J-A05029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.A.D., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
A.M.B.,
Appellant No. 1497 WDA 2016
Appeal from the Order Entered September 6, 2016
In the Court of Common Pleas of Clearfield County
Civil Division at No(s): 2009-1952 CD
BEFORE: BENDER, P.J.E., SHOGAN, J. and MOULTON, J.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 3, 2017
A.M.B. (“Mother”) appeals from the order entered on September 6,
2016 that awarded C.A.D. (“Father”) primary physical custody of S.D.
(“Child”), born in February of 2008, and partial physical custody to Mother.
The parties were awarded joint legal custody. After review, we affirm.
In this ongoing custody dispute, the trial court provided the following
procedural history of this case:
The parties were never married but had an intermittent
relationship for approximately 6 years that ended in May of
2012. Mother and Father shared custody of the Child under
several Custody Orders entered by this [c]ourt. On March 31,
2015, Mother filed a Notice of Proposed Relocation with the
[c]ourt seeking to relocate from DuBois, Pennsylvania to St.
Marys, Pennsylvania. The parties appeared before this [c]ourt
on August 18, 2015 for a hearing to consider Mother's Petition
for Relocation and Father's Petition for Custody Modification and
Counter Affidavit Regarding Relocation. On August 26, 2015,
this [c]ourt entered an Order granting Father primary physical
custody in finding that Mother's move to St. Marys, Pennsylvania
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constituted a relocation. Mother filed a timely appeal to the
Superior Court of Pennsylvania. On March 11, 2016, the
Superior Court of Pennsylvania entered an Order which vacated
the August 26, 2015 Order and remanded the case for further
proceedings.[1] … As a result of the August 26, 2015 Order
being vacated, the parties have been following the [c]ourt's
Orders of March 7, 2013, March 12, 2014, and May 27, 2015.
Mother filed a Petition to Open the Record. The [c]ourt held a
hearing on this matter and the matter is now ripe for decision.
The [c]ourt notes that during the hearing in this matter, Mother
withdrew her Request for Relocation and the [c]ourt will now
enter an Opinion and Order relative to Father's Petition for
Custody Modification. The [c]ourt has carefully reviewed the
record, as well as the evidence presented at the hearing, and the
statutory factors as set forth in 23 Pa.C.S. § 5328 and the
[c]ourt is prepared to rule on this matter.
Trial Court Opinion (TCO), 9/6/16, at 1-2 (unnumbered). It appears that as
a result of this Court’s decision in Mother’s first appeal, the trial court’s order
granting Father primary custody of Child reverted back to a week-on/week-
off schedule, which the parties followed until the September 6, 2016 order
was entered and which is now the subject of this appeal.
After the trial court issued the September 6, 2016 order that again
awarded primary physical custody of Child to Father and partial physical
____________________________________________
1
This Court determined that the trial court had not included in its decision
an analysis of the statutory factors listed in 23 Pa.C.S. § 5328(a) (custody
factors) and in 23 Pa.C.S. § 5337(h) (relocation factors). Therefore, the
order appealed from was vacated and the case was remanded for further
proceedings. See C.A.D. v. A.M.B., No. 1430 WDA 2015, unpublished
memorandum (Pa. Super. filed March 11, 2016) (“first appeal”).
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custody to Mother, Mother filed the instant appeal.2 She now raises the
following issue for our review:
Whether the trial court erred in concluding that the Child’s best
interest would be served by granting Father primary physical
custody of the Child without properly applying the custody
factors enumerated in 23 Pa.C.S.A. § 5328(a), as said factors
weigh heavily in Mother’s favor[?]
Mother’s brief at 21.
When presented with child custody matters, we are guided by the
following scope and standard of review:
[O]ur scope is of the broadest type and our standard is abuse of
discretion. 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. In
addition, with regard to issues of credibility and weight of the
evidence, this Court must defer to the trial judge who presided
over the proceedings and thus viewed 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.
E.D. v. M.P. 33 A.3d 73, 76 (Pa. Super. 2011) (quoting A.D. v. M.A.B., 989
A.2d 32, 35-36 (Pa. Super. 2010)). Furthermore, we note that:
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2
Essentially, the court ordered that during the school year, Mother would
have partial custody three weekends out of four each month and a four hour
period on Wednesdays after school. During the summer months, the court
ordered a shared custody arrangement on a week-on/week-off basis. The
court also set forth an extensive schedule for the parties to share the
holidays throughout the year.
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The discretion that a trial court employs in custody
matters should be accorded the utmost respect,
given the special nature of the proceeding and the
lasting impact the result will have on the lives of the
parties concerned. Indeed, the knowledge gained by
a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an
appellate court by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006)
(quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super.
2004)).
A.H. v. C.M., 58 A.3d 823, 825 (Pa. Super. 2012).
The primary concern in any custody case is the best interests of the
child. The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s
physical, intellectual, moral, and spiritual well-being. Saintz v. Rinker, 902
A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674,
677 (Pa. Super. 2004)). Furthermore, we recognize that the Child Custody
Act (Act), 23 Pa.C.S. §§ 5321-5340, governs all proceedings commenced
after January 24, 2011. The specific factors that a court must consider are
listed at 23 Pa.C.S. § 5328(a)(1)–(16). See E.D., 33 A.3d at 79-80 (holding
that “best interests of the child” analysis requires consideration of all section
5328(a) factors).3
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3
Section 5328(a) of the Act provides:
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
(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 the
other party?
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
. . .
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on
the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability
to cooperate with that party.
(Footnote Continued Next Page)
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In her brief, Mother lists the section 5328(a) factors, setting forth her
disagreement with the court’s conclusions as to which factors favor which
parent.4 Specifically, Mother contends that with regard to factor (1) the
court erroneously determined that both parties are making efforts to
encourage communication between Child and the other party. Rather,
Mother claims that Father is unable to encourage contact in that he “refuses
to return telephone calls, text messages and emails” and “makes
disparaging remarks towards [M]other.” Mother’s brief at 35.
As for factor (2), the court found no evidence of physical or emotional
abuse, which Mother accepts. However, she contends that this factor should
weigh in her favor “to maintain the status quo[,]” meaning a shared custody
arrangement. Id. at 36. Regarding factor (3), the court found that “both
parties adequately perform[ed] their parental duties[,]” but because Father
had provided “a loving, stable, consistent and nurturing home in the past[,]”
_______________________
(Footnote Continued)
(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).
4
We recognize that in discussing the various factors, both the court and
Mother do not in all cases align the factor number as listed in section
5328(a) with their discussion of the substance of the factor. Therefore, this
Court’s discussion utilizes the factor number and its content as listed in
footnote 3.
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the court saw no reason to change the arrangement. TCO at 5
(unnumbered). Mother countered that she has performed all parental duties
for Child since birth and that, therefore, factor (3) should have weighed in
her favor.
Mother further contends that factor (4) should weigh in her favor
because she intends for Child to continue attendance at the DuBois Area
School District and to have Child participate in the extracurricular activities
in that area. Mother noted that the court found Child’s attendance at school
in DuBois was “one of the positive aspects of Child’s life….” Id. at 6. Thus,
because Mother had no intent to change these aspects of Child’s life, she
asserts that this factor should count in her favor. With regard to factor (5),
availability of extended family, and factor (6), sibling relationships, the court
found that both parents have extended families in their respective living
areas and that Child has strong relationships with his stepsiblings.
Therefore, the court found these factors weighed equally as to the parties.
Mother, however, without providing a reason, suggests that factor (5) should
weigh in her favor, although she does acknowledge that factor (6) weighs
equally.
The focus of factor (7) relates to Child’s preference, which Mother
contends weighs heavily in her favor. She relies on Child’s testimony at the
April 20, 2016 hearing at which Child testified in camera that he preferred
the week-on/week-off schedule. See N.T., 4/20/16, at 58. In its opinion,
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the trial court stated that “Child loves his parents very much[,]” and found
that Child has “no issues with the present custodial arrangement and desires
to see his Mother often and does not mind the trips to and from St. Marys,
Pennsylvania.” TCO at 7-8 (unnumbered). The court, however, did not
state in whose favor this factor weighed.
As for factor (8), Mother recognizes that this factor was not relevant.
With regard to factor (9), the court combined its findings with those in its
discussion of factor (3), stating its satisfaction with Father’s provision of “a
loving, stable, consistent and nurturing home in the past[,]” thus, concluding
no change was necessary. TCO at 5-6 (unnumbered). Accordingly, the
court found this factor to weigh in Father’s favor. To counter this finding,
Mother explains that because Father had moved three times since October of
2015, and was again intending to move, there was no reason to change the
week-on/week-off shared custody arrangement and that this factor should
weigh in her favor.
The court further found that factor (10) weighed equally in each
party’s favor. See TCO at 6-7 (unnumbered) (included in the court’s factor
(5) discussion). Mother agrees, noting that Child is doing well in school.
However, because of this finding by the court, she contends there is “no
reason to unilaterally change custody granting it to Father.” Mother’s brief
at 38.
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Factor (11) concerns the proximity of the parties’ residences. Mother
acknowledges that the thirty-mile distance between the parties’ homes and
the custody exchanges have never been a problem. The court likewise
recognized no problems and only reminded the parties to ensure that Child
should continue to attend his activities in a timely manner. See TCO at 8
(unnumbered) (factor (10) discussion). The court weighed factor (12)
equally, determining that “both parents are doing their best to take care of
Child and make sure that they have appropriate supervision and care during
their absences.” Id. at 7 (unnumbered). Again, Mother acknowledges the
court’s weighing of this factor equally, but contends that this finding should
have dictated that no change in the week-on/week-off schedule should have
been ordered.
Mother’s position regarding factor (13), which deals with the level of
conflict between the parties, centers on her assertion that Father refuses to
communicate or co-parent and responds to her by stating that any problems
between them should be discussed in court. Therefore, Mother claims that
this factor should weigh in her favor. The court recognized the level of
conflict that exists between the parties, recommending that they “put their
differences aside when it comes to the Child, and to communicate in an
amicable fashion….” TCO at 8-9 (unnumbered). However, the court did not
make a determination in whose favor this factor should weigh.
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The court found that factor (14) (history of drug or alcohol abuse) and
factor (15) (mental and physical condition of a party) were not relevant in
this case. Mother agrees as to factor (14), but contends that due to Father’s
continued behavior toward her, a psychological evaluation should have been
performed in response to her request before the court rendered its decision.
Therefore, she claims that factor (15) should weigh in her favor.
The court does not discuss factor (16), but in its conclusion it
emphasizes the need for the parties “to work on their communication and
interaction with each other, and to co-parent with each other and to keep in
mind that their ultimate goal is to hold the Child’s welfare above their past
history and current feelings toward each other.” TCO at 9 (unnumbered).
In her brief, Mother utilizes factor (16) to highlight her position,
claiming that the analysis of the sixteen factors should result in a
continuation of the shared custody arrangement. She claims the court’s
awarding of primary physical custody to Father is not supported by the
record because she has always been “ready, willing and able to continue to
share [C]hild with [F]ather despite [F]ather’s irrefutable, unscrupulous
behavior, and she intended [to] continue with [C]hild’s community activities
and school district in DuBois.” Mother’s brief at 40. Mother again
emphasizes that she has always encouraged contact between Father and
Child, but that Father “attempts to turn [C]hild against [M]other by making
derogatory comments about [M]other in [C]hild’s presence; by blocking
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telephone contact with [C]hild; by unilaterally signing [C]hild up for sporting
activities; by being inflexible with periods of partial custody; and by refusing
to co-parent with [M]other.” Id.
Essentially, Mother’s arguments center on her contention that most of
the factors in section 5328(a) favor her, which is contrary to the trial court’s
conclusions. In addressing each factor, she cites evidence that is most
favorable to her. However, based upon our review of the record, we
conclude that the trial court considered all relevant factors and also note
that its findings are supported by the record. Mother is basically requesting
that we reject the trial court’s findings and credibility determinations and
accept the findings she proposes. We cannot do so. Rather,
[w]e 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.
J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011). Moreover, we
recognize that this must have been a difficult decision for the trial court in
that both parents love their Child and wish to provide Child with a good life
even under the present circumstances. As this Court has stated, “the test is
whether the trial court’s conclusions are unreasonable as shown by the
evidence of record.” E.D., 33 A.3d at 76. Because we do not determine
that the trial court’s conclusions are unreasonable in light of the sustainable
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findings, we are compelled to affirm the trial court’s decision. Mother has
not convinced us otherwise.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/2017
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