R.&L.E. v. S.B. and J.W.

J-A07044-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R. & L.E. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
S.B. AND J.W. :
:
: No. 1693 MDA 2019
APPEAL OF: S.B. :

Appeal from the Order Entered October 2, 2019
In the Court of Common Pleas of Dauphin County Civil Division at No(s):
2013-CV-4024-CU

BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 07, 2020

S.B. (“Mother”) appeals from a custody order granting R.E. and L.E.

(“Great Grandparents”) primary physical custody and Mother and J.W.

(“Father”) partial physical custody. Mother argues the court erred in making

her custody contingent on the payment of Great-Grandparents’ counsel fees,

in making her custody contingent on Father’s completion of directives, and in

failing to apply the presumption in favor of parents in this custody action

between parents and third parties. We affirm the award of custody but remand

for the trial court to allow Mother’s custody periods to resume before Mother

pays Great-Grandparents’ counsel fees.

Mother and Father have one child, A.W. (“Child”), born in July 2012.

After Child’s birth Mother, Father, and Child moved to the home of Great-

Grandparents, who reside in Dauphin County. In 2013, Mother stated she
J-A07044-20

intended to move herself and Child from the home. Great-Grandparents filed

a custody action, as they were concerned for Child’s safety. In July 2013, the

trial court granted the parties shared legal custody, but granted primary

physical custody to Great-Grandparents and Father, who still resided with

Great-Grandparents. Great-Grandparents were to supervise Father’s custody

time. Mother, who had moved to Blair County, had partial custody every

weekend.

The custody terms were modified a few times, with minor changes. In

August 2016, the parties entered into an agreed custody order, granting

Great-Grandparents primary physical custody and Mother and Father each

periods of partial physical custody. Legal custody was shared. In January

2017, following a custody hearing, the court entered a final custody order that

provided that the parties had shared legal custody. Great-Grandparents had

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

every other weekend during the school year and a two-week vacation period

for each parent in the summer.

Mother was directed to comply with a number of provisions including

that she subscribe to and use Our Family Wizard, an information-sharing

website for separated parties. Mother also had to maintain drug rehabilitation,

attend group and individual counseling, undergo periodic drug tests and

provide quarterly updates about test results to Father and Great-

Grandparents, obtain counseling for anger, and enroll in a 12-week parenting

program. The order had similar requirements for Father.

-2-
J-A07044-20

On August 21, 2019, Great-Grandparents filed an emergency petition

for special relief asserting, among other things, that Mother had failed to

return Child on Sunday, August 18. Great-Grandparents also filed a petition

for contempt asserting Mother violated the prior court order by failing to return

Child and in failing to comply with terms of the January 2017 order, including

failing to use Our Family Wizard, undergo drug tests and provide quarterly

updates, enroll in counseling for anger, and enroll in a 12-week parenting

program.

The trial court granted Great-Grandparents’ petition for emergency

relief, directing Mother to return Child. It scheduled a hearing on the petition

for contempt.

On August 26, 2019, Great-Grandparents filed a second emergency

petition for special relief seeking immediate return of Child. Mother had failed

to transfer custody as directed in the prior order. The court granted the

petition and again directed Mother to return Child to Great-Grandparents. The

court also suspended Mother’s custody rights.

In September 2019, Mother filed an emergency petition for special relief

and a petition for modification of custody, seeking primary physical custody.

The Court denied the petition for special relief and scheduled a hearing for the

petition for modification.

The court held a hearing on the petition for contempt and the petition

for modification. The court summarized the testimony from the hearing:

-3-
J-A07044-20

I first heard testimony from Mother and Father regarding
issues raised in Great-Grandparents’ contempt petition filed
on August 21, 2019. Mother testified that she initially signed
up for Our Family Wizard but did not continue to stay signed
up for Our Family Wizard for communication with Great-
Grandparents because she believed that she and Great-
Grandparents were getting along and communicating better
without utilizing the program. Great-Grandparents alleged
that they sent seventeen messages to Mother via Our Family
Wizard, and Mother testified that she did not receive or
respond to any of those messages. . . .

Mother testified that she has undergone drug rehabilitation,
that she continues to go to drug rehabilitation once a month,
and that she has been sober for a bit more than six and a
half years. However, Mother had not provided Great-
Grandparents with quarterly reports as required as to the
progress on her drug rehabilitation.

Although Mother testified that she enrolled in counseling to
address unspecified issues that she has, she admitted that
she did not enroll in counseling to specifically address issues
concerning anger and ongoing arguments between her and
the Father. . . .

Mother completed Children First in Allegheny County, but
the certificate of completion provided by Mother established
that the course she completed was 4-hour separated
parents course, rather than a 12-week parenting class. . . .

Mother and Father conceded that they did not return Child
to Great-Grandparents on Sunday, August 18, 2019.

Based on the facts elicited from Mother and Father’s
testimony, I found both to be in contempt of various
provisions of the January 30, 2017 custody order and
parenting plan, and I relayed this finding to the parties on
the record.

I then received testimony regarding Mother’s petition for
modification of custody filed on September 5, 2019.

Mother, who has had problems with drug addiction, testified
that she has been seeking counseling and has been clean
for nearly seven years. She is employed at a DirecTV call
center and lives in a two-bedroom apartment in Altoona with

-4-
J-A07044-20

her other child, a 1-year old daughter. Mother testified that
Child gets along well with the 1-year-old. Mother’s mom,
stepfather, and brother live nearby in Altoona, and Father’s
family lives in the Altoona area as well. Mother testified that
she gets along pretty well with Father’s family and believes
that as Mother, she should have more time with Child,
especially in the summer when Child is not in school.

Mother’s primary means of communicating with Great-
Grandparents is via text messaging. Mother testified that
this had been a fairly effective method of communication,
but in the last six months, this communication “hasn’t been
working out very well.” Mother claims that the last several
times she has called Great-Grandparents to speak with Child
(when Child was in Great-Grandparents’ custody), Great-
Grandparents have denied her the opportunity to speak with
Child. Mother also testified that Great-Grandparents have
accused her of coaching Child to say certain things to a
judge.

...

Almost all of Father’s family lives in Altoona. Father has no
family in Elizabethtown, Dauphin County other than his
grandmother (who is Child’s Great-Grandmother). . . .

Child’s maternal grandmother (Mother’s mom) testified that
she has limited interaction with Great-Grandparents. The
only interaction she has with Great-Grandparents is when
she meets them at a Sheetz in Lewistown to exchange Child
when Mother or Father are unavailable to do so. She
testified that during the exchanges at Sheetz, Great-
Grandparents do not talk to her at all. She has observed
that when Great-Grandfather is present at Sheetz for the
exchanges, Child will sit on his lap. Maternal grandmother
finds this to be odd since Child is 7 years old and somewhat
heavy. She also believes it to be odd that when she is
watching Child in Altoona, Child will take off her shirt before
running around and playing in the house.

Maternal grandmother believes that Mother is capable of
raising Child since Mother raises a 1-year-old on her own,
has her own apartment and vehicle, and has held the same
job for two years. She also believes that Child would be
better off living with Mother in Altoona because most of
Mother and Father’s relatives live in Altoona, whereas the

-5-
J-A07044-20

only relatives of Child that live in the Dauphin County-area
are Great-Grandparents. She further testified that Child is
happy and content when she spends time with Mother.

When asked on cross-examination about her criminal
record, maternal grandmother admitted to having a DUI last
April, for which she completed an ARD program. She
testified that she also went to drug and alcohol counseling
and continues to attend group meetings. She also admitted
that twelve years ago, she was charged with filling a pain
pill prescription that was in someone else’s name.

Maternal grandmother acknowledged that at an August
2019 custody conciliation hearing, she was involved in a
confrontation in which she approached Great-Grandparents,
accused them of engaging in cruel behavior towards Child,
and vowed to pursue avenues to end such behavior. She
also recalled that on August 23, 2019, after I issued an
Order directing Mother to immediately return Child to Great-
Grandparents, the Great-Grandparents sat in their car for
hours across the street from her (maternal grandmother’s)
house, allegedly looking into her window. She eventually
approached Great-Grandparents’ car and asked what they
were doing.

Cross-examination of maternal grandmother also revealed
that she recently accused Great-Grandfather of sexually
assaulting Child, and that prior to that, she had accused
Child’s paternal grandfather of sexually assaulting Child.
She acknowledged that both accusations were investigated
by authorities and were both determined to be unfounded.

Dr. Jaeme Schwartz-Bogrette (“Counselor”), who owns
Cocoa Counseling Center in Hershey and is Child’s current
counselor, testified that Child has been a client of Cocoa
Counseling since February 2017. Child currently attends
counseling once a week and is transported to the sessions
by Great-Grandparents, who also pay for the sessions and
are “extremely” involved in Child’s counseling. She testified
that Child is bright, kind, gentle, and energetic. She has
been working with Child on issues of self-regulation and self-
disclosure and plans to also work on issues of self-esteem,
self-identity, and empathy. Dr. Schwartz-Bogrette has
diagnosed Child with oppositional defiant disorder,
generalized anxiety disorder, and post-traumatic stress

-6-
J-A07044-20

disorder. [On cross-examination, Counselor testified that
the PTSD stemmed from “the trauma from being removed
from parentals,” and clarified that it was not from losing her
parents, but from “[b]eing taken from a parental unit.” N.T.,
9/27/19, at 61.]

Counselor testified that Child behaves differently
immediately after she spends time with Mother and Father
Specifically, she has noticed that after having contact with
Mother and Father, Child displays an increase in self-
negativity, swearing, and aggression. Counselor observes,
for example, that when Child is drawing, she will harshly
break down on the pencil, break the pencil, and draw on
herself. According to Counselor, this type of behavior is
often [a] mark[] of a child experiencing trauma and raises
concerns about future self-harm. She believes that changes
in the dynamics of Child’s visitations with Mother and Father
are necessary to avoid continuation of this behavior.

Counselor recalled that Child recently told her about a visit
at Father’s house which seemed to be uncomfortable for
Child. Child relayed to Counselor that she (Child) was
visiting Father’s house on September 17, 2019 when Mother
stopped by with her 1-year-old daughter. According to
Counselor, Child seemed surprised to see Mother at Father’s
house and seemed to believe that Mother was not supposed
to be there.

When asked about the maternal grandmother’s sexual
assault allegations against Great-Grandfather, Counselor
testified that she has seen nothing that would lead her to
believe that Child was sexually or physically abused by
Great-Grandfather. Moreover, she testified that she believes
Child is 100 percent safe in Great-Grandparents’ home. She
has observed that Great-Grandparents are loving, caring,
and protective with Child and that there is a “bond of
connection” between them. Counselor believes that it would
“not at all” be in Child's best interest to grant primary
custody to Mother and prevent Great-Grandparents from
having contact with Child.

Child’s former kindergarten teacher (“Teacher”) testified
that Child was very respectful and that Great-Grandparents
always insisted that Child have good manners. She observed
that Child was very happy when she was with Great-

-7-
J-A07044-20

Grandparents, but she also recalled that Child would
sometimes exhibit an anxiousness on Mondays that would
dissipate by midweek. She recalled that on a number of
occasions, she asked Child whether she was going to
Mother’s house for the upcoming weekend, and Child’s
response would be a “very strong no.”

Teacher testified that Child was far above average
academically, especially in the areas of grammar and
writing, and she believed that this was largely because
Great-Grandparents always ensure that Child completed her
schoolwork. She recalled that Great-Grandparents were
heavily involved in Child’s education and that they would
often bring items (such as snacks and coats) to the school
for less fortunate children who could not afford these items.
She testified that Great-Grandparents always attended
parent-teacher conferences, asked questions, and were
willing to work with Child on areas that needed
improvement. Mother and Father did not communicate with
Teacher about Child’s progress in school, nor did they attend
parent-teacher conferences. According to teacher, Child’s
homework was always completed when she was in the
custody of Great-Grandparents, but sometimes when Child
was in Mother or Father’s custody, Child’s homework was
not completed.

Teacher testified that although Child was quiet, she had a
lot of friends. Teacher also recalled that Great-Grandparents
often took a less fortunate child with them when they went
to events with Child and that this helped Child develop
friendships with many children.

Great-Grandparents (Great-Grandmother, who is 71 years
old; and Great-Grandfather, who is 74 years old) live in
Elizabethtown with their 50-year-old son (Child’s paternal
grandfather).[1] Great-Grandparents’ home contains three
bedrooms, two bathrooms, a kitchen, a living room, a
computer room, and a toy room. Great-Grandmother
testified that Child sleeps in Great-Grandmother’s room, but
Child has her own bed in that room. She noted that if Child
slept in her own room, the room would be on the far side of
____________________________________________

1Child’s paternal grandfather only “partially” lives with Great-Grandparents.
N.T., 9/27/149, at 75.

-8-
J-A07044-20

the house, and Great-Grandmother would be unable to hear
if Child got up in the middle of the night. Great-Grandfather
sleeps in a different room than Great-Grandmother and
Child. Great-Grandmother testified that Child enjoys staying
at Great-Grandparents’ house where Child has a hermit
crab, a fish, a dog, a cat, and is surrounded by various farm
animals. Child also has her own pool, swing set, trampoline,
two toy houses, a princess carriage, and two bicycles.

Great-Grandmother testified that she is retired, in good
health, and is able to take care of Child’s physical, mental,
and emotional needs. She bathes child, takes Child to all
appointments, and partakes in other recreational activities
with child, including swimming, cooking, shopping, and trips
to parks and amusement parks.

When in the custody of Great-Grandparents, Child attends
school Monday through Friday and sometimes attends
counseling right after school. Great-Grandmother testified
that she and her husband attend all of Child’s parent-
teacher conferences and that neither Mother nor Father
have attended any of Child’s parent-teacher conferences
from preschool through first grade. She further stated that
Child does well in all school subjects except for math, for
which Great-Grandparents have hired a tutor for Child. Child
has several friends in the Elizabethtown area, and she has
an aunt that lives in the Elizabethtown area, whom she sees
five to six times a week.

Great-Grandmother testified that subsequent to the August
weekend on which Mother did not return child to Great-
Grandparents, Child missed the Monday and Tuesday of the
following school week, which happened to be the first two
days of second grade. Child currently attends Conewago
Elementary School, but Great-Grandmother testified that
Mother had previously attempted to enroll Child in school in
Altoona without having permission to do so. According to
Great-Grandmother, Mother’s failure to return child on the
one weekend in August arises out of an August conciliation
conference that was held pursuant to a previous contempt
petition filed by Mother. Great-Grandmother stated that all
the charges in Mother’s contempt petition were dropped
following the conciliation conference, and she believes that
this is the point at which Mother and Father decided not to
return Child to Great-Grandparents.

-9-
J-A07044-20

2In that petition, Mother alleged that on one Friday in
January 2019, Great-Grandmother refused to bring
Child to the Lewistown Sheetz for a weekend custody
exchange. Great-Grandmother testified that she did
not bring the Child to the Sheetz on the date in
question because there was a snowstorm that day.

Great-Grandmother communicates with Mother and Father
through text messaging, and she will also speak with them
at the weekly custody exchanges at Sheetz, at which point
they usually discuss Child’s homework and other school-
related matters. She testified that she signed up for Our
Family Wizard in February 2017 and has maintained her
subscription to said program, but neither Mother nor Father
have responded to any of the messages she has posted on
the program over the last two years.

Great-Grandmother testified that she notifies Mother and
Father of Child’s medical appointments, but neither Mother
nor Father come to Child’s appointments, nor does she
believe that they have accessed Child’s medical records. She
recounted two notable medical events involving Child, both
which occurred when Child was in Father’s custody. In one
event, Child’s fingers were smashed in a house door, and
Child needed a splint for a broken finger. In the second
event, Child was in Father’s car when it rolled down a hill.
According to Great-Grandmother, Father refused to seek
medical treatment for Child following the car incident, so
Great-Grandparents took Child to the hospital by
ambulance. Great-Grandmother testified that she and her
husband recently secured medical insurance for Child
because Mother and Father never did so.

...

Great-Grandmother also discussed her concerns about
Mother having custody of Child. She testified that Mother is
irresponsible, and first-grade journal entries written by Child
(provided by Great-Grandmother's counsel) recounted
occasions on which Child had been left to feed and care for
Mother’s 1-year-old or on which Child had been left home
alone with the 1-year-old. She also expressed unease over
the fact that Mother’s boyfriend and stepfather recently
attempted to show Child how to shoot a B.B. gun.

- 10 -
J-A07044-20

Great-Grandmother is also concerned that if Mother is
granted primary custody of Child, maternal grandmother
would have to watch the child when Mother is at work. She
testified that when Child is in the care of maternal
grandmother, Child has to sleep in the same bed with
maternal grandmother. She also relayed apprehension
about maternal grandmother’s volatile behavior, recounting
several recent incidents. She recalled that at a recent
custody conciliation conference, maternal grandmother
came up to her outside of the conciliation room and
repeatedly threatened her verbally by telling her (Great-
Grandmother) that she was “going down.” She also recalled
that on the same occasion, maternal grandmother looked in
Great-Grandfather’s face and referred to him as the devil.
Great-Grandfather told maternal grandmother to stop
talking to him, but she continued to talk. According to Great-
Grandmother, a sheriff was summoned to stand outside the
custody conciliation room until the conference was over.

Great-Grandmother additionally recalled the occasion on
which she and her husband went to Altoona to retrieve Child
after the issuance of the court's August 23, 2019 Order
directing Mother to immediately return Child to Great-
Grandparents. She recalled that while she and her husband
were waiting in a parking lot for the Sheriff’s office to arrive
for a wellness check, maternal grandmother drove child
around the block, came back, and then approached Great-
Grandparents’ vehicle. Maternal grandmother then
proceeded to scream and curse at Great-Grandparents,
accusing Great-Grandfather of sexually assaulting child,
taking pictures of their vehicle and license plate. Great-
Grandmother testified that she is concerned for Child’s
safety around maternal grandmother.

Great-Grandmother also recounted four sexual assault
allegations made by the maternal grandmother, all which
were ultimately determined to be baseless. Of the
allegations recounted were the allegations against Great-
Grandfather and Child’s paternal grandfather discussed
above. A third allegation was lodged against Great-
Grandmother’s grandson (Father’s brother), but an
investigation revealed that the accused was in prison at the
time of the alleged assault, and, therefore, the allegation
could not have been truthful. The fourth allegation was
raised against another one of Great-Grandmother’s

- 11 -
J-A07044-20

grandsons; however, this allegation crumbled when an
investigation revealed that the accused grandson was in fact
living in Tennessee.

Great-Grandmother believes that she and her husband
should be making all decisions for Child because it can be
difficult to get in contact with Mother and Father when
certain decisions need to be made and because Mother and
Father typically have not been involved with Child’s
schooling and medical appointments. Regarding a physical
custody schedule, Great-Grandmother believes that it would
be in the best interest for Mother and Father to drive down
to the Dauphin-County area to see Child and possibly take
her to the Elizabethtown Library to help Child with
schoolwork. Great-Grandmother believes that Child could go
back to spending alternating weekends in Altoona with
Mother and Father once Mother and Father “improve
themselves.”

Trial Court Opinion, filed Nov. 13, 2019, at 4-13 (“1925(a) Op.”) (citations to

record omitted).

Following the hearing, the court applied the custody factors and awarded

primary custody to Great-Grandparents, with partial physical custody to

parents every other weekend and two weeks for each parent in the summer.

The court also ordered that, for one evening each week, Mother and Father

could take Child to the library and dinner. The order provided that Mother’s

and Father’s custody periods would begin after Great-Grandparents’ counsel

fees were paid and upon “proof of abiding by” the directives of the prior order:

The weekend following completion of payment to [Great-
Grandparents’] counsel under the Contempt Order issued
September 27, 2019, and proof of abiding by Paragraphs
61, 83, 85, 86, 87 and 88, Mother and Father shall have
partial physical custodial responsibilities of the child.

Order, dated Oct. 2, 2019, at ¶ 11.

- 12 -
J-A07044-20

Mother filed a timely Notice of Appeal. She raises the following issues

for our review:

1. Did the Court abuse its discretion in the conditions that
the Appellant had to pay the opposing parties [counsel] fees
as a condition of the restoration of her custody rights?

2. Whether trial court abused its discretion in placing
conditions on the restoration of Mother’s custody rights on
the actions of individuals, mainly those of the Father over
whom she has no control.

3. The Trial Court abused its discretion in not following 23
[Pa.C.S.A.] § 5327 when determining primary physical
custody in this matter.

Mother’s Br. at 8 (proposed answers omitted).

Mother first argues that the court erred in making the restoration of her

custody rights contingent on the payment of Great-Grandparents’ counsel

fees. The trial court agreed, acknowledging that “payment of [counsel] fees

to [G]reat-[G]randparents has no bearing on Child’s best interests.” 1925(a)

Op. at 17. We agree and remand so that the trial court can amend its order

to remove this provision. See 23 Pa.C.S.A. § 5328(a) (noting the court shall

award custody by “determin[ing] the best interest of the child by considering

all relevant factors”).

Mother next argues that the court erred by directing that the restoration

of her custody rights were contingent on Father completing certain actions, as

she has no control over [Father’s] actions.

The Order provided:

The weekend following completion of payment to [Great-
Grandparents’] counsel under the Contempt Order issued

- 13 -
J-A07044-20

September 27, 2019, and proof of abiding by Paragraphs
61, 83, 85, 86, 87 and 88, Mother and Father shall have
partial physical custodial responsibilities of the child.

Order, dated Oct. 2, 2019, at ¶ 11.

The trial court stated that it did not intend to impose a condition which

made restoration of Mother’s custody rights dependent on Father’s compliance

with the order. 1925(a) Op. at 18. It stated that it “intended to set forth

specific actions that each parent must take in order to restore their own

respective custodial rights.” Id. It concluded Mother’s claim is “unfounded” as

“that was not [the court’s] intention in imposing the condition.” Id.

In her brief, Mother states that “[g]iven that the court will only require

Mother’s compliance to the Order, the Appellant deems this issue resolved.”

Mother’s Br. at 29. She has therefore abandoned this issue.

In her final issue, Mother argues that the court abused its discretion in

failing to determine custody based on the statutory presumption that as

between a parent and a nonparent, the parent is entitled to custody. Mother

argues that Great-Grandparents did not present the requisite clear and

convincing evidence to overcome the presumption. She argues that Child’s

therapist attributed Child’s PTSD and anxiety to the “trauma of being taken

from” her parents and provided no basis for her opinion that Mother should

not have primary custody. Mother’s Br. at 31-32 (quoting N.T., 9/27/19, at

61). She notes that Child’s tutor testified that Child did not complete her

homework when in Mother’s care, but also said that she never attempted to

contact Mother regarding this issue. Mother also notes that Great-

- 14 -
J-A07044-20

Grandmother interpreted a drawing by Child to conclude Child was not being

properly cared for, but also stated that “it’s a little girls’ imagination. But

everything else is--.” Id. at 32.

We review a custody order for an abuse of discretion. G.A. v. D.L., 72

A.3d 264, 268 (Pa.Super. 2013) (quoting Collins v. Collins, 897 A.2d 466,

471 (Pa.Super. 2006)). We must accept a trial court’s factual findings when

the record supports them, and we defer to the trial court’s credibility

determinations. Id. We must determine “whether the trial court’s conclusions

are unreasonable as shown by the evidence of record.” Id. (quoting Collins,

897 A.2d at 471). We will reject the trial court’s conclusions “only if they

involve an error of law, or are unreasonable in light of the sustainable findings

of the trial court.” Id. (quoting Collins, 897 A.2d at 471).

The Custody Act requires a trial court to consider all of the Section

5328(a) best interests factors when “ordering any form of custody.” 23

Pa.C.S.A. § 5328(a). A trial court must “delineate the reasons for its decision

when making an award of custody either on the record or in a written opinion.”

R.L. v. M.A., 209 A.3d 391, 395 (Pa.Super. 2019) (quoting S.W.D. v. S.A.R.,

96 A.3d 396, 401 (Pa. Super. 2014)). A trial court does not need to explain

its decision in detail; rather “all that is required is that the enumerated factors

are considered and that the custody decision is based on those

considerations.” Id. (quoting M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super.

2013)).

- 15 -
J-A07044-20

In child custody cases, the paramount concern “is the best interests of

the child.” Id. (quoting C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018)). “The

best-interests standard, decided on a case-by-case basis, considers all factors

which legitimately have an effect upon the child’s physical, intellectual, moral

and spiritual well-being.” Id. (quoting M.J.N. v. J.K., 169 A.3d 108, 112 (Pa.

Super. 2017). The custody factors to be considered include:

(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) (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.

- 16 -
J-A07044-20

(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.A. § 5328(a)(1)-(16).

Further, Section 5327 of the Custody Act provides, “[i]n any action

regarding the custody of the child between a parent of the child and a

nonparent, there shall be a presumption that custody shall be awarded to the

parent. The presumption in favor of the parent may be rebutted by clear and

convincing evidence.” 23 Pa.C.S.A. § 5327(b). Clear and convincing evidence

is “evidence that is so clear, direct, weighty, and convincing so as to enable

the trier of fact to come to a clear conviction, without hesitation, of the truth

- 17 -
J-A07044-20

of the precise facts in issue.” R.L., 209 A.3d at 396 (quoting M.J.S. v. B.B.

v. B.B., 172 A.3d 651, 660 (Pa. Super. 2017)). Therefore, before the

proceedings begin, “the evidentiary scale is tipped, and tipped hard, to the

biological parents’ side.” Id. (quoting V.B. v. J.E.B., 55 A.3d 1193, 1199

(Pa.Super. 2012)). Further, before making a decision to award primary

physical custody to a nonparent, the trial court must “hear all evidence

relevant to the child’s best interest, and then, decide whether the evidence on

behalf of the third party is weighty enough to bring the scale up to even, and

down on the third party's side.” Id. (quoting V.B., 55 A.3d at 1199).

Here, the trial court stated that it applied the presumption in favor of

awarding custody to a parent, rather than a third-party, but that there was a

“plethora of clear and convincing evidence to rebut the presumption of

parental custody and to establish that it is Child’s best interest to remain in

primary physical custody of Great-Grandparents.” 1925(a) Op. at 19. The

court explained its application of the custody factors as follows:

I’ll now go through the custody factors concerning custody.
The grandparents will retain legal custody. They have to be
sure that the doctors and nurses and school know that they
can provide information to Mom and Dad, but the legal
decisions, the decision making is only with them.

As far as school schedules, they can get the school schedule
on the website. You should post when the regular well visits
are on Family Wizard.

You have to start posting more.

But you have to start reading it.

Obviously, [Great-G]randparents . . . did permit the
frequent and continuing contact up until the point when we

- 18 -
J-A07044-20

had to get the state police and the sheriffs involved to return
the child.

I understand it’s not Mom and Dad’s fault that these
allegations -- false allegations keep getting filed, but you
have to abide by the court order. And you didn’t, even
though you received repeated directives from counsel and
the Court that that was to be done.

The next factor concerns the present and past abuse
committed by either party or a member of the party’s
household. . . .

I’m also very concerned about the assaultive behavior of
Mom’s mother, her aggressive behavior in the courthouse
and elsewhere. So we will not allow any unsupervised visits
with grandmother.

In other words, you need to be in the child’s presence all
the time. The child cannot be left alone with your mother.
This behavior is unacceptable.

Obviously, the parental duties performed by each party on
behalf of the child, the child has been taken care of by
[Great-G]randparents since birth. The child needs stability
in her education and community life and continuity, of
course, she shall remain with [Great-G]randparents. At prior
times, we’d hoped things would’ve changed, but they
haven’t.

The ability of extended family. Obviously, there is extended
family for everybody around to help. The child’s sibling
relationship. There is a one-year-old baby in Mom’s house,
and the child will see her sister at that time.

The child is only seven and has been through a lot of
trauma, so we’re not considering the factor of preference of
the child based on the child’s maturity and judgment.

The attempts of a parent to turn the child against the other
parent, obviously, Mom and Dad are getting along as well
as they can be. And I don’t see any efforts of the Mom or
Dad to keep the child from each other, nor do I see [Great-
G]randparents trying to turn the child against the things
Mom and Dad have done. So that’s not an issue.

- 19 -
J-A07044-20

Which party is more likely to maintain a consistent,
nurturing relationship adequate for the child’s emotional
needs. . . .

Mother, I think, would like to maintain a home adequate for
the child’s needs. But at the current time, this certainly
leans 99 percent in favor of the [Great-G]randparents. I
would hope that things continue to get—continue to do well
for Mother. I’m glad she has been clean and sober for seven
years. I’m glad she's had a stable employment for a couple
of years. I’m glad she's got a nice apartment that is good
for the child and her additional child, but because of the
proximity of the parties, two and a half hours apart, Altoona,
during the week going to school is going to have to be with
[Great-G]randparents.

All of the parties are able to make arrangements to take
care of the child, at least [Great-G]grandparents. . . .

Mother has – she’s got [Father’s] family and her brother.
Her mom is certainly not available. But she does have other
people. But clearly, the retired [Great-G]randparents have
the most, in addition to the assistance of Aunt Tina.

The level of conflict between the parties is high.

The history of drug and alcohol abuse. We have a substantial
drug history of Mother, although we are very happy and
proud of her that she's been substance free for seven years.
. . . [Great-]Grandparents have no history of drug or alcohol
abuse.

The mental and physical condition of a party or a member
of a party’s household. . . . Obviously, [Great-G]randparents
are totally fine.

The other relevant factors would be the fact that the child is
stable, has been in this school, has a wonderful situation.
Obviously, the goal is to have parents raise their children,
not the [Great-G]randparents. And we had hoped that the
last time, but things have fallen apart.

I know Mom can’t control her mother, but after four
unfounded, unbelievable allegations of sexual abuse when
people aren't even around to do it -- like, they’re in prison
or in Tennessee -- you have to understand creates trauma

- 20 -
J-A07044-20

for the child. And the behavior of your mother is just simply
unacceptable.

The swearing has to stop. Kids repeat things, and it just
looks bad for you when they come back and start swearing
and carrying on like that. It’s just bad for the child. As it is,
the child is dealing with a lot of anxiety.

I will say that once Mom gets into counseling, I think it will
be very important for her counselor and the child’s counselor
to communicate to see if they can come up with some things
that might be helpful to fix things. . . . And maybe they can
fix what they can fix there.

...

And hopefully, they will attend the parent/teacher
conferences, and hopefully they’ll attend the well visits, and
hopefully they’ll start participating as best as they can in
their child’s life a little better and maybe in another year or
two or three things will continue to improve.

Many people are very physically and mentally vital well into
their 90s. My guess is you will too, hopefully. Nevertheless
we need some more heavy lifting from the parents when we
get this worked out a little better. But we’re very happy this
Mom is doing so much better. But what just happened in
August just sort of blew everything up.

N.T., 9/27/19, at 116-122.

The trial court concluded that granting primary custody to Mother

“would place Child in an environment that would be detrimental to Child’s

overall well-being in a multitude of ways,” 1925(a) Op. at 19. It reasoned:

Mother has a substantial history of drug and alcohol abuse,
although she has commendably been substance free for
seven years. Unfortunately, living with Mother would likely
expose Child to a substantial amount of contact with
Mother’s Mom (Child’s maternal grandmother), who has
shown a pattern of extremely volatile and unacceptable
behavior, ranging from significant vindictive altercations
with Great-Grandparents to the repeated concoction of
spurious sexual assault allegations against Great-

- 21 -
J-A07044-20

Grandparents and other members of their family. Moreover,
Mother, like Father, has contemptuously ignored various
provisions of this Court’s previous custody Order of January
2017, including a failure to communicate with Great-
Grandparents via Our Family Wizard, a failure to
communicate with Great-Grandparents regarding the
progress of her drug rehabilitation, a failure to complete a
12-week parenting class, a failure to enroll in counseling for
anger issues. Last, but not least, Mother failed to return
Child to [Great-Grandparents] for a scheduled custody
exchange, ultimately necessitating the substantial
involvement of law-enforcement to assist in enforcing my
Order to return the Child to Great-Grandparents.

Id. at 19-20.

The court also concluded Child was thriving in Great-Grandparents’ care,

reasoning:

Child has been well nurtured by her Great-Grandparents
since she was born and has been thriving in their custody.
Great-Grandparents are retired and in good health and have
devoted themselves to caring for Child’s emotional,
physical, and academic needs. Great -Grandparents provide
Child with a safe, stable home environment, they expose
her to various recreational activities, and they tend to all of
her medical needs. Moreover, they are thoroughly involved
in Child’s schooling, and Child is thriving academically and
socially. Great-Grandparents ensure that her schoolwork is
always completed and that she gets assistance with any
areas in which she may be struggling. Child is very young
and has become accustomed to the stable educational
situation and community in which she has been living. It
would be strongly inadvisable to remove Child from this
stability which has helped her thrive to this point, especially
when she would be removed to an environment in which she
would likely be surrounded by more volatility and individuals
whose behavior and irresponsibility would present a
substantial threat to Child’s emotional, academic, and
physical well-being.

Id. at 20.

- 22 -
J-A07044-20

We conclude that the record supports trial court’s factual findings and

credibility determinations and that the court did not abuse its discretion in

issuing its custody order. The court applied the presumption in favor of parents

but concluded that the Great-Grandparents had presented clear and

convincing evidence that it was in Child’s best interest to remain in Great-

Grandparents’ primary custody. We cannot conclude this was an abuse of

discretion. Child has resided with Great-Grandparents since birth and is doing

well in their care. Mother has made great strides but has not complied with

the court order and has not made an effort to be involved in Child’s school

and health decisions.

Case remanded to remove provision requiring payment of counsel fees

prior to reinstating Mother’s right to exercise custody. Order affirmed in all

other respects. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/7/2020

- 23 -