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2015 PA Super 72
R.S., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
T.T.,
Appellee No. 2170 EDA 2014
Appeal from the Order entered June 19, 2014,
in the Court of Common Pleas of Delaware County,
Domestic Relations, at No(s): 2013-006464
BEFORE: STABILE, JENKINS, and STRASSBURGER*, JJ.
OPINION BY STRASSBURGER, J.: FILED APRIL 10, 2015
R.S. (Father) appeals from the final custody order entered June 19,
2014, in the Court of Common Pleas of Delaware County, which awarded
primary physical custody of Father’s minor son, E.S. (Child), to his mother
(Mother) during the school year, and awarded Father and Mother shared
physical custody during the summer months. The order also awarded the
parties shared legal custody. We vacate and remand for further proceedings
consistent with this opinion.
Child was born in December of 2007, as a result of Father’s
extramarital affair with Mother. On June 19, 2009, Father filed a complaint
for partial physical custody and shared legal custody of Child. Father filed an
amended complaint for custody on February 1, 2011, in which he requested
* Retired Senior Judge assigned to the Superior Court.
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shared physical custody of Child. This culminated in a custody order entered
October 3, 2011, which awarded the parties shared legal and physical
custody. Subject to a special schedule for vacations and holidays, Father was
granted physical custody of Child each week from 8:00 a.m. Monday
morning until 6:00 p.m. on Wednesday. Father also was granted physical
custody on alternating weekends.
On June 28, 2013, Mother filed a petition to modify the custody order,
in which she requested that she be granted primary physical custody of
Child. Father filed a petition to modify the existing custody order on July 23,
2013, in which he requested primary physical and legal custody of Child. A
custody trial was held on April 28, 2014. Following the trial, by order
entered June 24, 2014, the trial court granted Mother primary physical
custody of Child. Subject to a holiday, birthday, and vacation schedule,
Father was awarded partial physical custody of Child each Wednesday during
the school year from 4:00 p.m. until 7:00 p.m., and on alternating
weekends from Friday after school until Sunday at 8:00 p.m. During the
summer months, Father was awarded shared physical custody on alternating
weeks. Mother and Father retained shared legal custody.
Father timely filed a notice of appeal on July 15, 2014. However,
Father failed to file concomitantly a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). Father later filed a concise
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statement on July 29, 2014. Father filed an amended notice of appeal the
following day.1, 2
Father now raises the following issues for our review.
1. Should this Court vacate the lower court’s final custody order
because it was based on unreasonable conclusions relative to the
Child’s need for stability, and therefore does not further the best
interest of the Child, because:
a) The court’s most important conclusion (relative to
[Child’s] commuting time) was not supported by any
evidence and was thus not a sustainable finding;
b) The court’s order was unreasonable because it failed to
address the fact that the Child will now be deprived of
Father’s care for extended periods during the school
week, which is particularly problematic in light of the
court’s simultaneous conclusion that Mother will not
further the Child’s relationship with Father?
Father’s Brief at 4.
We address Father’s claims mindful of our well-settled standard of
review.
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
1
As Mother has not objected to this late filing or claimed any prejudice, we
have accepted Father’s concise statement in reliance on our decision in In
re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009) (holding that an
appellant’s failure to comply strictly with Pa.R.A.P. 1925(a)(2)(i) did not
warrant waiver of the appellant’s claims, as there was no prejudice to any
party).
2
Father amended his notice of appeal to indicate that this is a Children’s
Fast Track appeal.
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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).
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. “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 factors to be considered by a court when awarding custody
are set forth at 23 Pa.C.S. § 5328(a).
(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 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.
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(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 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.
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23 Pa.C.S. § 5328(a).3
Instantly, the trial court considered the Section 5328(a) custody
factors, and concluded that factors 1 and 12 favored Father, while factors 2,
3, 4, and 10 favored Mother. Final Custody Order, 6/24/2014, at 4-7
(unnumbered pages). The court also found that factors 5, 6, 7, 8, 9, 13, 14,
and 15 did not favor either party and that, because the parties live 14 miles
apart, factor 11 “favors a non-shared custody schedule.” Id. at 5-7.
In response, Father contends that the trial court abused its discretion
by concluding that factor 4 favored Mother. Father’s Brief at 13-15. Father
directs our attention to the following discussion of this factor from the trial
court’s final custody order.
The need for stability and continuity in the child’s education,
family life and community life: This factor favors Mother. The
[c]ourt is very cognizant that stability and continuity are
important to the [C]hild’s best interest, which would favor
keeping the shared custody schedule in place. However, the
[c]ourt believes that positive benefits the [C]hild will receive
from Mother having primary physical custody outweigh the
benefits of maintaining the status quo in this case. The [C]hild
will benefit from being with Mother primarily during the school
week. [Child] already has friends at his current school district
where Mother resides. The [c]ourt believes it is in the [C]hild’s
best interest to remain in his current school district. Father
testified that he believes [Child’s] current school is a good school
for the [C]hild. Both parties agree that the current schedule
requires the [C]hild to be driven in a vehicle back and forth too
3
Section 5328 has been amended to include an additional factor at 23
Pa.C.S. § 5328(a)(2.1). Because Mother’s petition to modify custody order
was filed prior to January 1, 2014, the effective date of Section
5328(a)(2.1), that factor does not apply to this case. See § 6 of 2013, Dec.
18, P.L. 1167, No. 107, effective January 1, 2014.
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frequently and that time spent doing this is not in the best
interest of the [C]hild. The [c]ourt finds that the [C]hild should
be primarily with one parent during the school week so that he
can establish a routine, but that the parties should have custody
in the summer, on an alternating week basis, to minimizing [sic]
the time [Child] must ride in a car back and forth.
Final Custody Order, 6/24/2014, at 5 (citation omitted, unnumbered pages).
Father argues that the court’s finding that “[b]oth parties agree that
the current schedule requires the [C]hild to be driven in a vehicle back and
forth too frequently and that time spent doing this is not in the best interest
of the [C]hild” is not supported by the record, and requires reversal.
Father’s Brief at 13-16. Father contends that “[t]here was no testimony
adduced relative to the effect that the commute of [Child] was detrimental
to him. Moreover, the record is devoid of any evidence that the ‘parties
agreed’ to such a proposition.” Id. at 14. Father also argues that the trial
court abused its discretion by failing to “consider the effects of depriving
[Child] of his Father during the school year,” particularly in light of the
court’s conclusion that factor 1, concerning which party is more likely to
encourage and permit frequent and continuing contact between the child and
the other party, favored Father. Id. at 14, 16-18.
An examination of the trial court’s analysis in light of the record before
us, accepting the trial court’s factual findings and credibility determinations,
leads us to conclude that several of the trial court’s conclusions are
unreasonable under the circumstances of this case, and ultimately, the trial
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court abused its discretion in awarding Mother primary physical custody of
Child during the school year.
As noted, the main reason Mother sought a change in custody is that
Child will be starting elementary school and she believes that Child would be
better off living with a single parent in order to establish a more stable
routine. See Petition to Modify Custody Order, 6/28/2013, at 2
(unnumbered pages) (“Mother contends that shuttling [Child] back and forth
each mid-week between his parents will not be beneficial to [Child] once he
enrolls in regular school as the same would be disruptive, confusing and
detrimental.”). Mother explained as follows.
A. It’s just going to make it a lot more difficult and hard than it
has to be. It’s unnecessary. It’s going to put obstacles in front
of [Child’s] education because it’s going to be confusing and
detrimental and it’s going -- that stability won’t be there. So he
needs one primary home base where he can get a structured
routine, so that he can focus and concentrate on his studies and
his academics without being shuttled back and forth. Because if
you shuttle back and forth, it’s just going to disrupt things and
projects will be due again, and then second grade, third grade,
fourth. It’s going to get -- I mean, I’ve graduated. I’ve gone to
Penn State. It gets harder and harder, the higher up you go. So
the more prepared, the more stability, the more structured that
home base is and -- he can’t have that with having two home
bases….
***
….my only concern is that during the school weeks, the school
term, so that he can get that structure and get a routine, and
get -- and the emotional and the psychological also impacts of it,
too, the extracurricular activities. That school has a lot of events
and things going, so it’s just he needs that stability and that
structure now. If we continue as it is, as it goes, it will just get
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more and more disruptive and more confusing and more
detrimental and his education will suffer.
N.T., 4/28/2014, at 157-59.
Mother’s concerns, while well-meaning, do not require modification of
the 2011 shared physical custody order. We agree with Father that there
appears to be no evidence of record indicating that he agreed that Child was
being driven back and forth too frequently, or that Child’s time in transit was
not in his best interest. To the contrary, the trial court acknowledged in its
opinion that Father “submitted a post-trial proposed order requesting a
schedule of shared physical custody. The proposed schedule for shared
physical custody was the same as the schedule established by the Order in
custody dated October 3, 2011.” Final Custody Order, 6/24/2014, at 2
(unnumbered pages). This is consistent with the argument of Father’s
counsel prior to trial, and with Father’s testimony, that Father would accept
a shared physical custody arrangement in lieu of primary physical custody if
the court would include “some caveats” in the custody order to prevent
Mother’s alleged attempts at alienating Child from Father. N.T., 4/28/2014,
at 13, 302.
Additionally, the record does not support the trial court’s conclusion
that the distance between the parties’ residences militates against a shared
custody arrangement. Mother testified that she lives within 2 miles of
Child’s school, id. at 53, and that Father lives approximately 14 miles away.
Id. at 54. She testified that she drives Child to school during her periods of
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custody. Id. at 48. According to Mother, it would take Father about 35 or
40 minutes to transport Child from Father’s home to school and/or her
home. Id. at 54. Father disputed this claim, stating that the drive took him
only 20 minutes and, sometimes, only 15 minutes. Id. at 281. Father
testified that, under the 2011 custody schedule, he picks up Child directly
from school on Monday and Tuesday, and he is willing to continue doing so.
Id. at 272, 280. Additionally, Father also expressed a willingness to allow
Child to participate in a baseball league near Mother and to attend those
games. Id. 333-34.
Nothing presented by Mother convinces us that a change to primary
custody is necessary here. Even if we could infer that the trial court was
concerned with the amount of time Child would spend being driven to school
from Father’s residence each day, rather than the time being driven to and
from custody transfers, it was an abuse of discretion for the court to
conclude that Father’s time with Child should be limited based on the slight
unpleasantness Child may experience as a result of a, at maximum, 35 to 40
minute car ride.4
Based on the foregoing, we find that the trial court abused its
discretion in determining that a shared custody schedule would limit Child’s
ability to remain in Mother’s school district, participate in activities there,
4
Arguably, in light of the parties’ relative close proximity to one another and
their willingness to drive Child to school during their periods of custody, the
transportation issues that concern the court could be resolved by
implementing a week on/ week off custody schedule.
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and maintain his established friendships. Accordingly, we reject the court’s
conclusion that Child’s entrance into full-day schooling requires that one
parent must have primary physical custody so that Child may establish a
routine. This is the situation faced by every set of parents of a school-aged
child, and does not present a special circumstance requiring a primary
custody arrangement. To the contrary, this Court has long held that
[i]n determining whether to award shared [] custody, the trial
court must consider the following factors: (1) whether both
parents are fit, capable of making reasonable child rearing
decisions, and willing and able to provide love and care for their
children; (2) whether both parents evidence a continuing desire
for active involvement in the child's life; (3) whether the child
recognizes both parents as a source of security and love; and (4)
whether a minimal degree of cooperation between the parents is
possible.
Yates v. Yates, 963 A.2d 535, 542 (Pa. Super. 2008), quoting In re
Wesley J. K., 445 A.2d 1243, 1249 (Pa. Super. 1982). The record herein
demonstrates that all four of the preceding factors have been met such that
shared legal and physical custody of Child is in his best interest.
Finally, we note the “[i]n a case which presents the possibility of a
change in custody, it is incumbent on the court to fully discuss the possible
effect on the child of the proposed transfer of custody.” E.A.L. v. L.J.W.,
662 A.2d 1109, 1117 (Pa. Super. 1995) (quotation and citation omitted).
See also Masser v. Miller, 913 A.2d 912, 921 (Pa. Super. 2006) (quoting
Johns v. Cioci, 865 A.2d 931, 937 (Pa. Super. 2004)) (“The court must give
attention to the benefits of continuity and stability in custody arrangements
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and to the possibility of harm arising from disruption of longstanding
patterns of care.”).
In the instant case, there is no discussion by the trial court about the
possibility of harm to Child in uprooting him from the care pattern he has
known from a young age. We agree with Father that the trial court’s
decision is rendered more problematic by the conclusion that Mother is less
likely than Father to encourage Child’s relationship with the other parent.
The court’s decision dramatically reduces Father’s custodial time with Child
during most of the year, and may result in considerable damage to Child’s
relationship with Father, despite the court’s conclusion that Father is a
capable parent.
Accordingly, because we conclude that the trial court abused its
discretion by awarding Mother primary physical custody during the school
year, we vacate the trial court’s order and remand this case for the court to
enter a new custody order awarding both parties shared physical custody.
Order vacated. Case remanded for further proceedings consistent with
this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
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