J-A14005-17
2017 PA Super 268
M.J.N ., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
J.K.,
Appellee No. 330 EDA 2017
Appeal from the Order Entered December 23, 2016
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2009-FC-1636
BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.
OPINION BY BENDER, P.J.E.: FILED AUGUST 18, 2017
M.J.N. (Father) appeals from the December 23, 2016 order that
awarded J.K. (Mother) and Father joint legal custody of Z.K. (Child) (born in
June of 2009), and awarded Mother primary physical custody of the Child
and Father partial physical custody in accordance with a schedule delineated
in the order. The order also held Mother in contempt for not complying with
the prior custody order. After review, we vacate in part, affirm in part, and
remand.
The trial court set forth a summary of the factual and procedural
history of this case in its Pa.R.A.P. 1925(a) opinion, stating:
The parties’ child, Z.K., was born out of wedlock [i]n June
[], 2009. [Father] filed a Complaint in Custody on December 21,
2009. Since March 12, 2012, the parties have been exercising
custody pursuant to a stipulation into which they entered on that
date. Pursuant to the stipulation, the parties agreed to shared
legal custody of their son, and alternating physical custody on a
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two-week rotation with a roughly fifty-fifty split of custodial
periods with the child.
On June 21, 2016, [Father] filed a Petition for Contempt
and Modification of Custody Order. The contempt component
was based upon [Father’s] allegation that [Mother] withheld the
minor child on several occasions during which exchanges were
supposed to occur, including one specific incident where the child
allegedly missed a keyboard lesson. [Father] asserted that
[Mother] would not bring the child to [Father’s] residence unless
[Father] was physically present despite the fact that [Father’s]
live-in girlfriend was home at the times at issue. [Father]
further claimed that [Mother] could be heard on the phone while
[Father] was speaking to the minor child and that [Mother]
coached the minor child on what to say.
On December 1, 2016 and December 2, 2016, the [c]ourt
conducted a custody trial during which both parties were
represented by counsel. The [c]ourt also conducted an in
camera interview of the minor child.
On December 23, 2016, the [c]ourt issued an Order
granting in part and denying in part [Father’s] Petition for
Modification. The Order reviewed each of the factors for a
custody determination and made specific factual findings with
respect to each factor. 23 Pa.C.S.[] §§ 5328, 5329.1. The
[c]ourt granted [Father’s] Petition for Contempt and held
[Mother] in contempt for failing to comply with the parties’
March 12, 2012 stipulated custody schedule. As a remedy, the
[c]ourt awarded [Father] make-up custodial time.
On January 10, 2017, [Father] filed a Motion for
Reconsideration and a Motion to Open the Record in order to
present additional evidence. Both of the foregoing motions were
denied by Order dated January 12, 2017.
[Father] filed the instant Notice of Appeal on January 23,
2017, along with a Concise Statement of Matters Complained of
on Appeal pursuant to Pa.R.A.P. 1925(b).
Trial Court Pa.R.A.P. 1925(a) Opinion (TCO), 2/16/17, at 1-2.
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As noted by the trial court, after entry of the December 23, 2016
order, Father filed the instant appeal and raises the following issues for our
review:
A. Whether the Trial Court committed an Error of Law and Abuse
of Discretion in issuing the Order entered on December 23,
2016, as it failed to award Father Primary Physical Custody of
the [C]hild, contrary to the best interest and general welfare of
the subject minor Child where the totality of the facts and
evidence of Record elicited at Trial support an award of Primary
Physical Custody to Father, when considering the same in light of
the Factors identified in 23 Pa.C.S.[] § 5328?
B. Whether the Trial Court committed an Error of Law and Abuse
of Discretion in issuing the Order entered on December 23,
2016, as the Schedule imposed will serve to damage and
substantially impact the relationship between Father and the
Child as there will be, pursuant to the Order, periods of time
when Father will go as many as ten (10) days without personal
contact with the Child?
C. Whether the Trial Court committed an Error of Law and Abuse
of Discretion in issuing the Order entered on December 23, 2016
in not including a Right of First Refusal or affording Father extra
time in the Summer, or on days where the Minor Child does not
have school to make up for his significant loss of custodial time
with the child?
D. Whether the Trial Court committed an Error of Law and Abuse
of Discretion in issuing the Order entered on December 23,
2016, as the facts and evidence of Record elicited at Trial in this
matter, as well as the Trial Court[’s] finding Mother in Contempt,
demonstrate that Father is more likely than Mother to encourage
frequent and continuing contact between the Child and the other
Parent, and this factor should weigh heavily in favor of Father?
E. Whether the Trial Court committed an Error of Law and Abuse
of Discretion in issuing the Order entered on December 23,
2016, as the facts and evidence of Record elicited at Trial in this
matter demonstrate that Father is more likely than Mother to
maintain a loving, stable, consistent and nurturing relationship
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with the Child and this factor should weigh heavily in favor of
Father?
F. Whether the Trial Court committed an Error of Law and Abuse
of Discretion in issuing the Order entered on December 23,
2016, as the facts and evidence of Record elicited at Trial in this
matter demonstrate the level of conflict between the Parties and
their willingness … to cooperate with one another, and this factor
should weigh heavily in favor of Father?
G. Whether the Trial Court committed an Error of Law and Abuse
of Discretion in Denying Father’s Motion in Limine to Preclude
the Testimony of the seven (7) year old Minor Child despite
Evidence of Mother's influence upon the Minor Child regarding
Father, and history of attempting to influence and tamper with
witnesses during the pendency of this matter?
Father’s brief at 4-5.
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)).
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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 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).1
____________________________________________
1
Section 5328 sets forth the following factors to be considered by the trial
court:
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a continued
risk of harm to the child or an abused party and which party can
better provide adequate physical safeguards and supervision of
the child.
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
(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.
(Footnote Continued Next Page)
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In light of Father’s issues, we reproduce the trial court’s discussion
relating to each of the section 5328(a) factors as found in the court’s
December 23, 2016 order.
1. Which party is more likely to encourage and permit frequent
and continuing contact between the child and another party. -
This [] factor is weighed slightly in favor of [Mother]. The
testimony indicated [Father] is not always able to be present at
the time [the child] is dropped off for the [Father’s] custodial
periods. While his live-in girlfriend is seen by both parties to be
an appropriate caregiver, [Father] alleges [Mother] refuses to
leave the child in the girlfriend’s custody. [Mother] portrays
herself as the selfless parent in this relationship, but [Father]
testified [Mother] speaks to him in rude and derogatory terms.
For his part, [Father] claims [Mother] interferes not only in his
exercise of physical custody, but also in his attempts to speak to
the minor child on the phone. [Father] claimed [Mother] will
manipulate the custodial schedule and interfere in activities he
has planned with the child, such as on Father’s Day. [Mother]
claims she e-mailed [Father] a couple of times to verify the pick-
up time clearly stated in the prevailing custody order to see if
she could attend church with the child. The [c]ourt concludes
the truth is somewhere between the versions of the parties.
2. Present and past abuse committed by a party or member of
the party's household, whether there is 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. - This
factor is weighed in favor of [Father]. [Father] offered a number
_______________________
(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.
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of witnesses to support the contention [Mother] has been
physically, verbally, and emotionally abusive to [Father].
However, there was not any evidence [Mother] abused the minor
child. There was not any evidence indicating or even implying
[Father] has been abusive to the minor child.
3. The parental duties performed by each party on behalf of the
child. - This factor is weighed slightly in favor of [Mother]. She
is primarily a stay at home mother who works refinishing and
repurposing furniture in her garage. As a result, she is the
parent who most frequently is involved in taking the child to and
from school, to and from athletic practices, and to medical or
dental appointments. Each parent testified to their ability to
ensure the child is fed, clean, and dressed appropriately. Each
parent appropriately attempts to keep the child involved in
extracurricular programs. [Father] has tried to interest the child
in playing the keyboard, while [Mother’s] interests seem more
focused on keeping the child enrolled in athletic activities.
4. The need for stability and continuity in the child’s education,
maturity, and judgment. – This factor is weighed in favor of
[Mother]. While there is nothing wrong with [Father’s] having a
busy professional life that requires occasional travel on business
out of the area, for the simple fact that [Mother] is more
physically available, she is able to offer more stability and
continuity in the child's life. She is also more attentive to taking
the child to athletic practices. She attends his games and
competitions more frequently than [Father]. Because of the
interest by the parties in keeping the child in his current school
with his friends, [Father] also faces a challenge in transporting
the child back to school on weekday mornings as well as to
athletic practices in the evening.
5. The availability of extended family. - This factor is weighed in
favor of [Mother]. [Father’s] parents live in Vermont, where he
takes the minor child to visit during vacations. He does not have
any other family in the area, although he lives with his girlfriend
and they have discussed getting married. [Mother] lives with
her other son, with whom the minor child has a very strong
attachment. While [Mother] does not speak with her biological
parents or her sister, she has been able to keep up a cordial and
close relationship with her grandparents and the mother of her
former paramour, Ms. Andrews. [Mother] speaks with Ms.
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Andrews each day and Ms. Andrews takes both boys out for
dinner each Monday night.
6. The child’s sibling relationships. - This factor is weighed in
favor of the [Mother]. As stated above, [Mother] has another
son from a previous relationship. That boy, who is two years
older than Z.K., is a constant companion and playmate for Z.K.
[Mother] also had a daughter who unfortunately passed away
when she was approximately four years old. The loss of this
child lingers over the relationship between the parties and their
son.
7. The well-reasoned preference of the child, based on the child’s
maturity and judgment. – This factor is weighed in favor of
[Mother]. During an in camera session with the minor child, in
which both parties waived their personal attendance and that of
their respective counsel, the [c]ourt was able to learn of the
strong attachment the minor child has to his half-brother.
Although this may be an aspect of his relatively young age, the
potential of not being around his half-brother Owen and
participating in activities with him is the single largest
impediment to [Father’s] being able to establish the case for
primary physical custody.
In addition, moving forward, [Father] is strongly urged to make
more of an effort to take his son to the practices for the child’s
various athletic activities, to have the child there on time, and to
attend as many practices and competitions as he can, even
those events on [Mother’s] custodial periods. It is also
important for [Father] and his paramour to understand they
have a growing boy to help raise who is not and does not want
to be treated as if he is a toddler.
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. –
This factor is weighed in favor of [Father]. There was substantial
evidence of [Mother’s] rudeness and intimidating personality,
including cursing and uttering derogatory comments about
[Father] in the presence of the minor child. Whether one
believes the minor child was coached or not by [Mother], based
on the [c]ourt’s observation during the in camera session, this
behavior by [Mother] seems to have made little impact on the
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child. There was not any evidence of [Father’s] attempting to
turn the child against [Mother].
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. - This is a neutral factor. Both
parents testified to their love and care for their son. They both
possess the qualities and capabilities to provide for a loving,
stable, and consistent environment for the child. Based on the
in camera testimony, it is clear to the [c]ourt [Father] and the
minor child have two very different perceptions of the level of
involvement between [F]ather and child. [Father] has a busy
professional life, but the [c]ourt suggests he become more
actively engaged when he is at home with his son. [Mother] is
able to take the child to school, to his practices, and have him
home and in bed on a routine schedule, but she must also
recognize the importance of encouraging the relationship
between the child and [Father].
10. Which party is more likely to attend to the daily physical
emotional, developmental, educational, and special needs of the
child. - This factor is weighed slightly in favor of the [Mother].
Again, by sheer weight of the fact she has performed most of the
daily activities of getting the child to school, to his athletic
practices, and to any medical or dental appointments, she has a
longer record of performing these tasks. The presence of the
minor child’s half-brother cannot be understated in its effect on
the child’s entire outlook on all custodial questions.
11. The proximity of the residences of the parties. - The parties
are approximately 20-30 minutes apart, based on the amount of
traffic when one is driving between Coplay where [Mother] lives
and Upper Macungie where [Father] resides. This factor is
weighed in favor of [Mother], based on her proximity to the
minor child’s school and to his athletic practice location.
12. Each party’s availability to care for the child or ability to
make appropriate child-care arrangements. - This factor is
weighed slightly in favor of [Mother]. As stated above, because
[Mother] works from home, she does not need to rely on any
back up child care. If needed, she can call upon the
grandmother of the minor child’s half-brother to watch the
children. [Father] is at work during the day, but his paramour is
able to arrange her work schedule so that she can be home
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when the minor child arrives for his custodial periods. However,
if the child had to come home from school because he is sick, it
seems [Mother] is the only one who could accommodate that
situation without any great difficulty.
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. - This factor is weighed in favor of [Father]. [Father]
presented ample testimony that [Mother] is rude, combative,
and possibly a very unpleasant person to be around to her
neighbors and former boyfriends. She has a history of physically
assaulting men in her life, and an apparent tendency to lie on
numerous occasions when confronted with a number of
discrepancies about her conduct. She has also formed a close
bond with the minor child which remains unshaken even after all
the obnoxious conduct to which she may have exposed her son.
[Father] appears to be a caring individual who is portrayed as
being distracted by his professional responsibilities. The
testimony about [Father’s] level of interaction with the
[Mother’s] family during the physical decline and eventual
passing of [Mother’s] daughter raises questions about his
honesty, but has little to do with his relationship with the minor
child.
14. The history of drug or alcohol abuse of a party or member of
a party’s household. - This is a neutral factor. Neither party
characterized the other as abusive of drugs or alcohol.
15. The mental and physical condition of a party or member of a
party’s household. - This factor is weighed slightly in favor of
[Father]. While neither party nor the other extended family
members displayed any physical or mental health conditions
which would impair their ability to care for the child, the wildly
varying contradictions in the depictions of various episodes in
the lives of the parties leads the [c]ourt to conclude it will
require each party to obtain a mental health evaluation within 60
days of the date of this Order. Said evaluation will be for the
purpose of determining if either or both parties are
recommended for any follow-up treatment or counseling as it
relates to the ability of the parties to co-parent and to participate
in raising their son.
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16. Any other relevant factor. - This factor is weighed in favor of
[Father]. [Mother] admitted she pled guilty to a summary level
offense of harassment in New Hampshire in 2009. [Mother] was
criminally charged after an altercation with [Father]. Beyond
that one incident, [Mother] was described as frequently
assaulting both [Father] and the man she was involved with in
the last two years. This indicates to the [c]ourt the mental
health evaluation of [Mother] also needs to include an evaluation
if she needs to attend anger management training.
Trial Court Order (TC Order), 12/23/16, at 1-5 (footnote omitted).2
With regard to his first issue, Father begins by claiming that the court
should have awarded him primary custody of the Child because the facts
elicited from the evidence support such a conclusion in relation to the
section 5328 factors. Father argues that the court over-emphasized the
Child’s relationship with his half-brother, Mother’s child from a prior
relationship, who lives with her. To illustrate his claim, Father quotes the
court’s statement that “[a]lthough this may be an aspect of his relatively
young age, the potential of not being around his half-brother … and
participating in activities with him is the single largest impediment to
[Father’s] being able to establish the case for primary physical custody.” TC
Order at 3 (Factor (7)). Father also notes the court’s statement that “the
presence of the minor child’s half-brother cannot be understated in its effect
on the child’s entire outlook on all custodial questions.” Id. at 4 (Factor
____________________________________________
2
The court also stated “[t]here is not any evidence of any determination of
abuse or neglect by a child protective service agency against either party.”
Id. at 5.
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(10)). Father further explains that the Child’s half-brother has stayed at
Father’s home on numerous occasions when Father has had custody of the
Child, a fact not contradicted by Mother in any way. Furthermore, Father’s
mother testified that she has a strong relationship with the Child’s half-
brother and that she treats him like a grandson. Essentially, Father asserts
that without evidence to the contrary, these factors “should be considered
neutral and not weighed in favor of Mother as the [t]rial [c]ourt
determined.” Father’s brief at 11-12. Father also notes that the boys are
four years3 apart in age and do not attend the same school. Therefore, a
change in custody would not affect the Child’s time with his half-brother
during the school day.
Next, Father centers his argument on the trial court’s finding that
Mother’s working from home was a valid basis for determining in Mother’s
favor factors (10) and (12), as well as factor (3). In other words, the court
found that Mother was more likely to attend to the daily physical, emotional,
developmental and educational needs of the Child, was more available to
care for the Child or arrange for appropriate childcare, and to perform
parental duties, simply because she worked at home. In response, Father
acknowledges that he travels approximately three days per month, but is
____________________________________________
3
A search of the record does not provide a birth date for the Child’s half-
brother. While Father asserts that the boys are four years apart in age, the
trial court states that they are two years apart. See TC Order at 2 (factor
(6)).
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generally able to schedule his travel on days he does not have custody of
the Child, a fact about which Father’s fiancee likewise testified. Father also
points out that Mother testified that due to Father’s travel for work he was
often unavailable to exercise his custody time. However, Father claims that
no evidence supported Mother’s contention, and in fact, Mother had several
times requested Father to take custody of the Child earlier than called for by
the prior custody schedule.
Father also references the court’s finding that Father has had difficulty
in transporting the Child to school on weekday mornings and to athletic
practices in the evenings as this relates to factor (4). In other words, the
court found in favor of Mother regarding the need for stability and continuity
in the Child’s education, maturity and judgment. Again, Father argues that
no evidence in the record supports this finding. Rather, he claims that the
evidence shows no problems with regard to his ability to transport the Child
in a timely manner and that the court’s order now on appeal directs Father
to take the Child to school every other Friday and Monday morning following
his custodial time. Father also indicates that he has a coaching position with
the Child’s basketball team and that he attends the games and practices,
even if they do not fall during his custody time.
Additionally, Father takes issue with the court’s finding in favor of
Mother as to factor (11), “based on [Mother’s] proximity to the minor child’s
school and to his athletic practice location.” See TC Order at 4 (factor (11)).
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Specifically, Father claims that the record contains no evidence to support
this finding. Furthermore, Father points to the factors relating to who “is
more likely to attend the daily physical, emotional, developmental,
educational, and special need of the Child [(factor (10))], each [p]arty’s
availability to care for the Child and to make appropriate child-care
arrangements [(factor (12))], and the parental duties performed by each
[p]arty [(factor (3))],” as factors that should have been found in his favor or
considered neutral. Father’s brief at 13.
We agree with a number of Father’s contentions, recognizing that the
court’s conclusions based on the evidence in the record are not supported by
the court’s findings and in some instances contradict those findings. For
example, the court determined that factor (1) weighs slightly in Mother’s
favor, yet the evidence the court relates suggests that this factor should at a
minimum be neutral. See TC Order at 1 (factor(1)). Also, the court’s
discussion regarding factors (13) and (16), which were weighed in favor of
Father, shows the court’s recognition of Mother’s rude and combative
behavior; however, the court simply concludes that it has no effect on the
Child. We are also troubled by the court’s emphasis, almost to the exclusion
of other factors, on the Child’s relationship with his half-brother. Moreover,
the court appears to overlook its own ruling that it found Mother in contempt
of the prior custody order. Interestingly, the court found factor (5) in favor
of Mother, recognizing that she has maintained a close relationship “with her
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grandparents and the mother of her former paramour, … [who] takes both
boys out for dinner each Monday night.” TC Order at 2 (factor (5)).
However, the court also finds Mother lacks a relationship with her own
parents and sister, who live in the vicinity.
Although we are cognizant of the emphasis on the best interests of the
child standard, we are also aware that the court’s conclusions must be
reasonable in relation to the facts. Based upon the foregoing, we hold that
some of the trial court’s findings are not supported by record evidence, and
that a number of its conclusions are unreasonable.
The thrust of Father’s second and third issues rests on his allegation
that the custody schedule imposed by the court deprived Father of in-person
contact with the Child for periods of up to ten days at a time, after having
had a custody schedule in place that afforded a 50% split of time with the
Child. Although the court determined that these ten-day periods are
minimized because daily phone contact is permitted, Father identifies
testimony revealing that Mother is uncooperative and interferes with Father’s
attempts to communicate freely with the Child. Additionally, Father asserts
that the telephone contact does not replace the lack of in-person custody
time, as suggested by the court. In this same vein, Father contends that the
court failed to provide a “right of first refusal,” which would allow custody
time for Father if Mother is unable to care for the Child during her regular
custody time, i.e., instead of using a babysitter or some third party. As part
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of this argument, Father also claims that the court erred by not providing
additional custody time during the summer months when the Child is not in
school.
In Father’s issues D. through F., he asserts error by the court
regarding its conclusions to factors (1), (9) and (13). Specifically, in its
discussion about issue D., which relates to factor(1), concerning which party
is more likely to encourage and permit frequent and continuing contact
between the child and the other party, the court found that “the truth is
somewhere between the versions of the parties.” TC Order at 1 (Factor (1)).
In reviewing the evidence identified by the court and its decision to weigh
this factor slightly in Mother’s favor, we are compelled to conclude that this
determination is unreasonable. Although the court found neither parties’
testimony completely truthful, the court appears to again overlook the fact
that it held Mother in contempt of the prior custody order.
Likewise, we are troubled by the court’s conclusion that factor (9) is
neutral in light of the fact that it directed that Mother’s mental health
evaluation should include a determination as to whether she needs anger
management counseling because of the confrontations Mother has had with
Father and others, which at times occurred in the Child’s presence. TC
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Order at 10 (Item 17).4 The court’s discussion relating to this factor appears
to highlight Father’s shortcomings, i.e., the need for Father to become more
actively involved despite his busy professional life. Yet, the court
emphasizes Mother’s ability to take the Child to school, his athletic practices,
and keep a routine schedule apparently because she works from home.
Again, we conclude that the court’s conclusion is unreasonable.
Father’s issue F relates to factor (13), which the court weighed in
Father’s favor. Father contends that despite the court’s recognition of
Mother’s rude and abusive behavior towards him and others in the Child’s
presence, the court concluded that “[s]he has also formed a close bond with
the minor child which remains unshaken even after all the obnoxious
conduct to which she may have exposed her son.” TC Order at 4 (Factor
(13)). However, Father also points out that the court found that Mother’s
“rudeness and intimidating personality, including cursing and uttering
derogatory comments about [Father] in the presence of the minor child …
seems to have made little impact on the child.” TC order at 3 (factor (8)).
Therefore, Father contends Mother’s behavior, in addition to her being held
in contempt, unquestionably causes conflict between the parties, and that
this factor should have been weighed heavily in Father’s favor.
____________________________________________
4
In the order presently on appeal, both parties were directed to undergo
mental health evaluations. Only Mother’s evaluation was to include the
possibility of counseling.
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Although we do not conclude that the court’s weighing factor (13) in
Father’s favor as unreasonable, we do recognize that many of the weight
determinations regarding some of the factors, as noted above, are
unreasonable. Moreover, one of the most troubling facets of this case is the
court’s conclusion that Mother should be awarded primary physical custody,
despite its recognition of her anger issues. Also, this ruling reduces Father’s
custody time exponentially from what it was under the prior order and is
unreasonable under the circumstances of this case.
Father’s last issue concerns the court’s denial of his Motion in Limine to
Preclude Testimony of the Minor Child. Father claims that his request was
based on Mother’s influence on the Child over the years “that poisoned the
Child’s mind against Father….” Father’s brief at 24. Moreover, Father
contends that little weight should have been given to the Child’s testimony
specifically relating to his desire to spend more time at Mother’s home so
that he could engage in more activities with his half-brother. We conclude
that the court’s denial of Father’s motion was not an error. See McMillen v.
McMillen, 602 A.2d 845, 847 (Pa. 1992) (stating “[a]lthough the express
wishes of a child are not controlling in custody decisions, such wishes do
constitute an important factor that must be carefully considered in
determining the child’s best interest”). However, the court’s emphasis on
the Child’s relationship with his half-brother appears to override most other
factors and, therefore, must be considered unreasonable.
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Based upon our review of this matter, we conclude that because the
court’s determinations as to a number of the individual factors are
unreasonable, its custody order cannot remain in place. Accordingly, we
vacate the custody order on appeal and direct that upon remand the prior
order of shared physical custody be re-imposed, thus, allowing for the 50-50
split of custody time. See M.A.T. v. G.S.T., 989 A.2d 11, 21 (Pa. Super.
2010) (en banc) (stating that, where the record is sufficiently developed, we
may substitute our judgment for that of the trial court and decide the case
on the merits). Furthermore, we direct that upon remand the trial court is
to consider Father’s request to modify the re-imposed custody order to allow
any responsible adult to retrieve or accept custody of the Child on behalf of
Father for his periods of custody. See Father’s Petition for Contempt and
Modification of Custody Order, 6/21/16, at 5 ¶ 16. That portion of the order
finding Mother in contempt is affirmed.
Order vacated in part and affirmed in part. Case remanded for the re-
entry of the prior custody order and to consider requested modification.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2017
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