J-S77031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
J.D.-T. : No. 1178 MDA 2017
Appeal from the Order Entered June 28, 2017
in the Court of Common Pleas of York County Civil Division at No(s):
2015-FC-001816-03
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 22, 2018
Appellant, K.H. (“Father”), files this appeal from the Order entered in
the Court of Common Pleas of York County on June 28, 2017, awarding, in
relevant part, shared legal custody of the parties’ minor son, A.D. (“Child”),
and primary physical custody to J.D.T. (“Mother”) with partial physical custody
to Father. After review, we affirm the trial court’s Order.
Child was born to Mother and Father in September of 2013. Complaint
for Custody, 9/25/15, at ¶3. Mother and Father were never married, and they
were no longer together as a couple at the time of Child’s birth. Notes of
Testimony (“N.T.”), 2/13/17, at 14. After Mother filed for child support and
paternity had been established, Father filed a complaint for custody in
____________________________________
* Former Justice specially assigned to the Superior Court.
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September of 2015 seeking shared legal and physical custody of Child.1 Id.
at 15-16, 89; Complaint for Custody, 9/25/15 ¶ 9. Subsequent to a stipulated
order dated November 5, 2015,2 the trial court entered an interim order on
May 4, 2016, pending a custody trial, providing for shared legal custody of
Child and primary physical custody to Mother with partial physical custody to
Father on alternate weekends and every Wednesday evening.
A custody trial ultimately was held on February 13, 20173 and June 15,
2017.4 Both Mother and Father were represented by counsel and testified on
their own behalf. The trial court additionally heard from CYF caseworker, Leisa
Harmis; Father’s girlfriend, L.A.; Mother’s stepdaughter, J.T.; Mother’s
husband, E.T.; and a former employee of Child’s daycare, A.M.
____________________________________________
1 As reflected by the docket and the certified record, subsequent petitions for
contempt and modification were filed by both parties. We observe that, at the
time of the custody trial, pursuant to an amended petition to modify, Father
was seeking primary physical custody. Amended Petition for Modification of
Custody Order, 1/27/17; N.T., 2/13/17, at 19.
2 This order is not reflected on the docket and is not included as part of the
certified record. However, as referenced in the May 2016 order, the prior
order provided similarly, except that Father’s partial physical custody was on
alternate weekends only. Interim Order For Custody, Pending Trial, 5/4/16,
at 4.
3 Several continuances were granted prior to the scheduling of the trial for
February 13, 2017. Order, Application for Continuance, 11/30/16; Order,
Application for Continuance, 9/21/16.
4A second trial date had been scheduled for March 9, 2017; however, the
matter could not proceed as counsel for Father was engaged in a criminal trial.
N.T., 3/9/17, at 2-3.
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The trial court summarized the relevant testimony as follows:
The first witness at trial was Leisa Harmis who is a caseworker
for Children, Youth, and Families. Ms. Harmis testified that she
investigated Mother and Stepfather pursuant to a referral made
on December 30, 2016. The investigation was closed and was
considered “invalidated” shortly after the referral. Ms. Harmis
testified that she authored Defendant’s Exhibit 29[,] which was a
letter indicating that the case was closed and considered
invalidated. Father had expressed concerns to Ms. Harmis relating
to an incident which took place at the day care and that [] Child
had used foul language while in his presence. As stated
previously, Ms. Harmis ultimately concluded that the case should
be closed without a validated finding.
[The s]econd witness in the case was Father. Father testified
that he has been involved with Child for two years and that
involvement started when the child was approximately 16 months
[old].
Father and Mother met when Father was 16 years old and
Mother was 13 years old. Their sexual relationship started in 2012
and lasted approximately seven months. Father testified that he
and Mother ended the relationship when Mother was
approximately six weeks pregnant. Father claims that he lost
track of her at that point and was unaware that [] Child was born.
Father stated that he did not find out [] Child was born until such
time as Mother filed for child support. The [c]ourt does not find
Father’s testimony on this matter to be credible. Child was over
one year old at that time. Father filed for paternity testing and
filed for custody after it was determined that he is the biological
[f]ather of [] Child.
Father began visitation on a phase in basis. That was to last
two months, and he was to ultimately see Child on an every-other-
weekend basis under that agreement.
Father stated that he has a 17-year-old daughter named
[K.H.] and a 14-year-old daughter named [S.H.]. Father testified
that he had primary physical custody of [K.H.] and [S.H.] for the
past five years. Father claimed that [K.H.] and [S.H.] have not
seen their Mother for [] an extended period of time. In addition,
Father lives with his girlfriend, [L.A.]. [L.A.] has two sons living
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in the residence as well. They are [S.A.] (age 18) and [J.A.] (age
16).
Father testified that he originally wanted equally shared
physical custody. Father indicates that he now wants primary
physical custody. Father believes that Child is acting out with
aggressive behavior such as choking. Father testified that Child
choked the family dog, [L.A.], as well as another child at the day
care. Father noted that overall, [] Child is well-behaved and is
very smart. Father testified that Child has no behavioral issues
when he is at Father’s house. Father claims that he called Mother
in July of 2016 to discuss the choking behaviors but Mother said
that Father was simply making this all up.
[]Child was placed in therapy at some point in time. Father
testified that Mother put Child in therapy without telling Father.
Father claims that he was unaware of the referral for therapy until
he saw the paperwork two months ago. Mother makes all of the
physician appointments for Child. Father noted that Mother is
better at notifying him now about the appointments. Father
further noted that Child was not fully immunized initially. Father
stated that Mother originally objected to immunizations on
religious grounds. [ ] Father did say that Child is much closer now
to being caught up on his vaccinations.
Father’s work schedule is that he leaves at approximately
5:15 a.m. and he is home at approximately 3 p.m. [L.A.] remains
at home until 7:30 or 7:40 a.m. She returns from work between
5:00 and 5:30 p.m. Child is currently spending a fair amount of
time at West York Kindercare. Father complains that the facility
charges too much but has no other complaints about the
preschool.
Father stated that he and Mother have very little in way of
positive communication. Communication is basically limited to
texting and e-mail. Father complains that Mother does not
respond to all of his communications or that she responds slowly.
Father believes that Mother has been inflexible with regard to the
custody schedule. Father cited as an example that he is not
permitted to pick Child up at day care at the beginning of his
weekend visitations even though Mother does not pick Child up
from day care until well after Father is done with his workday.
Instead, Father is required to wait until Mother picks up Child from
day care and Child is brought to Mother’s house.
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Father testified that he has extended family in the York
County area. Father specifically cited paternal grandparents and
a brother that live locally. In addition, Father has cousins in the
East York and Dover area. Child sees paternal grandparents quite
frequently as well as Father’s brother.
Father testified that he and Mother live approximately six
miles apart from each other and that there is a 10 to 15 minute
drive between the two residences.
Father owns a gun and has a concealed carry permit. Father
testified that he carries the gun for self-defense purposes. Father
noted that Mother was permitted to perform an inspection of his
residence. During that inspection she could see that Father has a
safe for his gun and that he has a safety lock for the gun.
Father denied the use of drugs. He further denied alcohol
abuse. Father testified that he rarely drinks to the point of
intoxication. He further stated that [L.A.] rarely drinks as well.
Father noted that there was a Christmas party at paternal
grandparents[’] home in which alcohol was present. The alcoholic
beverages that were featured in the photograph of the party did
not belong to Father or [L.A.]. Father testified that he had one to
two beers over a 4- to 5-hour period of time and that he was not
intoxicated at the party.
Child is currently being seen for therapeutic purposes at
Meadowlands. Father has been involved in attending some of the
sessions but was not able to go to the last two sessions due to his
work schedule. Father noted that he had two surgeries on his arm
which resulted in him being off work from November of 2015
through the beginning of February of 2017. Father testified that
he let Mother know of his work schedule but that Mother schedules
appointments while Father is at work. [] Child is being seen due
to having night terrors as well as acting out on occasions.
Father testified that he is always with Child when he has
physical custody of Child unless he is picking up other children
from various events. Father noted that Child and [L.A.] have a
good relationship. Father further noted that he does not require
his children or [L.A.’s] children to baby-sit. Father stated that he
could use paternal grandparents as a custody backup in the event
that he was to have equal or majority physical custody.
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Father noted he took two vacations in the summer of 2016.
Father testified that the first vacation took place in June. He
stated that Mother insisted upon an itinerary for the vacation even
though this is not specifically required by the Interim Order.
Father claims that Mother made certain irrational accusations
about being misled about where Father was during the vacation.
The second vacation took place later in the summer. Mother
likewise insisted upon an itinerary for that vacation as well.
Mother also claimed that Father failed to give the required notice
for the vacation. Father testified that he brought Child back early
so that Child could celebrate a birthday of his brother who is also
a child of Mother.
Father related that he has some concerns about [ ] Child
while he is in Mother’s care. He first noted the choking behavior.
He further noted that Child will fall asleep while in Mother’s bed.
Father further expressed a concern that Child is still breastfeeding
while he is 3-and-a-half years old. Father notes that Mother has
never provided breast milk to Father while Child is in Father’s care.
Father also claims that he is concerned about [C]hild’s diet while
in Mother’s care. Father is concerned that Child is not eating any
vegetables.
Father indicated that there is some dispute between him and
Mother as far as the birth certificate. Father is not noted on the
birth certificate. Father testified that Mother has refused to put
him on the birth certificate.
When asked why Father should be awarded primary physical
custody of Child, Father indicated that he has a better support
group for [] Child. Father further indicated that he believes
Mother alienates the child-father relationship by not allowing
Father to have custody when [] Child is sitting at day care. Father
further noted that Mother makes what he believes to be false
accusations about allowing [] Child to get hurt while in his custody.
Father noted an example of [] Child getting hurt on a Wednesday
shortly before Christmas.
Father then discussed various text messages exchanged
between him and Mother. These text messages are contained in
Father’s Exhibit B. Father testified that there was an incident
where Child was sent to Father’s house for custody without
providing medications. Father claims that the police were called
at least once and they required Mother to provide Father with
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medication. Father further claims that text messages show that
Mother is always negative in her responses to Father’s text
messages.
On cross examination, Father testified that he missed
visitation opportunities with the child on a couple of occasions at
least. Father further testified that while he did state something to
the effect that he did not want his name on the birth certificate,
Father indicated that he was angry at the time that he sent that
text message and it was not representative of his true feelings.
Father further noted that on December 2[], 2015, he picked
up Child at day care at 3 p.m. even though he was not allowed to
pick up [] Child until 5:30 p.m. that day. Father testified that this
was done by a mistake and was not an intentional violation of the
custody order.
Father conceded on cross[-]examination that he told Dr.
Kasey Shienvold that Mother was a “strong parent.” He further
conceded that he does not call Child on the phone while Child is
in Mother’s care.
The next witness at trial was [L.A.] who is Father’s girlfriend.
Father and [L.A.] have been involved in a relationship that has
lasted three years. They have lived together for approximately 2-
and-a-half years. The house in which they live is owned by
Father’s parents. [L.A.] testified that Father is very good with
Child and that he acts like a “big kid” when Child is around. She
further testified that Child has a good relationship with the other
children living in the house, although she noted that the 18-year-
old is not as close to Child as the other three children.
[L.A.] stated that Child did fall off of a booster-type seat
while in her presence shortly before Christmas of 2015. She
testified that [] Child complained of some pain in the area of his
knee. [L.A.] examined the knee and saw no apparent injuries.
[L.A.] did not see any bruising on [] Child and, therefore, did not
notify Father of the incident. She further noted that she has no
concern about Father’s parenting abilities and [] Child does not
exhibit any homesickness for Mother while in Father’s custody.
The next witness present at trial was Mother. Mother
testified that she has an associate’s degree and works for the
Commonwealth of Pennsylvania for the last two years as an
income maintenance caseworker. Mother claims that she has
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flexibility at her job due to having sick time and personal time.
Mother testified that she has been to all of the doctors’
appointments and that Father has only been to three doctors’
appointments as well as three Meadowland appointments. Mother
testified that she always notifies Father about doctor
appointments.
Mother stated that Child is close with maternal grandmother
and that maternal grandmother is able to act as a backup in
emergency situations. Mother also testified that her niece is
likewise available. Mother stated that maternal grandmother is
present at custody exchanges due to Father bullying Mother
during the exchanges.
Mother currently lives in a three bedroom home. There are
four people residing in the home including Child. Child shares a
bedroom with his brother, [G.D.], (12). Mother has lived in her
current residence for three years. The residence is rented.
Mother has been married for three years to [E.T.]. [E.T.] has a
daughter by the name of [J.T.]. [E.T.] has partial physical custody
of [J.T.] on an every-other-weekend basis. Mother testified that
[E.T.] is a father figure to Child and that he has been so since the
birth of [] Child.
Mother stated that she has a number of extended family
members living in the area. These members include an aunt, an
uncle, as well as cousins. In addition, there is maternal
grandmother. Furthermore, Child has regular contact with [E.T.’s]
relatives.
Mother stated that she has a great bond with [ ] Child. Child
does experience some separation anxiety when leaving her. She
testified that she expressed this anxiety issue to the pediatrician.
The pediatrician then made a recommendation that Child should
be seen by a caseworker to determine whether early intervention
would be appropriate for [] Child. Mother testified later that early
intervention was not required after that evaluation took place.
Mother noted that Child and [G.D.] have a great bond with
each other. Mother stated that she engages in a number of
activities with Child including reading, playing cards, playing at
the park, and playing with Legos.
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Mother testified that she advised Father that she was
pregnant and Mother never hid that fact from Father. She further
indicated that Father told her to either have an abortion or raise
the child on her own. Mother claims that Father had no interest
in having custody of Child until Mother filed for child support. The
[c]ourt finds this testimony to be credible.
Mother testified that she stopped breastfeeding Child in
either late 2016 or early 2017. She noted that breastfeeding was
infrequent and was only at comfort times.
Mother claims that she has been flexible with Father
concerning custody exchanges and times. She indicated that she
has altered the schedule when requested. She further noted that
Father was not flexible. She cited an example when Mother had
tickets to an event in Hershey. Father insisted that she return
early so that the exchange could take place at the required time.
Mother noted that there was no real communication
between her and Father. She believes Father to be sarcastic and
uncivil in his communications. Mother also believes that Father is
unresponsive to Child’s issues relating to allergies. Mother is also
concerned that Child has suddenly started playing with gun-like
behaviors. She is concerned about Father carrying a gun.
Mother noted that Child is currently up-to-date with his
immunizations. Mother conceded that immunizations did not go
forward as originally scheduled due to a religious objection she
had to immunizations. Mother noted that her objection was based
upon a personal belief as opposed to the belief of the UCC [United
Church of Christ] congregation which she attends.
Mother indicated that she wishes the custody schedule to
remain the same. She believes that this is necessary to maintain
stability for Child. She would like to switch the weekends so that
Child can have his weekends coincide with [J.T.].
On cross[-]examination there was some discussion
concerning videos taken by Mother of conversations she had with
Child. The [c]ourt reviewed Exhibits 42 and 43 in court on the
first day of the custody trial. The videos became relevant after
Mother testified that she did not direct Child during these videoed
conversations. Exhibit 42, however, did not demonstrate that. At
one point in the video, Child was talking to Mother about a truck
he was observing outside of the window of the car. In response
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to that conversation, Mother asked Child why he doesn’t want to
go to Father’s house. This testimony concluded the first day of
the custody trial. The trial resumed then on June 15, 2017.
The second day of trial commenced on June 15, 2017.
Mother was still on the stand as of the commencement of the
second day of testimony. The [c]ourt then reviewed two
additional videos[,] which were imprudently taken by Mother[,] of
Child. The two additional videos did not add anything to the
original two videos.
Mother was then asked if she had any objections to having
equally shared physical custody of Child with Father. She first
noted that Child has repeatedly indicated to her that he does not
want to go to Father’s house. She later conceded that these
protests have been decreasing. She further believes that Father
consistently speaks ill of her to Child and that Father limits phone
contact between her and Child.
Mother then discussed pictures of Child. Those pictures
indicate various scratches and bruises on Child when the child is
returned to Mother after being in Father’s custody. The [c]ourt
finds that the pictures do not demonstrate any significant issues
that would be experienced by a normal child of the age in
question. Mother noted there were no reports to Children, Youth,
and Families based upon the injuries reflected in the pictures.
The next witness in the case was [J.T.]. [J.T.] is 15 years
old and is the stepdaughter of Mother. [J.T.]’s custody
arrangement with her own Mother provides that she is to see her
biological [f]ather every other weekend. This means that Child
has very limited contact with [J.T.] given the custody
arrangements of the various parties. [J.T.] testified that her
Mother is [D.G.] and her [f]ather is [E.T.].
The next witness was [E.T.]. [E.T.] is the husband of
Mother. They have been together for three years and were
married [in April 2014]. [E.T.] has been involved with Child since
he was 6- to 7-months old. [E.T.] testified that he treats Child
like he was his own son. He further testified that Mother is an
“awesome” parent and that their son, [G.D.], gets along very well
with Child.
The next witness in the case was [A.M.]. [A.M.] was a
teacher at Kindercare for a period of time in which Child attended
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Kindercare. [A.M.] noted that Child was clingy at first when
dropped off by Mother and that Child would sometimes cry when
Father picked Child up from Kindercare.
The final witness in the case was Father being called as on
cross[-]examination. Father’s testimony did not add anything
from the provided on the first day of trial.
Trial Court Opinion (“T.C.O.”), 6/28/17, at 1-19.
In its Order entered on June 28, 2017, the trial court awarded Mother
primary physical custody of Child and Father partial physical custody the first,
second, and fourth weekends of the month from Friday at 6:30 p.m. to Sunday
at 6:30 p.m. In the summer, physical custody was to alternate on a weekly
basis. In addition, Mother and Father were provided shared legal custody of
Child.5
Also on June 28, 2017, the trial court entered an opinion analyzing each
of the custody factors pursuant to 23 Pa.C.S.A. § 5328(a). On July 28, 2017,
Father, through counsel, filed a notice of appeal, along with a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). The trial court thereafter entered a Rule 1925(a)
opinion on August 15, 2017, in support of its order.
On appeal, Father raises the following issues for our review:
1. Whether the trial court erred and/or abused its
discretion by determining that the factor regarding which party is
more likely to encourage contact with the other party was neutral,
despite evidence that Mother was discouraging contact with
____________________________________________
5 The Order additionally set forth a vacation and holiday schedule, as well as
other miscellaneous provisions related to transportation, communication,
consultation, illness, disparaging comments, and the use of cigarettes, alcohol
and illegal substances.
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Father and attempting to alienate Father, as demonstrated, in
part, through video evidence and testimony of Mother’s frequent
allegations of abuse by Father, and Mother’s lack of cooperation
in working with Father’s schedule.
2. The trial court erred and/or abused its discretion in (1)
determining Father chose to not be present in [ ] [C]hild’s life until
Mother sought child support, despite overwhelming evidence to
the contrary and (2) in weighing this factor too heavily in Mother’s
favor.
3. The trial court erred and/or abused its discretion in
determining the sibling relationship factor weighed in favor of
Mother despite Father also having other children and step[-
]children with whom [ ] [C]hild has developed a relationship.
4. The trial court erred and/or abused its discretion by
determining the custody factor regarding the parties’ attempts to
turn [ ] [C]hild against the other was neutral.
5. The trial court erred and/or abused its discretion in
determining that the factor of which party is more likely to tend
to [ ] [C]hild’s daily physical, emotional, developmental, and
educational needs weighed in Mother’s favor.
6. The trial court erred and/or abused its discretion in
failing to optimize the time [ ] [C]hild spent with both parents,
despite a lack of evidence to support Father only having limited
periods of physical custody.
Father’s Brief at 4-5. As father’s issues are interrelated, we shall consider
them together.
In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.
§ 5321-5340, we employ a well-settled standard of review:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
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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.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted). See
also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015), appeal denied, 635
Pa. 754, 129 A.3d 521 (2016). This Court consistently has held:
the discretion that a trial court employs in custody matters should
be accorded the utmost respect, given the special nature of the
proceeding and the lasting impact the result will have on the lives
of the parties concerned. Indeed, the knowledge gained by a trial
court in observing witnesses in a custody proceeding cannot
adequately be imparted to an appellate court by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa.Super. 2004)). In addition,
[a]lthough we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
as shown by the evidence of record, discretion is abused. An
abuse of discretion is also made out where it appears from a
review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence.
M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa.Super. 2010) (en banc) (citations
omitted).
The paramount concern in any custody case decided under the Act is
the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section
5323 of the Act provides for the following types of awards:
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(a) Types of award.—After considering the factors set forth in
section 5328 (relating to factors to consider when awarding
custody), the court may award any of the following types of
custody if it is in the best interest of the child:
(1) Shared physical custody.
(2) Primary physical custody.
(3) Partial physical custody.
(4) Sole physical custody.
(5) Supervised physical custody.
(6) Shared legal custody.
(7) Sole legal custody.
23 Pa.C.S.A. § 5323(a).
Section 5338 of the Act provides that, following the filing of a petition,
a trial court may modify a custody order if it serves the best interests of the
child. 23 Pa.C.S.A. § 5338(a). Section 5328(a) also sets forth the best
interest factors that the trial court must consider in doing so. See E.D. v.
M.P., 33 A.3d 73, 79-80 n.2 (Pa.Super. 2011). Specifically, Section 5328(a)
of the Act provides as follows:
§ 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.
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(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a continued
risk of harm to the child or an abused party and which party can
better provide adequate physical safeguards and supervision of
the child.
(2.1) The information set forth in section 5329.1(a)(1) and
(2) (relating to consideration of child abuse and involvement with
protective services).
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for
the child’s emotional needs.
(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
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another. A party’s effort to protect a child from abuse by another
party is not evidence of unwillingness or inability to cooperate with
that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).
Father initially challenges the trial court’s neutral finding pertaining to
which party is more likely to encourage contact with the other party under
Section 5328(a)(1). Father’s Brief at 10-13. Father asserts the evidence
suggested Mother discouraged contact with and attempted to alienate Child
from Father. Id. at 10-11. Father references Mother’s physically turning Child
away from Father during a custody exchange, failure to allow Father additional
time outside of the custody order, lack of cooperation with Father’s schedule,
and allegations of abuse against Father, as well as video evidence of a
conversation between Mother and Child. Id. at 11-12. He concludes, “. . .
the trail [sic] court failed to take into consideration the extensive testimony
and evidence that suggested Mother was going beyond not actively
encouraging the relationship by actually taking steps to discourage the
contact.” Id. at 12.
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Father next claims the trial court erred in emphasizing his lack of
involvement in the first sixteen months of Child’s life as it relates to several
of the custody factors. Id. at 13. He reasons that:
[t]he trial court erred in determin[ing] that Father only sought to
be active in the child’s life following Mother[’s] filing for child
support, and in using this determination in various factors,
including parental duties performed on behalf of [] [C]hild, the
need for stability in [] [C]hild’s education, family life, and
community life, and the party more likely to maintain a loving,
stable, consistent, and nurturing relationship. By failing to take
into consideration the evidence that Father has demonstrated a
desire to be active in [C]hild’s life after learning he was the father,
and then weighing the fact that Father was not involved in [ ]
[C]hild’s life for the first 16 months in consideration of multiple
factors, the trial court abused its discretion.
Id. Father challenges the trial court’s credibility determination of Mother’s
testimony as to Father’s knowledge of Child’s paternity. Id. at 14. Further,
Father asserts the trial court erred in weighing to his lack of early involvement,
noting that only those factors related to safety of a child should be afforded
weighted consideration. Id. at 14-15. Moreover, Father indicates that the
court incorrectly placed weighted consideration on Mother’s role as Child’s
primary caretaker and ignored any role he attempted to assert. Id. at 15-16.
Father likewise avers that the trial court erred in determining that
Section 5328(a)(6), Child’s sibling relationships, weighs in favor of Mother.
Id. at 17-18. Father indicates that he “has two children who live in his home
and have not only developed relationships with [ ] [C]hild but with whom [ ]
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[C]hild should have the opportunity to continue to build relationships.” 6 Id.
at 18.
In his fourth issue, Father argues the trial court erred in determining
Section 5328(a)(8), pertaining to a parent’s attempts to turn a child against
the other parent, is neutral. In support of this assertion, Father references
the previously mentioned video evidence of Mother’s conversation with Child
and allegations of Father’s abuse of Child. Id. at 18-19.
Father further asserts that the trial court erred in determining Section
5328(a)(10), dealing with a parent’s likelihood to tend to a child’s daily
physical, emotional, developmental, and educational needs, favors Mother,
despite Mother’s overprotective behavior as acknowledged by the court. Id.
at 19-20. Father expresses concerns regarding Mother’s extended breast-
feeding and vaccination beliefs.7 Father also stresses that testimony was
presented at trial indicating Child choked classmates and a dog and
experienced night terrors while in Mother’s custody. Id. at 20. Father also
states he is concerned about Child’s appetite and palate. Id.
____________________________________________
6 We note that Father’s girlfriend, L.A., additionally has two children who are
in the residence. N.T., 2/13/17, at 15, 142.
7 Mother testified that she ceased breast-feeding at the end of 2016 or early
2017 and that Child breastfed only for comfort typically at night. N.T.,
2/13/17, at 174-75. She further indicated that Child is now up-to-date with
his vaccinations. Id. at 194.
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Lastly, Father contends the trial court erred in failing to optimize the
amount of time Child could spend with both parents, given the close proximity
of their residences. Id. at 21. Father asserts the trial court did not articulate
any concerns about his ability to provide a safe and stable home for Child and
states, “[t]he trial court presented no support in its opinion for why it is not
in the best interest of the child to have a shared physical custody schedule,
except for inappropriately weighing some factors in Mother’s favor.”8 Id.
In its opinion in support of its order, the trial court carefully analyzed
and addressed each factor pursuant to Section 5328(a) and the Child’s best
interests as follows:
(1) Party likely to encourage contact with other party. The [c]ourt
finds that this factor is neutral. Based upon the testimony
presented by each parent, it is clear to the [c]ourt that neither
party does anything to actively encourage contact between [ ]
Child and the other party.
(2) Present and past abuse. The [c]ourt finds that this factor is
neutral. The [c]ourt did not hear any credible testimony about
present or past abuse from either party.
(3) Parental duties performed on behalf of Child. The [c]ourt finds
that this factor favors Mother. As stated previously, the [c]ourt
____________________________________________
8 Father baldly asserts that the trial court should have awarded a shared
physical custody schedule. Father’s Brief at 21. However, Father fails to
support his request with any supporting statutory and/or case law. Thus, we
consider the issue of whether the trial court should have awarded shared
physical custody waived for purposes of our review. See Chapman-Rolle v.
Rolle, 893 A.2d 770, 774 (Pa.Super. 2006) (stating that a failure to argue
and cite to pertinent legal authority in support of a claim constitutes waiver of
the claim). We do observe, however, that the court did increase Father’s
custodial time with Child in its June 28, 2017, Order.
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has accepted Mother’s testimony that Father chose not to be
involved in Child’s life for a significant portion of [ ] Child’s early
life. Father only sought to become actively involved after Mother
sought Child support. The [c]ourt finds that Mother did perform
all of the necessary duties on behalf of Child. The [c]ourt does
accept Father’s testimony that he likewise performs the necessary
parental duties when Child is in his custody.
(4) Need for stability in Child’s education, family life, and
community life. The [c]ourt finds that this factor favors Mother.
The [c]ourt does accept Mother’s testimony as credible that she is
the parent more likely to be involved in the Child’s family and
community life. In addition, Mother has been a more stable
influence in Child’s entire life given the fact that Father was not
involved in the early portion of Child’s life.
(5) Availability of extended family. The [c]ourt finds that this
factor is neutral. The [c]ourt accepts the testimony of both parties
as credible that there is extended family on both Mother’s side and
Father’s side available to Child.
(6) Sibling relationships. The [c]ourt finds that this factor favors
Mother. The [c]ourt accepts Mother's testimony that there is a
significant bond between Child and [G.D.]. The [c]ourt does
accept the testimony that Child has good relationships with step-
siblings on both sides of the family.
(7) Well-reasoned preference of Child. Given the tender age of
the Child, the [c]ourt did not interview Child. As a result, this
factor is neutral.
(8) Attempts to turn Child against other parent. The [c]ourt finds
that this factor is neutral. The [c]ourt believes that both parties
engage in conduct designed to turn Child against the other parent.
(9) Party more likely to maintain loving, stable, consistent, and
nurturing relationship. The [c]ourt finds that this factor favors
Mother. As stated previously, Mother has been a constant factor
in Child’s entire life. The [c]ourt further finds Mother’s testimony
credible that she has a strong bond with Child and that she does
nurture Child. While the [c]ourt believes that Mother is clearly
overprotective, the [c]ourt does not find that she is overprotective
to the point where that harms Child.
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(10) Party more likely to tend to the daily physical, emotional,
developmental, educational, and special needs of [ Child. The
[c]ourt finds that this factor favors Mother. The [c]ourt does find
Mother’s testimony credible that she actively seeks to meet [ ]
Child’s emotional needs, as well as developmental needs. While
the [c]ourt does find that Father is an adequate parent to Child,
the [c]ourt does believe Mother’s testimony as to her being the
parent more likely to attend to Child’s emotional and
developmental needs.
(11) Proximity of residences. The [c]ourt does not find that this
is a factor in the case given the fact that the parties live only 6 to
7 miles apart from each other.
(12) Availability of appropriate [c]hild-care arrangements. The
[c]ourt finds that this factor is neutral. Both parties provided
testimony that they have adequate [c]hild-care arrangements
available for Child.
(13) Level of conflict and willingness to cooperate. The [c]ourt
finds that this factor sightly [sic] favors Mother. It is clear that
this case is a high conflict case. Based upon Mother’s testimony[,]
as well as review of exhibits which contained exchanges between
the parties[,] the [c]ourt finds that Father is more likely to engage
in sarcastic and unhelpful communication.
(14) Drug or alcohol abuse. The [c]ourt finds that this factor is
neutral. The [c]ourt did not find any testimony credible that either
party suffers from a drug or alcohol abuse problem.
(15) Mental or physical condition of party. The [c]ourt finds that
this factor is neutral. The [c]ourt does not find that either party
suffers from mental or physical conditions which prohibit them
from exercising appropriate custody of Child.
(16) Other factors. The [c]ourt did not review any other factors
in rendering this decision.
T.C.O., 6/28/17, at 19-23.
The court concluded as follows:
Mother has been primarily the caretaker of Child since birth.
Father initially chose not to get involved with Child. The [c]ourt
does accept Mother’s testimony that she and Child have a more
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significant bond than the bond that exits between Father and
Child. Nevertheless, the [c]ourt does find that Child would benefit
from additional time to be spent with Father.
Id. at 24.
In further support of its findings, in its Rule 1925(a) Opinion, the court
reasoned:
Appellant sets forth six arguments on appeal. Appellant’s
first argument is that the court erred in finding the first factor
neutral. After reviewing the testimony, the court found it clear
that neither party encourages contact. In regards to the video
evidence, the court gave the videos due consideration and found
that while in poor taste by Mother, they did not demonstrate that
Mother was alienating [C]hild from Father.
Appellant’s second argument is that the court abused its
discretion in determining that Father chose not to be present in
[C]hild’s life until Mother sought child support. This court
determined that Father’s testimony about losing track of Mother
and not knowing she was pregnant was not credible. The court
did find credible Mother’s testimony that she did not hide the
pregnancy from Father, and Father only became interested in
having a relationship with [C]hild after Mother’s filing for child
support.
Third, Appellant argues that the court erred in finding that
the sibling relationships factor favors Mother. Father lives with
two daughters, one is 14 years old, and the other is 17 [] years
old. Father also lives with his girlfriend’s sons, one who is 16
years old, and one who is 18 years old. This court found credible
that although [ ] [C]hild has a good relationship with the children
living in Father’s home, [ ] [C]hild has a closer bond to Mother’s
son who is 12 years old, to which there was testimony that they
enjoyed many activities together.
In its fourth argument[,] Appellant argues that the court
erred in determining that the parties’ attempts to turn [ ] [C]hild
against the other party was neutral. The court found that both
parents engaged in such behavior.
Appellant’s fifth argument is that the court erred in finding
that the factor regarding the party who is more likely to tend to
[C]hild’s daily physical, emotional, developmental, and
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educational needs weighed in Mother’s favor. This court found
credible the evidence that Mother has been the primary caretaker
of [C]hild for most of his life, and is the parent more likely to tend
to [ ] [C]hild’s needs. As a way of example, Father testified that
Mother is the one who makes all of the child’s medical
appointments and that he believes Mother to be a strong parent.
Appellant’s sixth argument is that this court erred in
awarding the physical custody schedule. The court notes that it
has increased Father’s periods of physical custody with [ ] [C]hild.
...
CONCLUSION
Given the issues presented at trial, the [c]ourt properly
reviewed the evidence presented and made an appropriate ruling
based on the evidence.
T.C.O., 8/15/17, at 1-3.
This Court has stated that the trial court is required to consider all of
the Section 5328(a) factors when entering a custody order. J.R.M. v. J.E.A.,
33 A.3d 647, 652 (Pa.Super. 2011). Although the court is required to give
“weighted consideration to those factors which affect the safety of the child”
pursuant to 23 Pa.C.S.A. § 5328(a), we have acknowledged that the amount
of weight a court gives any one factor is almost entirely discretionary. M.J.M.
v. M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013), appeal denied, 620 Pa. 710,
68 A.3d 909 (2013). Importantly, as we stated in M.J.M.:
It is within the trial court’s purview as the finder of fact to
determine which factors are most salient and critical in
each particular case. See A.D. v. M.A.B., 989 A.2d 32, 35-36
(Pa.Super. 2010) (“In reviewing a custody order ... our role does
not include making independent factual determinations.... In
addition, with regard to issues of credibility and weight of the
evidence, we must defer to the presiding trial judge who viewed
and assessed the witnesses first-hand.”). Our decision here does
not change that.
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Id. (emphasis added). Further, we have also noted that, while the primary
caretaker doctrine is no longer viable, a trial court may still consider a parent’s
role as primary caretaker in its consideration of the custody factors:
We hasten to add that this conclusion does not mean that a trial
court cannot consider a parent’s role as the primary caretaker
when engaging in the statutorily-guided inquiry. . . . A trial court
will necessarily consider a parent’s status as a primary caretaker
implicitly as it considers the [S]ection 5328(a) factors, and to the
extent the trial court finds it necessary to explicitly consider one
parent’s role as the primary caretaker, it is free to do so under
subsection (a)(16).
Id.
Father’s claims on appeal collectively challenge the trial court’s findings
of fact and determinations regarding credibility of witnesses and weight of the
evidence presented at trial. Father essentially questions the trial court’s
conclusions and assessments and asks this Court to reweigh the evidence and
reach an alternative conclusion. This we cannot do. Under the
aforementioned standard of review applicable in custody matters, the trial
court’s findings of fact and determinations regarding credibility and weight of
the evidence are not disturbed absent an abuse of discretion. See C.R.F., 45
A.3d at 443; see also E.R., 129 A.3d at 527. As we stated in King v. King,
889 A.2d 630, 632 (Pa.Super. 2005):
It is not this Court’s function to determine whether the trial court
reached the ‘right’ decision; rather, we must consider whether,
‘based on the evidence presented, given [sic] due deference to
the trial court’s weight and credibility determinations,’ the trial
court erred or abused its discretion in awarding custody to the
prevailing party.
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(quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa.Super. 2005)). After a
thorough review of the record, we find no abuse of discretion. Further, to the
extent Father challenges the weight attributed to any factor by the trial court,
we likewise find no abuse of discretion. As stated above, the amount of weight
that a trial court gives to any one factor is within its discretion. See M.J.M.,
63 A.3d at 339.
In the case sub judice, the trial court exhaustively and reasonably
analyzed and addressed each factor under Section 5328(a). See T.C.O. at
19-23. The trial court’s findings and determinations regarding the custody
factors set forth in Section 5328(a) are supported by competent evidence in
the record, and we will not disturb them. See C.R.F., 45 A.3d at 443; see
also E.R., 129 A.3d at 527.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2018
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K.H. v. J.D.-T.
Combined Opinion