J-S01045-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.A.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
J.M.F. :
:
Appellant : No. 1597 MDA 2018
Appeal from the Order Entered August 29, 2018
In the Court of Common Pleas of Wyoming County
Civil Division at No(s): 2018-00141
BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED MARCH 05, 2019
J.M.F. (Father) appeals from the order of the Court of Common Pleas of
Wyoming County (trial court), granting the parties shared legal custody, J.A.D.
(Mother) primary physical custody, and Father partial physical custody with
respect to the female child, A.J.F. (Child), born in December 2016. Father
had sought shared legal custody and equal physical custody of Child. After
careful review, we affirm.
On February 2, 2018, Mother filed a custody complaint seeking primary
physical and shared legal custody as well as a petition for special relief,
requesting temporary physical custody of Child, then fourteen months old. On
February 12, 2018, the court issued an interim order granting Mother primary
physical custody and Father partial physical custody every Wednesday from
4:15 p.m. to 7:30 p.m. In addition, the interim order granted Father partial
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* Retired Senior Judge assigned to the Superior Court.
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physical custody on a rotating two-week basis, as follows: Friday at 6:00 p.m.
until Sunday at 9:00 a.m. in week one, and Saturday at 9:00 a.m. until
Sunday at 6:00 p.m. in week two. Further, the order prohibited any paramour
of Mother or Father to have contact with Child.1
I.
Before we begin, to better understand what follows, it is worthwhile to
set forth the well-settled law regarding custody disputes. 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
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1 At the conclusion of the subject proceeding, the trial court explained on the
record in open court as follows.
There’s a reason that the court puts in orders no paramours or
other individuals to have contact with the . . . Child. The court’s
practice is to obtain a criminal background check and a child abuse
clearance on new paramours that are entered into a child’s life.
Why does a judge do that? Because generally, and it’s not
anything that has to do with your clients, but generally on a
rebound after a break-up, individuals tend to not make the best
decisions. That way the court intercedes and can determine how
best to protect the child. So, it’s not about mom[.] [I]t’s not
about dad. After having done thousands of custody cases, I can
tell you that you don’t find [N]avy [S]eals on the internet, which
one individual in court had who turned out to be a sex offender
and so on. So that’s why the court does that. . . . [T]he court
doesn’t do this forever, but right now during the vulnerable period
it’s something that’s the practice of this court. Not to punish you,
but that is the practice.
N.T., 7/23/18, at 278-280.
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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).
Child custody actions are governed by the Child Custody Act, 23 Pa.C.S.
§§ 5321-5340. Trial courts are required to consider “[a]ll of the factors listed
in section 5328(a) . . . when entering a custody order.” J.R.M. v. J.E.A., 33
A.3d 647, 652 (Pa. Super. 2011) (emphasis in original); see also A.V. v.
S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (providing that trial courts shall set
forth the mandatory assessment of the Section 5328(a) best interest factors
“prior to the deadline by which a litigant must file a notice of appeal”) (citation
omitted). This statutory section 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.
(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.
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(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.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a). Now to the proceedings before the trial court.
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II.
Hearings were held before the trial court on the custody complaint on
April 18, 2018,2 and July 23, 2018.3 Mother testified on her own behalf, and
she presented the testimony of Joan Greulick, M.D., Child’s pediatrician since
birth; D.N., Father’s boss at his place of employment; J.D., Child’s maternal
grandmother; P.S., Mother’s boss at her place of employment; D.F., Mother’s
aunt; J.D., Mother’s brother; and G.Z., Father’s former girlfriend.
Father testified on his own behalf. Father presented the testimony of
Michael Church, Ph.D., a psychologist; Paul and Linda Littleford, husband and
wife who are the former neighbors of Father, Mother, and Child; R.G., Father’s
grandmother; J.F., Child’s paternal grandfather; and K.F., Child’s paternal
step-grandmother and wife of J.F.
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2 The trial court issued an order at the conclusion of the first day of testimony
on April 18, 2018, that directed the parties to abide by the February 12, 2018,
interim custody order, inter alia.
3 The trial court issued an order at the conclusion of the testimonial evidence
on July 23, 2018, directing that “neither party shall subject the child to anyone
besides family members unless a child abuse clearance and criminal
background check has been obtained, presented to the [c]ourt and presented
to opposing counsel, who may file objections upon the same.” Order, 7/23/18.
Further, the court directed that the prior interim order shall remain in full force
and effect pending final determination of the custody matter.
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By way of background,4 Father and Mother, who never married,
cohabited at the time of Child’s birth and separated in January 2018 when
Child was approximately thirteen months old. TCO, 8/29/18, at 5. Mother
and Child relocated to the home of Child’s maternal grandparents,
“approximately three (3) minutes away” from her former residence. Father
purchased a single-family home on a date unspecified in the record. Id. Two
days before the subject hearing, Mother relocated with Child to her own
apartment, twelve miles from Father’s home. N.T., 4/18/18, at 53, 104; N.T.,
7/23/18, at 168.
Mother is employed part-time, 30 hours per week, Monday through
Wednesday, from 7:00 a.m. to 5:00 p.m. N.T., 4/18/18, at 56. Father is
employed full-time, Monday through Friday, from 7:30 a.m. to 4:00 p.m.
TCO, 8/29/18, at 6. In addition, Father works overtime, which consists of
being “on-call” for power outages for one week at a time on six-week rotation
schedules. N.T., 4/18/18, at 39, at 48. Father’s boss explained, “[Father]
does not necessarily have to go on the call, but he is being paid to be on
standby and be the person that gets notified in the particular district that
they’re responsible for to be sure that [an employee] can go out and respond.”
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4 In its opinion accompanying the subject order, the trial court set forth its
factual findings in this case which are undisputed. Because the testimonial
evidence supports the court’s findings, we adopt them herein. See Trial Court
Opinion (“TCO”), 8/29/18, at 5-8.
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Id. at 39-40. Father’s boss testified that his employees are “on-call”
approximately eight weeks out of the year. Id. at 48.
Mother and Father use the same babysitter for Child when they are at
work, who provides childcare in her home. Id. at 107-108. The babysitter is
located one mile from Mother’s home and the babysitter is located in the same
town in which Father works. N.T., 7/23/18, at 98-99.
On August 29, 2018, when Child was twenty months old, the trial court
entered an order granting the parties shared legal custody, Mother primary
physical custody, and Father partial physical custody on a rotating two-week
basis. During week one, the court granted Father physical custody of Child
on Tuesday, from 4:15 p.m. until 7:30 p.m., and on Friday, from 6:00 p.m.
until Sunday, at 4:00 p.m. During week two, the court granted Father physical
custody on Tuesday and Wednesday, from 4:15 p.m. until 7:30 p.m. In
addition, the court granted Father two non-consecutive weeks of physical
custody every year with Child and it set forth a holiday schedule. Further, the
court prohibited any of the parties’ paramours from having contact with Child
without court approval, inter alia.
In its opinion accompanying the order, the trial court considered all of
the Section 5328(a) factors, except for Section 5328(a)(2.1).5 See Order,
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5 Upon review of the testimonial evidence, Section 5328(a)(2.1) is not
applicable in this case. Therefore, we conclude that the court’s omission is
harmless.
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8/29/18, at 9-15. The court found, and our review of the record confirms,
that Section 5328(a)(2), (6), (7), (14), and (15) are also not applicable. The
court found determinative the following factors, which the court weighted in
favor of Mother: Section 5328(a)(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; Section 5328(a)(10), which party is more
likely to attend to the daily physical, emotional, developmental, educational
and special needs of the child; Section 5328(a)(11), each party’s availability
to care for the child or ability to make appropriate child-care arrangements;
and Section 5328(a)(13), the level of conflict between the parties and the
willingness and ability of the parties to cooperate with one another.
In making that determination, the trial court found:
Mother is primarily responsible for getting [Child, then twenty
months old,] to medical appointments. . . . Mother works only
three days per week and spends the other four days with the child.
Mother’s work is flexible so that should something happen with
[C]hild, she is permitted to leave work. Father works five . . .
days per week, works overtime and is on-call for week[-]long
periods, during which time he is responsible for attending to work
should he be called out.
TCO, 8/29/18, at 13 (citations to record omitted). In addition, the court
found:
Mother testified that she always tries to be friendly[,] but Father
is always defensive with Mother. For example, Mother testified
that the child’s regular babysitter was going away for over two
weeks[,] and Mother asked Father if her grandparents could watch
the child. Father would not agree[,] and Mother had to go through
her attorney to get him to approve the child’s great-grandparents
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being able to babysit.[6] On another occasion, the child had a rash
on her arm[,] and when Mother transferred the child to Father,
she provided the cream for the rash [to Father]. Father did not
return the cream. When Mother asked for it, Father responded
that he would only return the cream if Mother transferred a gun
that was in Mother’s name over to him. Mother had to purchase
more cream [for Child’s rash].
TCO, 8/29/18, at 7-8 (citations to record omitted).
Further, the trial court found Father’s testimony on April 18, 2018, that
he did not have a paramour or girlfriend, untruthful. Id. at 13-15 (citations
to record omitted). The court found that Father began dating G.Z. on March
13, 2018. G.Z. testified that she became Father’s girlfriend but that her
relationship with Father ended several days after Memorial Day 2018. N.T.,
7/23/18, at 39. Moreover, it found that Father violated the interim custody
orders by permitting G.Z. to be in contact with Child. Specifically, the court
found:
[G.Z.] has spent time with the minor child. Prior to the first day
of testimony in this matter, [G.Z.] testified that she had taken the
child to her niece’s birthday party[;] she would hang out with the
child at Father’s home[;] [and] she posted pictures of the child on
Facebook. [G.Z.] further testified that Father told her this
[c]ourt’s [o]rder prohibited Father from having the child around
paramours but that she did not do anything about it because it
was Father’s [c]ourt [o]rder and his decision to have her around
the child. . . .
TCO, 8/29/18, at 14 (citations to record omitted).
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6 Mother testified that at the time she made this request to Father, Child’s
maternal great-grandparents babysat Child previously when Child’s maternal
grandparents were unavailable. N.T., 4/18/18, at 109.
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Based on the foregoing factual findings, which the testimonial evidence
supports, we discern no abuse of discretion by the court in weighing Section
5328(a)(9), (10), (11), and (13) in favor of Mother and concluding that they
are determinative in this case. See M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa.
Super. 2013) (stating, “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.”). Father then took the instant appeal.7
III.
A.
Turning to Father’s contentions on appeal, he claims that the court erred
in its findings regarding Section 5328(a)(1), which party is more likely to
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7 Our standard of review in child custody cases is as follows.
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, 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.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).
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encourage and permit frequent and continuing contact between the child and
another party. In this regard, the trial court found:
Mother and Father communicate primarily through text messaging
and often times, Father does not respond to Mother's text
messages. (H.T. 4/18/18, p. 202). Mother testified that she
offered Father extra time with the child around Father's birthday
but he did not agree. (H.T. 7/23/18, pp. 68-70, 101). Mother
has unsuccessfully tried to work out a visitation schedule with
Father. (H.T. 7/23/18, p. 86). Upon review of the entire record,
the Court finds that Mother is more likely to encourage and permit
frequent and continuing contact between the child and Father.
TCO, 8/29/18, at 10.
Father disagrees with the trial court’s statement that he did not respond
to Mother’s text messages, that he did not agree to extra physical custody
time offered by Mother or that Mother tried unsuccessfully to work out a
visitation schedule. Upon review, we agree that the testimony does not clearly
support these findings. While Mother’s mother did testify that Father did not
respond to text messages H.T. 4/18/18, p. 202, the testimony regarding
visitation schedule or offering extra time is confusing and does not clearly
support those findings by the court. Nevertheless, because Section
5328(a)(1) was expressly stated by the trial court not to be a determinative
factor in arriving at its decision, and the trial court found that Mother is more
likely to encourage and permit frequent and continuing contact between the
Child and Father, we will not disturb the subject custody order.
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B.
Father next asserts that the trial court improperly weighed Section
5328(a)(3), the parental duties performed by each party. He asserts that the
court found, “There was no testimony to suggest that Father is unable or
unwilling to perform his parental duties when the child is in his custody.”
Father’s brief at 19 (citing TCO, 8/29/18, at 10). However, Father asserts
that the court weighed this factor in favor of Mother insofar as she was Child’s
primary caretaker during her first year of life. The trial court found regarding
this factor:
Mother testified that when she was residing with Father,
specifically during 2017, Mother provided the child's basic needs
such as dressing, bathing, changing diapers, feeding and doing
laundry. (H.T. 4/18/18, p. 93). Mother was responsible for
waking with the child in the night, taking her to appointments.
(H.T. 4/18/18, p. 94). Mother works only three days per week
and spends the other four days with the child. (H.T. 7/23/18, p.
11). Mother's work is flexible so that should something happen
with the child, she is permitted to leave work. (H.T. 7/23/18, pp.
11-12). Father's set hours are 7:30 a.m. to 4:00 p.m., Monday
through Friday. (H.T. 4/1 8/18, p.37). In this position, Father is
on-call for one-week rotations for power outages and the like.
(H.T. 4/18/18, pp. 38-40, 7/23/18, p. 170). Father also works
overtime. (I-LT. 4/18/18, p. 43, 7/23/18, p. 170). There was no
testimony to suggest that Father is unable or unwilling to perform
his parental duties when the child is in his custody.
TCO, 8/29/18, at 10.
While Father does not dispute any of those findings, he contends that it
underestimates the care that he provided when he had custody of the Child
when he fed her, bathed her, engaged in activities, dressed her, got her ready
for bed and put in her bed at which time she would fall asleep. (RR 505, Lines
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4-12). Father works five days a week and does not have to work overtime.
The trial court found that the Father was willing and able to perform parental
duties but merely stated that the Mother had been the primary caregiver,
which is well supported by the evidence. We also note that the trial court did
not consider this factor a determinative one in making its decision.
C.
Next, the Father argues that the trial court made two errors in its Section
5328(a)(10) determination of what was in the best interest of the Child’s
emotional/mental state by relying on Dr. Greulick’s expert opinion concerning
the impact of a shared physical custody. First, he contends that the trial court
improperly allowed Child’s pediatrician to offer an expert opinion because her
experience and education relates to the physical developments and health of
a child and the medical care related to said development, not the child’s
emotional, social and cognitive development as well as behaviors. This leads
to his second argument that the trial court abused its discretion by not
accepting the testimony of an expert psychologist, Michael Church, Ph.D., who
discredited Dr. Greulick’s opinions, theories and erroneous conclusions.
1.
As to the trial court’s allowing Dr. Greulick to testify as an expert
regarding the effect of shared custody, we stated in McDaniel v. Merck,
Sharp & Dohme, 533 A.2d 436, 440 (Pa. Super. 1987):
The law regarding the qualification of witnesses as experts is well
established. It is true that whether a witness has been properly
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qualified to give expert opinion testimony is vested in the
discretion of the trial court. The Pennsylvania standard of
qualification for an expert witness is a liberal one. If a witness
has any reasonable pretension to specialized knowledge on the
subject under investigation he may testify, and the weight to be
given to his evidence is for the jury. Although the witness must
demonstrate some special knowledge or skill, there is no
requirement that a witness acquire that knowledge as a result of
formal schooling; expertise acquired by experience is expertise
nonetheless.
McDaniel, supra at 440 (citations and internal quotation marks omitted);
see also James v. Albert Einstein Medical Center, 170 A.3d 1156 (Pa.
Super. 2017).
When Dr. Greulick was being qualified as an expert, she testified that
she had extensive experience in treating children, including being trained in
child development with one of the world’s leading experts, and that she was
accustomed to making evaluations and making recommendations as to what
was in the best interest for those children who were not living with both their
mother and father. At the end of the questioning on direct about her
qualifications, Father’s counsel was asked if she wanted to cross-examine Dr.
Greulick on her qualifications and she told the court she had no questions, and
the trial court accepted Dr. Greulick as an expert witness. Because she was
qualified as an expert to give an opinion on shared custody and Father
effectively waived his argument that she was not an expert, this argument
has no merit.
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2.
As to Father’s argument that the trial court abused its discretion in
accepting Dr. Greulick’s testimony rather than his expert, Dr. Church,
regarding shared custody, Mother’s counsel inquired whether there would be
a developmental impact on Child if the court issued an equally shared physical
custody schedule between Mother and Father,8 and Dr. Greulick responded,
in part, “that is a very difficult question to answer. . . . That’s a very involved
topic, but yes, a child under four [years old], he or she should spend time,
and a lot of time [,] with their natural mother or their assigned mother.” N.T.,
4/18/18, at 26. Mother’s counsel further inquired, assuming that Mother was
Child’s primary caretaker in the past year, what affect would a week on/week
off custody schedule have on Child. Id. at 28-29. Dr. Greulick responded, “it
would confuse [Child’s] emotional status. She’s not old enough to understand
- just as she determined in her subconscious conscious[9] that my mother is
no longer in my life, she reappears seven days later. It’s extremely difficult
at this age. Do you outgrow this? Absolutely, but not at sixteen months.”
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8 Father’s counsel objected to this question, which the trial court overruled.
N.T., 4/18/18, at 27. Further, the court noted a running objection to this line
of questioning by Father’s counsel. Id.
9 Neither the parties’ counsel nor the trial court questioned Dr. Greulick
regarding her use of the term “subconscious conscious.” Father’s expert
psychologist, Michael Church, Ph.D., was asked on direct examination to
explain the term “subconscious conscious,” and he stated, “I have no idea
what [Dr. Greulick] was talking about. . . .” N.T., 7/23/18, at 129.
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Id. at 28. Mother’s counsel inquired as to Dr. Greulick’s opinion regarding the
period of time that Child could be away from Mother without experiencing
confusion, and she responded, in part, “this is extremely impossible to
answer.” Id. at 29.
Father then presented Dr. Church, whom the court accepted as an
expert in psychology. Dr. Church countered Dr. Greulick’s opinion and
testified, in part:
I’ve taught Child and adolescent psychopathology and child
development many, many times. I've never seen any reference -
- that would be discriminatory. You know, what a child needs is
. . . they need to have someone they’re attached to, who they can
feel secure with and loved. The gender of the parent for a toddler
is essentially irrelevant. . . .
N.T., 7/23/18, at 128. Dr. Church testified that he is not aware of any harm
Child would suffer if the court granted Father equally shared physical custody.
Id. at 134.
In evaluating the opinions of Dr. Greulick and Dr. Church regarding
physical custody, the trial court found as follows:
Dr. Joan Greulick (hereinafter “Dr. Greulick”), the child's
pediatrician testified that she has treated the minor child since her
birth. Dr. Greulick testified that other than one visit, Mother and
sometimes maternal grandmother, attended all of the child’s
pediatric visits. (H.T. 4/18/18, pp. 16, 20). Dr. Gruelick further
testified that given the child’s young age, it would be confusing
for the child to participate in a week on — week off schedule for
custody. (H.T. 4/18/18, pp. 278). Allan Church (hereinafter “Dr.
Church”), a psychologist, testified as an expert on behalf of Father
and he testified that it is advantageous for a child to have both
parents in his or her life. (H. T. 7/23/18, p. 129). Dr. Church had
four sessions between April and June of 2018 with Father to assess
him as a parent. (H.T. 7/23/18, pp. 123, 143). The child only
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attended one of those sessions. (H. T. 7/23/18, p. 124). Based
upon these four sessions, to which the child only attended one,
Dr. Church testified that he saw a very strong bond between
Father and the child. (H. T. 7/23/18, pp. 125, 155). Father did
not tell Mother that he was taking the child to meet with Dr.
Church. (H.T. 7/23/18, p. 151). Dr. Church further testified that
he did not have enough information in this particular case to
determine if a fifty-fifty custody schedule would be appropriate.
(H. T. 7/23/18, p. 161).
TCO, 8/29/18, at 11.
The trial court accepted Dr. Greulick’s opinion that it was not in the
Child’s best interest to have shared custody arrangement. Because issues of
credibility and weight of the evidence are deferred to the findings of the trial
court and the evidence of record supports the trial court’s conclusions, the
trial court did not error in finding that shared custody would not be in the best
interest of the child.10
D.
Father also contends that the court abused its discretion to the extent
that it weighed Section 5328(a)(8), the attempts of a parent to turn the child
against the other parent, in favor of Mother. The trial court acknowledged
Mother’s testimony that “she is ‘absolutely’ concerned that Father will try and
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10 Father also contends that Dr. Greulick’s testimony that a child in its early
years should be with the Mother violates 23 Pa. C.S. §5328 (b) which provides
that: “no party shall receive preference based upon gender in any award
granted under this chapter.” While the trial court acknowledged Dr. Greulick’s
testimony, nowhere in the opinion did the court making any determination
that it based its decision that it gave Mother sole physical custody because of
her gender, only that equal physical custody would be confusing to the Child.
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turn the child against her because of how Father has acted since the parties
separated.” TCO, 8/29/18, at 12 (citation to record omitted). Nevertheless,
the court indicates neither that it weighed this factor in Mother’s favor nor
found it determinative. Therefore, we will not disturb the custody order on
this basis.
E.
Next, Father contends that the court abused its discretion in weighing
Section 5328(a)(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, in favor of Mother. Father contends that the court found
that Father loves Child “and can provide [her] with a loving home.” Father’s
brief at 20 (citing TCO, 8/29/18, at 12). As discussed above, based on the
court’s factual findings that it deemed most relevant in this case, we cannot
conclude that the court’s order granting Mother primary physical custody and
Father partial physical custody is unreasonable.
F.
Regarding the trial court’s evaluation of the Section 5328(a)(9) factor
that Father is somewhat unwilling and unable to cooperate with Mother for the
Child’s benefit, he argues that in coming to that conclusion, the trial court
improperly found that G.F. was his paramour, that she had contact with Child,
and when asked by the court, he lied about the relationship. He contends that
he did not consider himself to be romantically involved with G.F. because he
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did not have feelings for her that she had for him. When asked by the trial
court if there are any individuals other than family members having contact
with the Child, Father understood that to mean regular contact, and Father,
based on his understanding of the question, believed that it would not include
people that are exposed to the Child because said list would be substantial.
We also note that Father testified that G.F. had purported mental health issues
but still allowed contact with Child. The testimony recounted earlier in this
opinion is sufficient for the trial court to find that Father violated the interim
order that a paramour should not have contact with the Child.
In conclusion, upon review of the testimonial evidence, the trial court’s
opinion, and Father’s arguments, we conclude that the court carefully and
thoroughly considered Child’s best interests pursuant to the requisite statutory
factors, and we discern no abuse of discretion. Accordingly, we affirm the
order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/05/2019
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