J-S37016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.A.G. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
A.L.R.
Appellant No. 328 MDA 2014
Appeal from the Order entered January 23, 2014
In the Court of Common Pleas of Cumberland County
Civil Division at No: 2011-4372
BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 31, 2014
A.L.R
entered in Court of Common Pleas of Cumberland County, modifying a March
retion on the part of the trial
court, we affirm.
Mother and Father are the biological parents of Child, who was born
out of wedlock on September 4, 2009. As the trial court explained:
Father brought this action seeking primary custody in May 2011.
After five (5) conciliations were fruitless, an initial custody trial
was held in March 2012 with a parenting plan order issued on 13
March 2012. That plan gave the parties shared legal custody
overnights with Father. Mother appealed that decision and the
parenting plan was affirmed by the appellate court. Father has
filed eight (8) petitions for contempt alleging that Mother is
interfering with the time he was given in the parenting plan, five
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prior to the affirmance and three subsequent to it. All were
initially sent to conciliation in an attempt to allow the parents to
actually make a joint parental decision. This attempt failed.
Father has also requested a modification of the custodial
parenting plan. Following an additional December 2013 custody
trial, where the record was kept open until 8 January 2014 to
allow counseling and to receive the co-
report, the request for modification was granted. The 23
January 2014 Custody Modification Order gave Father primary
physical custody and provided the specific start of the
educational development plan.
-2.1
Mother filed a timely appeal from the January 23, 2014 order and
identified eight alleged errors in her statement of errors complained of on
appeal filed pursuant to Pa.R.A.P. 1925(a)(2). She asks this Court to
consider two of those alleged errors in this appeal:
1. Did the lower court abuse its discretion when it exercised
manifestly unreasonable judgment in transferring primary
physical custody of [Child] from [Mother] to [Father],
2. Did the lower court abuse its discretion when it rendered a
decision resulting from partiality, prejudice, bias, or ill will
1
Grandmother exclusively cared for Child from the time Child was four
months old until she was 17 months old while Mother was incarcerated and
privileges are suspended and cannot be restored until 2018. Nonetheless,
Grandmother is not a party to these proceedings. While her important role
issue of custody was to be decided between Mother and Father. At the same
time, the trial court welcomed G
See T.C.O. at 9; Trial Court Opinion Pursuant to Pa.R.A.P.
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This Court recently reiterated the applicable scope and standard of
review 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-
deductions or inferences from its factual findings. Ultimately,
the test is whether t
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).
In her first issue, Mother asserts that the trial court abused its
discretion by transferring primary physical custody of Child from Mother to
decided on a case-by-case basis, considers all factors that legitimately have
Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006), citing
Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). The factors to be
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considered by the court when awarding custody are set forth in 23 Pa.C.S.A.
§ 5328(a).2
Section 5328(a) provides:
§ 5328. Factors to consider when awarding custody.
(a) Factors. In ordering any form of custody, the court
shall determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and
permit frequent and continuing contact between the
child and another party.
(2) The present and past abuse committed by a party
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.
(3) The parental duties performed by each party on
behalf of the child.
education, family life and community life.
(5) The availability of extended family.
relationships.
(7) The well-reasoned preference of the child, based
2
In her brief, Mother addresses the sixteen factors listed in § 5328(a) but
she has rearranged and renumbered the factors. Father addresses the
factors in the same order as Mother. In its January 23, 2014 opinion, the
trial court addresses the § 5328(a) factors in the order presented in the
statute but assigns letters to the enumerated factors. For the sake of
clarity, we shall address the factors in the order presented in the statute
court opinion where appropriate.
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(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.
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
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
(15) The mental and physical condition of a party or
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).3
In A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014), this Court held:
3
Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration
of child abuse and involvement with child protective services). Because
subsection, the subsection does not apply to the present case. See § 6 of
2013, Dec. 18, P.L. 1167, No. 107, effective 1/1/14.
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All of the factors listed in section 5328(a) are required to be
J.R.M. v. J.E.A., [] 33 A.3d 647, 652 (Pa. Super. 2011)
(emphasis in original). . . .
Section 5323(d)
reasons for its decision on the record in open court or in a
23 Pa.C.S.A. § 5323(d). Additionally,
section 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328 custody]
factors prior to the deadline by which a litigant must file a notice
C.B. v. J.B., [] 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, [] 70 A.3d 808 (2013). Section 5323(d) applies
to cases involving custody and relocation. A.M.S. v. M.R.C., []
70 A.3d 830, 835 (Pa. Super. 2013).
required is that the enumerated factors are considered and that
M.J.M.
v. M.L.G., [] 63 A.3d 331, 336 (Pa. Super. 2013), appeal
denied, [] 68 A.3d 909 (2013)
for its decision, which adequately addresses the relevant factors,
complies with Section 5323(d). Id.
Id. at 822-823.
Mother asserts that no basis for a change in custody exists based on
h party is more likely to encourage and permit frequent and
54-56, addressing 23 Pa.C.S.A. § 5328(a)(1). Mother relies on her own
testimony as evidence that she has encouraged continuing contact between
Child and Father. However, based on all the testimony the trial court
promoter of the continuing contact between [Child] and the other parent,
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Mother has shown negatively that she will not cooperate with Father unless
Our review of the record reveals competent evidence supporting the
refusal to take Child to activities, failure to offer to pick up or drop Child off
at functions or classes, and insistence that Mother not schedule
appointments during his custodial time. M
specifically that she made threats and argued about holiday and regularly
scheduled visits, N.T., 8/8/13 at 7-8, failed to make or receive required
phone calls so Father can speak with Child, id. at 12-14, and failed to abide
by the default holiday schedule, id. at 15-21 and 24-26. Although Mother
as evidenced by her testimony during cross-
counsel:
COUNSEL: [] Has he ever offered to pick [Child] up? Drop [Child]
off?
MOTHER: No, he has not.
***
COUNSEL: This is an e-mail from [Father] to you on Saturday,
January 19th; is that correct?
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correct.
COUNSEL: Can you read the highlighted portions?
MOTHER: I will pick [Child] up after her class.
COUNSEL: Okay. Is that an offer to pick [Child] up after
gymnastics class?
MOTHER: I guess it is.
COUNSEL: Has he ever offered to attend school functions?
MOTHER: No, he has not. Has he ever showed? No.
***
COUNSEL: And this is an email from [Father] to you on Monday,
April 15th; is that correct?
MOTHER: That is correct.
COUNSEL: Okay. Can you please read the e-mail?
MOTHER: What kind of school thing? If you tell me where it is
then I can bring her at 6.
COUNSEL: Have you ever spoken negatively to [Father] to the
MOTHER: No, I have not.
***
COUNSEL: And this is an e-mail from you to [Father] on
Monday, April 15th, is that correct?
MOTHER: That is correct.
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COUNSEL: Can you please read it?
want anything to do with her school.
***
COUNSEL: Has [Father] offered to accompany [Child] to any of
her appointments?
MOTHER: No, he has not.
COUNSEL: Has he ever suggested to you the possibility of
scheduling appointments during his periods of physical custody?
MOTHER: He told me do not put them during his time of
did not want any appointments during his time. He can lie all he
wants in e- is going to
do it.
***
COUNSEL: Any this is an e-mail from [Father] to you on Friday,
November 30th, is that correct?
MOTHER: That is correct.
COUNSEL: Can you please read the highlighted portion?
nt on
Monday or Friday at 4:00 p.m. or later or if you let me know it is
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on Thursday, then I can decide on that times the doctor we can
call and schedule an appointment.
Id. at 83-86.
When considering which parent is more likely to encourage and permit
conclusion.
Mother acknowledges that the trial court found no evidence of abuse
by either party or a family member to warrant a custody determination
s being self-
-
at 19. Clearly, the trial court was not concerned with any threat of abuse by
either Mother or Father or members of their respective households and there
is no competent evidence of record to suggest otherwise.
Mother contends there has been no change in the parental duties
§ 5328(a)(3)). She acknowledges, and the trial court agrees, that both
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parties rely on extended family to Id. The trial court
did not cite the issue of performance of parental duties as a specific basis for
its custody ruling but clearly did consider it, as required.
ity
25-39 addressing 23 Pa.C.S.A. § 5238(a)(4). Mother offers reasons she
believes a change in custody is unwarranted and contends the trial court
failed to consider the effect that a change in physical custody would have on
Child. The record does not support her assessment. The trial court
consistently noted in its opinions the fact that Mother and Father are loving,
caring and fit parents. However, the trial court also recognized that Child
time the court awarded shared physical custody in March 2012 until the time
of the August of 2013 hearing, Father filed eight contempt petitions alleging
interference with the parenting plan. The trial court described that
crafted to promote the long term developmental needs of the parties as
bifurcated parents and the ongoing custod
physically, intellectually, morally
and spiritually requires that both parents step up now and take a greater
Id.
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letter, spirit and intent of this court order in denying Father this
Id. The trial court explained further:
The stated intention of the initial custody plan was not to dictate
or micromanage the parents but rather to allow the parents to
grow into their roles within a framework with both parents
having significant time with [Child]. It was only after much
consideration that this court found the custody of [Child] needed
changed; it was clear that her future and welfare was clearly
actions.
Id. at 4.
Father and his wife testified that they have a loving and stable home
and that Child loves being there. N.T., 8/8/13 at 33 and 122. Their work
be available to Child at all times. Id. at 40. Mother works full-time and
relies on Grandmother to care for and transport Child. Id. at 47 and 132-
Id. at 78.
custody to Father. The cour
greater shared custody and involvement by both parents is a reflection of
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The trial court next weighed the availability of extended family and
Id. at 5-6. We find
competent evidence to support that conclusion.
The next enumerated factor to be considered when awarding custody
-
hearing, which commence
few months later. The trial court determined Child was not capable of
making a choice but noted that, if asked, she would want to be with
Grandmother. T.C.O. at 6. As explained in n.1, supra, Grandmother is not a
and reinforced in the new parenting plan. 1925(a) Opinion at 6.
A trial court must also consider whether either parent attempts to turn
a child away from the other parent. 23 Pa.C.S.A. § 5328(a)(8). Mother
attempts to turn Child away from Father.
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[M
some concerns about the transition times and the anxiety that [Child] was
4
the therapist understood the commencement of visitation with Father was
done very abruptly and believed the transition was hard on Child. Id. at 9-
10 and 15. Yet, the therapist was unaware that there had been four months
of visits with Father pursuant to a temporary custody schedule prior to
initiating any overnight visits. Id. at 16. She was also unaware that the
initial visit with Child in January 2012 occurred 11 days after the issuance of
the order scheduling the initial custody hearing for February 29, 2012. Id.
at 17. She was not certain whether she knew that, concurrent with the third
and fourth visits with Child, Father had filed two contempt petitions due to
Id. at
18. After seeing child on March 26, 2012, the therapist saw Child once in
April, twice in May and then not again until September, three weeks prior to
a scheduled October 4 contempt hearing, although she did not know any
reason for the gap in sessions. Id. at 19. She next saw Child on October 8
but not again until January 14, 2013. Id. When asked if she was suspicious
not [her] part of
4
Father did not believe that Child needed therapy but gave his consent and
signed the necessary forms. N.T., 11/21/13 at 12.
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Id. at 20. She did
acknowledge that Mother and Grandmother were the sources of information
concerning difficulties Child reportedly had with Father. Id. at 21.
The trial court
ated above in
resulted in Father filing eight contempt petitions, and as shown in the
y is more
likely to maintain a loving, stable, consistent and nurturing relationship with
§5328(a)(9). Mother and Grandmother testified that Child was cared for
ome, see, e.g., N.T., 8/8/13 at 49-51; 61-62;
132-33; and 144, just as Father and his wife claimed Child was cared for
and happy in their home. Id. at 33; 110-14; and 122. There is competent
are not an issue as both homes, with the assistance and support of family,
are nurturing in their own ways. It is the way Mother tries to dictate what
T.C.O. at 6.
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Co
daily physical, emotional, developmental, educational and special needs of
. Again, Mother, Grandmother,
See, e.g., N.T., 8/8/13 at 49-51; 61-62; 132-33; 144; 33;
110- s,
believed would be served by enrolling Child in his school district at a location
Id. at 52-23;
87-89; and 27-29. The trial court specifically addressed the educational
needs of Child and ordered that an educational plan be developed without
commenting on the other needs outlined in §5328(10). T.C.O. at 6. Mother
suggests that the trial court erred in focusing only on the educational needs
while ignoring the other needs mentioned in the subsection. Although we
recognize that the trial court did not specifically discuss the other needs, it
did address them by implication throughout its opinion and in its Rule
1925(a) opini
needs. T.C.O. at 3; 5-6; 9.
required by 23 Pa.C.S.A. § 5328(a)(11) by simply noting the distance is 18
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miles. T.C.O. at 6. Neither party discusses this factor other than to note the
distance is 18 miles, as the trial court indicated. There is competent
with respect to this factor.
or make appropriate child-care arrangements, 23 Pa.C.S.A. § 5328(a)(12),
others when making arrangements, whereas Father has independent
Mother argues the trial court abused its discretion in this regard because
Mother also lacked a license at the time of the 2012 order granting Mother
court abused its discretion by simply making a factually accurate statement.
absence, N.T., 8/8/13 at 114, whereas either Father and/or his wife are
home at all times. Id. at 121. The trial court recognized that both parties
lack of a license was a determining factor in its decision. Because we find
en the
parties and the willingness and ability of the parties to cooperate with one
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parties obviously cannot fully cooperate to promote the best interest of
[Child], even with th
to the playground bully who takes the ball and will not let others play unless
they play by her rules. Father has become like a dog that has been
abusively disciplined too much and is in constant protection mode from
Id. There is competent evidence throughout the testimony
presented at the August 8, 2013 hearing, a taste of which is provided in our
evaluation of the level of conflict and the ability of the parties to cooperate.
have been previously noted and
are well chronicled in her criminal history of repeated arrests and multiple
ittle
weight when making a custody determination unless that conduct has an
protestation, we find there is competent evidence in the record to support
ch is merely a factual statement. Further, the
enumerated offense under Chapter 38 or Title 75 of the Pennsylvania Code
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and [crimen] falsi convictions. Father has not alleged, nor has the court
23 Pa.C.S.A. § 5238(a)(15
prescribed pain medication for pain management, which has not impacted
ement
there is competent evide
testified that a report was made to Children and Youth that Father and his
wife were drug addicts and neglectful to their children. Following interviews
and urine testing, the investigation was closed. N.T., 8/8/13 at 8-10. There
Id. at 77.
In addition to the fifteen enumerated factors, the trial court is to
§ 5328(a)(16). The trial court explained:
It was directed that [Child] should spend as much time with both
Mother and Father as possible while she can before being limited
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by school and other outside activities. Inexplicably, Mother
violated the spirit and intent of this directive each and every
time she denied court-ordered custody to Father and more so
when denying a reasonable request for additional time by
Father.
T.C.O. at 8. There is competent evidence in the record to support the trial
Having reviewed the evidence of record, we conclude that there is
§ 5328(a
conclusions are based on its assessment of the credibility of the parties.
findings of the trial [court] who has had the opportunity to observe the
A.V., 87 A.3d at 820 (quoting
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009)). Further:
The parties cannot dictate the amount of weight the trial court
places on evidence. Rather, the paramount concern of the trial
court is the best interest of the child. Appellate interference is
of the child was careful and thorough, and we are unable to find
any abuse of discretion.
Id. As stated previously, the test this Court must employ is whether the
record. V.B., 55 A.3d at 1197. We may reject those conclusions only if they
involve an error of law or are unreasonable in light of the sustainable
findings of the trial court. Id. We conclude that the trial court's
consideration of the best interest of the child was careful and thorough.
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Because the trial court did not commit error of law and because the trial
the part of the trial court for modifying the prior custody order to give father
In her second issue,
primary custody to Father constitutes an abuse of discretion because the
at 13. Again, of
paramount importance is the best interest of the child. Saintz. Mother
contends that the language used by the trial court when referring to Mother
and her conduct establishes that the trial court was partial and prejudiced
against her,
We cannot agree.
The trial court clearly based its decision on evidence of record and
dependent on Grandmother and her continued involvement in
not to dictate or micromanage the parents but rather to allow
the parents to grow into their roles within a framework with both
parents having significant time with [Child]. It was only after
much consideration that the court found the custody of the child
needed changed; it was clear that her future and welfare was
myopic actions.
1925(a) Opinion at 4.
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underlying bases for its conclusions appear in the record. The trial court
commented:
The fact that Mother lacks credibility with this court is of her own
making and not the result of any bias or prejudice. The lack of
honesty is most recently seen in what she did and did not make
known to the play therapist, together with the not unexpected
evaluation of the counselor.
Id. at 4-5.
The trial court concluded:
Grandmother still stands out as the family member who best
promotes the parent-
new
parenting plan. It is expected that Grandmother, and by
extension Mother, is liberally permitted to spend additional
quality time with [Child]. The best interests of [Child] are also
served by promoting unfiltered development of her family life
with Father, while maintaining her relationship with Mother. The
unproductive actions of Mother are removed by taking away her
ability to continuously thwart the plan. While a shared physical
custody plan, with each parent having significant custodial
periods, is still the ultimate goal, the lack of co-parenting
progress and dearth of an educational plan, which is a tactic of
Mother, needs remedial action now and a decision had to be
made to protect [Child] and promote her future.
Id. 6-7.
We conclude that
prejudice, bias or ill will but rather on the testimony and evidence presented.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2014
23