J-A13015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.A.F., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
R.A.F.,
Appellee No. 1994 WDA 2015
Appeal from the Order entered November 23, 2015,
in the Court of Common Pleas of Erie County,
Domestic Relations, at No(s): 12741-2004
BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 20, 2016
M.A.F. (“Mother”) appeals from the order dated and entered on
November 23, 2015, that awarded R.A.F. (“Father”) legal and physical
custody of the parties’ two minor, male children, P.F. (born in March 2001),
and B.F. (born in July 2002) (“the Children”).1 The order did not provide for
Mother to have holiday visitation, outside of her regularly-scheduled
visitation days.2 We affirm.
1
The parties’ oldest child, C.F., a female born in April 1998, is not part of
this appeal.
2
Although the trial court’s order provided that Father has “full” legal and
physical custody, and Mother has visitation, the Child Custody Act, (the
“Act”), 23 Pa.C.S.A. § 5323(a), does not provide for “full” custody or
visitation. Thus, we treat the trial court’s order as awarding Father “sole
legal custody,” “primary physical custody,” and Mother “partial physical
custody,” as those terms are set forth and defined in that section of the Act.
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The trial court set forth the factual background and procedural history
of this appeal, as follows.
Mother filed a [c]omplaint for [c]ustody in November 2012. An
[o]rder was entered in February 2013 giving the parents shared
physical and legal custody of the Children. Since the time of the
original order, multiple filings for [s]pecial [r]elief and other
emergency petitions were filed by both parties. Many of the
petitions filed by Father addressed his concerns regarding
Mother’s treatment of the oldest child, [C.F.], and the middle
child, [P.F.].
The parties were first before th[e trial] court to resolve custody
and visitation disputes in 2015. In May 2015, a temporary order
was entered giving Father full physical and legal custody of the
minor children. The oldest child, [C.F.], was permitted to stay
with [] Father and make her own decision regarding if and when
visitation with [] Mother would take place. The middle and
youngest children were to have supervised visits with [] Mother.
Additionally, the parents were ordered to undergo a
psychological evaluation. Mother was not permitted to contact
the two youngest children by phone, text, or email while in
Father’s care without Father's permission. The matter was
schedule for a [90-]day review.
Before the review hearing was held, problems continued to
surface. In June 2015, Father filed an emergency petition
alleging [] Mother disregarded the order’s no-contact provision
by engaging in an exchange of picture and text messaging via
social media with [P.F.]. Mother filed a counter-petition, alleging
Father was in contempt of court for unilaterally ceasing [P.F. and
B.F.’s] supervised visits with [] Mother. At the end of this
hearing, th[e trial] court entered a temporary order, pending
another review hearing in [90] days. The final hearing took
place on November 20, 2015. Findings of fact regarding the
statutory best interests factors were reduced to writing and filed
on the same day a final order was entered. This appeal
followed.
Facts
The crux of the dispute between Mother and Father stems from
custody and visitation with the middle child, [P.F.], and the
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youngest child, [B.F.]. Custody and visitation with the oldest
child, [C.F.], was not an issue. [N.T. Custody Trial, 8/26/15, at
6]. The emotional and mental well-being of the middle child,
[P.F.], was the greatest concern to the trial court at the time of
the review hearing in May 2015, and the most recent trial in
November 2015. Among those who testified at the hearing in
August were Dr. Anthony DeMarco, Mother’s court-ordered
psychological evaluator[;] [] Father[;] the Children in camera[;]
and [] Mother. Several exhibits showing the social media
contact between [] Mother and [P.F.] were also admitted.
The testimony of Dr. DeMarco showed [] Mother currently suffers
from generalized anxiety disorder. [Id. at 22]. He
recommended continued treatment with her current therapist
and psychiatrist. According to the doctor, the diagnosis of
generalized anxiety disorder would not, in and of itself, prevent
Mother from being a good parent. Many other factors needed to
be considered outside the scope of his evaluation to make this
determination. [Id. at 23 and 26].
However, further testimony showed Mother’s mental health and
its effect on [P.F.], called into doubt her ability to successfully
parent.
There is no question Mother had contact with [P.F.] after the
court’s no contact order and that the contact adversely affected
him. Father testified he became concerned about [P.F.] when
[P.F.] started to uncharacteristically lash out at his brother and
sister. [Id. at 49-50]. [C.F.] confirmed [P.F.’s] outbursts. She
reported [P.F.] had frequent meltdowns, cried inconsolably and
without warning, and also had trouble sleeping. [Id. at 146 and
148]. She further reported that after living full time with their
father, [P.F.] was doing much better. He [was not] picking
fights, “freaking out” as much, and was sleeping better. [Id. at
146].
Soon after the initial outbursts began, Father and step[-]mother
accessed [P.F.’s] iPod and discovered [P.F.] had contact with his
mother via the social media platforms of [Snapchat] and
Instagram. Much of this contact occurred after the trial court
issued its order prohibiting [] Mother from contacting the
Children while in [] Father’s care. [Id. at 51]. Father and step-
mother took “screen shots” of these messages, which were
admitted into evidence. This [c]ourt also viewed some of the
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messages directly from [P.F.’s] iPod and determined many were
sent subsequent to the entry of the no-contact order. [Id. at
114, 117, and 153].
Not only were the messages sent in violation of a court order,
their content was inappropriate. The Instagram photographs
depicted [] Mother wearing a variety of different wigs and make-
up. Additional pictures illustrated Mother with her eyes closed,
and were captioned “dreaming of getting my boys back.”
Another photograph depicted [] Mother as partially nude and
pregnant captioned “Me carrying my second baby who I thought
I would never have. . . .” Numerous other messages targeted to
the child discussed parental alienation. Many of these
photographs were accessed, viewed by, and “liked” by [P.F.].
Mother’s testimony, though vague and evasive, confirms she
directed [P.F.] to access much of this media. In response to a
question asking her whether she contacted [P.F.] via social
media after the May 2015 court order, she responded “I think I
did[,]” despite clear evidence she contacted [P.F.] dozens of
times. [Id. at 108]. She also then went on to deny and then
quickly admit her attempts to contact [P.F.] via the Instagram
messaging system. [Id. at 113]. Later, Mother also confirmed
she encouraged [P.F.] to “like” or view pictures she posted. [Id.
at 114]. At one point, Mother attempted to back pedal and
explain away her actions by testifying she meant “I posted these
pictures, but you [P.F.] haven’t said you liked them. It’s up to
you if you want to put hearts or not. It’s not that he didn’t like
the pictures. He may not have seen them.” [Id. at 116]. Much
of Mother’s testimony proceeded in this way. She conveniently
only remembered what she wanted. [Id. at 154].
A barrage of text messages recovered by Father and step-
mother showed another facet of Mother’s consistent attempts to
contact [P.F.]. In several instances, [P.F.’s] account contained
numerous rapid[-]fire messages from [] Mother, without a
response from him. [C.F.] explained when [P.F.] was at his
worst emotionally, she believed it was because “he felt really
nervous because he knew he shouldn’t have been doing it,
[messaging the mother] but he felt bad because she told him
that he should be doing it, but he knew that he shouldn’t.” [Id.
at 144]. This notion is corroborated by [P.F.’s] responses in his
correspondence with [] Mother. Many times, when [P.F.] did
respond, it was to warn [] Mother that “they” knew the two of
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them were texting, that he didn’t want them to get caught and
for her to get in trouble, and that she needed to act “normal” in
court so they could see each other again.
[P.F.’s] testimony showed that though he is a bright, articulate,
and sensitive child, he is also very troubled because he has been
placed in the middle of his parents’ bitter dispute. He clearly
loves his mother and, at minimum, given a choice, would want
to go back to 50/50 custody. [Id. at 136]. Though he said he
missed his mother and wanted to be with her, he also said much
of it stemmed from wanting to be there for her because
sometimes she “doesn’t know what she’s doing” and that she
needs help. [Id. at 129-130 and 135]. He was obviously very
conflicted. [P.F.] testified he still participates in counseling
frequently and is on medication for anxiety. [Id. at 131-132].
He also admitted to having initiated some of the contact with []
Mother via contact [in] Instagram and [Snapchat]. [Id. at 129].
At the final hearing in November [2015], oral and written
findings of fact[,] analyzing the best interest factors required by
23 Pa.C.S.A. § 5323[,] were entered concurrent with the final
order which is the subject of this appeal.
Trial Court Opinion, 1/19/16, at 1-6 (some internal capitalization omitted).
On November 23, 2015, the trial court entered the order that awarded
Father legal and physical custody of P.F. and B.F. The custody order did not
provide for Mother to have holiday visitation, outside of her regularly-
scheduled visitation days. On November 23, 2015, the trial court also
entered a separate order making findings of fact pursuant to 23 Pa.C.S.A.
§ 5328(a), prepared following the hearing on November 20, 2015, which we
incorporate herein. On December 18, 2015, Mother timely filed a notice of
appeal and concise statement of errors complained of on appeal.
In her brief on appeal, Mother raises the following issues:
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A. Whether the trial court erred and/or abused its discretion
when it failed to consider the Children’s best interest in
fashioning a holiday schedule for [Mother]?
B. Whether the trial court erred and/or abused its discretion
when it found that Mother suffered from a mental health
condition that impacted her ability to care for the Children?
C. Whether the trial court erred and/or abused its discretion
when it gave little weight to the Children’s preference?
D. Whether the trial court erred and/or abused its discretion
when it granted Father full legal custody of the Children?
E. Whether the trial court erred and/or abused its discretion
when it found Mother attempted to turn Children against Father?
F. Whether the trial court abused its discretion as its findings
were against the weight and not supported by the evidence
supported [sic] at trial?
Mother’s Brief at 8.
As the custody trial in this matter was held in August and November of
2015, the Act, 23 Pa.C.S.A. §§ 5321-5340, is applicable. C.R.F. v. S.E.F.,
45 A.3d 441, 445 (Pa. Super. 2012) (holding that, if the custody evidentiary
proceeding commences on or after the effective date of the Act, i.e., 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,
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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.
Id. at 443 (internal citations omitted).
We have stated:
[t]he 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 (internal quotations 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.A. §§ 5328 and 5338.
Section 5338 of the Act provides that, upon petition, a trial court may
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modify a custody order if it serves the best interests of the child. 23
Pa.C.S.A. § 5338. Section 5328(a) of the Act, 23 Pa.C.S.A. § 5328(a), sets
forth the best interest factors that the trial court must consider. See E.D. v.
M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011).
Section 5323 of the Act provides for the following types of awards:
(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S.A. § 5323(a).
Section 5323(d) provides that the court shall delineate the reasons for
its decision on the record in open court or in a written opinion or order. 23
Pa.C.S.A. § 5323(d).
Section 5322 of the Act defines the relevant forms of custody as
follows:
§ 5322. Definitions
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(a) This chapter.— The following words and phrases when
used in this chapter shall have the meanings given to them in
this subsection unless the context clearly indicates otherwise:
...
“Legal custody.” The right to make major decisions on behalf
of the child, including, but not limited to, medical, religious and
educational decisions.
...
“Partial physical custody.” The right to assume physical
custody of the child for less than a majority of the time.”
“Physical custody.” The actual physical possession and
control of a child.
“Primary physical custody.” The right to assume physical
custody of the child for the majority of time.
...
“Shared legal custody.” The right of more than one individual
to legal custody of the child.
“Shared physical custody.” The right of more than one
individual to assume physical custody of the child, each having
significant periods of physical custodial time with the child.
“Sole legal custody.” The right of one individual to exclusive
legal custody of the child.
“Sole physical custody.” The right of one individual to
exclusive physical custody of the child.
23 Pa.C.S.A. § 5322.
When awarding any form of custody, Section 5328(a) of the Act
provides an enumerated list of factors a trial court must consider in
determining the best interests of a child:
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§ 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.
(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.
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(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.A. § 5328(a).
This Court has stated that “[a]ll 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) (internal
emphasis omitted). Further,
Section 5323(d) provides that a trial court “shall delineate the
reasons for its decision on the record 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). . . .
In expressing the reasons for its decision, “there is no required
amount of detail for the trial court’s explanation; all that is
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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. With these standards in mind, we turn to the
merits of this appeal.
In its Rule 1925(a) opinion, the trial court analyzed Mother’s issues as
follows:
APPLICABLE LAW AND STANDARD OF REVIEW:
When custody is at issue, the paramount concern is the best
interests of the child[ren]. Consequently, 23 Pa.C.S.A. § 5328
requires this [c]ourt to assess sixteen (16) specific factors as a
framework for determining the best interest of the child[ren].
The statute further requires this [c]ourt to “delineate the reasons
for its decision on the record in open court or in a written opinion
or order.” 23 Pa.C.S.A. § 5323(d).
[]An appellate court is empowered to determine whether
the trial court’s incontrovertible factual findings support
its factual conclusions, but it may not interfere with those
conclusions unless they are unreasonable in view of the
trial court’s factual findings; and thus, represent a gross
abuse of discretion.[]
T.B. v. L.R.M., 874 A.2d 34, 37 (Pa. Super. 2005) (citing
Liebner v. Simcox, 834 A.2d 606, 609 (Pa. Super. 2003). The
standard of review of a visitation order is the same as that for a
custody order. Id.
DISCUSSION
At the time of the final review hearing, the trial court made
findings of fact pursuant to 23 Pa.C.S.A. § 5328 and reduced
these findings to writing. Of the factors listed in the statute,
several are either inapplicable or favor neither party. Those
factors are 23 Pa.C.S.A. § 5328(a)(3), ability to perform parental
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duties; 23 Pa.C.S.A. § 5328(a)(5), sibling relationships; 23
Pa.C.S.A. § 5328(a)(6), availability of extended family; 23
Pa.C.S.A. § 5328(a)(11), proximity of the parties to one
another; 23 Pa.C.S.A. § 5328(a)(12), regarding child-care
arrangements; and 23 Pa.C.S.A. § 5328(a)(14), regarding drug
and/or alcohol abuse.
Each parent was able to feed and clothe the boys properly while
in their care. Both Mother and Father had extended family living
in the area to support them and the [C]hildren if necessary. The
boys got along well with their siblings, and had a good
relationship with each regardless of [in] which home they
stayed. The parties live in close proximity to one another;
transportation and associated costs are therefore inapplicable.
Neither party had a drug or alcohol problem. The boys, ages
[13] and [14], were old enough that ability to make child-care
arrangements was not at issue.
Mother[] first contends that despite the remaining findings of
fact, the trial court failed to consider the [C]hildren’s best
interest when it refused to fashion a holiday visitation schedule
and gave little weight to the [C]hildren’s preferences. The other
facet of Mother’s appeal claims the trial court abused its
discretion making findings of facts that concern[ed] Mother’s
mental health, her ability to care for the [C]hildren, and whether
Mother attempted to turn the Children against [] Father. Each of
Mother’s contentions are without merit.
There is no doubt both parents want to see their children.
However, in light of the contents of the Instagram and
[Snapchat] messages, and Father’s unilateral decision to
terminate [P.F.’s] and [B.F.’s] visitation with [] Mother in June, it
is clear neither parent is likely to encourage or permit frequent
and continuing contact between the boys and the other parent
so long as Mother’s mental health and conduct remain a concern.
Much of Father's decision to keep the boys from [] Mother
stemmed from concern for [P.F.’s] emotional well-being due to
Mother’s actions. A great deal of testimony was presented
showing Mother attempted to influence the boys, especially
[P.F.], in an unhealthy way. Messages and pictures displayed for
[P.F.] to see related were all calculated to alienate him from his
father. The first and eighth factors outlined in 23 Pa.C.S.A.
§ 5328(a)(1) and (8) favor [] Father.
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Emotional abuse on behalf of [] Mother remains a critical part of
this case and poses a continued risk of harm to the two youngest
children. Mother’s constant messaging and contact with [P.F.]
after the trial court issued its no contact order demonstrates
Mother’s predisposition for defiance and inability to think of
others before herself. Mother’s contact with [P.F.] clearly causes
[P.F.] severe emotional trauma, as evidenced by his tearful
demeanor when interviewed in chambers, and his responses to
[] Mother via social media platforms where he urged her to “act
normal” and stated he was afraid he would get his iPod taken
away if “they” knew they were talking. The second factor, as
outlined in 23 Pa.C.S.A. §5328(a)(2), favors [] Father.
The record shows Father is best able to provide a stable
environment conducive to meeting the boys’ needs. [] Father
leads a healthier lifestyle, both physically[] and emotionally,
than Mother. Mother’s diagnosis of generalized anxiety, though
treated with numerous medications, is not enough, standing by
itself, to conclude she could not successfully parent, but is still
problematic, given her actions.
[P.F.’s] constant exposure to Mother’s insecurities and
disobedience to the court order places him [] squarely in the
middle of his [parents’] dispute and has not afforded him the
stable environment he needs in order to flourish. While Mother
may be able to tend to the boys’ educational and physical needs,
she falls short of providing for their emotional, developmental,
and special needs. In many ways, Mother’s behavior leads [P.F.]
to feel he needs to take care of her, be there for her, and remind
her that her actions could get them in trouble.
No evidence was presented [that] Father attempted to involve
[P.F.] or [B.F.] in the dispute in any way, nor was evidence
presented Father suffered from any mental or physical defect.
To the contrary, all testimony presented tended to show [P.F.]
has flourished in the stability of [F]ather’s care.
Though the boys’ condition has improved while living with
[F]ather full time, they still have a long road to travel with
therapy. [P.F.] requires anxiety medication and frequent
counseling. Given the boys progress in [] Father’s home,
despite Mother’s damaging contact, this evidence
overwhelmingly demonstrates it [is] in the boys’ best interests to
maintain stability during the week, whether a holiday falls on a
weekday or not. [] Mother was not denied any of her weekend
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visits; she was merely denied holiday contact if that contact fell
outside the regular visitation schedule thereby upsetting the
status quo.
The fourth, ninth, tenth, and fifteenth factors outlined in 23
Pa.C.S.A. § 5328(a)(4), (9), (10) and (15) favor [] Father and
offer additional insight into how the best interests of [P.F.] and
[B.F.] would be served by Father continuing to have full legal
and physical custody.
Th[e trial] court did not give great weight to [P.F.’s] testimony.
Given the high level of conflict between his parents and its effect
on him, his emotional demeanor and his well-documented need
for counseling, th[e trial] court was not convinced [that]
reverting back to any type of shared custody arrangement was
in his best interests, even if it was what he preferred. Th[e trial]
court was especially concerned with the contact Mother had with
[P.F.] by way of social media and other messaging systems and
the content of these items. [P.F.’s] internal conflict called into
question his ability to give a well-reasoned opinion regarding his
wishes, and whether he was candid with the court, or slanted his
answers to protect [M]other. For these reasons, [P.F.’s]
testimony was not given great weight.
[B.F.], on the other hand, gave the impression he was happy-
go-lucky and care[-]free. He had no preference regarding
custody or visitation. Nor did he seem as outwardly traumatized
as his older brother by their living situation. He reported things
were going well in [F]ather’s home, but that he missed [M]other.
However, no evidence was presented he was targeted by []
Mother in a way similar to his brother. See 23 Pa.C.S.A.
§ 5328(a)(7).
An extremely high level of conflict exists between the parties.
The Children are paying the price for it. However, while in
[F]ather’s care, the testimony shows the [C]hildren do much
better. The thirteenth factor, as outlined in 23 Pa.C.S.A.
§ 5328(a)(13), favors [] Father.
No other relevant factors were applicable to this case. See 23
Pa.C.S.A. § 5328(a)(16).
Trial Court Opinion, 1/19/16, at 6-11 (some internal citations and
capitalization omitted).
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In her first claim on appeal, Mother argues that the trial court failed to
recognize or provide her with a specific holiday schedule in the custody
order. Mother asserts that, prior to the entry of the order, the Children had
enjoyed holidays with her. She contends that, in Erie County, it is common,
if not universal, for custody orders to include a special provision for major
holidays so that the parents may see their children. Mother complains that
the trial court advised her counsel, on the record at the November 20, 2015
hearing, that it would be “a recipe for disaster” to allow her holiday visits
with the Children. N.T. Hearing, 11/20/15, at 22. The trial court found that
continuity and stability were of paramount importance to the well-being of
the Children, especially, P.F. We find the trial court’s decision not to provide
Mother with a specific holiday schedule in the custody order challenged on
appeal is reasonable, given the facts of this case, as found by the trial court.
In her second issue, Mother contends that, in the November 20, 2015
order, the trial court made several findings that she suffered from a mental
health condition that precluded her from effectively parenting the Children.
Mother states that she complied with the trial court’s previous direction to
undergo a psychological evaluation. Mother alleges that the uncontroverted
psychological expert testimony of Dr. DeMarco demonstrated that her
diagnosis is generalized anxiety disorder, and that she is appropriately
receiving treatment for that disorder.
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A court is not obligated to accept the recommendations of experts, so
long as there is competent evidence to support the court’s conclusions in the
record. Masser v. Miller, 913 A.2d 912 (Pa. Super. 2006); Nomland v.
Nomland, 813 A.2d 850 (Pa. Super. 2002). As there is competent evidence
in the record in this matter to support the trial court’s decision, we find no
merit to Mother’s second argument.
In her third issue, Mother asserts that both P.F. and B.F. expressed
their preference to reside primarily with Mother, and that the trial court
improperly disregarded their testimony. Our case law has long held that a
child’s preference is “an important factor that must be carefully considered
in determining the child’s best interest.” Ketterer v. Seifert, 902 A.2d 533,
540 (Pa. Super. 2006). “The weight to be accorded the child’s preference
varies with the age, maturity and intelligence of the child and the reasons
given for the preference.” Grieb v. Driban, 458 A.2d 1006, 1007 (Pa.
Super. 1983). Moreover, we have stated that, “[a]s children grow older,
more weight must be given to the preference of the child.” Id.; see also
Johns v. Cioci, 865 A.2d 931, 944 (Pa. Super. 2004) (holding that the trial
court abused its discretion by giving only limited weight to the preference of
an intelligent and articulate 12-year-old child).
Here, the trial court explained the rationale for its decision. In
addition, in its opinion pursuant to Pa.R.A.P. 1925(a), the trial court
considered the requisite section 5328(a) factors. See Trial Court Opinion,
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1/19/16, at 6-11. Based on these findings, in addition to the Children’s
ages, and especially P.F.’s reasons for wanting to spend more time with
Mother, including helping to protect her from her own actions, the trial
court’s decision to place less weight on the Children’s preference is
reasonable.
In her fourth issue, Mother argues that the trial court awarded Father
sole legal custody of the Children without specifically articulating any
reasons for so doing in its November 20, 2015 findings of fact. In support of
her argument, Mother relies on Yates v. Yates, 963 A.2d 535, 542 (Pa.
Super. 2008), for the factors to be considered in deciding whether to award
shared legal custody. Those factors are as follows: 1) whether both parents
are fit, capable of making reasonable child-rearing decisions, and willing and
able to provide love and care for their children; 2) whether both parents
evidence a continuing desire for active involvement in the child’s life; 3)
whether the child recognizes both parents as a source of security and love;
and 4) whether a minimal degree of cooperation between the parents is
possible. Id. Mother asserts that the trial court did not specifically address
or articulate its reasons for awarding sole legal custody to Father. She urges
that any evidence presented that she is in any way unfit or unable to make
child-rearing decisions was discredited by the testimony of her therapist,
Bobbi Cullers, Dr. DeMarco, and the subsequent expungement of the
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indicated finding of the Erie County Office of Children, Youth and Families
(“OCY”) that she had committed emotional abuse with regard to C.F.
The trial court clearly found lacking the first, third, and fourth prongs
of the Yates test, i.e., whether both parents are fit and capable of child-
rearing; whether the Children find that both parents are a source of love and
security, and whether a minimal degree of cooperation between the parents
is possible. The trial court stated the following at the hearing on November
20, 2015:
THE COURT: . . . This is horribly, horribly sad. I mean, [P.F.’s]
14 years old, and he’s very bright, very, very sensitive, and he is
going to need help from Dr. Baumgratz for a long time, in my
view. And I’m not going to compound that and risk making it
worse. I’m going to do the best I can to bring some semblance
of continuity and stability, even if he doesn’t like it.
So my original order of August 26[, 2015] will stand. Custody is
to remain with the father. Mother gets visitation every other
weekend.
N.T. Hearing, 11/20/16, at 22.
Moreover, the trial court did look at the custody factors set forth in
section 5328 of the Act and considered whether those factors weighed in
favor of giving Father sole legal custody or giving Mother and Father shared
legal custody. Upon consideration of the factors, the trial court determined
that giving Father sole legal custody was in the Children’s best interest.
With regard to factor 5328(a)(1), the trial court found that although
both parents want to see the Children, Mother does try to influence them in
an unhealthy way, so that factor 5328(a)(1) favors Father. N.T. Hearing,
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11/20/15, at 24-25. With regard to factor 5328(a)(2), the trial court found
that, although Mother’s emotional abuse of P.F. had been “indicated,” and
that the finding was under appeal, it was evidence of abuse by Mother of
P.F. Id. at 25-26. The trial court stated that it would not give the finding of
abuse any weight until there was a decision on the appeal. Id. at 25-26.
Regarding factor 5328(a)(4), the trial court found that Father provides the
Children with more stability and continuity in their education, family life, and
community life. Id. at 26. The trial court found that Father is more stable
physically and mentally, and provides the Children with a better
environment. Id. The trial court found that Mother still had serious issues
that she needs to address. Id.
In regard to factor 5328(a)(8), (9), (10),and (15), the trial court found
that Mother had attempted to turn the Children against Father; that Father
was more stable emotionally and that Mother had mental health issues to
address; that Father was more likely to attend to the Children’s daily
physical, emotional, developmental, educational, and special needs; and,
that Mother has mental conditions that make it difficult for her to
successfully parent the Children. Id. at 28-31. Additionally, regarding
factor 5328(a)(13), the level of conflict between the parties and willingness
and ability to cooperate, the trial court found as follows:
THE COURT: If I were to rate the level of conflict between
them on a scale of one to ten, I would rate it as a fifteen. It’s
just – just not good. And unfortunately, the [C]hildren are
paying the price for it. They cannot cooperate. They have not
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been able to cooperate. And I’m not placing blame, it’s just the
way it’s been. So given that, I have to step in and do what I
think is best.
N.T. Hearing, 11/20/15, at 30.
In the conclusion of its Rule 1925(a) opinion, the trial court responded
to Mother’s contention that it improperly awarded Father sole legal custody
by explaining why it determined that she could not successfully co-parent
with Father. The court emphasized that Mother could not cooperate or
comply with court orders regarding custody. The trial court stated, as
follows:
Mother has proved time and time again she is unable to
cooperate or comply with court orders, to the detriment of her
children. The best interests of the boys are best served by
maintaining stability and continuity in [] Father’s home with
regular weekend visits with [] Mother until her mental health
stabilizes and she realizes her children should have a relationship
with their father, despite the negative feelings she may have
towards him.
It is therefore respectfully requested the Superior Court affirm
the trial court’s Order.
Trial Court Opinion, 1/19/16, at 11.
We find no merit to Mother’s argument concerning the trial court’s
failure to consider shared legal custody, as the trial court, in fact, thoroughly
considered shared legal custody. We remind the parties that they must
“isolate their personal conflicts from their roles as parents and that the
children be spared whatever resentments and rancor the parents may
harbor.” In re Wesley J.K., 445 A.2d at 1249.
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In her fifth issue, Mother contends that the trial court ignored Father’s
conduct and instead focused solely on her behavior, concluding that she
attempted to turn the Children against Father. Citing 23 Pa.C.S.A.
§ 5328(a)(8), Mother asserts that the trial court unduly focused on her
conduct in posting matters to social media, and either ignored or excused
the conduct of Father. Mother alleges that the trial court failed to rule on
her contempt petition against Father that had raised several allegations
regarding Father, and his attempts to obstruct Mother’s involvement with
the Children.
We do not agree with Mother’s argument. The trial court appropriately
found from the competent evidence in the record that Mother engaged in
behavior that was impacting the Children in a negative way, especially P.F.,
and that Father was attempting to protect them from her behavior by
providing them stability in an environment in which they have flourished.
Further, the trial court found that there was no evidence that Father
attempted to involve P.F. or B.F. in the dispute between the parents in any
way, nor was evidence presented that Father suffered from any mental or
physical defect. The competent evidence in the record supported the trial
court’s conclusion that Mother was attempting to turn the Children away
from Father, and that her behavior was causing P.F. stress and anxiety.
In her sixth issue, Mother claims that it is clear from a consideration of
the evidence presented, as a whole, from the commencement of the
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hearings through the final hearing on November 20, 2015, that the trial
court’s custody order is contrary to the Children’s best interests.
Specifically, Mother argues as follows:
Mother’s custody rights were suspended on allegations that she
emotionally abused the parties’ oldest child. Once these
allegations were negated and the indicated finding was
expunged, efforts turned to the middle child[, P.F.]. Mother was
indicated for emotional abuse that named [P.F.] as the subject
child. The record shows instance after instance of Father
[s]tonewalling Mother’s efforts to be a part of her children’s
lives. Father’s conduct was ignored. Mother became the focus
for the trial court and only her conduct was considered by the
trial court. Despite Mother providing evidence that she was not
emotionally abusing the [C]hildren, that she did not suffer from
a significant mental health diagnosis and that both she and the
[C]hildren wanted to have increased contact, the trial court
awarded Father full legal and physical custody of the [C]hildren,
which was an abuse of discretion.
Mother’s Brief at 15 (internal footnote omitted). Mother, thus, contends that
the trial court’s decision was against the weight of the evidence.
As stated above, with regard to issues of credibility and weight of the
evidence, we must defer to the trial judge, who viewed and assessed the
witnesses first-hand. The trial court explained the rationale for its decision,
and considered the requisite section 5328(a) factors in its Rule 1925(a)
opinion. The weight that it placed on the testimony is supported by the
competent evidence in the record, and is not unreasonable.
Mother appears to be requesting that this Court make new factual
findings and/or re-weigh the evidence. The trial court’s conclusions, in light
of the trial court’s sustainable findings on each of the custody best interest
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factors, are not unreasonable, nor did the trial court commit an error of law.
C.R.F., 45 A.3d at 443. This Court 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.” Id. After a careful
review of the record in this matter, we find no merit to Mother’s argument.
We, therefore, affirm the trial court’s custody order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2016
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