J.M.P. v. M.C.K.

J-A09035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.M.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
M.C.K. :
:
Appellee : No. 1680 MDA 2016

Appeal from the Order Entered September 8, 2016
In the Court of Common Pleas of Lancaster County
Civil Division at No(s): CI-15-10913

BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.: FILED MAY 30, 2017

Appellant, J.M.P. (“Father”), appeals from the order entered in the

Lancaster County Court of Common Pleas, which granted the Appellee,

M.C.K. (“Mother”), primary physical custody of the parties’ minor children,

M.P.P. and A.E.P. (“Children”), and granted the parties shared legal custody

of Children. We affirm.

The relevant facts and procedural history of this case are as follows.

The parties were formerly married and are the natural parents of Children,

as well as two adult children, M.P. and D.M.P. The parties separated in 2011

and subsequently divorced. After the parties separated, Mother had primary

custody of Children, and Father enjoyed liberal partial physical custody of

Children through an informal agreement between the parties. The parties’

relationship was generally amicable, and they communicated freely
J-A09035-17

regarding their children. In late 2014, Mother’s current husband, R.S.K.

(“Step-Father”), moved into Mother’s home. Tensions between the parties

developed, however, as Step-Father became more involved with Mother.

Mother and Step-Father married in 2015.

In the summer of 2015, Mother and Step-Father had an argument.

When Mother attempted to leave the room, Step-Father tripped and pushed

Mother and threw a television remote at her. On October 30, 2015, Mother

and Step-Father had an altercation in the bathroom of Mother’s home,

during which Step-Father would not let Mother leave the room. When

Mother tried to exit the bathroom, Step-Father forcibly blocked the doorway;

in doing so, he struck Mother’s mouth. As a result of the October 30th

incident, Mother filed a Protection From Abuse (“PFA”) petition against Step-

Father, and two of the parties’ children lived with Father for two weeks.

Step-Father was also charged with false imprisonment.1 Mother

subsequently withdrew the PFA petition, and Mother and Step-Father

participated in marriage counseling.

On December 22, 2015, Father filed a custody complaint against

____________________________________________

1
The record indicates Step-Father’s criminal matter stemming from the
October 30, 2015 incident was still pending during the underlying custody
proceedings. Although Father asserts on appeal that Step-Father’s criminal
proceedings had concluded before the custody hearings terminated, nothing
in the record demonstrates that Father apprised the trial court of the result
of the criminal matter or made any argument based on the outcome of the
criminal case.

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J-A09035-17

Mother regarding Children and D.M.P., who was then still a minor.2 In his

complaint, Father requested shared legal custody and primary physical

custody of Children and D.M.P. The court held a criminal history/risk of

harm hearing regarding Step-Father on February 5, 2016. In its opinion, the

trial court summarizes the testimony and evidence from the hearing

concerning Step-Father’s criminal history as follows:

[Step-Father] testi[fied] that his prior wife obtained a
Protection From Abuse Order against him several years
ago when said marriage was falling apart. [In September
2008, Step-Father] admittedly confronted his former wife
at her place of employment after discovering that she was
engaged in an extra-marital affair. As a result thereof,
[Step-Father’s] former wife obtained the Protection From
Abuse Order [against Step-Father]. [Step-Father] was
charged with Stalking as a result of the facts alleged in the
Protection From Abuse Petition filed by his former wife;
however, said criminal charge was dismissed before the
York County Court of Common Pleas on November 25,
2009. An additional non-enumerated offense for
Harassment was dismissed and [Step-Father] pleaded
guilty to a single misdemeanor charge of Disorderly
Conduct and received a one year probationary sentence.

Subsequently, on September 19, 2008, [Step-Father] was
again charged with offenses of Stalking, Simple Assault,
and two counts of Disorderly Conduct as a result of a
confrontation he had with a neighbor of his former wife.
[Step-Father] credibly testified that there was a verbal
confrontation with his former wife’s male neighbor, but no
actual physical violence occurred. [Step-Father] pleaded
guilty to the offense of Stalking and received a sentence of
not less than nine months nor more than twenty-three
months; the Simple Assault charge was dismissed, one of
____________________________________________

2
According to the record, D.M.P. was 17 years old throughout the
underlying custody proceedings and is currently 18 years old.

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J-A09035-17

the Disorderly Conduct charges was dismissed; and, [Step-
Father] pleaded guilty to the other Disorderly Conduct
charge and received a sentence of not less than six months
nor more than twelve months. [Step-Father] served this
sentence on house arrest. There was no testimony
presented that [Step-Father] was involved in any other
criminal or violent incident until the Fall of 2015 incident
involving Mother.

(Trial Court Opinion, filed November 7, 2016, at 6-7) (internal citations to

record omitted). On February 5, 2016, the court determined Step-Father did

not pose a risk of harm to Children.

Mother and Father participated in a custody conciliation conference on

March 8, 2016. On April 8, 2016, the court approved the conference

officer’s custody recommendation; the court granted Mother primary

physical custody and granted the parties shared legal custody of Children

and D.M.P. Subsequently, the court held a custody hearing on June 20,

2016, which continued on June 30, 2016, and July 25, 2016. During the

hearings, the court heard testimony from: a Lancaster County Children and

Youth Services caseworker; Father; Father’s mother; Mother’s former live-in

boyfriend; Mother; Step-Father; and Mother’s mother. The court made clear

it would not permit the parties’ children to testify as fact witnesses. The

court, however, interviewed Children and D.M.P. in camera on July 25, 2016.

On September 8, 2016, the trial court granted the parties shared legal

custody and granted Mother primary physical custody and Father partial

physical custody. Father timely filed on October 7, 2016, a notice of appeal

and a contemporaneous statement of errors complained of on appeal per

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J-A09035-17

Pa.R.A.P. 1925(a)(2)(i).

Father raises three issues for our review:

WHETHER THE [TRIAL] COURT…ERRED IN FAILING TO
FIND [STEP-FATHER] WAS A RISK OF HARM IN LIGHT OF
OVERWHELMING EVIDENCE SHOWING AN EXTENSIVE
AND ONGOING HISTORY OF CRIMINAL AND ABUSIVE
BEHAVIOR AND MENTAL INSTABILITY[?]

WHETHER THE [TRIAL] COURT…ERRED IN EXCLUDING
EVIDENCE DURING THE RISK OF HARM HEARING
RELATING TO ANY ABUSE OF [MOTHER] BY [STEP-
FATHER?]

WHETHER THE [TRIAL] COURT…ERRED IN FINDING THAT
PRIMARY PHYSICAL CUSTODY WAS APPROPRIATE FOR
[MOTHER] WHEN THE EVIDENCE OVERWHELMINGLY
SUPPORTED A SHARED PHYSICAL [CUSTODY] SCHEDULE
FOR THE PARTIES[?]

(Father’s Brief at 10).

On appellate review of a child custody order:

[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.

S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation

omitted). Additionally:

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J-A09035-17

[O]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.

The parties cannot dictate the amount of weight the
trial court places on evidence. Rather, the
paramount concern of the trial court is the best
interest of the child. Appellate interference is
unwarranted if the trial court’s consideration of the
best interest of the child was careful and thorough,
and we are unable to find any abuse of discretion.

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (internal

citations omitted).

Further, the current Child Custody Act became effective on January 24,

2011. See 23 Pa.C.S.A. §§ 5321–5340. The new Act applies to “disputes

relating to child custody matters,” i.e., any proceeding, including a petition

for relocation, initiated by a filing made after the effective date of the Act.

23 Pa.C.S.A. § 5321; E.D. v. M.P., 33 A.3d 73, 76 (Pa.Super. 2011). With

respect to a custody order, Section 5328(a) provides:

§ 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

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J-A09035-17

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.

(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.

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J-A09035-17

(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).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable Merrill M.

Spahn, Jr., we conclude Father’s issues merit no relief. The trial court

opinions comprehensively discuss and properly dispose of the questions

presented. (See Trial Court Opinion, filed September 8, 2016, at 3-10; Trial

Court Opinion, filed November 7, 2016, at 5-18) (finding: (1) Mother and

Step-Father expeditiously worked through their differences and obtained

counseling, following October 2015 confrontation; Mother and Step-Father

were still participating in counseling at time of custody hearing; evidence did

not support claim that domestic abuse issues remained between Mother and

Step-Father; no allegations or claims suggested Step-Father physically

assaulted or threatened Children; no evidence indicated Children and Youth

Services made report or investigated any purported violence between Step-

Father and Children; (2) during criminal history/risk of harm hearing, court

permitted Father to question Step-Father as to Step-Father’s alleged abusive

and criminal behavior concerning offenses enumerated in 23 Pa.C.S.A. §

5329; Father could have inquired as to other offenses per 23 Pa.C.S.A. §

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J-A09035-17

5328(a)(2), but to extent Father failed to do so, any claim that court

excluded testimony relating to Step-Father’s conduct subject to 23 Pa.C.S.A.

§ 5328(a)(2) is waived; at time of criminal history/risk of harm hearing,

charge of false imprisonment was still pending against Step-Father

stemming from October 2015 incident; court did not hear testimony

concerning October 2015 incident, because Step-Father had not been

convicted of any offense enumerated under 23 Pa.C.S.A. § 5329 arising out

of October 2015 confrontation; additionally, Step-Father invoked his Fifth

Amendment right regarding questions related to October 2015 incident;

false imprisonment charge was also not subject to discretionary review by

court, pursuant to 23 Pa.C.S.A. § 5330, because Step-Father was not party

in custody matter; court did not review facts involving PFA petition Mother

filed against Step-Father after October 2015 event, because petition did not

result in finding of abuse subject to review under 23 Pa.C.S.A. § 5329;

during proceedings, Father failed to request court to permit additional

testimony if Step-Father’s criminal action resulted in conviction; following

proceedings; Father failed to notify court of any change in status of false

imprisonment charge against Step-Father; (3) examining and weighing each

relevant factor under applicable statutes, court concluded custody decision is

in Children’s best interests). The record supports the trial court’s rationale.

See S.J.S., supra. Here, the court held a criminal history/risk of harm

hearing, interviewed Children in camera, and declined to put Children in the

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J-A09035-17

position of having to testify against one or the other parent. As an error

correcting Court, we have no reason to gainsay the trial court’s decision in

that regard, even if we might have liked more information under the

circumstances. See R.M.G., Jr., supra. The trial court had the best

opportunity to explore any complaints Children might have had and to

assess the value of those complaints.3 See id. If Father has additional

grounds to invoke the trial court’s authority on custody, he can move to

modify custody on those grounds through proper procedure and present his

claims to the trial court in the first instance. As to this appeal, we affirm on

the basis of the trial court’s opinions.

Order affirmed.
____________________________________________

3
“Issues not raised in the [trial] court are waived and cannot be raised for
the first time on appeal.” Pa.R.A.P. 302(a). Issues not raised in a Rule
1925 concise statement of errors will likewise be deemed waived. Linde v.
Linde Enterprises, Inc., 118 A.3d 422, 430 (Pa.Super. 2015), appeal
denied, ___ Pa. ___, 129 A.3d 1243 (2015); J.P. v. S.P., 991 A.2d 904, 908
(Pa.Super. 2009) (applying Rule 1925 waiver standards in custody dispute
context). Where an appellant fails to raise or develop an issue on appeal
properly, this Court will not consider the merit of the claim. Butler v. Illes,
747 A.2d 943 (Pa.Super. 2000).

Here, during the three days of custody hearings, Father failed to challenge
the sufficiency of the trial court’s evaluation of Children and D.M.P. for
emotional abuse. Similarly, Father did not raise any issue in his Rule 1925
statement related to the court’s purported lack of attention to emotional
abuse of Children. Father raised no issue regarding emotional abuse of
Children in his brief on appeal. In fact, Father made this claim for the first
time at oral argument, when he asked this Court for a remand to consider
whether Children suffered emotional abuse. Accordingly, Father waived this
claim. See Pa.R.A.P. 302(a), supra; Linde, supra; Butler, supra.

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J-A09035-17

Judge Shogan joins this memorandum.

Judge Ott concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/30/2017

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 Circulated 05/09/2017 02:49 PM

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
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OPINION

The instant matter is before the court on Plaintiff, J, fVl, 1'! ·' s (hereinafter, "Father"),

Complaint for Custody filed on December 22, 2015. Following evidentiary hearings held before

the court on June 20, 2016, 2016; June 30, 2016; and, July 25, 2016, which were attended by the

parties with their respective counsel, this matter is ripe for review.

I. PROCEDURAL HISTORY

Father filed a Complaint for Custody on December 22, 2015 against Defendant, /JI/~C, k_',.
(hereinafter, "Mother"), with respect to their minor children: D, ;vt .. P.
,; and,, A-~~ F:
By way of Order entered on December 30, 2015, the court scheduled a Criminal History Hearing

pursuant to 23 Pa. C.S.A. §5329 for January 15, 2016. Upon a joint request of counsel for the

parties, the Criminal History Hearing was rescheduled for February 5, 2016.

The matter proceeded to a Criminal History Hearing on February 5, 2016. At the

conclusion of said hearing, the court issued an Order dated February 5, 2016 finding that ·~.S-f<,
ts},L:?- t1:\tfl.t1, a household member of Mother, did not pose a current risk of harm to the minor

children, nor was he in need of any counseling. The Court scheduled a custody conciliation

conference for March 8, 2016.
 The matter proceeded to a custody conciliation conference on March 8, 2016. The parties

were unable to reach an agreement. Accordingly, the court approved the recommendation of the

conference officer and entered an Order dated April 8, 2016 granting shared legal custody of the

minor children to the parties; primary physical custody to Mother; and, partial physical custody to

Father. The Court scheduled a custody hearing for June 20, 2016.

On June 20, 2016, the Custody Hearing commenced. Inasmuch as there was insufficient

time to complete the hearing on June 20, 2016, the Court entered an Order dated June 21, 2016

continuing the hearing on June 30, 2016. On July 25, 2016, the Court interviewed the minor

children, which concluded the evidentiary hearing in this matter.

II. BRIEF FACTUAL OVERVIEW

Mother and Father are the parents of three minor children: D.,. M/P.
1; ('1. ·-p, 1\ . . ; and, A " ;e, 'e,

The parties were married, but separated in 2011. Mother has been the primary custodian of the

minor children since the parties' separation; however, Father has exercised liberal periods of

partial physical custody by agreement of the parties.

Father has resided in a three bedroom home located at 139 Groff Road, Quarryville,

Lancaster County, Pennsylvania with his mother, W, ?, ·, for approximately five years.

0, 1A .'~ and f\~ 1 'v, '?.. share a bedroom in Father's residence. Father shares a bedroom with

A, f?. Y•. Paternal Grandmother has her own bedroom. Father's residence is located in the Solanco

School District. Father's residence is located approximately two to three minutes away from

Mother's residence. Father is employed with Cauler Waste Disposal. Father works Monday

through Friday. Father's employment schedule varies, but he begins work at either 3:00 a.m. or

4:00 a.m. and his shifts end anywhere between 12:30 p.m. and 5:00 p.m.

2
 Mother resides in a three bedroom home located at 109 Dawn Street, Quarryville, Lancaster

County, Pennsylvania with her husband, Sh.p,- fu-rhu. Mother is currently in the process of

completing renovations to the children's bedrooms. 0, M • B. and M . 7', P. temporarily sleep in

the living room. Mother's residence is located in the Solanco School District. Mother is self-

employed as a driver providing transportation for members of the Amish community. Mother has

a variable work schedule. Mother works on Wednesday from 7:00 a.m. until 8:15 a.m. and 2:00

p.m. until 3:30 p.m.; Thursday and Friday from 5:00 a.m. until 8:15 a.m., 2:00 p.m. until 3:30 p.m.,

and 4: 15 p.m. until 6:00 p.m.

The facts relevant to the Court's inquiry, as well as an analysis of the factors enumerated

by 23 Pa. C.S. §5328, will be set forth in greater detail in the Discussion herein.

III. STANDARD OF REVIEW

In making the custody determination, the court's guiding principle is the best interest of

the [children], in accordance with the factors set forth in 23 Pa. C.S. § 5328. J.R.M. v. J.E.A., 33

A.3d 647 (Pa. Super. 2011). "This standard requires a case-by-case assessment of all the factors

that may legitimately affect the physical, intellectual, moral and spiritual well-being of the

[children]." Id. "All of the factors listed in 23 Pa. C.S. §5328(a) are required to be considered by

the trial court when entering a custody order." J.R.M., 33 A.3d at 652. The weight accorded each

of these factors is for the trial court. Id. The test as to the best interest of the [children] when two

parents are involved is evaluated on a scale that is initially weighed equally as to each parent.

Sawko v. Sawka, 625 A.2d 692, 695 (Pa. Super. 1993).

IV. DISCUSSION

Father is seeking shared legal custody and primary physical custody of the minor children.

Mother is not in agreement with Father's request. Mother would like to continue to share legal

3
custody of the minor children and retain primary physical custody of the minor children with

Father exercising periods of partial physical custody. At the present time, in consideration of the

factors set forth in 23 Pa. C.S. §5328(a) as they relate to the minor children's best interest in this

case, based on the evidence presented at the evidentiary hearings, the Court finds:

1. There was no evidence presented suggesting that either party has intentionally

attempted to limit or prevent contact between the children and the other party. Neither party has

intentionally inhibited telephone contact with the children. The court believes that the parties have

similar abilities to encourage and permit frequent and continuing contact between the children and

the other party; however, Mother's new husband and this litigation has stifled those abilities. The

court firmly believes that Father need recognize and accept that Mother's husband will inherently

play a role in the children's lives. Mother's husband must recognize and accept that it is the firm

responsibility of the parties to communicate directly with each other and co-parent the children.

The parties need to recognize the importance of frequent and continuing contact between the minor

children and their parents and strive to improve their efforts to encourage the children to maintain

such contact.

2. Based upon the totality of the evidence presented, there was no credible evidence

presented to suggest that any party, or any members of their respective households, pose a current

risk of harm to the children. To that end, the court incorporates the testimony of the Criminal Risk

of Harm Hearing pursuant to 23 Pa. C.S.A. §5329 conducted on February 5, 2016. The court

believes that both parties possess the ability to provide adequate physical safeguards and

supervision for the minor children. The court rejects Father's arguments that there is ongoing

domestic violence in Mother's home with her new husband; that Mother is not able to provide

adequate sleeping arrangements for the children; and, that Mother's residence is not safe because

4
D, Jv\. \? was allegedly sexually assaulted by her boyfriend in Mother's residence. While the court

recognizes that there was a short period of time in the Fall of 2015 when there were marital

difficulties between Mother and her husband, said issues appear to have been resolved. The court

also rejects Father's argument that Mother's residence does not allow for adequate sleeping

quarters inasmuch as the court found as credible the testimony that Mother has been renovating

the children's bedrooms. While the court is concerned that Mother failed to notify Father

immediately of the alleged sexual assault, the court notes that Mother took appropriate steps to

immediately remove the alleged perpetrator from her residence in order to provide safety for

'D, l...-\ • ''r;; The Lancaster County Children and Youth Social Service Agency closed their case and

no criminal charges have been filed. The court does not have any continuing concerns in this

regard inasmuch as the alleged perpetrator is no longer residing in Mother's residence and is not

in contact with 'O, M • B

Mother contends that the children are not safe at Father's residence because he allegedly

smokes cigarettes and marijuana inside the residence, and his residence is overcrowded. Mother

failed to provide any credible evidence that Father smokes marijuana and the court believes that

Father does not smoke inside his residence when the children are in his custody, although he likely

smokes in his bedroom when the children are not in his custody. The court also recognizes that

there is conflicting testimony as to whether the parties' oldest child, M rc P. ·, and his girlfriend

and child reside with Father; however, the court finds Mother's claims in this regard to be

overstated in an attempt to advance her position in this litigation and the court notes that Mother's

residence is also crowded in nature.

There was limited involvement with the family by the Lancaster County Children and

Youth Social Service Agency with respect to truancy involving the parties' oldest child, M. ?. ,

5
and a claim that M, f~ was bullying the other children. M, f. went to reside with his father

and, therefore, the Agency closed their case. In May 2015, there was a report from law

enforcement regarding . D, 1-1, ~ having been sexually assaulted by her boyfriend. The Agency

contacted Mother to determine whether D NL P. "s boyfriend was a household member. Inasmuch

as he was not a household member, the Agency screened out the case on May 20, 2015 without

the necessity of any further involvement. (Factor 2.1)

3. With respect to the parental duties performed by the parties on behalf of the

children, the court believes that both Mother and Father are well suited to provide for the children's

essentials of life, such as cooking, cleaning, hygiene, etc., although Mother may be capable of

tending to more of said duties in light of the inherent flexibility of her work schedule.

4. The court believes that both parties provide stability in the children's education,

family, and community life. Both parties spend quality time with the children engaged in family

activities and trips; as well as outdoor activities, such as fishing. The court does note that Mother

previously withdrew \), tv\,?, from a traditional educational program without Father's agreement;

however, D, tJI , B is now back in a traditional educational setting and seems to have the ability to

adequately cope with her anxiety issues with the assistance of the support system currently in

existence.

5. Paternal Grandmother resides with Father. Maternal Grandmother resides in close

proximity to Mother's residence. Mother's husband's family reside in York, Pennsylvania. The

court finds as credible the testimony presented that the relationship between the children and the

entirety of Mother and Father's families is appropriate and positive in nature. While the

relationship between the children and their step-father may have been difficult at first, the court

6
believes that the children have adapted to their new routine at Mother's residence that includes

step-father's involvement in their lives.

6. The minor children have an older brother, M,.. ·G:> M~ 'Po is the oldest child of

the parties. When M,. f& resided with Mother, the relationship between Mo Cfo and the minor

children was strained. The court finds as credible the testimony of the minor children that they

currently have an improved relationship with M.~ ?., The minor children have an appropriate

and loving relationship with one another, despite the occasional sibling squabble.

7. The court spoke with the minor children, individually, to ascertain their

preferences. D, lvj, '£·, who is seventeen years of age, did not seek to alter the current schedule

inasmuch as she does not believe that Father can handle any additional periods of custody.

Currently, D.1\,{, ~ only goes to Father's residence when she desires. DY'I ,f believes that it

would be beneficial for M, f'.?. and A f", Y. to spend more time individually with Father. :M, P. P,

, who is thirteen years of age, is content with the current schedule of custody, but would like

to spend time at her Father's residence whenever she desires. In essence, M, Yi?. desires that

the custodial schedule return to the way it was before Mother remarried. Before Mother remarried,

Father and the children were able to make spontaneous plans to spend time together. M, ?.' P,
also indicated to the court that she is not comfortable spending time alone with Mother's husband.

AJJ. ~, who is nine years of age, is desirous of spending more time with Father. /+, ff, P.. would like
to alternate weeks in the summer with the parties, and also desires to spend one-on-one time with

Father.

8. The court does not believe that either party is intentionally attempting to turn the

children against the other party. The parties deny that they have done so and there was no evidence

submitted that any party has intentionally done so. While the court does believe that Mother has

7
spoken to the children about this litigation, the court does not believe that she has done so with

any ill will or in any attempt to try to turn the children against Father. The parties need to

understand the importance of not speaking with the children about custody matters and to continue

in promoting a loving relationship with the absent party. The court encourages the parties not to

allow any lingering hostilities toward each other resulting from this litigation to effect the children.

9. The court firmly believes that both parties are capable of maintaining a loving,

stable, consistent, and nurturing relationship with the children adequate for the children's

emotional needs at the children's particular current stages in life. Both parties have demonstrated

a genuine desire to remain active and involved in the children's lives. Both parties appear to have

a true bond with the children, although the court believes that Mother possesses a stronger bond

with all three children. While :D. fvt'f: does not regularly go to Father's residence, she does

maintain a relationship with Father that suits her at this stage of her life. Despite a period of discord

between Mother and her husband, Mother is exhibiting greater stability in her marriage, which is

positively impacting the children. Mother has also taken the necessary steps to assist 0, I~, R in
stabilizing her schooling and her mental health concerns.

10. Both parties are currently capable of attending to the daily physical, emotional,

developmental, educational, and special needs of the children, although the court believes that

Mother is better suited to do so in light of the flexibility of her work schedule and stronger bond

with all three children. While both parties have been involved in the medical care arrangements

for the children, Mother has been able to oversee the children's counseling and medical needs.

A,~/\'. is hyper-active and 1). Iv\,~ suffers from social anxiety. By all accounts, the children now

perform well academically and do not have any significant behavioral problems. The court

8
believes that the children's current stability is as a direct result of the consistent and predictable

routine that the parties have followed with respect to the custody schedule.

11. Mother and Father reside in Quarryville, Lancaster County, Pennsylvania.

Mother's residence is located approximately two to three miles from Father's residence.

12. Both Mother and Father have made necessary child care arrangements in the past

and the court believes that the parties could continue to do so in the future for the minor children.

Maternal Grandmother is available for Mother if she needs child care. Additionally, Mother can

rely on \),M,V · and her new husband for child care, if necessary. Mother has the unique ability

to also bring A~,'r, with her in her vehicle when she drives for work. Paternal Grandmother is

available to care for the children in the mornings at Father's residence, although she also leaves

early for work.

13. The court believes that there is currently a high level of conflict between the parties.

Based upon the testimony presented, it is apparent to the court that the parties were previously

capable of extreme cooperation for the benefit of the minor children; however, such cooperation

has waned over time. Said positive cooperation ended at the time of Mother's remarriage. Father

and Mother's husband are openly hostile with each other to the extent that they are not allowed on

each other's property. This has currently caused significant tension between the parties. Various

instances of discord were elicited at the hearing, including a disagreement over the interpretation

of "after school" as stated in the Custody Order and an insistence by Mother that the children be

returned during a major snowstorm because it was "their" custodial time. The parties can no longer

discuss issues related to custody of the children in person or over the telephone. Mother has

insisted that all communication be done solely by text message. The court has extreme concern

that such directive has come from Mother's husband, but strongly encourages Mother to again

9
engage in open dialogue with Father pertaining to issues involving the children. Additionally, the

court similarly hopes that the parties will discontinue utilizing '\), M ."? to convey messages to each
other. The court strongly encourages the parties to continue to improve their ability to

communicate. Despite the difficulties between the parties, the court believes that the parties

maintain the ability to effectively co-parent the children and encourages the parties to strive to do

so.

14. There was no evidence presented sufficient to establish a history of drug and

alcohol abuse by Mother or Father or any member of their respective households, so long as

Mo ?., and his girlfriend do not reside with either party. The court is concerned that M" 'f:
and his girlfriend may currently be using illegal drugs. The court notes that Mother attempted to

convince the court that Father smokes marijuana based on a poster that he has in his residence.

The court does not have any concerns that Father has an issue of drug abuse. The court believes

that Mother is overstating her concerns in order to advance her position in this litigation.

15. The court does not have any concerns with the mental or physical condition of any

party, or any member of their respective households. Although Father has a learning disability,

said condition is not an impediment to his parenting the children.

16. None.

Upon consideration of the factors set forth in 23 Pa. C.S. §5328(a) as they relate to the

minor children's best interest in this case, the Court finds that it is in the best interest of the minor

children for Mother and Father to retain shared legal custody; Mother be granted primary physical

custody of the minor children; and, Father be granted partial physical custody in accordance with

the attached Order.

10
 ORDER

AND NOW, this gth day of September 2016, upon consideration of Father's Complaint for

Custody filed on December 22, 2015 and following evidentiary hearings held before the Court on

June 20, 2016, 2016; June 30, 2016; and, July 25, 2016, which were attended by the parties with

their respective counsel, it is hereby ORDERED that:

I. Legal Custody

Legal custody of the minor children:: D, M. P. 1; /111 ,I ?, P.
. ; and, . A , f; 1 P, , shall be shared by Mother

and Father. Both Mother and Father shall have the right to participate in the major decisions

affecting the minor children, including, but not limited to, medical, religious, and educational

decisions, and each shall have equal access to medical, dental and school records, the residence

address and telephone number of the minor children and the other party. The party having primary

custody of the minor children shall provide the other party with advance information on a timely

basis regarding school programs, events, meetings, and teacher conferences involving the minor

children.

II. PrimaryPhysical Custody

Primary physical custody of the minor children; D, fv'/ , P, ,,

;; and, A, IZ", P. J, is granted to

Mother.

III. PartialPhysical Custody
D
A. Partial physical custody of the mmor children; D I
vi.
/V, '( ' •

; and, . A' e I ;:::. I,

is granted to Father every other weekend from Friday at 6:00 p.m. to Monday at school; every

11
Wednesday at 6:00 p.m. to Thursday at school; and at additional times as agreed between the

parties.

B. During the summer, Father shall exercise additional periods of partial physical

custody of the minor child, /VI. 'P, A , every other Tuesday from
6:00 p.m. until 9:00 p.m., beginning on the first Tuesday after the completion of the academic year.

C. During the summer, Father shall exercise additional periods of partial physical

custody of the minor child, A , "£!::, 'F: 1, every other Thursday at 6:00 p.m.

until 9:00 p.m., beginning on the second Thursday after the completion of the academic year.

IV. Holidays

A. The parties shall alternate the holidays of Easter, Memorial Day, the Fourth of July,

Labor Day, and Thanksgiving. In 2016 and all even-numbered years thereafter, Mother shall have

custody on Easter, the Fourth of July and Thanksgiving, while Father shall have custody on

Memorial Day and Labor Day. In 2017 and all odd-numbered years thereafter, Father shall have

custody on Easter, the Fourth of July and Thanksgiving, while Mother shall have custody on

Memorial Day and Labor Day. The times for such periods of holiday custody shall be from 10:00

a.m. until 6:00 p.m. on the day of the holiday.

B. Christmas: In 2016 and all even-numbered years thereafter, Father shall have

custody from 6:00 p.m. on December 24 until 3:00 p.m. on December 25, and Mother shall have

custody from 3:00 p.m. on December 25 until 6:00 p.m. on December 26. In 2017 and all odd-

numbered years thereafter, Mother shall have custody from 6:00 p.m. on December 24 until 3 :00

p.m. on December 25, and Father shall have custody from 3:00 p.m. on December 25 until 6:00

p.m. on December 26.

12
 C. Mother shall have custody on Mother's Day and Father shall have custody on

Father's Day from 10:00 a.m. until 6:00 p.m.

D. Holiday periods of custody shall take precedence over all regularly scheduled

periods of custody or partial custody.

IV. Transportation

Unless the parties agree otherwise, the party who is receiving custody shall provide

transportation for each custody exchange; however, Father shall provide all transportation for his

additional periods of custody with M, ~· ?. and A,~f? during the summer.

V. Additional Provisions

A. Both parties shall ensure that all homework is completed.

B. Neither party shall smoke in the presence of the childrennor allow others to do so

and shall not smoke in enclosed spaces while in the presence of the children.

C. Each party shall provide timely notice of all medical appointments for the minor

children to the other party.

D. Each party shall immediately notify the other party by telephone of any serious

illness or other emergency that may arise while the minor children are in his or her custody.

E. Each party shall permit reasonable telephone access to the minor children while the

minor children are in his or her custody.

F. Each party shall encourage the minor children to love and respect the other party.

No party shall make or allow others to make any disparaging or derogatory remarks about the

absent parties in the presence of the minor children. The parties shall make certain the minor

children are ready on time for the transfer of physical custody from one party to the other.

G. Each party is encouraged to accommodatethe reasonablerequests of the other party

13
 for alterations of any agreed upon schedule, as the circumstances and the best interests of the minor

children require.

H. Neither party shall attempt to alienate the affections of the minor children from the

other party.

I. The terms of the Order may be modified at any time upon mutual consent of the

parties or further Order of Court.

RELOCATION NOTICE

IF YOU ARE PROPOSING TO RELOCATE TO ANOTHER AREA WITH THE

CHILDREN NAMED IN THIS CUSTODY ACTION, you must comply with the requirements of

Section 5337 of the Pennsylvania custody law which includes sending notice of your proposed

move to every other individual who has custody rights to the children and providing specific

information concerning your relocation. The law may be found at 23 Pa. C.S.A. §5337. If you do

not comply with the notice provision or provide the required information, the Court has the ability

to consider your failure as an element in the custody or relocation decision.

ATTEST: ~ Cl.P.Y~
Copies to: Holly Filius, Esquire, Counsel for Plaintiff
James D. Wolman, Esquire, Counsel for Defendant
NOTICE OF ENTRY OF ORDER OR DECREE
PURSUANT TO PA. R.C.P. NO. 236
NOTIFICATIC>N - THE ATTACHED DOCUMENT
HAS BEEN FILED IN THE CASE 14
PROTHONOTARV OF LANCASTER CO., PA
DATE: °1 · [. I (J
 Circulated 05/09/2017 02:49 PM

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
.,
Plaintiff

vs.
No. CI-15-10913
fVl,C,f< i
-· '
Detenctant

OPINION PURSUANT TO RULE 1925(a) OF THE
..
.1~

PENNSYLVANIA RULES OF APPELLATE PROCEDURE

BY: SPAHN, JR., J.

Plaintiff, J, M. P, · (hereinafter, "Father") has filed a Children's Fast Track Appeal

of the court's September 8, 2016 Order regarding Father's Complaint for Custody, which was

filed on December 22, 2015 in the instant custody action. The reasons for the court's decision on

Father's complaint are contained in the September 8, 2016 Opinion and Order. In response to

the allegations contained in Father's Concise Statement of the Matters Complained of on Appeal

Pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure (Children's Fast

Track), the court further details its rationale for the September 8, 2016 Opinion and Order herein.

I. PROCEDURAL HISTORY

Father filed a Complaint for Custody on December 22, 2015 against Defendant, J Tv1 ~ c. K.~
~hereinafter, "Mother"), with respect to their minor children: D, /VI .i l~
); an d , A, c:
IC:.-} P, /.

By way of Order entered on December 30, 2015, the court scheduled a Criminal History Hearing

pursuant to 23 Pa. C.S.A. §5329 for January 15, 2016. Upon a joint request of counsel for the

parties, the Criminal History (Risk of Harm) Hearing was rescheduled for February 5, 2016.
 The matter proceeded to a Criminal History (Risk of Harm) Hearing on February 5, 2016.

At the conclusion of said hearing, the court issued an Order dated February 5, 2016 finding that F~, S . «. >
(''S.\--i:._p, -- \-"'---\:~U,f-;,) , a household member of Mother, did not pose a current risk of harm to the

minor children, nor was he in need of any counseling. The court scheduled a custody

conciliation conference for March 8, 2016.

The matter proceeded to a custody conciliation conference on March 8, 2016. At such

time, the parties were unable to reach an agreement. Accordingly, the court approved the

recommendation of the conference officer and entered an Order dated April 8, 2016 granting

shared legal custody of the minor children to the parties; primary physical custody to Mother;

and, partial physical custody to Father. The court scheduled a custody hearing for June 20, 2016.

On June 20, 2016, the Custody Hearing commenced. Inasmuch as there was insufficient

time to complete the hearing on June 20, 2016, the Court entered an Order dated June 21, 2016

reconvening the hearing on June 30, 2016. Inasmuch as there was insufficient time to complete

the hearing on June 30, 2016, the court interviewed the minor children on July 25, 2016, which

concluded the evidentiary hearings in this matter.

Following the completion of the evidentiary hearings, the court entered a final Opinion

and Order on September 8, 2016. Father filed a timely Notice of Appeal on October 7, 2016.

II. SUMMARY OF THE FACTS

Mother and Father are the parents of three minor children: 1). M ~ V"
; and, A. & . P.
(N.T., June 30, 2016 at 207) The parties were married, but separated in 2011. (N.T., June 30,

2016 at 227) Mother has been the primary custodian of the minor children since the parties'

2
separation; however, Father has exercised liberal periods of partial physical custody by

agreement of the parties. (N.T., June 30, 2016 at 227-228)

Father has resided in a three bedroom home located at 139 Groff Road, Quarryville,

Lancaster County, Pennsylvania with his mother, W '?
< 1 • for approximately five years.

(N.T., June 20, 2016 at 31-32) 0, /vi.'?, and M, 'f\ B share a bedroom in Father's residence.

(N.T., June 20, 2016 at 33) Father shares a bedroom with A,e')~, Id Paternal Grandmother has

her own bedroom. Id. Father's residence is located in the Solanco School District. (N.T., June

20, 2016 at 125) Father's residence is located approximately two to three minutes away from

Mother's residence. (N.T., June 20, 2016 at 32) Father is employed with Cauler Waste

Disposal. (N.T., June 20, 2016 at 79) Father works Monday through Friday. (N.T., June 20,

2016 at 80) Father's employment schedule varies, but he begins work at either 3:00 a.m. or 4:00

a.m. and his shifts end anywhere between 12:30 p.m. and 5:00 p.m. (N.T., June 20, 2016 at 80-

81)

Mother resides in a three bedroom home located at 109 Dawn Street, Quarryville,

Lancaster County, Pennsylvania with her husband,SfcLP~ Fc-t,f/te,r (N.T., June 30, 2016 at

207) At the time of the evidentiary hearing, Mother is currently in the process of completing

renovations to the children's bedrooms in her home. (N.T., June 30, 2016 at 290-292) P, Mi B
and YV\ , ? P.
1 were temporarily sleeping in the living room. (N.T., June 30, 2016 at 291)

Mother's residence is located in the Solanco School District. (N.T., June 20, 2016 at 125)

Mother is self-employed as a driver providing transportation for members of the Amish

community. (N.T., June 30, 208) Mother has a variable work schedule and works on

Wednesday from 7:00 a.m. until 8:15 a.m. and 2:00 p.m. until 3:30 p.m.; Thursday and Friday

from 5:00 a.m. until 8:15 a.m., 2:00 p.m. until 3:30 p.m., and 4:15 p.m. until 6:00 p.m. Id.

3
'
III. STAND ARD OF REVIEW

A. TrialCourtStandardof Review

i. Child Custody

The paramount concern in child custody proceedings is the best interest of the child.

Moore v. Moore, 634 A.2d 163, 169 (Pa. 1993). In making the custody determination, the

court's guiding principle is the best interest of the [children], in accordance with factors set forth

by 23 Pa. C.S.A.§5328. The test as to the best interest of the [children] when two parents are

involved is evaluated on a scale that is initially weighed equally as to each parent. Sawko v.

Sawko, 625 A.2d 692, 695 (Pa. Super. 1993). In a custody action, the particular circumstances

of the case must be considered, and each case decided on its own individual facts. N.H.M. v.

P.O.T., 947 A.2d 1268, 1273 (Pa. Super. 2008); E.A.L. v. L.J.W., 662 A.2d 1109, 1118 (Pa.

Super. 1995).

ii. Shared Custody

This court has broad discretion in awarding shared custody. In re Wesley J.K., 445 A.2d

1243 (Pa. Super 1982). Although shared custody in appropriate circumstances is desired, there

is no presumption in the law favoring shared custody. Schwarcz v. Schwarcz, 548 A.2d 556 (Pa.

Super. 1988). The court must engage in a full, fair, and comprehensive examination of the best

interest of the [children]. Id.

B. Appellate Standardof Review

It is well established that the scope of appellate review in child custody disputes is of the

broadest type - abuse of discretion. In re Arnold, 428 A.2d 627, 628 (Pa. Super. 1981 ); Com. ex

rel. Spriggs v. Carson, 368 A.2d 635 (Pa. 1977). An abuse of discretion in the context of child

custody does not consist merely of an error in judgment. K.B.H. v. C.B.F., 833 A.2d 767 (Pa.

4
Super. 2003); T.B. v. L.R.M., 753 A.2d 873 (Pa. Super. 2000), order affd, 786 A.2d 913 (Pa.

2001 ). Abuse of discretion exists only when the trial court overrides or misapplies the law in

reaching its conclusion or when its judgment is manifestly unreasonable or the result of

partiality, prejudice, bias, or ill will, as shown by the evidence ofrecord. N.H.M. v. P.O.T., 947

A.2d 1268, 1272 (Pa. Super. 2008); K.B.II v. C.B.F., 833 A.2d 767 (Pa. Super. 2003).

An appellate court is bound by the trial court's factual findings if they are supported in

the record; the appellate court exercises its own independent deductions and inferences from

facts as found by the trial court judge. Anderson v. Mc Vay, 743 A.2d 472 (Pa. Super. 1999);

K.W.B. v. E.A.B., 698 A.2d 609 (Pa. Super. 1997). Because the Superior Court's role does not

include making independent factual determinations, when reviewing a custody order, the

Superior Court must accept findings of the trial court that are supported by competent evidence

ofrecord. J.M.R. v. J.M., 1 A.3d 902, 911 (Pa. Super. 2010) quoting Collins v. Collins, 897

A.2d 466, 471 (Pa. Super. 2006); In re K.T.E.L., 983 A.2d 745, 749 (Pa. Super. 2009). With

regard to issues of credibility and weight of the evidence, the Superior Court must defer to the

presiding trial judge who viewed and assessed the witnesses first-hand. J.M.R., 1 A.3d at 911

quoting Collins, 897 A.2d at 471.

IV. DISCUSSION

A. Concise Statement of the Matters Complained of on Appeal -Averment 1

In his Concise Statement of the Matters Complained of on Appeal, Father initially raises

the following issue:

"Whether the [c]ourt committed prejudicial error in failing to find that Appellee's

husband was a risk of harm to the parties' children."

5
 The court firmly believes that it did not commit an error of law and/or abuse its discretion

in finding thatS\tp-fvt\-hvrwas not a risk of harm to the parties' children. The court's

determination with respect to'SNf'-f~«-was supported by the factual record presented before the

trial court. In making such determination, the court notes that it found as credible Skp, · h.f.hitr 's

testimony that his prior wife obtained a Protection From Abuse Order against him several years

ago when said marriage was falling apart. (N.T., February 5, 2016 at 6) $1-q,-farU1tr admittedly

confronted his former wife at her place of employment after discovering that she was engaged in

an extra-marital affair. (N.T., February 5, 2016 at 7) As a result thereof, Sk.r-h.11\•!s former

wife obtained the Protection From Abuse Order to keep S~ef--+i&1.;1r. Id ~"'~ ·fu.w.~1'was charged

with Stalking as a result of the facts alleged in the Protection From Abuse Petition filed by his

former wife; however, said criminal charge was dismissed before the York County Court of

Common Pleas on November 25, 2009. (N.T., February 5, 2016 at 7-10) An additional non-

enumerated offense for Harassment was dismissed andS~ - f€t..\-hupleaded guilty to a single

misdemeanor charge of Disorderly Conduct and received a one year probationary sentence.

(N.T., February 5, 2016 at 10)

Subsequently, on September 19, 2008,~ -Yi\-\,h~,was again charged with offenses of

Stalking, Simple Assault, and two counts of Disorderly Conduct as a result of a confrontation he

had with a neighbor of his former wife. (N.T., February 5, 2016 at 12-14).-.;'\lr---·fa~Mr' credibly

testified that there was a verbal confrontation with his former wife's male neighbor, but no actual

physical violence occurred. (N.T., February 5, 2016 at 14)5}-.i,p·f.,J,v\~pleaded guilty to the

offense of Stalking and received a sentence of not less than nine months nor more than twenty-

three months; the Simple Assault charge was dismissed, one of the Disorderly Conduct charges

was dismissed; and,S~\!.,y, .f.,\\11.1-pleaded guilty to the other Disorderly Conduct charge and

6
received a sentence of not less than six months nor more than twelve months. (N.T., February 5,

2016 at 12):5\"Zf'··fu~rserved this sentence on house arrest. (N.T., February 5, 2016 at 12-13)

There was no testimony presented that $kp·-!7tfhu-was involved in any other criminal or violent

incident until the Fall of 2015 incident involving Mother. (N.T., February 5, 2016 at 11)

In October 2015, S~~~·,fi4·hN: and Mother were involved in a single, isolated confrontation

that resulted in St-.q,,--~~-r being charged with False Imprisonment. (N.T., February 5, 2016 at

15-17 and 20) Mother also obtained, and subsequently withdrew, a Temporary Protection From

Abuse Order against ~ff-l-zdfa.-1; (N.T., February 5, 2016 at 68-70) The court found as credible

Mother's testimony that she and'Si-c.p·Fzt+~wrhad an argument in the bathroom of their residence

and she wanted to leave the bathroom. (N.T., February 5, 2016 at 68) ~p-Faitw-wanted to

complete their conversation so he blocked Mother from leaving the bathroom. (N.T., February

5, 2016 at 68-69) When Mother attempted to push her way out of the bathroom, s1¥~·-Ft}t#W-1 ·
swung his arm to attempt to block Mother from leaving and struck her on the lip. (N.T.,

February 5, 2016 at 69) As a result, ~-f4uwrwas charge with False Imprisonment. (N.T.,

February 5, 2016 at 69). The parties were able to expeditiously work through their differences

and obtain counseling, which was continuing at the time of the Custody Hearing. (N.T.,

February 5, 2016 at 70-71). Further, the court notes that there were no allegations raised or

claims that Sk.r··~c:~-ever physical assaulted or threatened the minor children. After

consideration of the totality of the testimony and evidence presented at the Criminal History

(Risk of Harm) Hearing pursuant to 23 Pa. C.S.A. §5329 conducted on February 5, 2016, the

court determined that Mother's husband15k..p-·Ptt+I-\~ r ) did not pose a current risk of harm

to the children, nor was he in need of any counseling. (N .T., February 5, 2016 Order).

7
 Additionally, after consideration of the totality of the testimony and evidence presented at

the Custody Hearing held on June 20, 2016; June 30, 2016; and,July 25, 2016, and the prior

testimony from the Criminal History (Risk of Harm) Hearing, which was incorporated into the

record at the time of the Custody Hearing, the court noted its observations and determinations in

detail regarding all factors enumerated by 23 Pa. C.S.A. §5328 in the September 8, 2016 Opinion

and Order concluding that there was no credible evidence presented to suggest that any party, or

any members of their respective households, posed a current risk of harm to the children. (N.T.,

September 8, 2016 Opinion and Order at 4-6) As finder of fact, it is axiomatic that the trial court

is free to give a witness' testimony whatever weight it deems appropriate. C.R.F. v. S.E.F., 45

A.3d 441, 445 (Pa. Super. 2012). A trial court is free to believe all, part, or none of each

witness' testimony. Id. After weighing the credibility of the parties and witnesses, the court

determined, in its analysis of Factor 2 of23 Pa. C.S.A. §5328, that both parties possessed the

ability to provide adequate physical safeguards and supervision for the minor children. (N.T.,

September 8, 2016 Opinion and Order at 4) The court rejected Father's argument that there was

ongoing domestic violence in Mother's home with ~-fa,l,-\,vl,; (N.T., September 8, 2016 Opinion

and Order at 4) The court recognized that there was a short period of time during the Fall of

2015 when there were marital difficulties between Mother and her husband; however, said issues

appeared to have been an isolated incident. (N.T., September 8, 2016 Opinion and Order at 5)

There was no evidence to support a claim of any lingering concerns produced of record.

The court also noted in the September 8, 2016 Opinion and Order that, at the Custody

Hearing, there was testimony from the Lancaster County Children and Youth Social Service

Agency that there was limited involvement with the family by the Lancaster County Children

and Youth Social Service Agency with respect to truancy involving the parties' oldest child,

8
M ~ ?~. ; as well as and a claim that M"' ?, was bullying the other children at a time when

Mo ?. was residing with Mother. (N.T., September 8, 2016 Opinion and Order at 5-6)

M» ?1 subsequently relocated to reside with his father and, therefore, the Agency closed their

case. (N.T., September 8, 2016 Opinion and Order at 6) Additionally, in May 2015, there was a

report from law enforcement regarding t), I~, t having been sexually assaulted by her boyfriend.

(N.T., September 8, 2016 Opinion and Order at 6) The Agency contacted Mother to determine

whether :0,Mi'B. 's boyfriend was a household member. (N.T., September 8, 2016 Opinion and

Order at 6) Inasmuch as he was not a household member, the Agency screened out the case on

May 20, 2015 without the necessity of any further involvement. (N.T., September 8, 2016

Opinion and Order at 6) Mother took appropriate steps to immediately remove the alleged

perpetrator from her residence in order to provide safety for "'j),M. Pe» (N.T., September 8, 2016

Opinion and Order at 5) At no time was there ever a report or investigation by the Agency

involving any purported violence between 3tep-fu~'\ii.iand the children.

The court's decision to find that ';3.+-.i.t'-fu'"'-~did not present a risk of harm to the children

was supported by the factual record, did not override or misapply the law, and was in no way

manifestly unreasonable or the result of partiality, prejudice, bias, or ill will.

B. Concise Statement of the Matters Complained of on Appeal -Averment 2

In his Concise Statement of the Matters Complained of on Appeal, Father next raises the

following issue:

"Whether the [ c ]ourt committed prejudicial error in excluding testimony relating to the

Appellee's husband's abusive and criminal behavior and by not staying the Risk of Harm

Hearing and subsequent Custody Hearing until the criminal matters then pending against

9
Appellee' s husband were disposed of so that the potential risk of harm to the children could be

fully litigated."

§5329. Consideration of criminal conviction.

(a) Offenses.--Where a party seeks any form of custody, the court shall consider
whether that party or member of that party's household has been convicted of or has
pleaded guilty or no contest to any of the offenses in this section or an offense in
another jurisdiction substantially equivalent to any of the offenses in this section. The
court shall consider such conduct and determine that the party does not pose a threat
of harm to the child before making any order of custody to that parent when
considering the following offenses:

18 Pa.C.S. Ch. 25 (relating to criminal homicide).
18 Pa.C.S. § 2702 (relating to aggravated assault).
18 Pa.C.S. § 2706 (relating to terroristic threats).
18 Pa.C.S. § 2709.1 (relating to stalking).
18 Pa.C.S. § 2901 (relating to kidnapping).
18 Pa.C.S. § 2902 (relating to unlawful restraint).
18 Pa.C.S. § 2903 (relating to false imprisorunent).
18 Pa.C.S. § 2910 (relating to luring a child into a motor vehicle or structure).
18 Pa.C.S. § 3121 (relating to rape).
18 Pa.C.S. § 3122.1 (relating to statutory sexual assault).
18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse).
18 Pa.C.S. § 3124.1 (relating to sexual assault).
18 Pa.C.S. § 3125 (relating to aggravated indecent assault).
18 Pa.C.S. § 3126 (relating to indecent assault).
18 Pa. C. S. § 312 7 (relating to indecent exposure).
18 Pa. C. S. § 3129 (relating to sexual intercourse with animal).
18 Pa.C.S. § 3130 (relating to conduct relating to sex offenders).
18 Pa.C.S. § 3301 (relating to arson and related offenses).
18 Pa.C.S. § 4302 (relating to incest).
18 Pa.C.S. § 4303 (relating to concealing death of child).
18 Pa.C.S. § 4304 (relating to endangering welfare of children).
18 Pa.C.S. § 4305 (relating to dealing in infant children).
18 Pa.C.S. § 5902(b) (relating to prostitution and related offenses).
18 Pa.C.S. § 5903(c) or (d) (relating to obscene and other sexual materials and
performances).
18 Pa.C.S. § 6301 (relating to corruption of minors).
18 Pa.C.S. § 6312 (relating to sexual abuse of children).
18 Pa.C.S. § 6318 (relating to unlawful contact with minor).
18 Pa.C.S. § 6320 (relating to sexual exploitation of children).
Section 6114 (relating to contempt for violation of order or agreement).
The former 75 Pa.C.S. § 3731 (relating to driving under influence of alcohol or
controlled substance).

10
 75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol or utilizing drugs).
Section 13(a)(l) of the act of April 14, 1972 (P.L.233, No.64), known as The
Controlled Substance, Drug, Device and Cosmetic Act, to the extent that it prohibits
the manufacture, sale or delivery, holding, offering for sale or possession of any
controlled substance or other drug or device.

(b) Parentconvicted of murder.--No court shall award custody, partial custody
or supervised physical custody to a parent who has been convicted of murder under
18 Pa.C.S. § 2502(a) (relating to murder) of the other parent of the child who is the
subject of the order unless the child is of suitable age and consents to the order.

(b.I) Parentconvicted of certain sexual offenses.--
(1) Notwithstanding any provision of this chapter to the contrary and subject to
paragraph (2), if a parent who is a victim of any of the offenses set forth in this
paragraph objects, no court shall award any type of custody set forth in section
5323 (relating to award of custody) to the other parent of a child conceived as a
result of any of the following offenses for which the other parent has been
convicted:

18 Pa.C.S. § 3121.
18 Pa.C.S. § 3122.1.
18 Pa.C.S. § 3124.1, where the offense involved sexual intercourse.
18 Pa.C.S. § 3124.2 (relating to institutional sexual assault), where the offense
involved sexual intercourse.
18 Pa.C.S. § 4302.

(2) A court may award any type of custody set forth in section 5323 to a parent
who has been convicted of an offense under paragraph (1) if:
(i) the parent who is a victim had an opportunity to address the court;
(ii) the child is of suitable age and consents to the custody order; and
(iii) the court determines the award is in the best interest of the child.

(3) Paternity of the child shall be established by voluntary acknowledgment of
paternity or blood, genetic or other paternity testing acceptable to the court. The
cost of the testing shall be borne by the parent who was convicted of the offense.

(c) Initial evaluation.--At the initial in-person contact with the court, the judge,
conference officer or other appointed individual shall perform an initial evaluation to
determine whether the party or household member who committed an offense under
subsection (a) poses a threat to the child and whether counseling is necessary. The
initial evaluation shall not be conducted by a mental health professional. After the
initial evaluation, the court may order further evaluation or counseling by a mental
health professional if the court determines it is necessary.

(d) Counseling.--
( l) Where the court determines under subsection (c) that counseling is necessary,

11
 it shall appoint a qualified professional specializing in treatment relating to the
particular offense to provide counseling to the offending individual.

(2) Counseling may include a program of treatment or individual therapy designed
to rehabilitate the offending individual which addresses, but is not limited to, issues
regarding physical and sexual abuse, the psychology of the offender and the effects
of the offense on the victim.

(e) Subsequent evaluation.--
( 1) At any time during or subsequent to the counseling under subsection ( d), the
court may require another evaluation to determine whether further counseling is
necessary.

(2) If the court awards custody to a party who committed an offense under
subsection (a) or who shares a household with an individual who committed an
offense under subsection (a), the court may require subsequent evaluations on the
rehabilitation of the offending individual and the well-being of the child subsequent
to the order. If,upon review of a subsequent evaluation, the court determines that the
offending individual poses a threat of physical, emotional or psychological harm to
the child, the court may schedule a hearing to modify the custody order.

(f) Costs.--The court may order a party to pay all or part of the costs of the counseling
and evaluations under this section.

23 Pa. C.S.A. §5329.

5330. Consideration of criminal charge.

(a) Expedited hearing.--A party who has obtained information under 42 Pa.C.S. § 1904
(relating to availability of criminal charge information in child custody proceedings) or
otherwise about a charge filed against the other party for an offense listed under section
5329(a) (relating to consideration of criminal conviction) may move for a temporary
custody order or modification of an existing custody order. The court shall hold the
hearing under this subsection in an expeditious manner.

(b) Risk of harm.--In evaluating any request under subsection (a), the court shall consider
whether the party who is or has been charged with an offense set forth in section
5329(a) poses a risk of physical, emotional or psychological harm to the child.

(c) No prejudice.--Failure to either apply for information under 42 Pa.C.S. § 1904 or act
under this section shall not prejudice any party in a custody proceeding.

23 Pa. C.S.A. §5330.

12
 An evidentiary Criminal History (Risk of Harm) Hearing pursuant to 23 Pa. C.S.A.

§5329 was conducted by the court in order to review ~fitflw,'s enumerated offenses, which

included a conviction for stalking his former wife's neighbor and a Final Protection From Abuse

Order obtained by St«t-fi--""<-<'s former wife against him. The court allowed Father's counsel to

engage in a complete inquiry and cross-examination of Sh.p~(:,.l·hi-.'s alleged abusive and criminal

behavior related to the enumerated offenses set forth in 23 Pa. C.S.A. §5329 at the Criminal

History (Risk of Harm) Hearing. (N.T., February 5, 2016 at 28-40 and 56-57) If there was any

additional alleged abusive and/or criminal behavior pertaining to any non-enumerated offenses,

then Father was free to inquire and cross-examines-hs --f~...,-conceming such behaviors during

the Custody Hearing; however, inasmuch as Father's counsel failed to do so, any claim that the

court excluded testimony relating to S~·:m,+h.i.r's alleged abusive and criminal behavior subject to

Factor 2 of 23 Pa. C.S.A. §5328, which would involve any non-enumerated offenses not covered

in the Criminal History (Risk of Harm) Hearing, is waived by Father. (N.T., June 30, 2016 at

355-369)

The court notes that there was a pending charge for False Imprisonment against Sf0" -

·fr-~if, in which Mother was the alleged victim, at the time of the Criminal History (Risk of

Harm) Hearing. The court did not hear testimony surrounding said pending charge inasmuch as

it was not a conviction subject to review under 23 Pa. C.S.A. §5329. Moreover, Shp,.,-Fi+t~,r -r-
1

invoked his Fifth Amendment rights and refused to answer any questions concerning the incident

that resulted in the False Imprisonment charge. The pending charge for False Imprisonment

against $t-"1" .fa+l-wrwas also not subject to discretionary review by the court pursuant to 23 Pa.

C.S.A. §5330 inasmuch as Sr-t,fu~'-.irwas not a party to the instant matter.

13
 Additionally, the court notes that there was a Temporary Protection From Abuse Order

prohibiting St"P -G..w.« from having any contact with Mother, which was withdrawn by Mother.

Sitlf, ·-fo fhu- also invoked his Fifth Amendment rights and refused to answer any questions

concerning the incident that resulted in the filing of the Protection From Abuse Petition, which

was the same incident that involved the filing of the False Imprisonment charge. Accordingly,

the facts involving the Protection From Abuse Petition were not reviewed by the court in the

Criminal History (Risk of Harm) Hearing inasmuch as the Temporary Protection From Abuse

Petition did not result in a finding of abuse, which would make it subject to review under 23 Pa.

C.S.A. §5329.

The court further notes that Father did not file a Petition for Special Relief to notify the

court, after the completion of the evidentiary hearings on July 25, 2016 and prior to the entry of

the September 8, 2016 Opinion and Order, that there was any change in the status of the pending

charge for False Imprisonment against 9tlf-firll1l,~ so as to potentially trigger a Supplemental

Criminal History (Risk of Harm) Hearing pursuant to 23 Pa. C.S.A. §5329, nor did Father ever

file a request with the court to permit additional testimony in the event that :m.r~ii#i.,,;'s pending

charge was fully litigated and resulted in a conviction. Father did not file for reconsideration of

the September 8, 2016 Opinion and Order of this court to request consideration of any additional

enumerated offense subject to 23 Pa. C.S.A. §5329. Father retains the remedy at this time to file

a Petition for Modification of the September 8, 2016 Opinion and Order regarding any additional

enumerated offense pursuant to 23 Pa. C.S.A. §5329 that has not already been fully litigated.

The court did not commit an error of law and/or abuse its discretion as there was no basis

to stay the Criminal History (Risk of Harm) Hearing and subsequent Custody Hearing inasmuch

as all criminal convictions that would trigger a review pursuant to 23 Pa. C.S.A. §5329 and

14
§5330 were properly considered before entering an Order of Custody. At no time did Father

request a stay of the Criminal History (Risk of Hann) Hearing or Custody Hearing, nor is the

court aware of any authority to support such a request. The court has an obligation to promptly

dispose of a custody case pursuant to Rule 1915 .4 of the Pennsylvania Rules of Civil Procedure.

In this matter, the court conducted the Custody Hearing as expeditiously as possible and

rendered a decision in compliance with the Pennsylvania Rules of Civil Procedure.

Father had every opportunity to inquire as to~~'"'°'~!" 's alleged abusive and criminal

behavior as it related to the issue of any potential risk of harm to the children based upon

convictions for enumerated offense subject to 23 Pa. C.S.A. §5329 in the proper forum of a

Criminal History (Risk of Harm) Hearing, which was subsequently incorporated into the

September 8, 2016 Opinion and Order and considered in the court's analysis of Factor 2 at the

completion of the Custody Hearing. The court's decision to proceed with a Criminal History

(Risk of Harm) Hearing and subsequent Custody Hearing did not override or misapply the law

and was in no way manifestly unreasonable or the result of partiality, prejudice, bias, or ill will.

C. Concise Statement of the Matters Complained of on Appeal - Averment 3

In his Concise Statement of the Matters Complained of on Appeal, Father lastly raises the

following issue:

"Whether the [ c]ourt committed prejudicial error by failing to award shared physical

custody of the children when the court found all factors under Pa. C.S.A. §5328 to be essentially

equal between the parties and the record supports a finding of shared custody."

The court properly applied the law to the facts of this case as set forth in 23 Pa. C.S.A.

§5327(a), which provides as follows:

15
 §5327. Presumption in cases concerning primary physical custody

(a) Between parents. - In any action regarding the custody of the child between the
parents of the child, there shall be no presumption that custody should be awarded to
a particular parent.

23 Pa. C.S.A. §5327(a). The court did not make a presumption that custody should be awarded

to Mother. The court set forth its analysis of the custody factors pursuant to 23 Pa. C.S.A. §5328

in the September 8, 2016 Opinion and Order after the completion of the evidentiary hearings

based on the evidence set forth during the Criminal History (Risk of Harm) Hearing and the

Custody Hearing. The court hereby incorporates the findings and analysis of the custody factors

set forth in the September 8, 2016 Opinion and Order.

Although Father argues that the court found all of the factors to be "essentially equal", it

is clear from a review of the Opinion and Order dated September 8, 2016 that, while the court

had positive things to say about each party regarding most relevant factors, the court in no way

indicated that it had resolved the factors equally in favor of both Mother and Father. The court

determined the appropriate weight to give each factor in rendering its opinion. In particular, the

court noted that Mother was more capable of tending to more of the parental duties for the

children in light of the inherent flexibility of her work schedule and that Mother was better suited

to attend to the daily physical, emotional, developmental, educational, and special needs of the

children in light of the flexibility of her work schedule and stronger bond with all three children.

While both parties have been involved in the medical care arrangements for the children, Mother

has been able to oversee the children's counseling and medical needs. Id. /Jr.f f:1 is hyper-active
and 'De}~,~ suffers from social anxiety. Id. By all accounts, the children now perform well

academically and do not have any significant behavioral problems. Id.

16
 The court's primary focus in determining what was in the best interest of the children and

most critical factor for the court's consideration in rendering its decision was the need for

consistency and stability for the minor children. The court made it clear in the Opinion and

Order that it believed the children were performing well academically and did not have any

significant behavioral problems. The court noted that it believed that the children's current

stability was as a direct result of the consistent and predictable routine that the parties have

followed with respect to the custody schedule. (N.T., September 8, 2016 Opinion and Order at

9)

Moreover, the court had serious reservations about granting shared custody to the parties

due to the high level of conflict between the parties. (N.T., September 8, 2016 Opinion and

Order at 9-10) The parties do not discuss issues related to custody of the children in person or

over the telephone and Mother has insisted that an communication be done solely by text

message. Id.

The court did not commit an error oflaw and/or abuse its discretion by maintaining the

agreed upon schedule of custody wherein Mother exercised primary physical custody and Father

exercised periods of partial physical custody. The court did not find convincing Father's

contention that a modified physical custody schedule would enhance the stability provided for

these children. Simply put, while recognizing their individualized situations and limitations, the

court believed that the minor children have adjusted in a positive manner under the current

custodial arrangement. While recognizing Father's desire to spend more time with his children,

the court was simply unwilling to make adjustments to a custodial schedule that appears to have

so benefitted these minor children. The evidence of record indicated that the children were

thriving under the custody schedule that the parties agreed to follow when they separated before

17
Father filed a custody action against Mother. The court's denial of Father's request for shared

physical custody of the children was in no way manifestly unreasonable or the result of partiality,

prejudice, bias, or ill will; rather, the court's decision was based primarily on the need for

consistency and stability for the children. Based upon the testimony of the parties and the

children, as well as the weight given to the custody factors, the court determined that the

schedule agreed previously upon by the parties was one that provided consistency and stability

for the children and should continue to be the schedule followed by the parties. Accordingly, the

court denied Father's request for shared physical custody of the children.

The court notes that, in the September 8, 2016 Opinion and Order, the court actually

sought to increase Father's time with the youngest two children by providing each of them to

spend more one-on-one time with Father pursuant to their specific requests.

V. CONCLUSION

Because the court utilized a complete record, analyzed the record based on the all factors

enumerated in 23 Pa. C.S.A. §5328 and 23 Pa. C.S.A. §§5329/5330, and has given an extensive

explanation of such above, it should be entitled to the broadest of all scopes of review, which is

abuse of discretion. K.L.H. v. G.D.H., 464 A.2d 1368, 1371 (Pa. Super. Ct. 1983). The court

does not believe that it has overridden or misapplied the law, and does not believe that its

conclusion was manifestly unreasonable or the result of partiality, prejudice, bias, or ill will, as

shown by the evidence ofrecord. N.H.M. v. P.O.T., 947 A.2d 1268, 1272 (Pa. Super. Ct. 2008).

The court carefully considered the best interests of the children, and as a result, entered an order

18
granting shared legal custody to the parties; primary physical custody to Mother; and, periods of

partial physical custody to Father.

BY

~-¥----------
• ME LL M. SPAHN, JR., JUDGE

ATTEST:

cc: ~folly S. Filius, Esquire, ounsel for Plaintiff
~ames D. Wolman, Esquire, Counsel for Defendant

NOTICE OF ENTRY
PURSUANT TO PA ~6 ~RigR OR DECREE
NOTIFICATION T . . . . . 236
~AS BEC:N FILE~ l~ET~r:~;~!D DOCUr.,ENT
o1flHONOTARv OF LANCASTER co., PA
·11-ct-{(p
19