E.J. v. B.W.

J-S40045-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
E.J. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
B.W. : No. 636 WDA 2019
Appeal from the Order Entered April 8, 2019
In the Court of Common Pleas of Blair County Civil Division at No(s):
2017 GN 513
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 13, 2019
E.J. (Mother) appeals from the order entered by the Court of Common
Pleas of Blair County (trial court) awarding Mother and B.W. (Father) shared
legal and physical custody with respect to their daughter, C.E.J. (Child). Upon
careful review, we affirm.
The certified record reveals the following factual and procedural history.
Mother and Father began their relationship while at Pennsylvania State
University. Mother learned she was pregnant with Child in May 2016.
Thereafter, in September 2016, Father left to obtain his Master’s degree in
England. In November 2016, the relationship ended. Child was born January
2017. Father was present for the birth and then returned to England to
complete his studies. Accordingly, Mother cared for Child at her parents’ home
in Altoona, Pennsylvania.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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On February 16, 2017, Mother filed a complaint for custody. On April
10, 2017, Father filed an answer to Mother’s complaint and a counterclaim for
partial physical custody. In October 2017, Mother and Father agreed to a
temporary consent order providing the parties shared legal custody, Mother
primary physical custody, and Father partial physical custody for three hours
each Saturday at Mother’s residence. On February 2, 2018, the parties
reached an agreed custody order, expanding Father’s partial physical custody
to eight hours every other Saturday from February 10, 2018, to May 1, 2018,
and, thereafter, every other weekend from Friday at 5:00 p.m. to Sunday at
5:00 p.m. The order also scheduled a review hearing for November 9, 2018.
I.
Before we begin, to better understand what follows, it is worthwhile to
set forth the well-settled law regarding custody disputes. The primary concern
in any custody case is the best interests of the child. “The best-interests
standard, decided on a case-by-case basis, considers all factors that
legitimately have an effect upon the child’s physical, intellectual, moral, and
spiritual well[-]being.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super.
2006), citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004).
The Child Custody Act, 23 Pa.C.S, §§ 5321-5340, governs child custody
actions. 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) sets forth the best interest factors that the
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trial court must consider.1 See E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa.
Super. 2011). Trial courts are required to consider “[a]ll of the factors listed
in section 5328(a) . . . when entering a custody order.” J.R.M. v. J.E.A., 33
A.3d 647, 652 (Pa. Super. 2011) (emphasis in original); see also A.V. v.
S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (providing that trial courts shall set
forth the mandatory assessment of the Section 5328(a) best interest factors
“prior to the deadline by which a litigant must file a notice of appeal”) (citation
omitted). This statutory section 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:
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1 Our standard of review in child custody cases 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.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).
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(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a continued
risk of harm to the child or an abused party and which party can
better provide adequate physical safeguards and supervision of
the child.
(2.1) The information set forth in section 5329.1(a)(1) and
(2) (relating to consideration of child abuse and involvement with
protective services).
(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.
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(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.
With respect to the trial court’s analysis of the factors:
The Custody Act requires only that the trial court articulate the
reasons for its custody decision in open court or in a written
opinion or order taking into consideration the enumerated factors.
23 Pa.C.S.A. §§ 5323(d), 5328(a). Contrary to Mother’s
argument, 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).
II.
On November 9, 2018, and March 15, 2019, the trial court conducted
the custody review hearing. Mother testified and presented the testimony of
Child’s maternal grandfather, as well as Lawanda Barnett, Child’s therapist.
Father testified and presented the testimony of Child’s paternal grandmother.
On April 9, 2019, the trial court entered its custody order, providing
Mother and Father shared legal custody, as well as shared physical custody
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on a week on/week off basis. On April 24, 2019, Mother timely filed a notice
of appeal.2 On May 7, 2019, the trial court filed its Rule 1925(a) opinion.
III.
On appeal, Mother argues that the trial court abused its discretion by
ordering a “true shared 50/50” custody schedule because it is not in the best
interests of Child. Mother’s brief at 2. In arriving at that determination, she
contends that the trial court improperly considered the best interest of Father
rather than the best interests of Child. Id. at 7-8. Mother also contends that
the trial court erred in its consideration of best interest factors 3, 9 and 10,
and failed to appropriately consider the 2½ hour driving distance between the
parties. Id. at 7-9. Mother further argues that the court did not consider
Father’s current capabilities but rather focused on his future ability to parent.
Id. at 8-9. Mother questions Father’s ability to provide appropriate care for
Child when she is in his care. Id. at 7-9. Mother similarly focuses on her
____________________________________________
2 Mother did not concurrently file a concise statement of errors complained of
on appeal with the notice of appeal in contravention of Pa.R.A.P. 1925(a)(2)(i)
and (b). The trial court ordered Mother to file her Rule 1925(b) statement
and Mother timely complied. Father asserts no prejudice, nor are we aware
of any, arising from Mother’s failure to file concurrently the concise statement
with the notice of appeal. Therefore, we will not quash or dismiss Mother’s
appeal. See In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009); Cf. J.P. v. S.P.,
991 A.2d 904, 908 (Pa. Super. 2010) (holding that appellant waived all issues
by failing to file a concise statement of errors complained of on appeal when
directed by the trial court).
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historical role as Child’s primary caregiver,3 contending the court ignored
“Mother’s fundamental r[o]le as primary caretaker in this case. . . .” Id.Further, Mother asserts that the court ignored that Mother is available around
the clock because she does not work, while Father is unavailable during the
day when he is at work. Id. Moreover, Mother contends that the court ignored
Father’s lack of participation following the parties’ separation, moved Child
into a shared physical custody schedule too quickly, and failed to account for
Child’s eventual enrollment in school. Id. at 10-11.
In its 29-page opinion, the trial court considered the testimony offered
at the hearing and comprehensively addressed all of the best interest factors
pursuant to Section 5328(a).4 As it relates to Mother’s issues on appeal, the
court made the following findings:
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3 This Court has noted that while the primary caretaker doctrine is no longer
viable, a court may still consider a parent’s role as primary caretaker in its
consideration of the custody factors.
We hasten to add that this conclusion does not mean that a trial
court cannot consider a parent’s role as the primary caretaker
when engaging in the statutorily-guided inquiry. As discussed
above, a trial court will necessarily consider a parent’s status as a
primary caretaker implicitly as it considers the [S]ection 5328(a)
factors, and to the extent the trial court finds it necessary to
explicitly consider one parent’s role as the primary caretaker, it is
free to do so under subsection (a)(16).
M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013).
4The court did not specifically address factor 2.1. However, this factor is not
applicable. See N.T., 11/9/18, at 80.
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[Factor 3] The parental duties performed by each party on
behalf of the child.
The evidence has established that Mother has been the primary
caregiver in all aspects of [Child] since her birth. Having said that,
there is no doubt that the gradual nature of the custody process
over the last two plus years contributed to this situation.
Mother also acknowledged that the parties initially agreed for
Father to go to school in England. The evidence has also shown
that Father has performed day[-]to[-]day parenting duties such
as feeding, clothing, teaching, playing and caring for [Child]
during his periods of custody. So, while this factor favored Mother
on its face, we find that Father is capable of performing all
parenting duties and his desire to father [Child] in all aspects of
her life to be sincere. A shared custody schedule provides [Child]
with the opportunities for equal love and support from both
parents.
***
[Factor 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.
We believe that both Mother and Father have and are capable in
the future of maintaining a loving, stable, consistent and nurturing
relationship with [Child] adequate for her emotional needs.
Further, as mentioned previously, to the extent that [Child] needs
therapeutic intervention, our Order directs the parents to explore
and engage in same.
[Factor 10] Which party is more likely to attend to the
daily, physical, emotional, developmental, educational and
special needs of the child.
We find that each parent has m[]et [Child]’s needs during the time
when [Child] is with hi[m]/her. While we recognize that Father
was not present in the United States until [Child] was several
months old and that Mother was the primary caregiver up to that
time, we also acknowledge the court record wherein Father’s
attempts to establish a relationship with [Child] on a regular basis
were met with resistance. Luckily, [Child] is still very young and
the parties are already establishing a track record of cooperation
to maintain healthy bonds for [Child] with both parents.
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Additionally, the record is devoid of any reason that this would not
continue under a 50/50 custody schedule. Of course, the parties
will need to cooperate to an even greater extent when arranging
for such things as doctor appointments for [Child], as her
established medical doctor is in the Altoona area.
Trial Court Opinion, 4/9/19, at 24, 26.5
Moreover, in its Rule 1925(a) opinion, the court further explained its
reasoning as follows:
It is clear from the record that while Mother had functioned as the
primary caregiver, Father’s efforts to have an equal role were met
throughout [Child]’s life with opposition by Mother, requiring the
[c]ourt’s intervention and this lengthy custody process. Mother’s
role as primary caretaker was historical and one that she
advocated and also resisted changing to Father’s detriment.
Father was capable of performing and had performed all parental
responsibilities when [Child] was in his care. Finally, the parties
are similarly situated in almost every single way.6
***
Appellant appears to argue that simply because the [c]ourt found
that each parent is capable of equally providing for [Child], that
somehow that conclusion meant that Mother should be awarded
primary custody. This [c]ourt refuses to conclude that when, as
the record established here, both parents are capable of caring for
their child and similarly situated in almost every aspect of their
life[,] that such a situation would not favor an equal schedule for
[Child] with each parent, absent safety considerations.
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5 The court determined that the remaining factors were either inapplicable or
did not weigh in favor of either party.
6 The trial court also noted “that his doctrine [of tender years] created a
presumption in favor of mother. The tender years presumption that custody
of a young child should be awarded to the mother has been abolished and
there is no maternal right to custody as against the father. Haraschak v
Haraschak, 407 A.2d 886, 889 (Pa.Super. 1979). Trial Court Opinion,
4/9/19, at 20.
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***
Finally, with regard to Appellant’s claim that the Order should have
addressed the [c]hild’s elementary school schedule, this [c]ourt
cannot predict what developments may influence the analysis of
the custody factors at some point (possibly four (4) years) from
now when [Child] is set to begin primary school. Every custody
order is entered with the knowledge that circumstances may
change. (For example, the parties may move closer to each
other).
Trial Court Opinion, 5/7/19, at 5-7.
Our review of the record supports the trial court’s determination.
Mother testified that she resides in Altoona, Pennsylvania with her parents.
N.T., 11/9/18, at 9. She acknowledged that when Father returned from
England, he immediately sought shared physical custody. Id. at 16.
However, she did not agree because Child was “breast-feeding, she wouldn’t
take a bottle, he was a stranger for her . . . .” Id. Mother testified that while
Father sought shared physical custody, she believed that Thursday through
Sunday every other weekend, as well as an additional weekend per month,
was a more appropriate schedule. Id. at 21. Mother calculated this as 11
overnights per month. Id. at 41. Mother proposed the schedule because she
does not work and Father works during the day. Id. at 24-25.
Mother contended she did not know the type of relationship Father had
with Child, but assumed “he takes over the role as a caretaker to her.” Id. at
25-26. Mother testified that she believed Father could appropriately provide
day-to-day care for Child. Id. at 43. Mother also acknowledged that Mother
and Father have similar living conditions, with the main difference being that
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Father works and she does not, as well as the fact that she spent the first 22
months as Child’s primary caregiver.7 Id. at 50-51, 70-71.
Father testified that he resides in Camp Hill, Pennsylvania with his
parents. N.T., 3/15/19, at 9. He works in sales and, although his schedule is
flexible, he generally works between eight and nine hours per day. Id. at 10-
11. Father testified that starting in May 2018, he had custody of Child on
alternating weekends. Id. at 23. During their time together, Father reads
with Child, helps Child work on learning the alphabet and numbers, and
spends time with Child’s extended family. Id. at 36-37. During Father’s time
with Child, he provides the care for Child. Id. at 29-30. Father further
testified that to the extent that Father had custody of Child while he was
working, Child’s paternal grandmother would watch her. Id. at 34. However,
Father’s schedule would allow him to wake Child up, feed her and return in
time to feed Child dinner and spend quality time with Child before bedtime.
Id. at 36.
Ultimately, Mother’s challenges go to the trial court’s conclusions and
assessments and ask this Court to re-find facts, re-weigh evidence and/or re-
assess credibility to her view of the evidence. Under the standard of review
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7 Near the end of the hearing on November 9, 2018, upon inquiry from the
court, Mother testified that there was a disagreement regarding religion
between Mother and Father and that Child had not been baptized. N.T.,
11/9/18, at 77. At the start of the second day of the hearing, Mother
acknowledged this testimony was untruthful, as Child was baptized in June
2018, and she did not inform Father. N.T., 3/15/19, at 2-3.
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applicable in custody matters, we are not permitted to disturb the trial court’s
findings of fact and determinations regarding credibility and weight of the
evidence 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 Ketterer v. Seifert, 902 A.2d 533,
540 (Pa. Super. 2006) (quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa.
Super. 2004)):
[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.
Moreover, it is not our function to determine whether the trial court
reached the “right” decision; rather, we must consider whether, “based on the
evidence presented, given [sic] due deference to the trial court’s weight and
credibility determinations, the trial court erred or abused its discretion. . . .”
Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005).
Initially, it is apparent that the trial court focused on crafting a custody
order that served Child’s, rather than either parent’s, best interests. Further,
it was the trial court’s responsibility to make credibility and weight
determinations, and we find that the court did not err or abuse its discretion
in its decision. The trial court adequately and appropriately analyzed the best
interest factors pursuant to Section 5328(a), and, after careful review of the
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record, we determine that the trial court’s findings and determinations are
supported by competent evidence in the record.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2019
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