J.K. v. M.K. v. B.K. and P.K.

J-A02039-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
M.K. :
:
Appellant : No. 949 WDA 2020
:
:
v. :
:
:
B.K. AND P.K. :
Appeal from the Order Entered August 28, 2020
In the Court of Common Pleas of Mercer County Civil Division at No(s):
2013-2753
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: MARCH 11, 2021
M.K., Mother, appeals from the custody order entered August 28, 2020,1
Mother claims that the court abused its discretion when it awarded Father
primary physical custody and awarded B.K. and P.K., Maternal Grandparents
(“Grandparents”), partial physical custody. She further claims that the court
erred when it directed that Grandparents’ overnight custody should take place
on weekends and gave Grandparents a right of first refusal for child care, and
____________________________________________
1 The court’s August 28, 2020 order struck and replaced language in the
underlying July 30, 2020 custody modification order.
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held her in contempt of a prior order for moving without providing timely
written notice to Father. We affirm.
[Child] was born [in August 2013]. Five (5) days after his birth,
Mother and Father separated. They were married for five (5)
months prior to their separation. Mother and [Child] immediately
went to live with her parents, [Grandparents]. [Grandparents]
welcomed Mother and [C]hild into their home. For six years they
functioned as a family unit, basically doing everything together.
During the first three (3) years of [Child’s] life, Father never
stopped pursuing more physical custody time with [Child]. Finally,
in April of 2016, Mother and Father entered into an Agreement
that provided for shared physical custody of [Child]. [The court
reduced the Agreement to an order, in June 2016, that required
Father and Mother to give the other parent 30 days’ notice of
intent to change address.]
Until that Agreement, [Child] had lived primarily with his Mother
and [Grandparents]. After the Agreement, [Child] continued to
live with his Mother and [Grandparents] during Mother’s periods
of physical custody. This arrangement lasted until August 29,
2019. On that date, Mother abruptly decided to go live with her
fiancé[, C.C. (“Fiancé”)], who lived over an hour away. She
relocated without providing any notice to Father. Furthermore,
since that date, Mother has refused to allow [Grandparents] to see
[Child] during her periods of physical custody. Father, on the other
hand, has allowed [Grandparents] visitations with [Child] during
his periods of physical custody. Finally, in January of 2020, Father
purchased a home in [Child’s] school district, which is also where
[Grandparents] live. He had previously lived just across the border
in Ohio.
Trial Court Opinion, 9/21/20, at 1-2 (record citations omitted).
Approximately six weeks after moving into Fiancé’s home, on October
8, 2019, Mother filed a petition for modification of custody and a notice of
proposed relocation. Father filed a petition for contempt, on October 23, 2019,
stating that Mother moved without proper notice, and objecting to the notice
of relocation. On November 25, 2019, Grandparents moved to intervene and
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sought partial custody, and objected to the relocation. The parties agreed that
Grandparents had standing to seek custody.
The court conducted a three-day trial in May 2020, on the petitions for
contempt and custody. On July 30, 2020, it applied the custody factors and
awarded primary physical custody to Father, giving him 17 days of custody in
all months (except February in which he would have 16 days). Mother was
awarded the remaining time. Additionally, Grandparents were awarded two
overnights and two dinners monthly, one of each coming from each parent’s
custodial time. Finally, the court found Mother in contempt for failing to give
30 days’ notice of her intent to change address. As sanctions, the court barred
Mother from repudiating her position that her move did not constitute a
relocation, and ordered her to bear responsibility for transporting Child.
Grandparents moved for reconsideration, and on August 28, 2020, the
trial court granted the motion and modified its order to direct that
Grandparents’ custody occur on weekends, give them a right of first refusal
for any child care that would be for more than three hours, and specify the
schedule for their vacation and holiday time. Mother timely appealed.
The statement of questions involved in Mother’s brief lists the following
11 questions:
1. Whether the trial court erred by focusing nearly all of the
custody factor analysis on Mother’s and Father’s relationship with
maternal grandparents, where Grandparents were not a “parent”
as required in factor 8, and where Father’s relationship with
grandparents became conciliatory only shortly before the trial[;]
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2. Whether the trial court erred by awarding primary custody to
Father and perpetuating a custody schedule which changes every
month with only ten days’ notice to Mother and is tailored 100%
to Father’s erratic work schedule, where the schedule fails to
create stability or consistency for Child, leaves Child in a school
district where neither parent will be present approximately half of
the month, awards overnights to Father at times where he admits
that he cannot be available, fails to grant a right of first refusal to
Mother, and makes it impossible for Mother to find flexible
employment to support herself and Child[;]
3. Whether the trial court’s determination was manifestly
unreasonable and unsupported by the record when the court
engaged in complete speculation that Mother would be less able
than Father and Grandparents to protect the Child from abuse for
the sole reason that Mother would require childcare in order to
work[;]
4. Whether the trial court erred in its determination that Mother’s
cohabitation is contrary to the best interest of the Child and that
her relationship demonstrated immaturity and emotional
instability such that Mother was unfit to have primary physical
custody[;]
5. Whether the trial court erred in refusing to award primary
physical custody to Mother by ignoring Mother’s role of being the
parent who has consistently remained with the Child to attend to
the Child’s medical needs, educational events, and to be “on call”
for the Child both during her custodial periods and during Father’s
custodial periods[;]
6. Whether the trial court erred by placing all of the burden of
transporting Child on Mother, both as a contempt sanction and in
the regular custody order as an impermissible punishment, where
Father is available to assist with transportation and intervenor []
Grandparents agreed that they were willing to assist with
transportation[;]
7. Whether the trial court abused its discretion and committed an
error of law for levying against Mother contempt sanctions,
namely having to provide all transportation for the Child and that
Mother cannot contest that her move constitutes a relocation,
where the sanction has no expiration date and no purge
condition[;]
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8. Whether the trial court erred by modifying the prior custody
order to shift Grandparents’ custodial overnights to weekend
overnights to the detriment of the best interest of the Child and
of Mother’s and Father’s ability to exercise custody of Child on the
weekends[;]
9. Whether the trial court erred by granting a three hour right of
first refusal for child care to [] Grandparents where Mother’s
ability to work was already negatively impacted by the irregular
custody schedule and will now be further impacted by mandating
childcare by Grandparents and that Mother provide transportation
to Grandparents for the childcare. The court’s award is not in the
best interest of the child and is a punishment toward Mother[;]
10. Whether the trial court erred in granting Grandparents with
evening custody for which Mother is required to transport Child to
Grandparents where the grant is more than was requested by
Grandparents, is contrary to the best interest of the Child, and is
seemingly a punishment against Mother[;]
11. Whether the trial court erred in modifying the award of
custody to Grandparents where the court did not analyze either
the custody factors at 23 Pa.C.S.A. § 5328 (a) or 23 Pa.C.S.A. §
5328(c), where the schedule entered by the court interferes with
the parent-child relationship between Mother and Child and is not
in the best interest of the Child under either set of the factors.
Mother’s Br. at 4-5.
Although her statement of questions involved lists 11 questions,
Mother’s argument is not divided into 11 sections, as our Rules of Appellate
Procedure require. See Pa.R.A.P. 2119(a). Instead, Mother has divided her
argument into three main sections, with a total of 12 subheadings within those
three main sections, for a total of 15 sections. In addition to the fact that the
sheer number of sections does not match the number of questions Mother
listed as “involved,” the various sections do not obviously address any
particular question Mother identified. The result is that it is exceedingly
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difficult for us to determine which arguments bear on which questions, or even
if Mother argues all of the questions she identified.
As a result, our appellate review is hampered, and we could treat all of
Mother’s issues as waived. However, because Child’s interests are at stake,
rather than just Mother’s rights, we will address the arguments we perceive
in the argument section of Mother’s brief. If she intended to raise any other
issue, she waived it by failing to provide a brief in compliance with the Rules
of Appellate Procedure. We will divide our discussion into the three main issues
into which Mother divided her argument: (1) the trial court abused its
discretion by granting Father primary physical custody, (2) the trial court
abused its discretion when it granted Grandparents partial physical custody,
and (3) the trial court erred when it granted Grandparents’ motion for
reconsideration and modified its original custody order.
We review a custody order for an abuse of discretion. See G.A. v. D.L.,
72 A.3d 264, 268 (Pa.Super. 2013) (quoting Collins v. Collins, 897 A.2d 466,
471 (Pa.Super. 2006)). We must accept a trial court’s factual findings when
the record supports them, and we defer to the trial court’s credibility
determinations. See Id. We must determine “whether the trial court’s
conclusions are unreasonable as shown by the evidence of record.” Id.(quoting Collins, 897 A.2d at 471). We will reject the trial court’s conclusions
“only if they involve an error of law, or are unreasonable in light of the
sustainable findings of the trial court.” Id. (quoting Collins, 897 A.2d at 471).
This Court consistently has held that:
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[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)).
The Child Custody Act requires a trial court to consider all of the Section
5328(a) factors when “ordering any form of custody.” 23 Pa.C.S.A. § 5328(a).
A trial court must “delineate the reasons for its decision when making an
award of custody either on the record or in a written opinion.” R.L. v. M.A.,
209 A.3d 391, 395 (Pa.Super. 2019) (quoting S.W.D. v. S.A.R., 96 A.3d 396,
401 (Pa.Super. 2014)). The court does not need to explain its decision in
detail; rather, “all that is required is that the enumerated factors are
considered and that the custody decision is based on those considerations.”
Id. (quoting M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013)).
In child custody cases, the paramount concern “is the best interests of
the child.” Id. (quoting C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018)). “The
best-interests standard, decided on a case-by-case basis, considers all factors
which legitimately have an effect upon the child’s physical, intellectual, moral
and spiritual well-being.” Id. (quoting M.J.N. v. J.K., 169 A.3d 108, 112
(Pa.Super. 2017)). The custody factors to be considered include:
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all relevant
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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.
(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
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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.
* * *
(c) Grandparents and great-grandparents.—
* * *
(2) In ordering partial physical custody or supervised physical
custody to a parent’s parent or grandparent who has standing
under section 5325(3), the court shall consider whether the
award:
(i) interferes with any parent-child relationship; and
(ii) is in the best interest of the child.
23 Pa.C.S.A. §§ 5328(a), (c)(2).
Award of Primary Physical Custody to Father
In first section of her argument, Mother claims that the trial court erred
in awarding primary physical custody to Father. See Mother’s Br. at 16-29.
Mother contends that the trial court did not place enough weight on the fact
that she provided the greatest stability for Child because she has attended all
of his academic events and medical appointments. She argues that Father’s
changing work schedule does not provide Child enough stability. Mother notes
that she is available to Child for the entirety of the month, whereas Father is
not available during his non-custodial time. She contends that the court should
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have placed greater weight on the fact that she is available to parent outside
her own custodial period. See id. at 25-26 (citing C.M.K. v. K.E.M., 45 A.3d
417 (Pa.Super. 2017)). Mother argues Father’s changing work schedule will
interfere with her ability to find employment and that she “deserves to be
employed to earn a living for herself” and Child. Id. at 26.
In its 1925(a) opinion, the trial court explained that it
considered the sixteen (16) custody factors pursuant to 23
Pa.C.S.A. § 5328. In doing so, [it] found that it was in the best
interest of the child to award primary physical custody to Father.
However, it should be emphasized that the schedule of physical
custody remains the equivalent of the schedule Mother and Father
have had since 2016 when they agreed to share physical custody.
Due to Father’s occupation as a corporate pilot, he does not know
his work schedule until the 20th day of each month for the
following month. When Father is available for his period of physical
custody, he is 100% available for the child. When he is flying, he
is not available at all. . . .
Trial Court Opinion, 9/21/20, at 3-4.
The analysis of each factor and the weight afforded each factor is
summarized as follows: During her periods of physical custody,
Mother has not allowed her own parents to see their only
grandchild since August of 2019. Her reason for this: she and the
minor child were kicked out of her parents’ home after living there
for six (6) years because her relationship with Fiancé was
progressing too quickly for her parents. The court finds this reason
lacks any credibility whatsoever. Father, on the other, has allowed
the Maternal Grandparents to see the minor child during his
periods of physical custody. Therefore, the factor of which party
is more likely to encourage and permit frequent and continuing
contact between the child and another party overwhelmingly
weighs in favor of Father and against Mother when considering the
best interest of the child.
The factor of present and past abuse has been given no weight
because Mother voluntarily entered into a shared physical custody
arrangement with Father in 2016, and it has worked well since
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that time. The court finds that there is no continued risk of harm
to the minor child. More importantly, the court finds that Father
can provide better physical safeguards and supervision of the
minor child due to Mother’s desire to work full time in Pittsburgh
and the fact [Fiancé] works full time. When Father is unavailable
due to his job as a pilot, the Maternal Grandparents would be
available. This factor weighs in favor of Father.
The factors involving parental duties performed by each party;
which party is more likely to maintain a loving, stable, consistent,
and nurturing relationship; and, which party is more likely to
attend to the daily physical, emotional, developmental,
educational and special needs, favors neither party. The child is
very well cared for when in the physical custody of both parties.
Therefore, these factors have been given little weight when
considering the best interest of the child.
The factors involving the need for stability and continuity in the
child’s education, family life and community life, and the
availability of extended family, both strongly favor Father. After
the minor child lived with the Maternal Grandparents for six (6)
years and completed Kindergarten at Artman Elementary school,
Mother abruptly, unilaterally, and without notice to Father, moved
to [Fiancé’s] residence in McCandless Township. Mother has no
family in McCandless Township. Father has his aunt and the
Maternal Grandparents in Hermitage. These factors were given
considerable weight when considering the best interest of the
child.
The factor pertaining to the attempts of a parent to turn the child
against the other parent is not relevant to this analysis involving
Father’s and Mother’s Petitions for Modification of Custody. There
was no testimony concerning either party attempting to turn the
child against the other party. However, during his interview, the
minor child stated that Mother had told him things about the
Maternal Grandparents that this court has found to be distortions
of truth or flat out lies. When considering Grandparents’ Custody,
this factor is squarely against Mother and has been afforded
considerable weight. The same holds true for the factor concerning
the level of conflict between the parties and the willingness and
ability of the parties to cooperate with one another. As evidenced
by success of the 2016 agreement concerning shared physical
custody, the level of conflict between Father and Mother is
relatively low. However, between Mother and Maternal
Grandparents, the level of conflict is extremely high as evidenced
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by the fact Mother has not allowed her parents to see their only
grandchild since August of 2019. When considering Grandparents’
Custody, this factor is squarely against Mother and has been
afforded considerable weight when considering the best interest
of the child.
The proximity of the residences of the parties and the party’s
availability to care for the child or make childcare arrangements
are factors that favor Father and, incidentally, the Maternal
Grandparents. Mother has moved over an hour away and intends
to seek full time employment. Father now lives in Hermitage,
minutes from his aunt and the Maternal Grandparents. Father may
be unavailable when he is working, but he certainly can make
appropriate childcare arrangements when he is unavailable. More
importantly, Father is 100% available when he is not working.
These factors have been given significant weight when considering
the best interest of the child.
With respect to the history of drug and alcohol abuse of a party
and the mental and physical condition of a party, neither of these
factors are afforded any weight when considering the best interest
of the child. Despite the admissions of alcohol abuse in his blog,
Hoff n’ Plonker, there has been no testimony concerning Father
abusing alcohol when he had physical custody of the minor child.
Additionally, because Mother voluntarily entered into the custody
agreement with Father in 2016, any allegations of mental health
issues on the part of the Father are waived.
Finally, with respect to the issue of cohabitation, the Court
reiterates its finding that the reason Mother gave for cutting off
all ties between the Maternal Grandparents and the minor child,
i[.]e. that the Maternal Grandparents kicked their only daughter
and grandchild out of their home after six (6) years because her
relationship with [Fiancé] was progressing too quickly, not only
lacks credibility, it demonstrates that Mother is so immature or
emotionally unstable that she may be unfit to raise the minor
child. Accordingly, primary physical custody is awarded to Father.
Trial Ct. Op., 7/30/20, at 16-18 (some capitalization omitted).
Upon review, we conclude that the record supports the trial court’s
factual findings and credibility determinations and that the court did not abuse
its discretion in awarding Father primary physical custody. The court found,
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and the record reflects, that Child is very well cared for by both Father and
Mother.
Further, we are not persuaded by Mother’s claim that the court abused
its discretion by not weighing in her favor the fact that she is available during
non-custodial times, whereas Father at times is not. Mother based this claim
on C.M.K., 45 A.3d at 426. There, we applied the statutory definition of a
“relocation” and concluded that the proposed move there would constitute a
relocation because it would impair the father’s ability to exercise his custodial
rights. We pointed out that the father had “regular and continued involvement
co-parenting in different aspects of the minor child’s life that go beyond his
periods of partial physical custody,” and is often involved in the child’s school
and sports functions. Id. We thus concluded that allowing mother to move the
68 miles she proposed threatened “significant impairment” of the father’s
ability to exercise custodial rights, and the move constituted a relocation. Id.
C.M.K. has no application here. Father testified that Mother’s move had
not interfered with his exercise of his custodial time, and the trial court
therefore concluded that the move was not within the statutory definition of a
“relocation.” Mother does not dispute that conclusion. Moreover, even if
C.M.K. were applicable, it does not compel us to find that the trial court
abused its discretion by not holding against Father his potential unavailability
during non-custodial times. If anything, C.M.K. strengthens Father’s
argument that granting Mother primary custody would result in interference
with his exercise of custodial rights, because of Mother’s move.
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Finally, we conclude that the trial court did not abuse its discretion when
it chose not to place greater weight on Mother’s desire to start her career.
Mother’s speculation regarding the difficulty that she would face with finding
employment based on the custody schedule, or the burdensome
transportation requirements associated with the right of first refusal for child
care in the court’s order, may be turn out to be well-founded. However, Mother
introduced no evidence that she tried to find employment, either in Hermitage,
where the transportation burden would be minimized, or in Pittsburgh, where
she claims there are more work opportunities for people with a marketing
degree. If Mother chooses to start applying for jobs, and her concerns are
substantiated, she may file a petition for modification and introduce that
evidence. Mother’s first issue does not merit relief.
Award of Partial Physical Custody to Grandparents
Mother’s next issue concerns the trial court’s award of partial physical
custody to Grandparents. Mother claims that the trial court erred in its
evaluation and weighing of the hostile relationship between herself and
Grandparents, and failed to place sufficient blame on Grandparents for the
deterioration of the relationship. Mother claims that the trial court abused its
discretion and injected its concerns about Mother’s relationship with Fiancé
into its decision. In support of her argument, Mother relies on two cases:
Rowles v. Rowles, 668 A.2d 126, 128 (Pa. 1995) (“Parenthood, though not
paramount, will always be a factor of significant weight.”), and V.B. v. J.E.B.,
55 A.3d 1193, 1202 (Pa.Super. 2012) (trial court abused its discretion by
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using father’s prior polyamorous relationship, which had no negative effect on
children, as ground to award primary physical, and sua sponte award legal
custody to grandparents). Finally, Mother claims that the trial court placed too
much weight on Father’s positive relationship with Grandparents. She argues
that Father had a poor relationship with Grandparents until recently, and
although the relationship is better than it was, the court erred in elevating the
relationship in the factor analysis.
We review the trial court’s award of partial physical custody to
Grandparents for an abuse of discretion. We defer to the trial judge on issues
of credibility and weight of the evidence, as the judge has had the opportunity
to observe the proceedings and witnesses. See K.T. v. L.S., 118 A.3d 1136,
1159 (Pa.Super. 2015).
Before awarding partial physical custody to grandparents, a court is
required to determine whether an award interferes with any parent-child
relationship and whether the award is in the best interest of the child. See 23
Pa.C.S.A. § 5328(c)(2). The court must do so by considering the factors set
forth in the Child Custody Act. See 23 Pa.C.S.A. § 5328(a). The statutory
presumption favoring an award of custody to parents over third-parties is
inapplicable where grandparents seek only partial physical custody. K.T., 118
A.3d at 1159 (citing 23 Pa.C.S.A. § 5327(b) (setting forth presumption in
cases concerning primary physical custody)). Finally, a court must consider
Pennsylvania’s strong public policy “favoring grandparent involvement in a
child’s life.” Id. at 1164.
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Here the trial court explained that it found that Grandparents’ “modest
request of two (2) overnight periods of partial custody per month and two (2)
dinner periods of partial custody per month, one of each coming from Mother’s
period of partial custody and the same from Father’s period of partial custody,
did not interfere with any parent-child relationship.” Trial Ct. Op., 9/21/20, at
4. The court explained that it “found that Mother’s refusal to allow
[Grandparents] any contact with [Child] during her periods of physical custody
adversely effected [Child]. After six (6) years of living with them, [the trial
court] found it was not in [Child’s] best interest to be cut off from his
[G]randparents in such a manner.” Id. at 7.
Upon review, we conclude that the trial court did not err or abuse its
discretion when it awarded partial physical custody to Grandparents. The
record does not support Mother’s claim that the court based its decision on its
view that Mother’s conduct was immoral. In its analysis of Mother’s
cohabitation, the court did not find the cohabitation itself to be against Child’s
interest. Instead, it found that the cohabitation caused Mother to cut off all
ties with Grandparents, which the court found was not in Child’s best interest.
We will not second-guess the court’s credibility determination. Mother’s
contention that the court inserted its notions of morality into its decision is
without foundation. The cases Mother cites in this regard are easily
distinguishable. Both Rowles and V.B. were cases where the trial court
removed primary physical custody from a parent and awarded that primary
custody to grandparents. See Rowles, 668 A.2d at 128; V.B., 55 A.3d at
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1202. Here, the trial court did remove Mother’s primary physical custody of
Child. Rather, it awarded primary physical custody to Father, not
Grandparents, whom it gave only partial physical custody, and even that
award was modest. It was enough to enable them to maintain their
relationship with Child, but far less than the significant role that they had been
playing in Child’s life when Mother supported the relationship.
The record supports the trial court’s decision that spending time with
Grandparents is in Child’s best interest. As the trial court observed,
Grandparents have been a positive constant presence in Child’s life since his
birth. In the ensuing six years, Child lived with Grandparents during his
custodial time with Mother. Grandparents attended doctors’ appointments and
school events. They provided a loving and safe home for Child where he
thrived. Indeed, Father recognized the positive impact that Grandparents were
on Child’s life and worked to establish a cordial relationship with
Grandparents. Prior to the modification of the custody order, Father realized
that spending time with Grandparents was so greatly in Child’s best interest
that he provided Child an opportunity to spend time with Grandparents during
his custodial time.
Furthermore, the record supports the trial court’s finding that partial
custody by Grandparents would not interfere with the mother-child
relationship. It is evident from Mother’s testimony that despite her anger
toward her parents, she does not believe that they mistreat Child. Rather, her
concerns center on Grandparents’ dislike of Fiancé and their disapproval of
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Mother’s relationship with him. It is apparent, however, that Mother’s
continued relationship with Fiancé does not preclude Grandparents from
maintaining their relationship with Child. The hostility between the parties,
and Child spending two overnights and two dinners monthly with
Grandparents, does not interfere with the mother-child relationship. Hence,
we conclude that the trial court did not abuse its discretion when it awarded
Grandparents partial physical custody.
Motion for Reconsideration
Finally, Mother claims that the trial court erred when it granted
Grandparents’ motion for reconsideration of its first custody order without re-
analyzing the potential interference with her relationship with Child.2 She
alleges that the provision in the modified order specifying that Grandparents’
overnights should take place on weekends interfered with her relationship with
Child because now, rather than having custody of Child for an average of two
Saturday/Sunday overnights a month, she will have to cede one of these days
to Grandparents.
____________________________________________
2 In the midst of Mother’s argument concerning granting of Grandparents’
motion for reconsideration, Mother argues that the transportation provisions
that the court included in both the original and modified order as a sanction
for Mother’s moving without notice is manifestly unreasonable. However,
aside from two boilerplate citations that Mother offers in support of the
proposition that a custody award may not be modified to reward or punish a
parent, Mother has completely failed to support her argument with citation to
pertinent legal authority. Therefore, we conclude that Mother has waived this
claim.
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The trial court did not have to perform a complete analysis of all custody
factors before it granted reconsideration, because it was only entertaining a
modification of a discrete aspect of its custody order that would not change
the award of legal or physical custody or change the amount of custodial time
either party had. Rather, it only needed to determine that any modification
that it did order was in Child’s best interest. See M.O. v. J.T.R., 85 A.3d 1058,
1063 (Pa.Super. 2014) (concluding that modification which did not change
underlying award of custody—court was not deciding legal or physical custody,
or changing amount of custodial time party had—did not implicate directly
section 5328(a)).
Instantly, the trial court observed that after the court issued its initial
custody order on July 30, 2020, Grandparents
filed a Motion for Reconsideration regarding their schedule of
periods of partial custody. Paragraph 2(d) of the Order dated July
30, 2020 contained no schedule for [Grandparents’] periods of
partial custody occurring on a monthly basis, nor did it contain a
right of first refusal regarding third-party childcare in excess of
three (3) hours, a vacation period of one week of partial custody
in the summer, and a proposed holiday schedule. All had been
requested in the Proposed Order accompanying [Grandparents’]
Findings of Fact and Conclusions of Law.
Pursuant to 23 Pa.C.S.A. §5328(c)(2) this Court found that the
[Grandparents’] requested changes did not interfere with any
parent-child relationship and was in the best interest of [Child].
The two periods of partial custody on the weekends from Noon on
Saturday to Noon on Sunday are attributed to each parent, and
the timing of these periods are in [Child’s] best interest because
he is attending school. The vacation period in the summer is in
[Child’s] best interest because of family’s affinity for Disney World.
Finally, the right of first refusal concerning childcare in excess of
three (3) hours does not interfere with either parent’s parent-child
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relationship since [Grandparents] have agreed to transport
[Child.]
Trial Ct. Op., 9/21/20, at 7.
The record support’s the trial court’s determination that the modification
of its order—providing a schedule for Grandparents’ previously awarded
partial custody and awarding Grandparents’ with a right of first refusal for
childcare—was in Child’s best interest and did not interfere with the parent-
child relationship. The record reflects that Child has had a strong and
incredibly beneficial relationship with Grandparents since his birth. The trial
court, Grandparents, and Father all agree that maintaining this relationship is
in Child’s best interest. The trial court’s August 28, 2020 modification of its
original custody order served to facilitate its original custody award to
Grandparents and was clearly in Child’s best interest.
For the aforementioned reasons, we find that the trial court’s award of
primary physical custody to Father and partial physical custody to Mother and
Grandparents was in Child’s best interest. Therefore, concluding that the trial
court did not abuse its discretion in awarding custody as such, we affirm the
trial court’s order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2021
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