J-S04016-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.A.-R., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
H.M.V.,
Appellee No. 1458 MDA 2014
Appeal from the Order entered August 5, 2014,
in the Court of Common Pleas of Berks County,
Civil Division, at No(s): 14-996
BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.
JUDGMENT ORDER PER CURIAM: FILED FEBRUARY 18, 2015
J.A.-R. (“Father”) appeals from the order which dismissed his custody
complaint for visitation with M.A.-V. (“Child”) (born in September of 2009).
Father raises one issue for our review: “[Whether the] trial court abused its
discretion by dismissing the complaint in the ‘best interest of the child’ when
there is nothing in the record to support that visitation is against the best
interest of [C]hild?” Father’s Brief at 11.
Our scope and standard of review are 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
* Retired Senior Judge specially assigned to the Superior Court.
J-S04016-15
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.
With any child custody case, the paramount concern is the best
interests of the child. This standard requires a case-by-case
assessment of all the factors that may legitimately affect the
physical, intellectual, moral and spiritual well-being of the child.
J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (citation omitted).
In determining custody and visitation (see 23 Pa.C.S.A. § 5322(b)),
the trial court is required to consider sixteen factors set forth in 23 Pa.C.S.A.
§ 5328(a). “All of the factors listed in section 5328(a) are required to be
considered by the trial court when entering a custody order.” J.R.M., 33
A.3d at 652 (emphasis in original). When a trial court fails to account for all
of the required factors in reaching a custody determination, the trial court
order should be vacated and the case remanded for consideration of the
required factors and further fact-finding. Id. at 654.
Here, the trial court’s order dismissing Father’s complaint is not
supported by the certified record. The record does not include any
transcripts, nor does it contain the master’s substantive report and
recommendation. The trial court did not hold an evidentiary hearing, and we
cannot conclude that the trial court considered the statutorily mandated
factors in denying Father’s custody complaint. In sum, the certified record is
deficient, and this Court cannot engage in meaningful appellate review.
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J-S04016-15
Either the trial court, or the Master at the trial court’s direction, must
conduct an evidentiary hearing and make factual findings pursuant to the
Custody Act, section 5322, section 5328(a) (best interest factors), and
section 5329 (consideration of criminal conviction). See 23 Pa.C.S.A. §§§
5322; 5328(a); and 5329. See C.R.F. v. S.E.F., 45 A.3d 441 (Pa. Super.
2012); A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014). Accordingly, we vacate
the trial court’s order and remand the case for disposition based on evidence
of record. If Father wishes to testify, he may do so by telephone.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2015
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