K.L.O. v. S.K.

J-S71030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.L.O., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

S.K.,

Appellant No. 1055 WDA 2015

Appeal from the Order entered June 8, 2015,
in the Court of Common Pleas of Blair County,
Civil Division, at No(s): 2013 GN 3679

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 08, 2016

S.K., a/k/a S.O.K. (“Mother”) appeals from the order entered on June

8, 2015, that awarded the parties shared legal custody of their son, N.K.-O.

(“Child”). The order also awarded primary custody of Child to K.L.O.

(“Father”) and partial physical custody to Mother. We affirm.

The trial court set forth the procedural history of this appeal as

follows:

The parties . . . are the parents of one (1) minor child,
[Child, born in November of 2013.] The parents met in January
2013 through the “Christian Mingle” on-line dating service and
were married [in June of 2013.] The parties lived together for
approximately one (1) month until [Father] filed for divorce [in
July of 2013]. [Father] is self-employed in the asphalt sealing
business. His primary season is June through October each
year, and he is generally off November through May. [Mother] is
currently not working due to recent knee surgery. She attends
physical therapy three (3) times per week. It is her hope to
return to her former employment cleaning houses.
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[Father] is currently forty-one (41) years of age and
resides in his own home . . . [in] Roaring Spring, PA. He has
resided there for five (5) years and describes his home as a
ranch[-]style home, sitting on 3½ acres, mostly wooded. The
home has three (3) bedrooms and two (2) baths upstairs. There
is a full bath downstairs. [Child] has his own bedroom and
playroom.

[Mother] is 31 years of age and lives [in] Sproul, PA,
where she has resided since on about October 1, 2014. She
lives with her fiancé, [T.H.], her two (2) daughters from a prior
relationship, [A.] (7 years of age), and [J.] (5 years of age), as
well as [Child]. [T.H.] moved in with this family unit at the end
of June, 2014.

There is a Custody Order in effect, dated February 4,
2014, along with an Addendum dated June 17, 2014. Pursuant
to the controlling orders of court, the parents share legal and
physical custody, while [Mother] has primary residential custody
of [Child]. [Father] has partial custody the first three (3)
weekends each month from Friday, 9:00 a.m. until Saturday at
3:00 p.m., and Friday [at] 9:00 a.m. until 3:00 p.m. the fourth
weekend. The holidays are shared by mutual agreement. The
parties share in transportation and normally exchange custody at
the Sheetz [s]tore in McKee, PA.

[On June 16, 2014, Father] filed a request for a custody
evidentiary hearing[1] as he is seeking primary, physical custody
of the subject child. The first evidentiary hearing was held
December 11, 2014, during which a former neighbor [of Mother,
L.B.], testified on behalf of [Father]. [Father] also testified on
his own behalf. [Mother] testified, however, due to time
constraints, she was unable to complete her testimony.
Therefore, a second evidentiary hearing was held June 1, 2015,
during which [Mother] completed her testimony and her fiancé,
[T.H.], testified as well.

Trial Court Opinion and Order, 6/8/15, at 1–2 (internal citations omitted)

(footnote added). The trial court entered its Opinion and Order on June 8,

1
Mother filed a complaint for custody on December 3, 2013, and Father
filed a counter-complaint on December 6, 2013.
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2015, discussing its findings related to the sixteen custody factors set forth

in section 5328(a) of the Child Custody Act, (“the Act”), 23 Pa.C.S. §§ 5321–

5340.

On July 8, 2015, Mother filed a timely notice of appeal and concise

statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).

In her brief on appeal, Mother raises the following issues:

A. Whether the lower court erred and abused its discretion by
awarding primary physical custody to [Father], as there was
insufficient evidence to show that [Father] had met his burden to
show that modification was in the child’s best interests?

B. Whether the lower court erred and abused its discretion by
fashioning a custody order that separated the subject child from
his siblings, as the evidence did not show a compelling reason to
separate the children?

C. Whether the lower court’s custody determination went against
the weight of the evidence, as the majority of the evidence on
the custody factors under 23 Pa.C.S.A. § 5328 militated in favor
of a finding that primary physical custody should be awarded to
[Mother]?

D. Whether the lower court erred and abused its discretion by
basing its decision on the past conduct of [Mother], as it was no
longer applicable because there was no evidence it produced an
ongoing negative effect on the child’s welfare?

E. Whether the lower court erred and abused its discretion by
failing to appropriately consider [Mother’s] role as the primary
caretaker of the subject child in fashioning the new custody
order?

Mother’s Brief at 3. Mother combined her argument of issues A and C.

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Mother argues that the evidence presented supported a finding that

she should have been awarded primary physical custody of Child. She

asserts that Father did not produce sufficient evidence to support an award

of primary physical custody. Mother also contends that the trial court erred

by separating Child from her daughters, A. and J., who are his half-sisters,

as the evidence showed that Child has a loving, affectionate, and beneficial

relationship with them. Mother also argues that the trial court erred in

basing its decision on her past conduct because it had no ongoing negative

effect on him. Finally, Mother contends that in fashioning the custody order,

the trial court erred and abused its discretion by failing to consider her role

as Child’s primary caretaker. Mother’s Brief at 5.

Initially, we observe that because the custody hearings in this matter

were held in December of 2014 and June of 2015, the Act is applicable.

C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding when custody

evidentiary proceeding commences on or after the effective date of the Act,

January 24, 2011, the provisions of the Act apply).

In custody cases, our standard of review 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

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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.

R.L.P. v. R.F.M., 110 A.3d 201, 207–208 (Pa.Super. 2015) (quoting C.R.F.,

45 A.3d at 443).

We have stated:

The 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.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we

stated the following regarding an abuse of discretion standard.

Although we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error
of judgment, but if the court’s judgment is manifestly
unreasonable as shown by the evidence of record, discretion is
abused. An abuse of discretion is also made out where it
appears from a review of the record that there is no evidence to
support the court’s findings or that there is a capricious disbelief
of evidence.

Id. at 18–19 (quotation and citations omitted).

With any custody case decided under the Act, the paramount concern

is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338.

Section 5338 of the Act provides that upon petition, a trial court may modify

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a custody order if it serves the best interests of the child. 23 Pa.C.S.

§ 5338. The best interest factors that the trial court must consider are set

forth at 23 Pa.C.S. § 5328. E.D. v. M.P., 33 A.3d 73, 80–81 n.2 (Pa. Super.

2011).

Section 5328(a) of the Act 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:

(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.

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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.

(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.

23 Pa.C.S. § 5328.2

In A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court explained:

2
Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S. § 5328(a)(2.1) (providing for consideration of
child abuse and involvement with child protective services). Although
applicable at the time of the custody hearings in this matter, there was no
evidence that would have required the trial court’s consideration of this
factor.
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“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. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
in original). . . . The record must be clear on appeal that the
trial court considered all the factors. Id.

Section 5323(d) provides that a trial court “shall delineate
the reasons for its decision on the record or in open court or in a
written opinion or order.” 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
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
appeal denied, 70 A.3d 808 (Pa. 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).

In expressing the reasons for its decision, “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), appeal
denied, 68 A.3d 909 (Pa. 2013). A court’s explanation of
reasons for its decision, which adequately addresses the relevant
factors, complies with Section 5323(d). Id.

A.V., 87 A.3d at 822–823.

In the present appeal, the trial court discussed the sixteen custody

best-interest factors as follows:

(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party?

The testimony established that [Mother] has been very
open and willing to provide [Father] additional time over and
above the partial custody schedule set forth in the Custody
Order. For example, when [Mother] was working on Mondays,
she agreed that [Father] could have the child from 8:45 a.m.
until 4:30 or 5:00 p.m. Both parents testified that, generally,
their communication is civil in nature and that they have been
able to work out the holidays by mutual agreement as well as

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make adjustments in the custody schedule. [Father] testified
that he has been flexible with [Mother] relative to his schedule
and gave some specific examples. We are satisfied that both
parties have demonstrated a willingness to be flexible and both
would encourage or promote continuing contact with the other
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.

There is no evidence of any present or past abuse
committed by [Father] to [Child] or any party. [Father] lives
alone except when [Child] is in his custody. [Father] presented
the testimony of [L.B.], who used to live next door to [Mother]
and her family. She testified that she had observed [Mother]
screaming, yelling and cursing at the children and observed her
beating them with a wooden spoon. [L.B.] also testified that she
has seen [T.H.], [Mother’s] fiancé, tap the girls’ genital areas
when he corrects them. There was no evidence presented of
any physical abuse between [Mother] and [T.H.] [T.H.] did
acknowledge that he was scheduled for a hearing on Friday, June
5, 2015[,] in the State of Minnesota relative to allegations that
he threatened his wife and left a bruise on her leg. [T.H.]
denied the allegations and indicated that the alleged incident
occurred more than one (1) year ago.

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

We find that both parents have performed parental duties
concerning [Child] and that each parent is fully capable of
performing such parental duties. It is also significant that both
parents have attended the vast majority of [Child’s] medical
appointments.

[Father] was present when the child was born at Nason
Hospital, Roaring Spring, PA. [Child] did have medical issues
upon birth and [Child] was transported by ambulance to the
Conemaugh Hospital Neonatal intensive Care (NIC) Unit in
Johnstown, PA. Each of the parents [was] with [Child] during
the five (5) days that he was in the NIC Unit.

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(4) The need for stability and continuity in the child’s
education, family life and community life.

[Child] is only 1½ years of age and, therefore, is not
currently attending school. Both parents have been significantly
involved in [Child’s] life since the date of his birth. [Mother] has
served as primary custodian, however, [Father] has had
significant partial custody rights. There is no doubt that both
parents love [Child] and have formed a bond with him. We also
accept that [Child] has formed a bond with his two half-sisters,
[A. and J.] [Child] also has the benefit of having his parental
grandparents and extended members of [Father’s] family in the
area to serve as an additional support system into his future.

We accept [Mother’s] testimony that the last 1½ years
“has been the most stable time” in her life. [T.H.] seems to
have helped stabilize her life. [Mother] and [T.H.] have lived
together for a little over one (1) year and are interested in
purchasing a larger home. They are looking at a home in
Queen, PA, which is just over the Blair County Line in Bedford
County, however, still within the Claysburg-Kimmel School
District. The parents do live in different school districts,
although [Child] has not yet started school.

[T.H.] has a Chemistry Degree and is employed as a
Station Chemist for the Homer City Generating Station, where he
directs all activities for the environmental discharge of services
along the Eastern seaboard. He has been employed in his
current position for approximately three (3) years. His job
brought him from Minnesota to Pennsylvania, originally residing
in Indiana, PA, before relocating to Sproul, PA to be with
[Mother]. [T.H.] has filed for divorce in Blair County, PA[,]
against his current wife, to whom he has been married for
fourteen years. [T.H.] has five adult children, three of whom he
adopted during his first marriage, and the youngest two from a
different marriage. There was no testimony as to whether he
has maintained contact and communication with any of his
children.

[T.H.] recognizes that he is not the biological father of
[Child], and respects the role that [Father] has played and will
continue to play in [Child’s] life. [T.H.] engages in activities with
the children and helps the girls with their school work on a
nightly basis.

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(5) The availability of extended family.

[Father’s] parents live in Martinsburg, PA, approximately 9
miles from his home. [Father] has extended family in the area,
as he grew up in the Roaring Spring, Martinsburg area and is a
graduate of Central High School. The paternal grandmother was
employed as a Manager of the Housekeeping Department at the
Village of Morrison’s Cove Retirement home. It was her
intention to retire this past December and she would be
available, along with other extended family members, to care for
[Child] if and when [Father] was unavailable.

[Mother] is from the Carlisle area, where certain family
members still reside. Her fiancé, [T.H.], moved to Pennsylvania
from Minnesota and has no family in Pennsylvania.

(6) The child’s sibling relationships.

[Father] has no other children, while [Mother] has two (2)
daughters, [A.] (7 years of age) and [J.] (5 years of age) of her
prior relationship with [M.D.]. [Mother] was formerly married to
[M.D.], and she freely acknowledged that he was very abusive
and controlling during their relationship. [A. and J.] are the half-
siblings of . . . [Child]. [Mother] described her two (2)
daughters as “mother hens” and [stated] that they look out for
[Child]. She further testified that there is a special bond
between [J.] and [Child].

(7) The well- reasoned preference of the child, based on
the child’s maturity and, judgment.

Not applicable as the subject child is only 1½ years of age.

(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.

There is no evidence that either party engages in any
actions in an attempt to turn the child against the other parent,
therefore, this is a non-factor.

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(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?

Both of these parents love [Child]. We do find, however,
that [Father] is the party more likely to maintain a loving,
stable, consistent and nurturing relationship with [Child]
adequate for the child’s emotional needs.

[Mother], unfortunately, has a significant past history.
She has been married two (2) times. Her first marriage was to
[M.D.], who has fathered five (5) children with [Mother]. Her
parental rights to her first three (3) children — [M.] (now 13
years of age), [C.] (11) and [L.] (8) — were involuntar[ily]
terminated through a dependency proceeding in Dauphin
County, PA. [Mother] met [M.D.] in 2001 when she was 17
years of age and he was 21. [Mother’s] mother objected to their
relationship[,] and [Mother] moved out of her mother’s home
into the home of [M.D.’s] parents. Unfortunately, things did not
work out there[,] and the couple went out on their own.
[Mother] testified that after she became pregnant with [M.],
[M.D.] became “nasty and controlling”. [C.] was born in 2003[,]
and the parties married in April 2005. At that time, [Mother]
testified that [M.D.] became “very physically abusive”, that there
were “a lot of police calls” and that she was “transported by
ambulance numerous times” but would eventually agree to drop
the criminal charges filed against [M.D.]

[Mother] told of a “major incident” in 2007 when the police
were called and [M.D.] was arrested and put in the Dauphin
County Prison. She indicated that she refused to testify against
him and, therefore, was charged with Perjury, Unsworn
Falsification, Endangering Welfare of Children[,] and five (5)
counts of Cruelty to Animals. She confirmed that [M.D.] was
abusive toward the children. She eventually pled guilty to the
Endangering Welfare and Animal Cruelty charges and received
probation.

During the course of the investigation, the local Children,
Youth & Services took custody of the children and directed that
[Mother] attend parenting classes, obtain stable housing and
employment, attend visits with the children at the foster
parents[’,] and put other reunification services into effect.
[Mother] unfortunately, chose to resume her relationship with

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[M.D.], eventually resulting in reunification services ending and
termination of parental rights decrees being entered against both
parents.

[Mother] acknowledged that relative to the underlying CYS
investigation wherein the Agency took custody and ultimately
terminated the parents’ parental rights, . . . the allegations also
included deplorable home conditions, including the smell of
animal feces and urine. At that time, there were two (2) dogs
and two (2) cats residing within the residence.

[M.D.] is also the biological father of [A. and J.]. [Mother]
has full legal and physical custody of these two girls through a
Dauphin County Order.

We specifically note [Mother’s] testimony concerning any
continued contact between [A.], [J.,] and [M.D.] was
inconsistent between our hearings. At our first hearing,
[Mother] testified that [M.D.] does not have contact with the
girls and that they have “no relationship” with him. She testified
that [M.D.] has attempted to contact her, but that she ignores
him. She did state that [M.D.] will text her on occasion and
inquire about the girls, and she will respond since he is their
father.

During our second hearing, [Mother] acknowledged that
she has run into [M.D.] on a few occasions (she estimates 3 to
4) in public locations and has allowed him to have contact with
[A. and J.], although she also states that the “girls don’t know
him as their father”. She indicated that [M.D.] currently lives in
Carlisle, PA.

[Mother] dropped out of high school, but achieved her GED
in 2009. She is currently taking on-line courses through
Mississippi State University with the intent of achieving a
Bachelor’s Degree in Operational and Broadcast Meteorology.
She just completed her first term.

As we stated in paragraph 4 above, we do believe that the
Mother’s fiancé, [T.H.], has been a stabilizing factor in her life.
Absent [T.H.’s] involvement, we are not convinced that [Mother]
could provide a safe, stable and structured home environment
for her children, including specifically [Child] herein.

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During his testimony, [Father] stated when the parties
were married and residing together, [Mother] was constantly in
contact, including daily phone calls, with a [J.D.], a former
boyfriend. [J.D.] is an over-the-road truck driver. [Father]
testified about an interlude that they had in June, 2014 at a
hotel near the Williams Grove Speedway. [Father] kept asking
[Mother] where she was going [to] stay and indicated that he
could not get much of an answer out of her. She then stated
that she was going to meet a friend, whom she later identified as
[J.D.] and admitted that he was going to give her money for a
motel room. [Father] later went to the motel room and saw
[J.D.’s] clothes and shoes in the bathroom. [Father] stated that
he had a “sick feeling” and then was told that we [sic] was not
allowed to stay in the motel room that night with his wife.

[Mother] denied any romantic tryst, however, we do not
find her testimony credible. [Mother] acknowledged that she
had a hard time “getting over” [J.D.] when she was with
[Father] and that [J.D.] is “still a friend” of hers.

[Mother] has lived at several different addresses since
September, 2010, when she separated from [M.D.]

[Mother] acknowledged that her oldest daughter, [C.], is
now sixteen (16) years of age and lives with her paternal
grandparents. The father to this child is [C.S.] [Mother] does
not have any custodial rights relative to this child. She was
fourteen (14) years of age when she gave birth to this child.

[Father] also complained of the Mother smoking during her
pregnancy with [Child]. [Mother] testified that [Father] never
voiced such complaint, however, again we find [Mother’s]
testimony not to be credible.

Clearly, [Mother’s] past history has been unstable and
chaotic. She has exercised poor judgment in her past
relationships with men. [T.H.] does appear to have provided
some structure and stability in her life and that of her children,
but again, their relationship is less than a year old.

What is of utmost concern to the court is the testimony of
[L.B.], who testified on behalf of [Father]. [L.B.] is a stay-at-
home mother with an 11 year old child. She lives in Claysburg
and has known [Mother] since the family moved in next door in

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March, 2014. They lived next door for approximately 7½
months until on or about October 7, 2014. During this course of
time, there were occasions when [L.B.] babysat [Mother’s]
children. She also testified that [Mother] told her that she
served as a “housekeeper and companion” for a gentleman and
that she would do garden work and perform oral sex on him for
$10.00 per hour. [Mother] also advised [L.B.] that she did not
want [Father] to know that she had picked up this extra job.
[L.B.] indicated that she met this gentleman, did not feel
comfortable and never returned. She also advised [Mother] that
this man was “not normal” and she voiced her concerns. She
indicated [Mother] then quit this employment two (2) weeks
later.

[L.B.] indicated that she was inside [Mother’s] home
approximately 20 to 30 times between the time period of
March—October 2014. She described that one could barely walk
through [Mother's] bedroom; the bathroom was total chaos, the
children’s room was rarely clean, and that the smell of cat litter
boxes was “unimaginable”. [L.B.] testified that [Mother] had
three (3) cats, then a fourth and then a fifth cat as well as a
dog. The house was exterminated in September 2014 and then
again by the landlord after [Mother] and the family moved out in
October 2014.

[L.B.] related different incidents where there was lack
supervision by [Mother], specifically an incident when [J.] (then
4 years of age) was riding her bike, went out on the roadway
and was almost hit by a vehicle; another incident in August or
September 2014 when a man came to the house whom the
children called “daddy” and [Mother] asked [L.B.] to keep the
girls out of the house as she wanted to have sex with this
individual. [T.H.] was at work at this time. [L.B.] told of
another incident during a September 2014 evening when the two
girls were outside playing and [Mother] was nowhere to be
found. [L.B.] went inside the house and found [Child] alone in
the house. She held him until [Mother] came back home
approximately ½ hour later.

Around Mother’s Day, 2014, [L.B.] met [Mother’s] mother
[(“Maternal Grandmother”)]. [L.B.] indicated that [Mother] was
talking about sex, dildos and handcuffs[,] and she brought out
handcuffs and whips and said she was going to use them on
[T.H.] that night. During this conversation, the girls were

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present in the living room[,] and [Maternal Grandmother] was
holding [Child].

[L.B.] related another incident that occurred in late
summer, 2014 when [Mother] told her that they had champagne
and wine coolers and had “a heck of night drinking and
partying”. [Mother] said she sent the girls to bed early and
remarked[,] “I hope you didn’t hear anything”, explaining that
they were running outside naked[,] and that [Maternal
Grandmother] videotaped she and [T.H.] while they were having
sex on the back deck. [L.B.] testified that [Maternal
Grandmother] tried to show her the video on her cell phone but
that [Mother] told her not to.

[L.B.] also testified that she has seen the girls sit around
the house naked with [T.H.] putting lotion on them. She has
heard [Mother] scream and swear and hit the children with a
wooden spoon.

[L.B.] testified that she came to court to testify “for the
welfare of all three children, especially [Child]”. She wants to
see [Child] grow up in a good home environment. [L.B.] was
concerned as to the children’s welfare during the summer of
2014 and did contact Blair County Children, Youth & Families.
[L.B.] also indicated that the police have visited her on a few
occasions to discuss [Mother] and the living environment for the
children.

We are satisfied that [L.B.] acted with good intentions in
coming to court and testifying on behalf of [Father]. Her
testimony was very detailed and specific. [Mother]
acknowledged that she and [L.B.] had a friendly relationship
before going their separate ways. [Mother] never provided any
plausible explanation as to why their friendship ended, adding
further credence to the testimony of [L.B.]

[L.B.] also confirmed that she just recently met [Father]
and that she is not friends with him or his family.

We find [L.B’s] testimony to be credible and, therefore,
have serious concerns as to the home environment that [Mother]
has, and will provide into the future for [Child]. We are fully
satisfied that [Father] has, and will continue to provide a healthy
home environment for [Child]. We were impressed with [Father]

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and are encouraged by the fact that he seems to have a positive
relationship with his parents and extended family members, who
together will provide a positive source of support for this young
child growing up.

(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child?

We find that both parties have, and would continue to
attend to the daily physical, emotional, developmental,
educational and special needs of the child. [Child] is healthy and
developmentally on track.

(11) The proximity of the residence of the parties.

The parties live approximately 10 minutes away from each
other.

(12) Each party’s availability to care for the child or
ability to make appropriate child-care arrangements.

[Father] has his parents and other extended family
members available in the area to care for [Child]. Neither
[Mother] nor [T.H.] have any family in the area, therefore, it
would be necessary for them to utilize a daycare or a caregiver if
both are working and /or otherwise unavailable.

(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with
one another.

Generally, since [Child’s] birth, both parties have been
able to engage in civil communication with each other and have
shown a willingness to be flexible and cooperate concerning
[Child].

(14) The history of drug or alcohol abuse of a party or
member of a party’s household.

This is a non-factor for both parties.

(15) The mental and physical condition of a party or
member of a party’s household.

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This is a non-factor for both parties, other than [Mother] is
currently engaged in physical therapy as she is recovering from
knee surgery.

(16) Any other relevant factors.

There was much testimony spent on issues involving the
paternal grandparents, especially the paternal grandfather, and
[Mother]. In summary, we accept the fact that they do not have
a positive relationship and that there is not an open and civil line
of communication between them. However, based upon the
evidence adduced during both of our hearings, we can
understand why the paternal grandparents have concerns
relative to [Mother’s] home environment and past history
involving men, including specifically her interlude with [J.D.]
while she was married and cohabitating with . . . [Father].

As a word of caution, we would strongly encourage the
paternal grandparents (especially the paternal grandfather) and
[Mother] to be civil with each other and avoid making any
derogatory and disparaging comments about the other,
especially in the presence of [Child].

Summary/Conclusion:

In considering all relevant factors to determine custody as
set forth in 23 Pa.C.S.A. §5328, and taking into consideration
the paramount concern in a child custody case, i.e., the best
interests of the child, [Child], we are going to award [Father]
primary residential custody. In review of [Father’s]
circumstances, we find nothing but positive factors. [Father] has
no prior drug and alcohol history nor criminal involvement. He
owns his own home and is stable and self-supporting. He has a
close relationship with his parents and extended family
members, many of whom are in the Blair County area. He has
been totally devoted and committed to his son, being present at
the time of his birth and attending all medical appointments
except for the brief two (2) month period of time that the
consensual PFA Order was in effect. He has provided, and from
all accounts will continue to provide, a healthy, safe, stable and
secure home environment for his son.

[Mother] does appear to be taking some steps to improve
the quality of her life. We certainly give her credit for obtaining

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her GED and participating in college courses on-line through
Mississippi State University. As we stated above, [T.H.], who
has a good job and significant income has brought some stability
into her life. However, their relationship has only been in
existence for a little over one (1) year. Based upon [Mother’s]
prior history, we have some concerns as to the future of this
relationship.

[Mother] has had a chaotic history, including involvement
with the criminal justice system and Dauphin County Children
Youth & Services. Her parental rights were terminated for three
(3) of her children. She has made questionable choices
concerning her relationships with men. She has had instability
regarding her housing and employment. We are also very
concerned with the incidents as testified to by [L.B.], whose
testimony we found to be credible. It is important to note that
some of incidents that [L.B.] testified to occurred after [Mother]
and [T.H.] began their relationship. [Mother] and [T.H.] have
lived together since June, 2014, and they lived next door to
[L.B.] until October, 2014.

Based upon [Father’s] self-employment, he is readily
available the months of November through May to care for his
son. Even during his busy season, his work schedule is flexible.
It is important that [Child] maintain his relationship and bond
with his two (2) half-sisters, [J. and A.] Therefore, we will
attempt to construct a custody schedule that allows [Mother]
and her family significant time with [Child].

As we stated in court, we commend the parties for their
ability to engage in civil communication over the years. We are
especially impressed that since the Order was originally entered,
there were no prior petitions for contempt or special relief. It is
our hope that upon entry of this Order, the parties can continue
to communicate and cooperate with each other, and be flexible
relative to the custody schedule. We trust that they will
continue to keep in mind [Child’s] best interests and welfare first
and foremost.

Trial Court Opinion and Order, 6/8/15, at 3–12 (internal citations omitted)

(emphasis in original).

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As noted, Mother combines argument on her first and third issues.

Mother’s Brief at 3, 5. She contends that the trial court committed an error

of law or abused its discretion by awarding Father primary physical custody

of Child because the evidence showed that she was the proper parent to

have primary physical custody, and Father did not produce sufficient

evidence to warrant an award of primary physical custody to him. Mother’s

Brief at 5. Mother challenges the weight that the trial court placed on the

testimonial evidence in relation to the section 5328(a) custody/best interest

factors.

Mother does not dispute the trial court’s determination regarding the

weight it assigned to section 5328(a)(1), (2), (7), (8), (1), (11), (14), (15),

or (16) based on the testimonial evidence. Rather, Mother specifically

challenges the weight that the trial court placed on the testimonial evidence

with regard to section 5328(a)(3), asserting that she has been Child’s

primary caregiver and the provider of parental duties for Child under the

February 4, 2014 custody order and its Addendum dated June 17, 2014.

Mother’s Brief at 7. In her separately-numbered fifth issue in her brief,

Mother asserts that the trial court should have accorded more weight to her

performance of parental duties as Child’s primary caretaker, citing M.J.M. v.

M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013). Mother’s Brief at 15–16. In a

related argument, Mother argues that because she had primary physical

custody of Child under the June 2014 custody order and Addendum, the trial

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court should have weighed considerations of stability under section

5328(a)(4) in her favor. Mother’s Brief at 7.

In M.J.M., this Court considered the mother’s argument that the trial

court erred by failing to afford proper consideration to her role as the child’s

primary caretaker. The mother had desired for the trial court to afford more

weight to her role as the child’s primary caretaker. A panel of this Court

reasoned that the Act indicated that the only factors given weighted

consideration are factors that affect the safety of the child. M.J.M., 63 A.3d

at 338. The M.J.M. panel explained:

The language of [the Act] is clear. It explicitly provides
that all relevant factors shall be considered by the trial court,
and the only factors that should be given “weighted
consideration” are factors that “affect the safety of the child[.]”
Id. “When the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b); see also
Ario v. Ingram Micro, Inc., 600 Pa. 305, 317, 965 A.2d 1194,
1201 (2009). If the Pennsylvania Legislature intended for extra
consideration be given to one parent because of his or her role
as the primary caretaker, it would have included language to
that effect. Stated another way, the absence of such language
indicates that our Legislature has rejected the notion that in
analyzing both parents, additional consideration should be given
to one because he or she has been the primary caretaker.

Furthermore, the consideration the primary caretaker
doctrine sought to address (which parent spent more time
providing day-to-day care for a young child) is addressed
implicitly in the enumerated factors. See, e.g., 23 Pa.C.S.A. §§
5328(a)(3) (“The parental duties performed by each party on
behalf of the child.”); (a)(4) (“The need for stability and
continuity in the child’s education, family life and community
life.”). The considerations embraced by the primary caretaker
doctrine have been woven into the statutory factors, such that
they have become part and parcel of the mandatory inquiry.

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In short, the Legislature has created a mandatory inquiry
to aid trial courts in determining the best interests of the child in
a custody dispute. In doing so, it articulated the components of
a parent’s obligations and characteristics, and a child’s needs
and welfare, that must be incorporated in the trial court’s
custody decision where the parents are incapable of doing so on
their own. In setting forth these factors, the Legislature has
required the trial court to give additional weight only to factors
that it finds affect the safety of the child. This language is clear,
and we cannot expand it to provide that a trial court must also
give weighted consideration to a party’s role as primary
caretaker. We simply cannot graft the judicially-created primary
caretaker doctrine on to the inquiry that the Legislature has
established, and so we conclude that the primary caretaker
doctrine, insofar as it required positive emphasis on the primary
caretaker’s status, is no longer viable.

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
section 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). It is
within the trial court’s purview as the finder of fact to determine
which factors are most salient and critical in each particular
case. See A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa. Super. 2010)
(“In reviewing a custody order . . . 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.”). Our decision here does not
change that.

M.J.M, 63 A.3d at 338–339 (footnote omitted).

Based on this Court’s discussion of the primary caretaker doctrine in

M.J.M., we find no merit to Mother’s contentions regarding the weight that

the trial court afforded to the testimony related to factors 5328(a)(3) and

(4), and the primary caretaker doctrine. We find that the trial court’s

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conclusions are not unreasonable, as shown by the evidence of record, and

we find no error of law on the part of the trial court. We, therefore, will not

disturb the trial court’s determination as to the factors set forth in

5328(a)(3) and (4). C.R.F., 45 A.3d at 443.

Next, Mother asserts that the trial court should have afforded

additional weight to the fact that she lives with her fiancé, T.H., and her two

daughters, who are available to assist her with Child. She argues that the

trial court should have found that she has more in-home support from her

family members than Father, who lives alone but has extended family

members living nearby. Accordingly, Mother urges that the trial court

should have weighed the factors set forth in section 5328(a)(5) and (12) in

her favor. Mother’s Brief at 7–8.

Again, Mother is requesting this Court to disturb the trial court’s

weight determinations with regard to these factors. As we stated in M.J.M.,

this Court’s role does not include making independent factual

determinations, and, 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. Here, we find that the trial court’s

conclusions are not unreasonable as shown by the evidence of record, and

we find no error of law on the part of the trial court. Thus, we will not

disturb the trial court’s determination as to the factors set forth in section

5328(a)(5) and (12). C.R.F., 45 A.3d at 443.

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Mother avers that the trial court should have found that the

testimonial evidence with regard to section 5328(a)(6), Child’s relationships

with his half-siblings, weighs in favor of Mother retaining primary physical

custody of Child. Mother’s Brief at 8. In her separately-numbered second

issue in her brief, Mother argues that the trial court should have accorded

more weight to the consideration of raising the half-siblings and Child

together under the “family unity” or “whole family” doctrine, citing M.J.M.,

63 A.3d 331. Mother’s Brief at 15–16.

For the reasons expressed in M.J.M. concerning the viability of the

primary caretaker doctrine in light of the Act, we find no merit to Mother’s

argument concerning the family unity or whole family doctrine. We find that

the trial court’s conclusions are not unreasonable, as shown by the evidence

of record, and we find no error of law on the part of the trial court.

Therefore, we will not disturb the trial court’s determination. C.R.F., 45

A.3d at 443.

Finally, Mother challenges the trial court’s credibility and weight placed

on the section 5328(a)(9) factor. She complains that the trial court placed

undue weight on this factor and accepted unreliable testimony from L.B.,

who Mother posits did not witness the incidents that she described and had

not complained to police. Mother’s Brief at 8–10. Mother urges that L.B.

could not have observed any of the incidents after October of 2014, because

Mother moved from L.B.’s residential area. Id. at 9. Mother asserts that

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there was no testimony of any negative effect upon the children currently

residing in her home due to any of the alleged incidents described by L.B.

Id. at 9–10. In her related fourth issue in her brief, Mother avers that the

trial court committed reversible error in basing its decision on Mother’s past

conduct because there was no ongoing negative effect on Child or his half-

siblings. Mother’s Brief at 12–13. Mother contends that the trial court

improperly considered her past history, citing In re Leskovich, 385 A.2d

373, 377 (Pa. Super. 1978), a case which predated the Act.

We find no merit to Mother’s claims. The trial court did not base its

custody decision on Mother’s past actions. Rather, the trial court considered

all of the evidence concerning Mother’s actions, including those from the

summer and early fall months preceding the custody hearings. For the

reasons expressed in M.J.M., we find no expression of the Legislature in the

Act of any test regarding an ongoing negative effect on children. The Act

sets forth only the sixteen-factor custody/best interest test. We find that

the trial court’s conclusions in this matter are not unreasonable, as shown by

the evidence of record, and we find no error of law on the part of the trial

court. Therefore, we will not disturb the trial court’s determination. C.R.F.,

45 A.3d at 443.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/8/2016

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