D.C.S.-R. v. P.R.

J-S21001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.C.S.-R. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

P.R.

Appellant No. 2849 EDA 2015

Appeal from the Order August 21, 2015
In the Court of Common Pleas of Wayne County
Civil Division at No(s): 398 DR 2011

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 04, 2016

P.R. (“Father”) appeals pro se from the order entered August 21,

2015, in the Court of Common Pleas of Wayne County, which denied his

petition for primary physical custody of his minor son, J.P.R., born in

February of 2009 (“Child”). After careful review, we affirm.

A prior panel of this Court summarized the factual and procedural

history of this matter as follows.

The parties married on October 2, 2004 in New Jersey. On
August 8, 2011, [D.C.S.-R. (“Mother”)] filed for divorce. At the
time of filing, Mother lived in Wayne County and Father lived in
Bucks County. Mother has three children from a prior marriage.
On September 1, 2011, Mother filed a custody complaint.

____________________________________________

*
Former Justice specially assigned to the Superior Court.
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On September 20, 2011, Mother obtained a protection
from abuse (“PFA”) order against Father that provided Father
with custody of Child every other weekend. On November 14,
2011, the court entered an interim custody agreement that
provided for the same custody as outlined in the PFA. On
January 17, 2012, the court entered another interim custody
agreement that outlined the same custodial time.

On March 16, 2012, a court-appointed master began a
custody hearing. Hearings continued sporadically until June 21,
2012. On June 29, 2012, the master issued his report. On July
31, 2012, the court entered a custody order adopting that report
and providing for joint legal custody, shared physical custody
during the summer of 2012, whereafter custody reverted to the
every other weekend schedule that had previously been in
effect.

Much of the custody litigation has stemmed from Child’s
special needs. The parties disagreed about what services Child
needs and who should provide those services. The Early
Intervention Program in Wayne County evaluated Child in 2011
and identified a feeding/eating issue, with an underlying
sensory-processing component. …

The parties divorced on July 19, 2013. On September 23,
2013, Father commenced the current phase of this litigation
when he filed a petition to modify custody…. The trial court held
hearings on Father’s petition on December 10, 2013, and
January 24, 2014.

***

On February 18, 2014, the trial court issued an opinion and
order providing for shared legal custody, primary physical
custody with Mother, and every other weekend partial custody
with Father.

On March 11, 2014, Father filed his notice of appeal. He
filed his statement of matters complained of on appeal on March
27, 2014.

D.C.S.-R. v. P.R., No. 790 EDA 2014, unpublished memorandum at 1-4 (Pa.

Super. filed Nov. 7,2014) (footnotes omitted).

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On November 7, 2014, this Court affirmed the February 18, 2014

order. Father subsequently filed a petition for modification of custody on

December 8, 2014. In his petition, Father requested, inter alia, an

alternating week custody schedule during the summer. By order dated April

6, 2015, and entered April 9, 2015, the trial court adopted the parties’

stipulation that Father would exercise physical custody of Child on

alternating weeks during the summer. On April 8, 2015, Father filed an

additional petition to modify custody, asking that he be awarded primary

physical custody of Child. A custody hearing was held on August 18, 2015,

during which the trial court heard the testimony of Child’s former

kindergarten teacher, Jennifer Morgan; Father; Child’s pediatrician, Dr.

Robert Morton; and Mother. Following the hearing, on August 21, 2015, the

trial court entered its order denying Father’s petition to modify custody.

Father timely filed a notice of appeal on September 21, 2015, along with a

concise statement of errors complained of on appeal.1

Father now raises the following issues for our review.

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1
We note that Father had thirty days to appeal the trial court’s custody
order, meaning that his notice of appeal would normally be due by
September 20, 2015. See Pa.R.A.P. 903(a) (“Except as otherwise
prescribed by this rule, the notice of appeal … shall be filed within 30 days
after the entry of the order from which the appeal is taken.”). However,
because September 20, 2015, was a Sunday, Father’s notice of appeal was
timely filed on Monday, September 21, 2015. See 1 Pa.C.S. § 1908
(“Whenever the last day of any such period shall fall on Saturday or Sunday,
… such day shall be omitted from the computation.”).

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I. Did the trial court err and/or abuse its discretion in summarily
concluding and ruling, at the custody hearing, Mother’s domicile
in New Jersey was not a residence, when Mother had clearly
identified the permanently affixed camper as being located … in
Little Egg Harbor, New Jersey and where Mother and minor child
have spent a large part of the calendar year for the past 3
years?

II. Did the trial court err in not making a reasonable decision
and/or in not taking appropriate action to address and resolve
the unreasonable, cumbersome and regular shuffling of the
minor child between Bucks County, Wayne County and the State
of New Jersey for multiple monthly trips to visit maternal
relatives in Bucks County, visit [C]hild’s siblings in New Jersey,
and to visit Mother’s “second residence” aa233in [sic] New
Jersey, on top of the long travels to effectuate exchanges
between the parties; when the trial court stated at the
conclusion of the hearing that “it (the court) shares Father’s
concerns over the back and forth of the minor child and that it
(the court) may do something about it”[?]

III. Did the trial court err and/or abuse its discretion in not
ordering Mother to move with the minor child to the Bucks
County area, near her family and Father’s; where Mother and
[C]hild are in the area regularly and in close proximity to
Father’s [home] when visiting Mother’s “second residence” in
New Jersey, when [the] minor child is visiting his siblings in New
Jersey, when Mother and [C]hild are visiting maternal family
near Father’s and where all of Mother’s extended family, with the
exception of her father, live in or near the Bucks County area?

IV. Did the trial court err and/or abuse its discretion in denying
Father’s Petition to modify primary physical custody?

V. Did the trial court err and/or abuse its discretion by exhibiting
blatant partiality, prejudice, bias and/or ill will towards Father as
demonstrated by evidence of record?

Father’s brief at 2-3 (trial court answers omitted).2
____________________________________________

2
In Mother’s appellee brief, she states that Father commenced the current
custody proceeding “despite the fact that no substantial change in
circumstances had occurred from the last custody trial.” Mother’s brief at 5.
(Footnote Continued Next Page)

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We consider these issues 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
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).

“When a trial court orders a form of custody, the best interest of the

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)

_______________________
(Footnote Continued)

In response, Father submitted a reply brief in which he contends, inter alia,
that a substantial change in circumstances has occurred. Father’s Reply
Brief at 1-5. This issue also arose during the custody hearing. See N.T.,
8/18/2015, at 51 (Mother’s counsel stating, “I still think you have to show
that change in circumstances,” and the trial court replying, “I know, I know
that’s why I keep saying new stuff now.”). We advise the trial court and the
parties, as did the panel of this Court that reviewed Father’s last appeal, that
a court may modify a custody order even if a substantial change in
circumstances has not been shown. See Clapper v. Harvey, 716 A.2d
1271, 1273 (Pa. Super. 1998) (citing Moore v. Moore, 634 A.2d 163, 169
(Pa. 1993)) (“It is settled law in Pennsylvania that a custody order is subject
to modification without proof of substantial change in circumstances when it
is shown that change is in the best interests of the child.”).

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(citation omitted). 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.

(2.1) The information set forth in section 5329.1(a) (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.

(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.

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(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(a).

Instantly, the trial court issued an opinion explaining its decision to

deny Father’s petition for primary physical custody on September 17, 2015.

In its opinion, the court discussed nearly all of the Section 5328(a) factors. 3

The court found that Sections 5328(a)(2), (6), (7), (8), (11), (14), and (15)

did not weigh in favor of either parent, and that Sections 5328(a)(3), (5),

(9), and (12) weighed in favor of both parents. Trial Court Opinion,

9/17/2015, at 4-7. The court concluded that Sections 5328(a)(1), (4), (10),

and (13) weighed in favor of Mother. Id. With respect to Sections

____________________________________________

3
The trial court failed to address Section 5328(a)(2.1) in its opinion.
However, there was no evidence presented during the custody hearing which
related to this factor.

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5328(a)(1) and (13), the trial court found that Mother agreed to expand

Father’s periods of physical custody during the summer months. Id. at 4, 7.

With respect to Sections 5328(a)(4) and (10), the court found that Mother

has implemented an award system with Child, which has helped improve

Child’s diet. Id. at 5-6. The court noted that it found Mother’s testimony on

this issue to be credible because Child’s pediatrician, Dr. Morton, testified

that Child’s physical development is in the normal range. Id. at 5. The

court also emphasized Mother’s testimony that Child is less willing to eat

after returning from his visits with Father. Id. at 6. The court expressed

concern that awarding primary physical custody to Father could hinder

Child’s progress. Id. at 5. On October 27, 2015, the court issued a second

opinion, pursuant to Pa.R.A.P. 1925(a)(2)(ii), in which it responded to the

issues raised in Father’s concise statement.

Father’s first issue on appeal is that the trial court erred and/or abused

its discretion by concluding that Mother’s camper in New Jersey is not a

second “residence.” Father’s brief at 22-27. Father argues that Mother has

spent “a large part of the calendar year for the past 3 years” living in her

camper, and that Mother keeps her belongings, as well as the belongings of

Child, in the camper. Id. at 22-23. Father insists that the trial court’s

conclusion that Mother’s camper is not a residence impacted its finding that

Section 5328(a)(11) did not weigh in favor of either party. Id. at 25-26.

Father suggests that Mother “was in all likelihood secretly living at this New

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Jersey camper/house to be with her ‘friends,’ as she put it, and then having

her parents care for [Child] and use their home as a ‘front’ to maintain

custody….” 4 Id. at 26.

During the custody hearing, the trial court responded to Father’s claim

that Mother’s camper is a second residence by stating, “It’s a camper. I

understand it’s a camper, as far as I’m concerned it’s not a second

residence. Period! It’s a vacation camper.” N.T. 8/18/2015, at 122. In its

opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii), the trial court explained,

“Whether [Mother’s] house/camper in New Jersey is a ‘second residence’

was not a factor that [the trial court] took into consideration when making

____________________________________________

4
As part of this argument, and at various other points in his brief, Father
suggests that the trial court should have made an “adverse inference”
against Mother, because she “conceal[ed] the existence and address” of the
camper. See Father’s brief at 26, 31-32, 35-37, 43, 51, 56. We note that
Father failed to preserve this issue for our review, as he did not include it in
his concise statement, nor is it included in his statement of questions
involved. See Krebs v. United Refining Co. of Pennsylvania, 893 A.2d
776, 797 (Pa. Super. 2006) (“We will not ordinarily consider any issue if it
has not been set forth in or suggested by an appellate brief’s statement of
questions involved, and any issue not raised in a statement of matters
complained of on appeal is deemed waived.”) (citations omitted). Even if
Father had successfully preserved this issue, it still would merit no relief.
The record indicates that Father became aware that Mother had a camper
after Child mentioned it to him sometime in 2014, at the latest. See N.T.,
8/18/2015, at 30. Father asked Mother for the location of the camper on
only one occasion, and Mother provided Father with the address within forty-
eight hours. Id. at 56; Exhibit D-11. The record does not suggest that
Mother concealed either the existence or the address of her camper from
Father.

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its final decision. Therefore, the . . . issue raised by [Father] is irrelevant.”

Trial Court Opinion, 10/27/2015, at 3

After a thorough review of the record in this matter, we conclude that

the trial court did not commit an error of law or abuse its discretion.

Initially, we observe that the record supports the trial court’s statement

during the custody hearing that Mother’s camper is not a residence. During

the hearing, Mother testified that she has no schedule for how often she

visits the camper, and that it is a “vacation spot,” and not a home. N.T.,

8/18/2015, at 99-101. There was no testimony indicating that Mother keeps

her personal belongings there, or that she keeps Child’s personal belongings

there.

In addition, even if Father were correct that Mother spends a

significant amount of time residing in her camper in New Jersey, it is not

clear why Father believes this would warrant a reversal of the trial court’s

custody order. In his brief, Father insists that the trial court’s conclusion

that Mother’s camper is not a residence is “not a harmless error,” because it

is “critically linked and central to [Child’s] safety, among other things.”

Father’s brief at 27. However, there was no evidence presented during the

custody hearing which would suggest that Mother’s camper is unsafe, nor

was there evidence indicating that Mother’s trips to and from the camper are

unsafe. Father completely fails to explain what “other things” he is referring

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to. This Court will not reverse the subject custody order based on Father’s

unsupported allegations and speculation.

Father’s second issue is that the trial court erred and/or abused its

discretion by failing to craft a custody order which remedies the

“unreasonable, cumbersome, and regular shuffling” of Child between

Father’s residence, Mother’s residence, and Mother’s camper in New Jersey,

among other locations. Father’s brief at 27-35. Father contends that Child

is subjected to frequent travel, which places “a serious burden” on Child, and

which risks his safety. Id. at 28-31. Father states that Mother’s trips with

Child are dangerous, given her “fatigue, anxiety, Lyme disease, [and]

Fibromyalgia, not to mention the prescribed medications she takes….” Id. at

31. Father also contends that Child has regular contact with only one of his

half-siblings in New Jersey, and that “it would be better to have [that

sibling] travel the distance, as opposed to [Child]….” Id. at 29. Father

emphasizes that it was Mother’s relocation to Wayne County in 2011 that

caused Child to be subjected to these lengthy trips, and suggests that this

situation would be improved upon if Child resided primarily with him, since

Mother’s other children and her camper in New Jersey are closer to Father’s

residence in Bucks County. Id. at 30, 33.

During the custody hearing, the trial court agreed with Father that the

amount of time Child spends traveling is concerning. N.T., 8/18/2015, at

121 (“You’re right, that’s bothering me the traveling back and forth from

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Philly six or seven hours. That’s bothering me. So, I might correct that.”).

In its opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii), the court acknowledged

that there is a significant distance between Father’s residence and Mother’s

residence, and between Mother’s residence and the residence or residences

of Child’s half-siblings in New Jersey. Trial Court Opinion, 10/27/2015, at 2.

However, the court found that it is in Child’s best interest to maintain a

relationship with both Mother and Father, and with his half-siblings. Id.

The court reasoned that long travel times for Child are unavoidable. Id.

We agree with the trial court that it is in Child’s best interest to

maintain a relationship with both Mother and Father, and with his half-

siblings, and that there is simply no way to eliminate long travel times for

Child. We emphasize that there was no testimony during the custody

hearing that Mother’s medical conditions are so severe as to make her trips

to New Jersey unsafe, other than a single statement by Father that Mother’s

condition is “debilitating.” N.T., 8/18/2015, at 49. Further, the record does

not indicate that Mother travels to and from New Jersey with such frequency

that it would create an unreasonable safety risk to Child. While it may be

true that Child’s traveling time could be reduced if Child resided primary with

Father, it was for the trial court, not this Court, to weigh that consideration

against other evidence presented during the custody hearing. Because the

record supports the trial court’s decision to maintain primary physical

custody with Mother, we discern no error of law or abuse of discretion.

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Father’s third issue is that the trial court erred and/or abused its

discretion by not ordering Mother to relocate to Bucks County. Father’s brief

at 35-41. Father acknowledges that custody courts are not empowered to

issue orders requiring parents to relocate. Id. at 40. However, Father

insists that the trial court could “certainly make primary custody conditional

upon a parent remaining to live or moving to a designated place, town, or

residence.” Id.

We again conclude that Father is not entitled to relief. As observed by

both Father and the trial court, the Child Custody Act does not empower

courts to order parents to relocate. See Trial Court Opinion, 10/27/2015, at

2-3. While Father insists that the trial court could have awarded primary

physical custody to Mother contingent upon her relocation to Bucks County,

Father did not include this issue in his concise statement of errors

complained of on appeal. Father’s concise statement makes no mention of

the idea that the trial court should have made custody contingent upon

relocation, and instead indicates only that the court should have ordered

Mother to move. See Statement of Errors Complained of on Appeal

Pursuant to Pa.R.A.P. 1925(a)(2), 9/21/2015, (“Did the trial court err and/or

abuse its discretion in not ordering Mother to move with the minor child to

the Bucks County area….”). Thus, this claim is waived. See Krebs, 893

A.2d at 797.

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Father’s fourth issue is that the trial court erred and/or abused its

discretion by denying his petition for primary physical custody. Father’s

brief at 41-51. Father challenges the trial court’s findings with respect to

several of the Section 5328(a) factors. Specifically, with respect to Sections

5328(a)(1) and (13), Father observes that the trial court weighed these

factors in favor of Mother because she agreed to an alternating week

custody schedule with Father during the summer. Id. at 42, 50-51.

However, Father claims that Mother only agreed to this change “because she

feared that her misrepresentations to the [c]ourt at the 2014 custody trial

regarding continued treatment of [Child] by Cindy Duffy and Wayne County

Intervention Services, would be exposed if the summer custody dispute

proceeded to a hearing.”5 Id. at 42-43. Father also emphasizes that Mother

requested that Father’s summer custodial periods be reduced in her most

recent parenting plan. Id. at 43, 51.

With respect to Section 5328(a)(2), Father states that a restraining

order was entered against Mother in New Jersey after she allegedly

“assaulted her first ex-husband and his mother in front of Mother’s three

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5
Reportedly, Mother stated during the 2014 custody proceedings that Child
would continue to receive treatment from both Ms. Duffy and Wayne County
Early Intervention Services. See Father’s brief at 14, 42-43. According to
Father, these statements were misrepresentations because Child only saw
Ms. Duffy on four occasions following the 2014 custody proceedings, and
Child was discharged from Wayne County Early Intervention Services in June
of 2014. Id. at 14.

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other children….” Id. at 44-45. Father states that Mother failed to report

the existence of the restraining order in the criminal affidavit submitted

during the prior custody proceeding. Id. at 44-46. According to Father, this

demonstrates that “Mother and her biological father do get involved in fights

with their ex in-laws in front of her other children,” which “poses a threat

and risk of harm to [Child] given the nature of the relationship Mother has

with Father.” Id. at 45.

With respect to Sections 5328(a)(4) and (10), Father contends that

the trial court erroneously concluded that Mother has helped to improve

Child’s diet, and that Child is more unwilling to eat after returning from his

visits with Father. Id. at 46, 49-50. According to Father, Mother has not

improved Child’s eating habits, as Child continues to eat the same things

that he was eating during the last custody hearing. Id. at 46. Father also

questions the testimony of Child’s pediatrician, Dr. Robert Morton, who

indicated during the custody hearing that he did not believe it was necessary

for Child to receive treatment from a feeding specialist or a nutritionist. See

N.T. 8/18/2015, at 70-71, 83. Dr. Morton noted during his testimony that

he was unable to review Child’s medical chart, because the chart is stored

electronically, and “Our computer system … crashed this morning….” Id. at

73, 82. Father claims that Dr. Morton was lying when he claimed that

Child’s chart was unavailable, and that “it is abundantly clear that [the]

pediatrician decided to advise Father … that [Child’s] chart was unavailable,

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at the behest of Mother’s attorney, and some other person or entity.”

Father’s brief at 48.

We again discern no error of law or abuse of discretion. Concerning

Sections 5328(a)(1) and (13), it was reasonable for the trial court to weigh

these factors in favor of Mother, given that she agreed to expand Father’s

periods of physical custody during the summer. Mother’s actions suggest a

willingness to promote Child’s relationship with Father, and to cooperate with

Father. While Father suggests that Mother only agreed to expand his

periods of physical custody due to an ulterior motive, this claim, like the

majority of Father’s others claims, is mere speculation.

Concerning Section 5328(a)(2), Mother conceded during cross-

examination that a restraining order was entered against her in New Jersey

“many years ago.” N.T., 8/18/2015, at 109. When Father asked Mother

whether the order was entered as a result of an assault on Mother’s ex-

husband, Mother’s counsel objected on the basis of relevance, and the trial

court ultimately sustained counsel’s objection on the basis that it was

outside the scope of Mother’s direct examination.6 Id. Thus, there was no

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6
While Father asserts that the trial court’s evidentiary ruling was unfounded,
he does not cite to any authority in support of the proposition that the court
erred by sustaining counsel’s objection, nor did he preserve a challenge to
the court’s ruling in his concise statement or statement of questions
involved. See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011), appeal
denied, 24 A.3d 364 (Pa. 2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa.
Super. 2010)) (“‘[W]here an appellate brief fails to provide any discussion of
(Footnote Continued Next Page)

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evidence admitted during the custody hearing that Mother assaulted her ex-

husband, nor was there any evidence which proves that Mother continues to

“get involved in fights,” as Father suggests. Moreover, the record indicates

that a PFA order was entered against Father in 2011. Both parents have

been the subject of PFA proceedings, or their New Jersey equivalent, and the

existence of a restraining order against Mother does not prove that she

poses any more of a risk to Child than Father does.7

Concerning Sections 5328(a)(4) and (10), Mother testified during the

custody hearing that she has implemented an award system for Child,

whereby Child is not permitted to engage in certain activities, like going to

the park the following day, if he fails to eat appropriate amounts of food.

N.T., 8/18/2015, at 90-91, 93. Mother stated that Child is continuing to

make progress with his diet and eating habits. Id. at 88-90, 92, 102.

Mother expressed concern, however, that Father discusses Child’s eating

habits during “every conversation” that Mother witnesses between Father

and Child, and that these conversations cause Child to “shut[] down.” Id. at

94. Mother noted that Child displays “consistent regression” when he

_______________________
(Footnote Continued)

a claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.”’); Krebs,
893 A.2d at 797.
7
In his reply brief, Father states that he agreed to a “no-fault, no admission
of liability final PFA” after Mother “accus[ed] him of ‘breaking into’ the
parties former marital home….” Father’s Reply Brief at 1.

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returns from Father’s periods of physical custody, in that he is “[m]uch more

resistant when he comes home, as far as our routine and not wanting to eat

certain things and get out of it.” Id. at 94, 114. The trial court was free to

credit Mother’s testimony that she has improved Child’s diet, and that

Father’s custodial periods have an adverse impact on Child’s eating habits.

Additionally, we stress that Father’s allegation that Dr. Morton was lying

when he stated that he did not have access to Child’s chart is completely

baseless and unsupported by the record.

Father’s fifth issue is that the trial court erred and/or abused its

discretion by exhibiting “blatant partially, bias and/or ill will towards

Father….” Father’s brief at 52-62. In the first portion of Father’s argument,

he contends that the trial court “has obviously taken the erroneous position

that Father filed the underlying custody petition to harass Mother and to

attempt to discredit the lower court’s February 18, 2014 custody order….”

Father’s brief at 53. Father then proceeds to challenge the trial court’s

alleged position. Id. at 53-55. In the second portion of his argument,

Father points to numerous incidents during the custody trial that he says

demonstrate the trial court’s bias. Id. at 55-62. Father insists that he was

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“repeatedly scolded, chastised, challenged and interrupted by the [trial]

court….”8 Id. at 62.

In its opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii), the trial court

explained that it based its decision to maintain primary physical custody with

Mother not on bias against Father, but on Father’s failure to establish that a

change in custody would be in Child’s best interest. Trial Court Opinion,

10/27/2015, at 3. The court emphasized Mother’s success in improving

Child’s eating habits, Child’s regression after returning from Father’s periods

of partial physical custody, and the testimony of Dr. Morton that Child’s

physical development is within the normal range. Id.

Father’s fifth issue does not entitle him to relief. First, we observe that

Father offers no explanation as to why he believes that it is obvious that the

trial court viewed his petition to modify as a means of harassing Mother or

“discrediting” the prior custody order. This Court will not accept Father’s

unsupported accusations concerning the trial court’s motives as a basis to

reverse the subject custody order. Second, our review of the record has

uncovered no evidence indicating that the trial court’s decision in this matter

____________________________________________

8
Father also theorizes that the trial court attempted to “appeal proof” of this
matter by exaggerating the importance of Child’s medical treatment in
Wayne County, and engaging in “the arbitrary and capricious weighing of
certain custody factors in favor or Mother….” Father’s brief at 58-62.
Because we have already concluded that the trial court’s findings with
respect to the relevant custody factors are supported by the record, we need
not address this issue a second time.

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was the result of partially, bias, or ill will against Father. While it is true that

the trial court appears to have become frustrated with Father due to the

repetitive nature of his testimony, inter alia, the court also became

frustrated with Mother’s counsel due to similar issues. See, e.g., N.T.,

8/18/2015, at 67 (responding to a question by Mother’s counsel by stating,

“I don’t want to hear that. I’ve heard it I don’t know how many times. I

don’t want to hear it from either of you anymore!”). Critically, as discussed

throughout this memorandum, the trial court’s decision to deny Father’s

petition for primary physical custody is supported by competent evidence of

record, and the court issued two opinions in which it thoroughly articulated

the reasons for its conclusion. Neither the court’s decision, nor its

reasoning, suggests that the court was motivated by anything other than

entering a custody order in the best interest of Child.

Accordingly, because none of Father’s claims entitles him to relief, we

affirm the order of the trial court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/4/2016

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