S.M.M. v. D.M.M.

J-S14016-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.M.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
D.M.M. : No. 3336 EDA 2018

Appeal from the Order Entered October 19, 2018
In the Court of Common Pleas of Lehigh County Domestic Relations at
No(s): 2017-FC-1214

BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED MAY 08, 2019

S.M.M. (Mother) appeals from the order denying the petition for

modification filed by Mother and granting the petition for modification filed by

D.M.M. (Father). The order directed shared legal custody of A.R.M., born in

November 2008, and B.C.M., born in December 2010 (collectively, the

Children), and awarded Father primary physical custody and Mother partial

physical custody. We affirm.

The trial court summarized the relevant procedural and factual history

as follows:

Mother is Plaintiff, . . .who resides in Allentown, Lehigh County[,
PA]. She is thirty-five years old. Father is Defendant, . . . , age
forty-six, who has continuously lived at the marital residence in
Birdsboro, Berks County, PA. Mother and Father are husband and
wife. In 2006, at age twenty-three, Mother moved to Father’s
residence; they married [in June 2009] and continued to reside at
____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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the Birdsboro address. . . . [Mother and Father] separated on
June 10, 2012.[1] Mother moved with the Children to the home of
her parents . . . [in] Allentown, Lehigh County. . . .

Mother immediately filed a Complaint for Custody on August 12,
2012 [in] Berks County. Mother sought shared legal and primary
physical custody of the Children. She filed a Petition for Special
Relief on August 22, 2012 in which she alleged that Father would
not release the Children’s personal items and furniture to her.
Father answered and counterclaimed to which Mother responded.
On January 18, 2013, Mother was awarded primary custody and
Father was granted alternating weekends [] by the Honorable
James M. Bucci. In addition, the court ordered a custody
evaluation to be performed by Dr. Peter H. Thomas, within ten
days; the costs to be shared by the parties. Mother filed
objections to the Order on September 3, 2013, requesting, among
other things, to add others to assist with transportation; this was
granted on September 30, 2013.

Although the pleadings before the [c]ourt were filed in 2017, the
facts relevant to the pleadings began in 2016 with the filing of a
protection from abuse petition against Mother on behalf of the
Children on March 4, 2016 by Father. A Temporary Protection
From Abuse Order was granted, superseding the custody order,
for Father against Mother on behalf of the parties[’] two minor
children as a result of domestic violence occurrences on February
26 and 27, 2016 between Mother and [J.S.], Mother’s paramour.
...

The Affidavit of Probable Cause to the Complaint filed by Det/Sgt.
Tim Cooper #326 of the City of Bethlehem Police against [J.S.] .
. . indicates that on February 27, 2016, the City of Bethlehem
Police Communications Center received a 911 call transfer from
the Lehigh County Communications Center, in which Mother could
be heard stating “Don’t hurt me, Don’t hurt me.” The address
provided was [Mother’s address in Bethlehem]. Upon arrival at
the residence, City of Bethlehem Patrol Officers made contact with
Mother, the 911 caller. Mother told the responding officers that
her boyfriend, [J.S.,] had assaulted her several times over the
past two days. Mother had a swollen right eye that was nearly
shut and several red marks on her face and neck. Mother told the
____________________________________________

1While separated, Mother and Father remained married at the time of the
hearing. N.T., 3/26/18, at 11.

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officers that on February 26, 2016 at 7:00 [a.m.], [J.S.]
confronted her about the car keys as she tried to take her children
to school, punched her in the face several times, and then began
to choke her around the neck with both hands. Mother stated that
on February 27, 2016, at 2:00 [a.m.], [J.S.] entered her bedroom
and began asking her about the car keys. Mother told [J.S.] the
keys were under the pillow, but when he lifted the pillow, they
were not there. [J.S.] became enraged, even though Mother said
the keys must have fallen on the floor. [J.S.] told Mother that he
“loved her” but was going to “kill her.” He bound Mother’s hands
behind her back with packing tape and wrapped the tape around
Mother’s face and mouth. After five or ten minutes, [J.S.]
removed the tape and Mother ran in to the bathroom and locked
the door. [J.S.] smashed his way into the bathroom door, pushed
Mother’s head to the floor, and began pouring Xanax into Mother’s
mouth, in an effort to make her swallow the pills to make it “look
like suicide.” Mother got out of the bathroom and went back in
the bedroom. Mother heard the neighbors and warned [J.S.] that
the neighbors would call the police. Thereafter, [J.S.] fled. [Local
newspaper headlines referenced the incident.] The article
requested the public’s help in locating [J.S.], described as 5 foot
ten inches and weighing 200 pounds, on charges of aggravated
assault, simple assault, terroristic threats, reckless endangerment
and unlawful restraint; it also indicated that[,] according to police,
the [C]hildren were present in the residence [at the time of the
incident].

Father learned of these events six days later. On the afternoon of
March 1, 2016, Father repeatedly sent text messages to Mother
regarding the whereabouts and safety of the Children. She
responded to him the next day, indicated that the Children were
fine, but she did not reveal their location. In the March 2, 2016
text exchanges, Mother described the police as “manipulative
lying dicks, [t]hey are being dicks to me, [t]he cops stole my
phone and made shit up, and the cops [are] not here to protect
anyone and [the] kids know that.”

On March 8, 2016, Father filed a Petition for Emergency Relief in
the Berks County action. Mother had moved from her parent’s
home in Lehigh County to Northampton County . . . with [J.S.] in
2013. Father alleged that there were multiple incidents of
domestic violence at Mother’s home. . . . On March 14, 2016, at
a hearing in Berks County on said Petition [sic] transferred the
custody matter to Northampton County, finding that the Children
had resided there for more than six months. . . . The Honorable

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Jennifer R. Sletvold of Northampton County dismissed Father’s
Petition for Protection from Abuse. By amended Order on March
24, 2016[,] she granted the parties a shared custody schedule,
with a 2/2/3 schedule. Mother’s custody was to be supervised by
her parents . . . and contingent upon her residence at their home
in Allentown. The Children were ordered to have no contact with
any of Mother’s boyfriends, including [J.S.].

On April 1, 2016, Father filed another Emergency Petition for
Special Relief. Father, having found that the older child had
missed thirty-three days of school and was late [for] twenty-seven
days of school, transferred the [c]hild from Lehigh Valley Academy
to Owatin Creek Elementary School located near Father’s
residence. At that time[,] Mother was unemployed and did not
have a valid driver’s license. His Petition was denied; the
Honorable Emil Giordano returned the circumstance to the status
quo and ordered the [c]hild to attend Kratzer Elementary School
and not to miss any days of school.

Custody litigation continued. On April 20, 2016[,] an Interim
Order was entered by agreement of the parties to share legal
custody, primary physical custody to Mother, and Father
exercising eight out of ten weekends, 5 [p.m.] Friday until 5
[p.m.] Sunday with the exchange at Kutztown Police Station. In
addition, the parties were to submit to co-parent counseling to be
conducted by Dr. Ronald Esteve and to proceed to trial in July
2016. On July 8, 2016[,] another Order of Court by agreement
was entered confirming the prior terms, however, amending
Father’s weekends to the first three of each month with Father to
pick up the Children at school and drop off at Mother’s home.

The criminal charges related to Mother’s assault were resolved on
August 26, 2016; [J.S.] pled guilty to summary harassment.
Mother attended the proceedings and testified that the injury to
her right eye was self-inflicted and that she had taken Xanax,
under the belief that it was another medication. Mother testified
that she had an adverse reaction to the Xanax, hallucinated, and
could not recall giving a statement to the police on February 27,
2016. Mother testified that the Xanax was not forced down her
throat and that she was never bound with packing tape. Mother
further testified that she agreed with the guilty plea and that she
wanted to continue to have a relationship with [J.S.]. Contrary to
the March 24, 2016 Order, she and the Children were living with
[J.S.] at that time[,] according to a custody complaint filed in
regard to [J.S.]’s daughter and as set forth below in further detail.

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[J.S.] was fined $150, to be paid directly to the Northampton
County District Attorney’s Domestic Violence Unit.

On October 14, 2016, Father filed a Petition for Contempt of the
Interim Orders of Court entered July 8, 2016 and April 20, 2016.
On November 28, 2016, both parties were ordered to comply with
[the orders of] April 20, 2016 and July 8, 2016 including the
provision to comply with [the] requirement to participate in co-
parenting family counseling with Ronald J. Esteve, Ph.D. The
November 28, 2016 Order specifically provided that the matter
was to be transferred to Lehigh County, however[,] from
November 2016 until September 14, 2017[,] the case sat in
Northampton County.

Trial Ct. Op. 10/19/18, at 3-8 (citations to the record omitted).

Thereafter, in September 2017, the instant litigation commenced in

Lehigh County. Mother and Father each filed a petition for modification of

custody and for contempt on September 14, 2017, and September 29, 2017,

respectively. The trial court conducted a custody trial on March 26, 2018,

March 27, 2018, May 22, 2018, June 29, 2018, and September 25, 2018.

Additionally, the court interviewed the Children, in camera, on July 3, 2018.2

At trial, Mother and Father were present and represented by counsel.

Mother and Father each testified on their own behalf. Additionally, Mother

presented the testimony of: (1) Father as of cross-examination; (2) Mother’s

sister, maternal aunt, M.W.G.; and (3) Mother’s aunt, maternal great-aunt,

D.M. Father presented the testimony of: (1) five South Whitehall Township

____________________________________________

2 Counsel for both Mother and Father were present when the trial court
questioned the Children. N.T., 7/3/18, at 3.

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police officers;3 (2) Father’s neighbor, R.U.; (3) the mother of J.S.’s child,

C.S., who was living with Mother and J.S.; (4) Father’s sister, J.O.; (5)

Father’s mother, paternal grandmother, K.M.; and (6) Father’s significant

other, N.S.

At the September 25, 2018 hearing, the trial court suggested that it was

in favor of maintaining primary physical custody of Children with Mother. N.T.,

9/25/18, at 29. However, the court stated:

You know, I can’t fix you as parents. You are who you are.
Neither of you are perfect parents and have some issues you need
to work on. But given the stability, even though it leaves much
to be desired, that the kids have in mom’s care, for now the kids
will stay in [Mother]’s primary care during the school year.

But I’ll caution [Mother]. You know, I don’t find her testimony
credible. I think you outright lie for the sake of covering your own
butt and will engage in having the children lie to cover your
circumstances. And that’s just -- you [] know, that’s just kind of
sick because that’s what you’re teaching kids to do. You’re not
being a good parent if you’re engaging in that kind of behavior.
Maybe it was the result of being involved in [J.S.] and caught up
in all that domestic violence.

Id. at 29-30.

Subsequently, by order dated October 18, 2018, and entered October

19, 2018,4 the trial court denied Mother’s petition for modification and granted
____________________________________________

3 These officers testified regarding numerous incidents between Mother and
J.S. between December 2016 and February 2018. See N.T., 3/26/18, at 110-
159; see also Father’s Exs. 1-8.

4The subject order was dated October 18, 2018. However, the clerk did not
provide notice pursuant to Pa.R.C.P. 236(b) until October 19, 2018. Our

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Father’s petition for modification. The court awarded the parties shared legal

custody, Father primary physical custody, and Mother partial physical custody

of the Children.5 Specifically, Mother was to maintain primary physical

custody and Father partial physical custody until December 31, 2018. See

Final Custody Order, 10/19/18, at ¶¶ 2, 3(a). Effective December 31, 2018

at 6:00 p.m., Mother was granted partial physical custody of the Children on

the first three out of four weekends in a repeating four-week cycle from Friday

at 6:00 p.m. until Sunday at 6:00 p.m. Id. at ¶ 3(b)(i). Father was to

transport the Children to maternal grandparents’ home in Allentown on Friday

and Mother was to transport the Children to Father’s home in Birdsboro on

Sunday. Id. The parties were to exercise shared physical custody with a

week on–week off schedule during the summer. Id. at ¶ 3(b)(ii).

The trial court additionally provided for, among other things, a holiday

schedule, vacations, and reasonable phone, text, Facetime or Skype access at

reasonable times. Id. at ¶¶ 4, 5, 14. The court issued a memorandum opinion

____________________________________________

appellate rules designate the date of entry of an order as “the day on which
the clerk makes the notation in the docket that notice of entry of the order
has been given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further,
our Supreme Court has held that “an order is not appealable until it is entered
on the docket with the required notation that appropriate notice has been
given.” Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999).

5The court additionally granted each party’s Petition for Contempt. Mother
does not address the issue of contempt in her appeal.

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accompanying its order setting forth the reasons for its decision. See Trial

Ct. Op., 10/19/18.

On November 15, 2018,6 Mother, 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).7 Thereafter, the trial court issued

a Rule 1925(a) opinion dated and entered December 14, 2018. See Trial Ct.

Op., 12/14/18.

On appeal, Mother raises the following issues for our review:

[1.] Did the [trial c]ourt commit an abuse of discretion in awarding
primary custody to Father when the weight of the competent
evidence established that Mother is the better parent?

[2.] Did the [trial c]ourt commit an error of law in failing to
properly consider the custody factors in its award of primary
custody to Father[?]

[3.] Did the [trial c]ourt commit an abuse of discretion in inferring
solely from Mother’s difficulties with an abusive past boyfriend
that the best interests of the children would be served by an award
of primary custody to Father[?]
____________________________________________

6 Mother additionally filed an application for reconsideration and stay on
November 15, 2018, which the trial court denied by order dated December 3,
2018, and entered December 6, 2018. See Order, 12/6/18. Mother
subsequently filed an application for stay with this Court on December 18,
2018. That application was denied on December 28, 2018. See Order,
12/28/18.

7 Pursuant to order dated December 4, 2018, this Court noted that Mother
failed to order and pay for the pertinent trial court transcripts as required by
Pa.R.A.P. 1911 and the Lehigh County Local Rules. This Court ordered Mother
order and pay for the transcripts by December 14, 2018 and further directed
to file a receipt demonstrating payment. See Order, 12/4/18.

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Mother’s Brief at 5.8

We summarize all of Mother’s issues on appeal. Mother first alleges that

the trial court abused its discretion in granting Father primary physical custody

as the weight of the evidence supported an award of primary physical custody

to Mother. Mother states:

The [trial c]ourt fails to reconcile its decision with its earlier
comments regarding Mother being the better parent isolated from
the interaction with Father nor does the [trial c]ourt reconcile its
earlier statements of concern regarding Father’s lack of
involvement in the school and medical areas of the lives of the
[C]hildren from the beginning.

It is Mother’s position that the [trial c]ourt’s multiple statements
about Mother’s superior parenting and Father’s disturbing lack of
involvement in either their schooling or medical issues represent
the correct decision in regards to the best interests of the children.
The [trial c]ourt’s reversal of its own assessments over the course
of the trial represents an abuse of discretion. The overwhelming
weight of the evidence favors an award of primary custody to
Mother.

____________________________________________

8 We observe that Mother states the issues somewhat differently than in her
Rule 1925(b) statement. We, nevertheless, find that she has preserved her
challenges to the trial court’s custody order. Moreover, Mother raises several
additional issues in her Rule 1925(b) statement not addressed in her
statement of questions involved and her brief. As such, Mother failed to
preserve and waives any claims as to these additional issues. See Krebs v.
United Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (stating
that a failure to preserve issues by raising them both in the concise statement
of errors complained of on appeal and statement of questions involved portion
of the brief on appeal results in a waiver of those issues); see also In re
W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (quoting In re A.C., 991 A.2d
884, 897 (Pa. Super. 2010)) (“[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.”).

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Mother’s Brief at 55-56.

Mother also asserts error in the trial court’s consideration of the custody

factors. Mother contends that the court did not specifically analyze each factor

separately and failed to properly weigh the factors. She maintains that the

trial court failed to examine and weigh each custody factor and merely

addressed the factors by footnote. Id. at 58-60. Mother argues:

The [trial c]ourt’s failure to expressly state how each specific
factor weighed in favor of either party was in error as it deprives
the reviewing court of a basis upon which to analyze whether its
deductions or inferences are supported in the record. [C.A.J. v
D.S.M.], [ ] 136 A.3d 504 (Pa. Super 2016).

Id. at 58-59. Mother continues:

With respect to all but the custody factor related to present or past
abuse the [trial c]ourt fails to engage in the in depth analysis
required by law. Individual factors are not weighed as much as
they are referenced by footnote.

It is Mother’s position that the [trial c]ourt’s failure to properly
weigh the custody factors should result, at minimum, in the
remand of this matter for a full explanation of its analysis of the
custody factors.

Id. at 60.

Lastly, Mother contends that the trial court abused its discretion in

finding it was in the Children’s best interests to award Father primary physical

custody due to her abusive relationship with J.S. Id. at 61-64. She asserts

that the court improperly focused on her relationship with J.S. and instead

highlights that there was no evidence of any harm to the Children. Id. at 62-

64. Mother states:

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The determination that Mother was not truthful in explaining []
the circumstances regarding her relationship with J.S. might be
attributable to the fact that she was, again, a victim of violence
but even if this Honorable Court accepts the [trial c]ourt’s decision
to believe that she was simply being untruthful this finding should
not be the basis of a custody determination when all of the
remaining factors lean towards Mother and there is not been one
piece of evidence of harm to the [C]hildren. The weight of the
evidence is that the children were not exposed to J.S. nor was
there even the allegation that he had ever harmed the [C]hildren.

Id. at 62-63. She further argues:

It is the [trial c]ourt’s obligation to assess the circumstances of
the parties at the time of its decision[,] not at some time in the
past. . .[,] especially when . . . the parent was a victim of abuse.
The phrase “whether there is a continued risk of harm” is a key
component of the analysis required for this custody factor. This
qualifying phrase is of greater significance herein where the abuse
that is being referenced is abuse by a third-party towards a
parent. Mother has a protection from abuse order in effect against
both of her past abusers and there is no evidence of any harm to
the [C]hildren at any time in these proceedings.

Id. at 63-64.

In custody cases under the Child Custody Act (the Act), 23 Pa.C.S. §§

5321-5340, our standard of review 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.

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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).

This Court has consistently held that

[t]he 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. §§ 5328, 5338. Section

5328(a) sets forth the best interest factors that the trial court must consider

in making a custody determination. 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:

§ 5328. Factors to consider when awarding custody

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(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.

(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.

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(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).

Further, with regard to the Act, we have stated:

“All of the factors listed in [S]ection 5328(a) are required to be
considered by the trial court when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
in original). . . . The record must be clear on appeal that the trial
court considered all the factors. Id.

Section 5323(d) provides that a trial court “shall delineate the
reasons for its decision on the record in open court or in a written
opinion or order.” 23 Pa.C.S.[] § 5323(d). Additionally,
“[S]ection 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen [Section 5328(a) custody]
factors prior to the deadline by which a litigant must file a notice
of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013). . .
.

In expressing the reasons for its decision, “there is no required
amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that
the custody decision is based on those considerations.” M.J.M. v.
M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013) . . . . A court’s
explanation of reasons for its decision, which adequately

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addresses the relevant factors, complies with Section 5323(d).
Id.

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014) (emphasis in original).

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.”).

M.J.M., 63 A.3d at 339 (emphasis added).

A trial court may consider a parent’s role in caring for a child in light of

the statutory factors. However, “the primary caretaker doctrine, insofar as it

required positive emphasis on the primary caretaker’s status, is no longer

viable.”9 Id.

Instantly, in its opinion accompanying its order, the trial court analyzed

the Children’s best interests as follows. See Trial Ct. Op., 10/19/18, at 12-

____________________________________________

9 As explained by the M.J.M. Court, the “primary caretaker doctrine,” was a
judicially created doctrine that held that “where two natural parents are both
fit, and the child is of tender years, the trial court must give positive
consideration to the parent who has been the primary caretaker.” M.J.M., 63
A.3d at 337 (citations and emphasis omitted). Therefore, the role of a parent
as a primary caretaker “was intended to be an additional consideration that
would tip the scales in favor of the primary caretaker in a situation where the
trial court deemed both parents to be fit to act as a primary custodian.” Id.
at 338.

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24. First, addressing credibility and Mother’s abusive relationship with J.S.,

the court stated:

Credibility of witnesses, in particular for Mother, is an important
issue in the analysis of the factors. The [c]ourt found Mother
lacked credibility and accountability, especially in her testimony
regarding contact with [J.S.]. . . .

By her own admission . . ., Mother resided with, had contact with,
continued in a relationship with and exposed the Children to [J.S.]
after she was specifically ordered not to. In her pending
September 2017 Petition for Modification, she told the court that
she would like her children to be able to have contact with [J.S.].
It was only in October 2017, a year and one half since her alleged
assault, that she withdrew that request before the Conference
Hearing Officer. Throughout this trial and in the related pleadings,
Mother lied about her contact with [J.S.] and lied about not
residing with him at the Walbert Avenue address. She engaged
the Children as well as her parents in this lie, and withheld the
truth from Father by not communicating with him. Mother has
alleged that she needed to protect the Children from Father, a
shield she created to hide behind; at the same time she has
attempted to use this ‘shield’ as a sword against Father. There
were times when Mother refused to communicate with Father; and
there was no basis [for] not communicating. She subjected the
Children to domestic chaos involving the police as set forth below.
With this background, the [c]ourt examines each statutory factor
for awarding custody giving weighted consideration to those
factors which affect the safety of the children.

Trial Ct. Op., 10/19/18, at 10-11. The court then offered a twelve-page

discussion of the custody factors.

Although the trial court did not identify and address each custody factor

separately, the court offered a thorough discussion of the facts of the instant

matter and each of the custody factors. For example, the court reasoned:

The [c]ourt is mindful that there is a fundamental need for stability
and continuity in the Children’s education, family life and

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community life. Mother has performed the lion share of the
parental duties for the Children. Although prior to separation,
Mother and Father shared parenting responsibilities, Mother
currently schedules and transports the Children to their school and
medical appointments. [A.M.] has special needs and sees an
endocrinologist at Children’s Hospital of [Philadelphia] since 2013.
Since separation Mother has attended to their daily needs. She
has attended to their educational and medical needs. However,
she has also repeatedly demonstrated her willingness to poison
the Children against their Father in an attempt to cover her own
bad acts. She does so at the sacrifice of the mental health of the
Children and their relationship with their Father. Even during the
pendency of the trial, Mother has continued contact with [J.S.]
who has open criminal charges. Given the distance and Father’s
work schedule, he has been limited in his involvement. When
Father initiated this custody action, he became aware that [A.M.]
had missed thirty-three days of school and was late twenty-seven
days of school. He transferred the Child from Lehigh Valley
Academy to Owatin Creek Elementary School located near his
residence. Northampton County ordered the Child to return to
Kratzer where . . . both Children attend school. He has
demonstrated . . . his willingness and his ability to provide care
for the Children as the primary custodian during the school year.
Similar to Mother’s circumstances, he has child care available
within his extended family near to his home.

Id. at 23-24 (footnotes omitted).

Additionally, in its Rule 1925(a) opinion, the trial court further

explained:

Throughout the record, this [c]ourt referenced the positive and
negative attributes of both Mother and Father’s parenting abilities.
During trial on September 25, 2018, this [c]ourt indicated that
primary custody of the Children would remain with Mother during
the school year. The [c]ourt explained that even though Mother
lacked credibility and exercised poor judgment, she did provide
some level of stability for the Children. However, at the conclusion
of the proceedings on September 25, 2018, this [c]ourt reminded
the parties that the standard in custody cases is the best interests
of the children and stated that this [c]ourt would enter an order
“based on the analysis of the factors and on the open petitions for
modification and contempt.”

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Following trial, this [c]ourt reviewed the testimony from the case,
which spanned five days over six months, and thoroughly
examined the exhibits presented by Mother and Father.
Thereafter, this [c]ourt analyzed the custody factors listed in 23
Pa.C.S. § 5328(a) and reconsidered the decision made on the
record on September 25, 2018. This [c]ourt’s reconsideration of
the evidence is consistent with the closing statements made on
September 25, 2018 because this [c]ourt believes it is in the best
interests of the Children for Father to have primary physical
custody. As explained in this [c]ourt’s October 18, 2018
Memorandum Opinion, Mother, without good reason, has engaged
in a course of conduct to put her own needs and desires before
the Children and to alienate the Children from Father. Mother has
been manipulative and deceitful with respect to her relationship
with [J.S.]. The Children have been exposed to a long history of
domestic disturbances and police investigations while in Mother’s
care. Moreover, Mother has manipulated the Children and
instructed them not to speak about the circumstances in her
home.

* * *

This [c]ourt did not lightly reverse the decision made from the
bench. However, following the conclusion of trial, due
consideration was given to all of the testimony and exhibits
presented, and this [c]ourt determined that it is in the best
interests of the Children for Father to have primary physical
custody of the Children.

Trial Ct. Op., 12/14/18, at 5-7.

Therefore, contrary to Mother’s assertion, the trial court did not abuse

its discretion by reconsidering its earlier suggestion that Mother should

maintain primary custody of Children in light of Section 5328(a).

Furthermore, the trial court did not commit reversible error by failing to

enumerate all of the Section 5328(a) factors in its decision. Rather, the court’s

opinions reflect an appropriate consideration of all of the statutory factors

when determining the best interest of the Children.

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Mother’s remaining issues, at their core, dispute the trial court’s findings

of fact and determinations regarding credibility and weight of the evidence.

Mother, in essence, questions the trial court’s conclusions and assessments

and seeks this court to re-find facts, re-weigh evidence, and/or re-assess

credibility to her view of the evidence. This we cannot do. 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), “[i]t 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. . . .” (quoting Hanson v. Hanson, 878 A.2d 127,

129 (Pa. Super. 2005)).

Further, to the extent Mother 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 almost

entirely within its discretion. See M.J.M., 63 A.3d at 339. Moreover, any

challenge to the nature and detail of the court’s analysis of the factors is

unfounded. See A.V., 87 A.3d at 822-23.

In sum, our review compels the conclusion that the trial court

reasonably analyzed and addressed each factor under Section 5328(a) and

there is support in the record for its findings and determinations regarding the

best interest of the Children. See C.R.F., 45 A.3d at 443; see also E.R., 129

A.3d at 527. As such, Mother’s claims do not warrant relief.

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Order affirmed. Petition to submit case on brief dismissed as moot.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/8/19

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