M.E v. v. F.P.W.

J-A18018-14

2014 PA Super 204

M.E.V. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

F.P.W.

Appellee No. 262 MDA 2014

Appeal from the Order of January 8, 2014,
In the Court of Common Pleas of Clinton County
Civil Division at No.: 1132-10

BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

OPINION BY WECHT, J.: FILED SEPTEMBER 19, 2014

M.E.V

2014. In its January 2014 order, the trial court reversed a preexisting

August 2012 custody order, in which the trial court had granted Mother

en, daughter I.W. (born in

In effect, the January 2014 order transferred primary physical custody to

seeking the modification of an existing custody order, to consider

individually a raft of factors enumerated by statute. The trial court in this

case did not conduct such an inquiry in tandem with its 2014 order, instead

incorporating by reference its 2012 findings of fact, even though various

the interim. We find that the trial court did not fulfill its statutory obligations
J-A18018-14

onsequently, we vacate

the discussion to follow.

Beginning on January 24, 2011, new legislation1 prescribed a number

of factors that a trial court must consider discretely in entering or modifying

a custody order:

(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
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).[2]

(3) The parental duties performed by each party on
behalf of the child.

(4)
education, family life and community life.
____________________________________________

1
See Act of Nov. 23, 2010, P.L. 1106, No. 112, § 2 (effective in 60
days).
2
Section 2.1 became effective January 1, 2014, see Act of Dec. 18,
2013, P.L. 1167, No. 107, § 1. This factor has no clear application under the
facts of this case.

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(5) The availability of extended family.

(6)

(7) The well-reasoned preference of the child, based

(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

(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)
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 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

(15) The mental and physical condition of a party or

(16) Any other relevant factor.

23 Pa.C.S. § 5328(a).

Notably, this Court has held that it is not sufficient that the trial court

merely state its reasoning on the record in open court or conclusorily assert

that it has considered the enumerated factors in reaching its disposition.

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The Act requires a court to consider all of the § 5328(a) best
form 23 Pa.C.S.
§ 5328(a) . . . . [Subs]ections 5323(a) and (d) reinforce this
mandate by requiring a court to delineate the reasons for its
decision when making an award of custody either on the record
or in a written opinion. Mere recitation of the statute and
consideration of the § 5328(a) factors en masse is insufficient.
C.B. v. J.B., 65 A.3d 946, 950 (Pa. Super. 2013).
failure to place its reasoning regarding the § 5328(a) factors on
the record or in a written opinion is an error of law. J.R.M. v.
J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011). Accordingly, in
C.B., when the trial court merely stated that it had considered
the § 5328(a) -the-
record explanation was insufficient under the statute. 65 A.3d at
950-51. Similarly, in M.P. v. M.P., we found error where the
trial court listed the § 5328(a) factors but failed to apply them.
54 A.3d 950, 955-56 (Pa. Super. 2012).

S.W.D. v. S.A.R., ___ A.3d ___, 2014 PA Super 146, at *5 (Pa. Super. July

case-by-case basis, considers all factors [that] legitimately have an effect

-

Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (quoting Arnold v.

Arnold, 847 A.2d 674, 677 (Pa. Super. 2004)).

In a prior memorandum, in which this Court affirmed the August 2012

custody order that directly preceded the January 2014 custody order now

factual and procedural history up to that time:

Father and Mother were never married. On August 12, 2010,
Mother filed a complaint for custody seeking primary physical
custody of the Children. The trial court held a hearing on the
custody complaint on September 7, 2010. On that same date,
pursuant to an agreement, the trial court entered a custody
order, under which the parties were awarded shared legal

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custody of the Children, and shared physical custody, alternating
on a week on/week off basis, except when the parties had

On August 31, 2011, Father filed a petition for modification of
custody and for contempt, seeking primary physical custody of
the Children and partial physical custody with Mother every
other weekend. Father also sought to hold Mother in contempt
of the September 7, 2010 custody order because she allegedly
had moved from Clinton County to Centre County, in violation of
a standard condition incorporated into the custody order that
prohibited her from moving her residence from Clinton County
without written permission from the trial court. Father stated
that he had filed a PFA petition with regard to an incident
between the parties and that a hearing on the PFA petition was
scheduled to occur on September 2, 2011.

On September 1, 2011, Mother filed a motion to modify the
existing custody order, in which she alleged that she had
obtained a temporary PFA order against Father in Centre County,
where she was residing. Mother asserted that Father filed a
petition for a PFA order against her in Clinton County after he
was served with the temporary PFA order from Centre County.
Mother sought primary physical custody of the Children, partial,
supervised physical custody with Father, and shared legal
custody. The trial court scheduled a custody hearing for
September 27, 2011. The certified record includes transcripts
from PFA hearings held on September 2, 9, and 27, 2011. At
the hearing on September 27, 2011, the trial court also heard
testimony from Father and Mother with regard to their custody
modification petitions.

In an order dated September 29, 2011, and entered September
30, 2011, the trial court directed Mother and Father to be
examined by Robert J. Meacham, M.S. . . ., a licensed
psychologist, on October 12, 2011. The trial court further
ordered that the existing custody order from September 7,
2010[,] would remain in effect, and provided that Mother was
not permitted to move from Centre County without written
permission of the trial court. The trial court also issued
directives with regard to matters alleged in Fat
and directed that the PFA petition would be dismissed.

On August 17, 2012, the trial court held a hearing on the
modification of custody petitions. After the final custody

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hearing, the trial court found the following with regard to the
factors set forth at 23 Pa.C.S. § 5328(a) of the new Child

1. While both parents have numerous faults and

with accusations of abuse and improper conduct, we
believe Mother to be the parent more likely to encourage
and permit contact between the [C]hildren and [Father].

2. Throughout this litigation both parents have
charged the other with abuse, both of a major and minor
nature. We consider these accusations to be of little
relevance except as a manifestation of the immaturity and
instability of these parents.

3. While Father suggests he performs the
housekeeping duties when the [C]hildren are with him, it
would appear that he frequently travels to Williamsport[,]
where the members of his extended family reside[,] or
relies on third parties for child care. The household

4.
marked by substantial instability, including at least one
-
several years, Father has maintained some semblance of
stability by continuing to reside at the . .

5. Be
twenty-five miles away in Williamsport, this factor is

family in the area besides her fifteen-year-old daughter[,]
with whom she has only recently become reunited.

little, if any, role in the lives of the [C]hildren.

6. Father has no other children; as noted previously,
Mother has a fifteen-year-
now resides with her and a stepdaughter who resides with
[Husband] and Mother when Mother is residing with
[Husband].

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7. Because of the age of the Children[3], they have
not been asked to express a preference with regard to
custody.

8.

Father desires to reconcile with Mother or simply wants no
one else to have her is a question [that] remains unclear.
Based on our observations of the parties, we reject the
suggestion that Mother has made any effort to turn the
[C]hildren against Father.

9.
much confidence is [Husband,] who appears quite stable
and capable notwithstanding the twists and turns of
ard primary custody to
Mother is conditioned specifically upon her moving into

parent more likely to maintain a loving, stable, consistent,
and nurturing relationship with [Children that is] adequate
for their emotional and other needs.

10. . . . [S]o long as Mother continues to reside with
[Husband], she is the parent more likely to attend to the
daily physical, emotional, developmental, educational, and
special needs of [the Children]. Moreover, that is the
-
other children.

11. Because the parents reside a substantial distance
from each other, an [o]rder providing for shared physical
custody is not feasible.

12. Both parents have arranged for and are able to
afford child care arrangements when the [C]hildren are not
in school. As noted in a prior [o]rder, we have concern
with some of the individuals with whom Father has
associated.

____________________________________________

3
At the time of the excerpted custody order, I.W. was approximately
forty-one months old and F.P.W. was approximately twenty-six months old.

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J-A18018-14

13. The level of conflict existing between these
parents must not continue. The entry of this [f]inal
[o]rder regarding primary [physical] custody will enable
Mother to be more comfortable in cooperating with Father,
llingness
to reciprocate.

14. While not sufficient to meet the standard of

through her employment . . . . On the other hand, Father
admittedly has a serious problem with alcohol and has only
recently regained his operating privileges as a result of two
driving under the influence convictions. On balance, these
addictions cancel out.

15. No testimony was presented with regard to any
physical illnesses of either parent. Any suggestion that
Mother may have some mental problems may well be a
result of what we accept, based on an evaluation of
credibility, as a pattern of harassment by Father.

During this litigation, the parties were referred to
[Mr. Meacham], who has submitted a number of reports
including a Psychological Evaluation dated February 13,
2012. While we have carefully considered the
observations made by [Mr. Meacham], as previously noted
in our discussion of the [s]tatutory [f]actors, the key to
our decision to award primary physical custody to Mother
is [Husband], with whom we were very impressed and who
we believe will provide Mother the support she needs to be
primarily responsible for [the Children]. Mother is
cautioned, however, that [c]ustody [o]rders are always
reviewable and that, should she not maintain her
relationship with [Husband] or should she not enroll [I.W.]
in Our Lady of Victory kindergarten and [F.W.] in a related
day care, a prompt hearing will be held to reconsider this
[o]rder.

-4 [citations
omitted].

On August 20, 2012, the trial court entered a final custody
order, awarding the parties shared legal custody, primary
physical custody of the Children to Mother, and partial physical
custody to Father in accordance with a schedule.

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J-A18018-14

M.E.V. v. F.P.W., 1560 MDA 2012, Slip Op. at 1-7 (Pa. Super. May 31,

2013) (unpublished memorandum).

Id.

findings of fact and credibility determinations regarding the parties as to

findings that were supported by competent evidence of record. As such,

supported by the evidence of record, we declined to disturb them.

Id. at 11-12.

In July of 2013, Mother filed a complaint in divorce against Husband,

herself and the Children, and began to move her possessions into the new

home; during that period, which did not go terribly smoothly between

Mother and Husband and was marred by at least one undisputed physical

altercation in which Husband repeatedly pushed Mother and gave her a black

eye, the Children stayed primarily with Father. The three-bedroom house

former marita

also is located on a bike path that Mother and the Children used, and is part

of a community with a pool, tennis courts, basketball courts, and a

playground.

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At the time of the 2013 custody hearings that led to the instant

custody order, Mother earned approximately $65,000 per year as a

registered nurse in the catheterization department at Mount Nittany Medical

Center. Mother worked a full-time weekday schedule from 7:35 a.m. until

and F.W. were with Father and did not intrude upon her parental obligations.

The Children attended Our Lady of Victory Catholic School; at the time

of the hearings, F.W. was in kindergarten and I.W. was in first grade. I.W.

was doing well in school. F.W. was doing well academically, but allegedly

had some behavioral and/or developmental problems. The Children

participate

separation from Husband, Mother provided all transportation for the Children

to and from their activities.

When Father learned that Mother had filed a divorce complaint and a

PFA action against Husband, Father filed a petition for modification of

custody on August 30, 2013. After a September 4, 2013 hearing, the trial

court issued an order on September 9, 2013, in which the court directed that

the Children again meet with Mr. Meacham. By order dated October 4,

2013, the trial court declined immediately to modify custody, opining that it

would not be in the best interests of the Children to change schools until at

least the end of the fall semester. The trial court scheduled another hearing

for December 30, 2013. Following that hearing, the trial court determined

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J-A18018-14

physical custody. In so ruling, the trial court, without discussion or analysis,

incorporated by reference its 2012 analysis of the statutory factors, but

found that primary custody should shift to Father because Mother had not

continued to live with Husband, the circumstance upon which the trial court

expressly had conditioned her primary physical custody in its 2012 custody

order. Accordingly, by order entered on January 8, 2014, the trial court

transferred primary physical custody of the Children to Father and provided

Mother with partial physical custody. Mother filed an Emergency Motion for

Reconsideration and Request for Evidentiary Hearing, which the trial court

denied in an order entered on January 14, 2014.

On January 30, 2014, Mother filed a timely notice of appeal of the trial

atement

of errors complained of on appeal in conformity with Pa.R.A.P. 1925(a)(2)(i)

and (b). On February 3, 2014, the trial court entered a Rule 1925(a)

opinion, in which it incorporated by reference its January 8, 2014 custody

order and its January 13, 2014 order denying reconsideration.

Mother presents the following issues and sub-issues for our

consideration:

I. Whether the trial court erred in failing to consider each
statutorily mandated factor enumerated in 23 Pa.C.S.
§ 5328(a)?

A. Whether the trial court erred in relying upon its
August 20, 2012 analysis of custody factors instead of
performing a new analysis based on current evidence?

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J-A18018-14

B. Whether the trial court erred in failing to consider the
impact a change in custody would have upon the
Children insofar as it necessitated relocating?

II.
and not supported by competent evidence?

A. Whether the trial court erred in concluding Mother is

evidence did not support this finding?

B.
separation from Husband was a factor significant
enough to warrant a change in custody absent
competent evidence showing the separation was

C. Whe
new relationship with a woman he intends to marry

D. Whether the court erred in relying upon the
memorandum prepared by Mr. Meacham in that the
memorandum did not consider a change in custody and
portions of the memorandum were misinterpreted by
the court?

III. Whether the court erred in accepting as competent
evidence stat
pleadings, including pleadings that were withdrawn by
Husband prior to the hearing?

Brief for Mother at 7-9 (nomenclature and capitalization modified for clarity).

Because we find that the considerations raised in issue I and to a lesser

extent issue II

address only those issues.

Our scope and standard of review of an appeal from a custody order is

as follows:

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In reviewing a custody order, . . . [w]e 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.

inferences from its factual findings. Ultimately, the test is
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).

As noted, section 5328 calls for the trial court to consider, in

connection with any decision affecting custody, each of the fifteen

enumerated factors as well as any other relevant factors, and to elucidate on

the record how it has weighed those considerations. The simplest way to

-month-

old findings in lieu of reviewing the statutory factors anew is to examine,

factor by factor, those material considerations that undisputedly have

changed, as well as those that the trial court might find have changed after

occurred in the wake of the 2012 custody order. We do so in the order in

which the factors appear in section 5328.4

____________________________________________

4
We focus upon the factors as to which circumstances most obviously
have changed materially. To that end, we omit to address factors one, two,
five, eight, eleven, twelve, and fifteen from our discussion. In excluding
(Footnote Continued Next Page)

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5328(a)(3). In 2012, the trial court

d, and

his reliance upon certain occasions upon third parties for child care. The

court further observed that household responsibilities for Mother fell upon

both Mother and Husband, with Husband contributing substantially due to

In the interim between the 2012 and 2014 custody orders, Mother and

Father experienced significant changes in their respective domestic

situations. Father met his now-

in January 2013. See

brought with her a daughter from a prior relationship, E.L., who was eight

years old in September of 2013. Id.

Husband filed for divorce in July 2013, after which she moved alone into a

new home with her older daughter and the Children. Id. at 3. Thereafter,

Mother substantially modified her work schedule to a five-day-per-week,

business-hour schedule with seven to nine days on call, which her employer

allowed her to schedule solely when the Children were scheduled to be in

Id. at 19, 26; see

_______________________
(Footnote Continued)

discretion to revisit any factors it deems relevant on remand.

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J-A18018-14

necessarily changed significantly. The trial court did not assess this factor in

light of these changed circumstances.

23 Pa.C.S. § 5328(a)(4). Regarding this factor, the trial court found in 2012

living arrangement. Since then, as noted, while Father has remained in the

same domicile, to that domicile has been added a fiancée and her young

daughter, E.L. (age eight as of the September 4, 2013 hearing), from a prior

relationship. N.T., 9/4/2013, at

residential situation has changed considerably with her separation from

Husband and her relocation from her marital residence to her new home.

While this move might be interpreted as evidence of further instability, it is

also notable that Mother signed a three-year lease for her new residence,

which is spacious and surrounded by numerous family amenities. Id. at 4,

29-30. Despite manifestly changed circumstances, the trial court did not

review this factor anew.

Fac See

23 Pa.C.S. § 5328(a)(6). This, too, has changed with respect to both

household while she still lived with Husband, but at the time of the 2012

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custody proceedings she had very recently done so, leaving her a somewhat

relationship, M.H., with whom the Children had established a relationship.

daughter has integrated successfully into her new household, is flourishing

at school, and she and the Children averredly have mutual interest in each

-fiancée nor her daughter in the picture

in 2012. Plainly all of the sibling, step-sibling, and quasi-sibling relationships

in this case have e

The trial court did not assess this factor despite these changed

circumstances.

-reasoned preference[s] of the

Pa.C.S. § 5328(a)(7). In 2012, when the children were two and three years

old, the trial court determined that their tender years rendered their

testimony unnecessary. In the autumn of 2013, they were in kindergarten

and first grade, respectively. Although Mr. Meacham indicated in a 2013

t address this point

directly. Inasmuch as their ages were not manifestly inconsistent with

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households, and given that Mr.

court, it was incumbent upon the trial court to address and explain this

consideration anew.

the Children. 23 Pa.C.S. § 532

testimony does not appear to raise serious doubts that the Children, who by

all accounts are doing quite well despite the domestic turmoil to which they

have been exposed by and with both parents throughout their childhoods,

discussion. In its 2012 order, the trial court denigrated the competency of

whom [the trial court has] much confidence is [Husband,] who appears quite

T.C.O., 9/4/2014, at 3 ¶9. As well, it was in its discussion of the ninth factor

that the trial court first s

Id.

custody rights, such as they were, were almost entirely derivative of

We begin by noting the obvious: Mother no longer lives with Husband.

and, evidently undisputedly,

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since has acted violently against Mother; in the critical altercation, which

Husband shoved mother repeatedly and gave her a black eye.5 See N.T.,

9/4/2013, at 8-

but foregrounded a circumstance that our Court has minimized as a relevant

consideration, standing alone, in custody actions. See Jordan v. Jordan,

448 A.2d 1113, 1117 (Pa. Super.

There is no

presumption in our child custody law favoring two[-]parent families.

The sole criterion in determining custody disputes . . . is the best interest

vis-à-vis

custody was contingent on the integrity of her marriage to Husband, the trial

court erred not only by issuing a ruling in considerable tension with

Pennsylvania case law, but also by creating a perverse circumstance under

which Mother, in deciding whether to remain in a marriage with Husband,
____________________________________________

5
According to Mother, this was not the first time she had suffered abuse
at the hands of Husband and Father. Evidently, the trial court heard
testimony before entering its 2012 order (and before the court suggested
that it considered Husband to be the only trustworthy party to this case) to
the effect that Husband had attempted to forcibly remove Mo
ring during an altercation. See N.T., 9/4/2013, at 11-12. Mother also
testified that Father was violent and pushed her up against a car during a
September 9, 2012 custody exchange. See id. at 31-32.

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might also perceive that she simultaneously was deciding whether she

wished to preserve primary physical custody of her children. No good can

come from interfering with such important family decisions, especially when

it is readily foreseeable that a mother might choose to stay with an abusive

interests. While the incidents of abuse cited undisputedly were isolated,

they hint at the more serious quandaries the trial

engender in another case; they also underscore our concerns regarding the

changed circumstances. The trial court declined to do so, except insofar as

i

and cohabitation with Husband as its primary justification for flipping its

prior custody order on its head.

Factor ten requires the trial court to consider the related question as to

§ 5328(a)(10). In 2012, the trial court determined that Mother would be

more likely to attend to th so long as Mother continues to

reside with [Husband]

-

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at 3 ¶10 (emphasis added).6 Moreover, even if these considerations were

households have changed considerably. While the trial court acknowledged

as much in entering its 2014 order, the fact remains that it conducted no

probing examination of this factor.

and [their] willingness and ability . .

Pa.C.S. § 5328(a)(13). In 2012, the trial court noted an unacceptable level

of conflict between the parties, and speculated that the entry of its custody

Id. at 3 ¶13. Once again, while certain facts may be disputed

on this point, what cannot be disputed is that both parties have alleged that

the other violated, or otherwise impeded faithful adherence to, the terms of

the 2012 custody order in numerous particulars. See, e.g., N.T., 9/4/2013,

____________________________________________

6
We recognize that this Court affirme

are loath to call into question our prior determinations, we note that this
Court did not signal in any way that Mother pressed the trial court

Accordingly, it is possible that this particular concern simply was not before

the same reasons set forth in connection with factor nine. In any event,

of the subsection 5328(a) factors in light of various changed circumstances,
re only one.

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at 36-41, 46- -compliance); N.T.,

12/4/2013, at 8-9 (vice-

as of the 2013

hearings and the entry of the 2014 custody order again confounds the

them at that time, not as it found them nearly a year and a half earlier.

ry of

provider calling into question Mothe

positive on an earlier drug test.7

conviction for driving under the influence.

____________________________________________

7
Mother tested positive on one occasion for ephedra, a stimulant, which
she contended had been administered to counteract anesthesia at the
conclusion of a surgical procedure. See Report of Robert J. Meacham,
6/7/2012, at 3. The record substantiates no other positive drug tests nor

elsewhere.

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that no sanction or disciplinary action had resulted from an investigation that

made by Father.8 The circumstantial evidence strongly suggests that

trial court circa 2012: The nursing board exonerated her. More tellingly,

her well-compensated employment continued except for the three weeks

when she was suspended without pay while the nursing board investigated

that complaint. Moreover, evidently she was viewed with sufficient favor by

her employer that, once she became sole care-giver to the Children, her

employer cooperated in negotiating a work schedule that complemented her

child-care responsibilities. At a minimum, the trial court should have

reconsidered this fac

with alcohol. In adverting to its out-of-date 2012 findings, the court failed

to do so.

Already, we have held in no uncertain terms that the trial court may

not merely rely upon conclusory assertions regarding its consideration of the

____________________________________________

8
When the trial court asked Father directly whether he had been the
source of the complaint to the nursing board, he neither confirmed nor
denied the accusation. See

what we read as a questionable complaint with Children and Youth Services;
CYS cleared Mother following its investigation of the allegations. Moreover,
the CYS complaint followed closely on the heels of Mother seeking a PFA
against Father, following the above-mentioned alleged violent conduct of
Father during a September 2012 custody exchange. See id. at 33-35.

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subsection 5328(a) factors in entering an order affecting custody. See

S.W.D.

consideration of the § 5328(a) factors en masse is insufficient. C.B. v. J.B.,

65 A.3d 946, 950 (Pa. Super.

reasoning regarding the § 5328(a) factors on the record or in a written

opinion is an error of law. J.R.M. v. J.E.A., 33 A.3d 647, 652

(Pa. Super. ion for the first time in the

instant case, we hold, essentially for the same reasons, that a trial court

may not merely advert to prior, manifestly outdated findings of fact in lieu of

express and fully explained reconsideration of those factors in the light of

and attendant explanation. We further emphasize that, standing alone, the

apparently undisputed changes affecting the Children and the parties in

this case between the t

new fact-finding.9 Indeed, inasmuch as no consideration exceeds in

ing that the trial

____________________________________________

9
We acknowledge the prospect that a given delay between an initial,
duly explained custody order and one that follows shortly thereafter, which
expressly is based upon the earlier findings and conclusions, may be so brief
as to militate in favor of affirmance, depending upon the facts and
circumstances at issue in such a case. This is not that case.

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evolution and development in the tender years between their second and

personal, domestic, scholastic, and social particular simply is dizzying.

In summary, we conclude that the trial court failed to provide the

requisite contemporaneous review of the section 5328 factors in determining

that primary physical custody of the Children should be removed from

Mother, who had been primarily responsible at the time of the instant order

their extracurricular and social activities. An updated, comprehensive review

as prescribed by subsection 5328 is necessary to ensure that the custody

order entered is consistent with the best interests of the Children.

trial court for a new ruling, considering the best interest factors in

accordance with this Opinion.

Order vacated. Case remanded. Jurisdiction relinquished.

Musmanno, J. joins the opinion.

Lazarus, J., concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/19/2014

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