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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.W. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
M.S.
Appellee No. 1810 WDA 2015
Appeal from the Order November 4, 2015
In the Court of Common Pleas of Crawford County
Civil Division at No(s): F.D. 2014-198 V
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED MAY 06, 2016
Appellant, R.W. (Mother), appeals from the November 4, 2015 order
granting Appellee, M.S. (Father), primary physical custody of their minor
son, X.S. After careful review, we affirm.
The relevant factual and procedural history, as gleaned from the
certified record, is as follows. X.S. was born in August 2010. While the
details are not clear from the record, Mother and X.S. previously resided in
Mississippi. In July 2013, Mother relocated with X.S. to Crawford County,
Pennsylvania. Mother currently resides in Crawford County with her parents,
her fiancé, A.F, and her daughter, P.W., who is the child of A.F. 1 Father
resides in Alabama with his wife, S.S., their daughter, and Father’s
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1
Mother also has a third child, who resides in Mississippi with her father.
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stepdaughter. Father also has partial physical custody of his daughter from
a previous marriage.
On May 30, 2014, Mother filed a petition for modification of custody in
Crawford County.2 The trial court entered an order on December 9, 2014,
awarding Mother primary physical custody of X.S., and awarding Father
partial physical custody during the summer. Both parents were awarded
shared legal custody. On April 22, 2015, Mother, acting pro se, filed a
petition to modify the December 9, 2014 order. A custody mediation took
place on May 22, 2015, and, on May 29, 2015, an order was entered which
reduced Father’s partial physical custody of X.S. during the summer of 2015.
Mother filed a third petition for modification of custody on July 9, 2015,
which resulted in an additional custody mediation on July 30, 2015. On
August 3, 2015, the trial court entered an order which slightly extended
Father’s partial physical custody during that summer. On August 18, 2015,
Father, also acting pro se, filed a request for a de novo custody hearing.
A de novo custody hearing took place on October 21, 2015, during
which Mother was represented by counsel, and Father remained pro se.
During the hearing, the trial court heard the testimony of Mother; Father’s
wife, S.S.; Father; the maternal grandmother of X.S., E.W.; the maternal
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2
Mother averred in her petition that a custody order had previously been
entered on March 27, 2014, in the Chancery Court of Itawamba County,
Mississippi, pursuant to which Mother was awarded primary physical custody
of X.S. See Petition to Modify Custody, 5/30/2014, at ¶ 4, Exhibit 1.
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grandfather of X.S., R.W.; and Mother’s fiancé, A.F. On November 4, 2015,
the trial court entered the subject custody order awarding primary physical
custody of X.S. to Father, and awarding Mother partial physical custody
during the summer. The trial court awarded the parents shared legal
custody. On November 13, 2015, Mother timely filed a notice of appeal and
concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i).3
On appeal, Mother raises the following issue for our review.
Did the [trial c]ourt err in awarding primary custody
of the parties’ minor child to [Father] and only
visitation to [Mother], based on a review of the
custody factors and the determination of the best
interest of the child?
Mother’s Brief at 16.
We consider this issue 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
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3
That same day, Mother filed a motion to suspend the trial court’s
November 4, 2015 order pending this appeal, which was denied by the trial
court the same day. Further, on November 16, 2015, the trial court adopted
its November 4, 2015 opinion for purposes of Rule 1925(a).
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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)
(citation omitted). The factors to be considered by a court when awarding
custody are set forth at 23 Pa.C.S.A. § 5328(a).
§ 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) (relating to consideration of child
abuse and involvement with protective
services).
(3) The parental duties performed by each
party on behalf of the child.
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(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.
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(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.A. § 5328(a).
Instantly, the trial court issued a thorough opinion, discussing each of
the Section 5328(a) factors, and explaining its decision to award primary
physical custody of X.S. to Father. Trial Court Opinion, 11/4/15, at 2-6.
The trial court found that Sections 5328(a)(2), (2.1), (4), (5), (7), (8), (12),
and (14) did not weigh in favor of either parent. Id. at 3-5. The trial court
concluded that Sections 5328(a)(1), (6), (9), (10), (11), (13), (15), and
(16) weighed in favor of Father, and that Section 5328(a)(3) weighed in
favor of Mother. Id. at 2-5. Further, the trial court emphasized that Mother
has done everything in her power to make it difficult for Father to spend
time with X.S. Id. at 2, 4-5. The trial court acknowledged that Mother
testified during the custody hearing that she would try to be more
cooperative in the future, but it rejected this testimony as incredible. Id. at
3. The trial court also explained that it believed Father would be able to
provide a more loving and stable environment for X.S. because Father
“appears to be more level[-]headed and truthful” than Mother, and because
Father’s wife can assist him in caring for X.S. Id. at 4-5.
In response, Mother discusses the trial court’s analysis with respect to
the Section 5328(a) factors, and offers her own interpretation as to how the
trial court should have evaluated the evidence presented during the custody
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hearing. The crux of Mother’s argument appears to be that it was improper
to award primary physical custody to Father because X.S. has spent the
majority of his life residing with Mother, and because Mother is not
employed and has more time than Father to care for X.S. Mother’s Brief at
18, 22-25. Mother insists that she did not maliciously attempt to prevent
Father from exercising partial physical custody of X.S. Id. at 21-22, 25.
Mother also asserts that there was little evidence presented during the
hearing which indicated that Father’s home in Alabama is an appropriate
place for X.S., and that there was no evidence indicating that intellectual
limitations would prevent anyone in Mother’s home from caring for X.S. Id.
at 21-26. Mother suggests that the trial court awarded primary physical
custody to Father because the trial court wanted to punish Mother, and that
the trial court acted harshly by making this award when there were less
“punitive” measures available.4 Id. at 22, 27.
After a thorough review of the record in this matter, we conclude that
the trial court did not abuse its discretion or commit an error of law. During
the custody hearing, Father testified concerning Mother’s refusal to
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4
Mother also states in her brief that the trial court’s analysis of the Section
5328(a) factors “seems to hearken back to the previous orders that had
been rendered in this case. This would be error, based on cases such as
M.E.V. v. F.P.W., 100 A.3d 670, [(Pa. Super. 2014)], which require a
contemporaneous review of the circumstances.” Mother’s Brief at 20-21.
We find no support for this claim, as our review of the trial court’s opinion
makes clear that the trial court based its decision on the circumstances as
they existed at the time it entered the subject custody order.
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cooperate with Father and Mother’s efforts at preventing Father from having
any sort of relationship with X.S. Most notably, Father described an incident
that took place during the previous summer, when Father drove from
Alabama to Pennsylvania to pick up X.S. for his court-ordered period of
partial physical custody. Father explained that he and his wife, S.S., were
driving through Kentucky when Mother sent a text message stating that she
would not permit Father to have custody of X.S., due to X.S. having medical
appointments. N.T., 10/21/15, at 27. Mother stated that Father and S.S.
could visit X.S. at Mother’s home, but that they could not leave with X.S.
Id. After arriving at Mother’s home, Father asked Mother if he could take
X.S. to KFC for mashed potatoes, and then to Walmart to purchase a
birthday present. Id. at 28. Father told Mother that he would bring X.S.
back to Mother’s home afterward, and Mother consented to this plan. Id.
Instead, Father and S.S. drove back to Alabama with X.S. Id.
During her direct examination, Mother denied sending Father a text
message stating that he would not be permitted to exercise his period of
partial physical custody. Id. at 50. Mother stated, “I didn’t say I was going
to cancel [the period of partial physical custody]. I asked him if he wanted
to work with me around his appointment time, like, if I can get him today for
his appointment, or if I have to cancel his appointment.” Id. Mother
insisted that she intended to allow Father to take X.S. that day. Id. at 51.
Mother testified that Father told her he would bring X.S. back to her home
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after taking him to KFC and Walmart. Id. Instead, Father departed for
Alabama without taking any of the clothing that Mother had packed for X.S.,
or his medications. Id. at 51-52.
On cross-examination, Father confronted Mother with the text
message in question. According to Father, the message contained the
following content.
[T]hey told me at the courthouse I do not have to
give him to you and that you can take me for
contempt of court, but as long as I have proof that
he had to be in Wexford in two weeks, the Judge will
not do anything…. I talked to the courthouse
themselves. I cannot afford them hospitals out of
state and his insurance does not cover down there,
so he cannot go with you because he has to be in
Wexford in two weeks. I am sorry, [Father]. You
can come visit him while you’re up here, but you’re
not taking him. He is staying here. I am taking it
back to court.
Id. at 54-55. Mother admitted that she sent the text message as described
by Father. Id. at 55. However, Mother continued to claim that she did not
refuse to allow Father to exercise his period of partial physical custody. Id.
at 57.
Additionally, Father cross-examined Mother concerning alleged
criminal activity. Father asked Mother if she had any recent “run-ins” with
the police, and Mother denied that this was the case. Id. at 11. Father
attempted to impeach Mother using a copy of a police report, but the trial
court sustained the objection of Mother’s counsel, reasoning that the report
was hearsay. Id. at 11-12. Later, the trial court asked Mother if she had
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been convicted of any crimes, and Mother replied that she had. Id. at 71.
When asked what crime she was convicted of, Mother replied, “I was
supposed to throw a pot at [A.F.] and hit him in the face.” Id. at 72. Upon
further questioning by the trial court, Mother stated that she believed she
was convicted of simple assault.5 Id.
Thus, the record supports the trial court’s decision to award primary
physical custody to Father. While it is true that Mother has cared for X.S. for
the majority of his life, and that Mother has more time to care for X.S.
because she is unemployed, it was reasonable for the trial court to conclude
that these considerations were outweighed by other evidence presented
during the custody hearing. Awarding primary physical custody of X.S. to
Father will allow X.S. to establish a relationship with Father, while also
allowing X.S. to maintain his existing relationship with Mother. In contrast,
allowing Mother to maintain primary physical custody of X.S. would be
potentially disastrous, as Mother has demonstrated that she is unwilling to
permit a healthy relationship between X.S. and Father.
In reaching this conclusion, the trial court emphasized the following.
[W]e note that when the Order was entered on
December 8, 2014 we found that [M]other was not
particularly cooperative in providing [F]ather with
custodial time with [X.S.] At that time it was a very
close call as to who should have primary physical
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A.F. testified that Mother was mistaken, and that she actually pled guilty to
disorderly conduct. N.T., 10/21/15, at 94.
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custody of [X.S.] and we granted [M]other primary
physical custody, mainly because [X.S.] had been
with her during his lifetime leading up to that
hearing.
It is obvious from the many aspects of the
[October 21, 2014] testimony at [the] De Novo
hearing that [M]other has continued to make it
difficult for [F]ather to have custody with [X.S.] and
to communicate with [X.S.] and we did not find
[M]other’s testimony to be particularly credible.
Trial Court Opinion, 11/4/15, at 2.
In light of the foregoing reasoning, as well as the trial court’s
discussion of the custody factors, it is abundantly clear why the trial court
concluded that Father will be able to provide a more loving and stable
environment for X.S. Mother’s testimony during the custody hearing was
confusing and inconsistent, which supports the trial court’s determination
that Father is “more level[-]headed and truthful” than Mother, and Mother’s
relationship with A.F. appears to be unstable and possibly violent given her
recent criminal conviction. While Mother contends that the trial court
awarded primary physical custody to Father because the court wanted to
punish Mother, our review of the record belies this assertion, and confirms
that the court based its decision on the best interests of X.S.
Based on the foregoing, we conclude the trial court did not abuse its
discretion or commit an error of law. Accordingly, we affirm the trial court’s
November 4, 2015 order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2016
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