J-A26045-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
S.S. :
:
Appellant :
:
: No. 934 WDA 2019
Appeal from the Order Entered May 28, 2019
In the Court of Common Pleas of Lawrence County Family Court at
No(s): 10041 of 2016 C.A.
BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 12, 2019
Appellant, S.S. (“Mother”), appeals from the order entered on May 28,
2019, modifying custody with M.S. (“Father”) regarding the parties’ two
children, A.F.S. (a female born in October 2003) (“Daughter”) and A.M.S. (a
male born in January 2008) (“Son”).1 We affirm.
We briefly summarize the facts and procedural history of this case as
follows. Mother and Father were married in 1997. They filed for divorce in
January 2016 and separated two months later. On August 8, 2016, the parties
entered into a custody agreement, memorialized by consent order, whereby
____________________________________________
1 More specifically, the order granted the parties shared physical custody of
the children on an alternating weekly basis. The trial court order further
granted the parties shared legal custody of the children, except that Father
was granted sole legal custody regarding the children’s schooling and
education and Father was given the sole right to have Daughter “examined by
any physician, psychologist, or psychiatrist […] for a second opinion or for
testing[.]” Order of Court, 5/28/2019, at 11-12.
J-A26045-19
Mother had primary physical custody of the children. Father had partial
physical custody of the children every other week from after school on
Thursday until Monday morning and one weekday afternoon each week.
Moreover, under their custody agreement, Mother and Father shared legal
custody.
Father subsequently filed a petition for custody seeking sole legal
custody to make educational and medical decisions for the children. Father
maintained that he wanted Daughter, who had been home-schooled by Mother
since the fourth grade, to attend school full-time. At the time of the
modification petition, Daughter was enrolled in several classes at the public
high school and engaged in multiple extra-curricular activities, including ballet
and dance classes, acting in musicals and plays, band, and singing.2 Father
also expressed concerned about Daughter’s medical care, claiming he was
skeptical about various ailments and diagnoses Daughter had received over
the years. Daughter has been diagnosed, inter alia, with Tourette’s syndrome,
mononucleosis, bronchitis, pneumonia, strep throat, scarlet fever, Lyme
disease, Pediatric Autoimmune Neuropsychiatric Disorder Associated with
Strep (PANDAS), herpes, memory loss, brain fog, sensitivity to sound and
touch, Obsessive-Compulsive Disorder (OCD), germ phobia, separation
anxiety, sleep disorder, and depression.
____________________________________________
2 Daughter also ran cross-country and took gymnastic classes until soreness
in her joints prevented her from participating in those activities.
-2-
J-A26045-19
Following a three-day hearing, on May 28, 2019, the trial court entered
findings of fact and an order of court granting physical custody of the children
on a 50-50 schedule. The trial court granted sole legal custody to Father for
educational and medical decisions, but ordered the parties to share legal
custody in all other respects. Moreover, the trial court made clear that Father
was required to consult with Mother regarding educational and medical
choices, with the ultimate decision reserved to Father alone. This timely
appeal resulted.3
On appeal, Mother raises the following issues4 for our review:
1. Did the trial court commit an abuse of discretion and/or error of
law in issuing its [o]rder of [c]ourt [] filed on the docket on May
[28,] 2019[?]
2. Did the trial court commit an abuse of discretion and/or error of
law in awarding Father the sole legal right to determine where and
how the children are educated and enrolled in school when it failed
to conside[r] the recommendations and opinion of [Daughter’s]
treating physician and/or evidence regarding [Daughter’s] health
issues and need for accommodations?
____________________________________________
3 Mother filed a timely notice of appeal and corresponding concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) on June
20, 2019. The trial court relied upon its earlier findings of fact entered on May
28, 2019 as the rationale for its decision.
4 We have reordered the issues for ease of discussion. Additionally, Mother
raised two additional issues in her concise statement challenging evidentiary
rulings made by the trial court, but she abandons those claims on appeal. See
Mother’s Brief at 22 n.1. We find those issues waived. Commonwealth v.
Dunphy, 20 A.3d 1215, 1218 (Pa. Super. 2011) (Issues raised in Pa.R.A.P.
1925 concise statement that are not developed in appellate brief are
abandoned); see also Commonwealth v. Woodward, 129 A.3d 480, 509
(Pa. 2015) (holding that “where an appellate brief fails to … develop an issue
in any [] meaningful fashion capable of review, that claim is waived.”).
-3-
J-A26045-19
3. Did the trial court commit an abuse of discretion and/or error of
law when it modified the physical custody schedule and awarded
Father the sole legal right to determine where and how the
children are educated and enrolled in school based on facts and
conclusions not supported by evidence of record?
4. Did the trial court commit an abuse of discretion and/or error of
law when it ordered that the parents should share physical
custody when the evidence showed that Father works full time and
is frequently unavailable on evenings and weekends, that Father
does not have proper accommodations for the children, the
children prefer to remain in Mother’s primary custody, and Mother
had provided a stable home life as the primary physical custodian
for the children?
5. Did the trial court commit an abuse of discretion and/or error of
law when it considered the testimony and recommendation of the
Guardian [A]d [L]item [(GAL)], even though the GAL did not
conduct a thorough and independent investigation, failed to speak
with [Daughter’s] primary physician and only interviewed
witnesses whose names were provided by Father?
Mother’s Brief at 22.
Mother’s issues overlap and broadly challenge the trial court’s decisions
regarding custody. However, three primary categories emerge from Mother’s
complaints on appeal. Mother challenges the grant of sole legal custody to
Father regarding the children’s education and Daughter’s medical care. She
also challenges the trial court’s grant of equal shared physical custody of the
children. Finally, Mother contends that the GAL did not conduct a thorough
and independent investigation before making her recommendations to the
court.
Mother’s chief complaints, however, relate to the legal custody
determination with regard to Daughter. Mother argues that the trial court
-4-
J-A26045-19
failed to account for Daughter’s “complicated and lengthy medical history.”
Id. at 26. She claims that over the years Daughter has been diagnosed with
the aforementioned ailments. Id. at 26-31. In 2015, the parties agreed to
have Daughter treated by Dr. Allen Lewis and later consulted him regarding a
plan for part-time enrollment in public school. Id. at 27-28. In January 2016,
Dr. Lewis opined that Daughter’s public school schedule not be increased until
her symptoms of Lyme disease and PANDAS dissipated. Id. at 28-29.
Moreover, Mother argues that “in spite of [Father’s] skepticism regarding Dr.
Lewis’s diagnosis and treatment, [Father] failed to offer any medical testimony
or evidence to contradict the opinions of [Daughter’s] long-term physician or
to demonstrate that it is not accurate.” Id. at 42.
Relatedly, Mother argues that it was error to grant Father sole legal
custody regarding Daughter’s education. Mother claims that although the
parties disagreed over the number of public school classes in which to enroll
Daughter, “both parties are fit parents who have been able to cooperate and
compromise regarding difficult issues, [thus] there [was] no basis in the
record for modification of legal custody.” Id. at 33. Mother complains that in
rendering its decision regarding legal custody, there was no evidentiary
support for the trial court to opine that Daughter “would not be able to attend
college or hold down a regular job” unless educational changes were made on
her behalf. Id. at 39-40. Finally, by determining that if Daughter could
participate in strenuous physical extra-curricular activities that required her
to travel distances, she could attend public school full-time, Mother argues
-5-
J-A26045-19
that, “the court ignored testimony that [Daughter] frequently misses
rehearsals and activities due to illness.” Id. at 41. Accordingly, Mother argues
that by “awarding [Father] sole legal custody for purposes of making
educational decisions, the court failed to consider that [Father] intended to go
against medical advice without providing any basis for doing so.” Id. at 43.
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).
“When a trial court orders a form of custody, the best interest of the
child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)
(citation omitted). The factors that a trial court must consider when awarding
custody are set forth at 23 Pa.C.S.A. § 5328(a):
(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.
-6-
J-A26045-19
(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) (relating
to consideration of child abuse and involvement with
protective services).
(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child's
education, family life and community life.
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on the
child's maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child's emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party's effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
-7-
J-A26045-19
(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). All relevant factors shall be considered by the trial
court, and the only factors that should be given “weighted consideration” are
factors that “affect the safety of the child[.]” M.J.M. v. M.L.G., 63 A.3d 331,
338 (Pa. Super. 2013) (citation omitted).
Upon careful review of the certified record, we discern no abuse of
discretion or error of law in determining legal custody. Here, the trial court
thoughtfully considered the sixteen factors regarding custody as set forth in
Section 5328. The trial court measured Daughter’s extensive medical history
and her entire educational experience in determining that Father was the party
best suited to meet her best interests in these regards. The evidence
presented at the custody hearing showed that Daughter is a capable, often
described as gifted, student who would benefit from additional formal
education in a public school setting. Daughter’s current public school
educators testified consistently that Daughter does not display the physical
manifestations of her illnesses at school, she thrives academically, and there
are appropriate individual educational plans in effect that specially address
Daughter’s needs while in school. N.T., 4/22/2019, at 31-33, 198-200, and
217. Moreover, while Father did not offer additional medical testimony to
refute Daughter’s current diagnoses, he sought legal custody to seek another
-8-
J-A26045-19
medical opinion because: (1) the unrefuted evidence presented showed
Daughter’s long-term treatment has not been entirely successful and she still
reported symptoms, and (2) Father could not unilaterally obtain a second
medical opinion, while still sharing legal custody equally with Mother, without
Mother’s express consent. Daughter has not been presenting physical
symptoms at school. However, her treating physician recommended that
Daughter’s partial school schedule remain the same because of her ailments
and Mother unyieldingly opines that Daughter’s current medical care and
education is proper. Thus, we conclude that, based upon the record before
us, it was appropriate for the trial court to award Father sole legal custody to
obtain a second medical opinion and make continued medical decisions on
behalf of Daughter. Furthermore, Daughter testified that she would like to
attend college. Id. at 133. A guidance counselor testified that Daughter’s
preparation for college and chance for admission would increase with
additional public schooling, especially in specialized areas of study. Id. at
249. The record supports the trial court’s determination that Father is suited
to provide for the children’s educational best interests.
Next, Mother asserts that the trial court erred in granting Father shared
physical custody of both children. Mother’s Brief, at 33-39. Mother challenges
the trial court’s application of several of the sixteen required factors for
custody modification pursuant to 23 Pa.C.S.A. § 5328. Id. Mother claims
that Father’s work schedule is demanding and “he offered no evidence to show
how he would accommodate the children’s after school and evening
-9-
J-A26045-19
obligations[,]” what arrangements he would make while working, and/or if he
could “provide care for [Daughter] should she fall ill during his custody time
or how he would monitor her medical needs.” Id. at 36. Mother further
argues that the trial court failed to consider Father’s lack of suitable housing
for custodial visitation as Father lives in a two-bedroom apartment and sleeps
in the living room when the children visit. Id. at 37. Mother claims that the
children prefer to remain in Mother’s primary custody and that “the court’s
finding that [Son] told the GAL that he preferred to live primarily with [Father]
is not supported by either the record or the GAL’s report.” Id. at 38. As such,
Mother argues that the trial court “provided no analysis of how a change to
the current schedule would be of a benefit to the children.” Id.
The record supports the trial court’s determination that shared physical
custody was appropriate. The trial court specifically considered Father’s
employment schedule and housing and determined that shared physical
custody met the children’s needs. The record evidence shows that the children
were often tardy and frequently missed school while in Mother’s care.
Whereas, there was no evidence that Father’s employment schedule interfered
with his ability to meet the children’s ongoing needs. Regarding housing, Son
testified that the bedroom at Father’s apartment is specifically for him. Son
“chose the covers and the curtains and all of the things that are in it.” N.T.,
4/22/2019, at 175. Father sleeps in that room when Son is not visiting and
sleeps on a sofa bed in the living room during custodial periods. Id. Father
- 10 -
J-A26045-19
has provided each of the children with a private, individually tailored separate
space to stay during his periods of custody.
We also reject Mother’s contention that there was no evidence that Son
told the GAL that he preferred to live with Father. In fact, when asked directly,
Son testified that he thought he did tell the GAL he would like to live with
Father, but just could not remember. Id. at 154-155 (“I think. If [the GAL]
wrote that down, I think I did, I just don’t remember.”). Moreover, the GAL
specified that, in making her recommendations to the trial court, she
considered the children’s preferences, but they expressed their preferences in
confidence and she would not betray that trust. N.T., 5/2/2019, at 30.
Accordingly, for all of the foregoing reasons, we conclude that the record
supports the trial court’s determination that the parties share physical custody
of the children.
In her final related issue, Mother claims that the GAL did not conduct a
thorough or independent investigation, failed to speak with Daughter’s
primary physician, and only interviewed witnesses provided by Father.
Mother’s Brief at 44-46. The GAL stated that, as is her usual practice, she did
not speak directly with doctors in rendering her recommendations and,
instead, relied upon their depositions during her investigation. N.T.,
5/2/2019, at 15-16. The GAL testified that the various community members
she spoke with had sought her out and she did not contact them. Id. at 29.
The GAL further testified that she “would have been glad to talk to anybody”
had Mother provided the names of potential witnesses. Id. The record
- 11 -
J-A26045-19
supports the GAL’s conclusions. Mother does not contend that she provided
the GAL with witness names and the GAL failed to interview them. In fact, on
appeal, Mother does not offer any specific additional witnesses that were
necessary to the GAL’s determination and, instead, makes only a bald
allegation that her investigation was not thorough. We conclude that Mother
is not entitled to relief on her final claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2019
- 12 -