to be a “real” mother figure a woman must sacrifice
anything and everything for the benefit of a child. Thus, the
[c]ourt does not hold it against [Appellant] that she did not forgo
a career and college in order to raise [Mother] when she was
younger, or turn her life upside down to have [Mother] come live
with her when she received a phone call out of the blue from the
girls’ home in Colorado. That said, though, [Appellant]’s
statements regarding these actions are telling, because they show
a pattern of refusal to compromise and insistence that things
occur only according to her plans. Such behavior is not conducive
- 18 -
J-S26029-22
to successful parenting, because nothing about raising a child ever
goes according to plan. The risk here is that [Appellant] would
take primary custody of [Child] now, but then not be able to
continue to care for him at a later time due to being overwhelmed
by the constant adjustments needed, resulting in [Child] not
having the stable home environment that he so desperately
needs. This factor thus weighs against [Appellant].
Trial Ct. Op. at 12-24 (footnotes and record citations omitted).
As to Section 5328(a)(1) — which party is more likely to encourage and
permit frequent and continuing contact between the child and another party
— Appellant asserts that the court’s conclusion that she is less likely to
encourage contact belies the evidence. Appellant’s Brief at 12-13. She
dismisses her strained relationship with her father (Child’s great-grandfather)
and insists that, regardless, she would maintain Child’s contact with him as
well as his Pennsylvania family. Id. at 13-14. She further contends that any
contact with Appellees questioning Child’s medical care, in particular relating
to medication, was “unfairly characterized . . . as indicative of distrust and
criticism,”16 and dismisses Appellees’ negative reaction, which Appellant
explains as “defensive and overly sensitive.”17 Id. at 15-16. Moreover,
____________________________________________
16Rather, Appellant avers that her concern “should . . . be lauded as an
example of Appellant looking out for the best interests of the child.”
Appellant’s Brief at 15.
17 We observe that Appellant references text messages between herself and
Appellees which she included as part of the Reproduced Record. Id. at 14-
15. While admitted as part of Plaintiff’s Exhibit 1, that which is included by
Appellant in the Reproduced Record appears to be more expansive than that
included with Exhibit P-1 in the certified record. We therefore do not consider
the messages beyond what is included in Exhibit P-1 in certified record and
any testimony related thereto. See Commonwealth v. Preston, 904 A.2d
(Footnote Continued Next Page)
- 19 -
J-S26029-22
Appellant argues that the court’s ultimate conclusion that she would limit
contact to a nominal amount is unsupported in the record, stating, “At no point
did Appellant even imply that she would not be open to or seek to limit contact
of any kind between [Child] and his Pennsylvania family.” Id. at 16. Appellant
further references how she would preserve such contact, when asked. Id.
Next, as to Section 5328(a)(4) — the need for stability and continuity
in the child’s education, family life, and community life — Appellant argues
that the evidence supports that she is prepared to manage Child’s medical and
developmental needs. Id. at 17-18. While the court focused on a “wholesale
shift” in service providers and treatment plans, Appellant asserts that a
change in treatment plans is not necessarily the case. Id. at 18. Moreover,
to the extent there would be a change in treatment plan, Appellant suggests
that this is perhaps in Child’s best interests as one of the potential providers
is nationally ranked. Id. at 18-19.
As to Section 5328(a)(11) — the proximity of the residences of the
parties — Appellant argues that “this factor is not determinative in granting
sole physical and legal custody to one of the parties over the other.” Id. at
19. She contends that she should not be prejudiced by virtue of her residence
in Washington. Id.
____________________________________________
1, 6 (Pa. Super. 2006) (en banc) (noting that an appellate may only consider
that which is in the certified record).
- 20 -
J-S26029-22
Next, as to Section 5328(a)(13) — the level of conflict between the
parties and the willingness and ability of the parties to cooperate with one
another — Appellant notes the trial court’s reliance on Section 5328(1) and
the parties’ ability to cooperate with one another. Id. at 19. Appellant
emphasizes Appellees’ disdain for her, which is excused as frustration that
Appellant was not “keeping up” more and not initiating more contact. Id. at
20-22. Appellant however notes Child’s young age and his inability to interact
other than in-person. Id. at 22. She further argues that the evidence
suggests that she was in fact “keeping up” with Child. Id. Moreover,
Appellant contends that the evidence contains an actual example of Appellees
non-cooperation with respect to a lack of communication as to Child’s first
birthday party. Id. at 23-24. Appellant states:
The record reflects an actual instance of [Lindy]’s
unwillingness to cooperate with Appellant. The record is void of
any actual instance of Appellant’s unwillingness to cooperate with
[Lindy]. The [t]rial [c]ourt weighed this factor in [Appellees’]
favor based on inferences derived from Appellant’s testimony
regarding her relationship with her father, while failing to properly
consider the actual, admitted instance of [Lindy]’s unwillingness
to cooperate with Appellant. Appellant at no point testified or
inferred a criticism or castigation of Appellees. [Lindy] repeatedly
attempted to paint a negative picture of Appellant. It was never
placed on the record that Appellant would refuse or had refused
to cooperate with [Lindy]. It was placed on the record that [Lindy]
actually refused in at least one instance not to cooperate with
Appellant. Therefore, the record supports a conclusion that the
thirteenth factor under § 5328(a) weighs in favor of Appellant,
and against Appellee[s].
Id. at 24.
- 21 -
J-S26029-22
Finally, as to Section 5328(a)(16) — any other relevant factors —
Appellant argues that the trial court’s determinations regarding consanguinity
and what it deemed as Appellant’s inability to compromise were against the
weight of the evidence and not supported by the record. 18 See Appellant’s
Brief at 25-28, 30.
On the issue of consanguinity, Appellant argues, “The [t]rial [c]ourt’s
characterization of the relationship between [Mother] and [Lindy] stands in
stark contrast with the reality of the testimonial record on the subject.” Id.
at 31. While Appellant concurs with the court’s assessment as to a lack of a
relationship between Mother and Lindy during Mother’s early years, Appellant
contends that the court incorrectly perceived a relationship involving
continuous communication once Mother returned to Pennsylvania in her later
years. Id. at 31-32. Further, Appellant emphasizes her own participation in
Mother’s life. Appellant asserts that “the record is clear that [she] was not
only an active figure in [Mother]’s life during [Mother]’s younger years, but
had significantly more contact with [Mother] than [Lindy] toward the end of
[Mother]’s life.” Id. at 32. As such, Appellant concludes that “it is clear that
Appellant’s relationship with [Mother] . . . is an extremely significant factor
weighing heavily in Appellant’s favor.” Id. at 33.
____________________________________________
18Appellant agrees with the court that Lindy’s criminal conviction for receiving
stolen is essentially a non-issue. Appellant’s Brief at 25.
- 22 -
J-S26029-22
Additionally, although the court expressed “reservations with respect to
[Appellant’s] willingness and ability to persevere in the face of the reasonably
anticipatable difficulties and struggles,” Appellant argues that her actions with
respect to Mother do not suggest an unwillingness to compromise. Id. at 25-
26 (record citation omitted). In particular, Appellant asserts that her past
behaviors as stated are not “indicative of . . . a pattern [of] refusal to
compromise.” Id. at 26. Referencing Mother’s week with her in Washington
and subsequent move to Pennsylvania, Appellant indicates that the move to
Pennsylvania was Mother’s choice, of which she was supportive. Id. at 26-
28. Moreover, Appellant states:
To the extent Appellant’s testimony raises any reasonable
concern with regard to her ability to adjust as needed, Appellant’s
objectively stable household at this point in her life, as well as her
status as a homemaker and her credible testimony regarding her
preparedness to handle the child’s specialized medical needs,
undercuts those concerns. There is no reasonable basis for the
conclusion that Appellant would be incapable of making necessary
adjustments as they arise. Therefore, there was no basis for the
[t]rial [c]ourt to weigh this additional factor against Appellant.
Id. at 28.
As we construe Appellant’s challenge, the issue at its core is a dispute
concerning 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. Appellant, in essence, questions the trial court’s conclusions
and assessments and seeks for this court to re-find facts, re-weigh evidence,
and/or re-assess credibility to her view of the evidence. This we cannot do.
- 23 -
J-S26029-22
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 due deference
to the trial court’s weight and credibility determinations, the trial court erred
or abused its discretion[.]” (citation and quotation marks omitted). After a
thorough review of the record, we find no abuse of discretion. To the extent
Appellant challenges the weight attributed to any factor by the trial court, we
likewise find no abuse of discretion. 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.
In the case sub judice, the trial court carefully considered each of the
Section 5328(a) factors. See Trial Ct. Op. at 12-24. After review of the
record, we conclude the trial court’s factual findings are supported by the
evidence, and the weight it assigned to each factor is reasonable in light of
those findings. As such, we do not disturb them. Appellant’s first and third
claims are therefore without merit.
- 24 -
J-S26029-22
Turning to Appellant’s second and fourth issues on appeal,19 Appellant
argues that the trial court abused its discretion in awarding her only two visits
per year with no overnight visitation. Appellant’s Brief at 34-36. Appellant
contends that this limited amount of partial physical custody, without a
provision for the potential of additional custodial time if agreed upon by the
parties, was not justified or supported by the record. Id. at 34-35.
Identifying travel expenses as the basis for the court’s limited award of partial
physical custody, Appellant asserts that the record fails to support the court’s
contention that the parties cannot afford more frequent travel. Id. Appellant
maintains that “she should be entitled to more visitation with the child and
that the limitation set forth by the [t]rial [c]ourt is an arbitrary one, with no
justification on the record.” Id. at 35.
Moreover, Appellant further opposes the lack of overnight custodial
time. Id. at 35-36. Recognizing the emphasis on Child’s age and medical
needs, Appellant maintains that the custodial schedule “was not carefully
tailored to meet the needs of all parties involved” and “does very little in the
way of facilitating a healthy and continuing relationship between Appellant and
[Child].” Id.
____________________________________________
19 Appellant states in the argument section of her brief that her second issue
is “part and parcel” of her fourth issue. Appellant’s Brief at 29. Thus, we
address these claims together.
- 25 -
J-S26029-22
In support of its physical custody award, the trial court emphasized the
distance between the parties and the time and expense of travel, as well as
the age and medical conditions of Child. See Trial Ct. Op. at 28. The court
further expressed its hope for more expansive partial physical custody in the
future. Id. The court opined:
This is not the typical case where the parties live within a
thirty or forty-five minute drive of each other, and thus travel back
and forth may be inconvenient, but is not unrealistic. The distance
between [Appellant]’s home in Washington and [Appellees’] home
in Pennsylvania is approximately 2,600 miles. Travel by air is, for
all intents and purposes, a full-day endeavor. Travel by car is
unrealistic for anything less than a long-term visit; the same
considerations apply to travel by bus or train. Regardless of
method, the expense is significant — likely at least $1,000 per trip
for one person, one way. Neither household has the financial
resources to enable such travel to occur regularly. And this is to
say nothing of the fact that, due to his young age and medical
issues, it would be inadvisable to attempt such long-distance
travel with [Child]. The imposition of a more regular in-person
visitation schedule would thus be both unrealistic and place an
undue burden on the parties.
The [c]ourt hopes that this situation changes for the better
in the future, and is certainly open to a more active visitation
schedule, should it become a possibility.
Id. (footnotes omitted).
Further, as to the lack of overnight partial physical custody, the court
reasoned similarly, stating:
The [c]ourt notes that this is a baseline, and the custody
order both leaves open and encourages the possibility of regular
telephone and video calls between the parties, so that [Appellant]
can both see and interact with [Child]. The frequency of such
visits is governed by the distance and expense considerations
discussed . . . above. The duration must necessarily be limited to
daytime only (i.e., no overnights) due to the young age of [Child],
- 26 -
J-S26029-22
his special medical needs, and the fact that [Appellant] is
essentially a stranger to him. As he grows older and gets to know
[Appellant], this will change, and overnight visits may become a
possibility.
Id. at 29.
With this, we are constrained to agree. As indicated supra, the trial
court analyzed and addressed each factor as required by Section 5328(a) in
establishing its custody order, including Appellant’s custodial time. See Trial
Ct. Op. at 12-24. We conclude the court thoroughly considered Child’s best
interests, and the evidence supports the court’s custody decision. We
acknowledge the unique circumstances of this matter, and, as noted by the
trial court, such custodial time is subject to change and expansion in the
future. See 23 Pa.C.S. § 5338(a) (“Upon petition, a court may modify a
custody order to serve the best interest of the child.”). As such, Appellant’s
claims are without merit.
For the foregoing reasons, we affirm the trial court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/29/2022
- 27 -