J-A09041-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.D.G., F/K/A S.D.D., F/K/A S.D.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
C.A.B. :
:
Appellant : No. 1148 WDA 2020
Appeal from the Order Dated September 28, 2020
In the Court of Common Pleas of Venango County Civil Division at No(s):
1003-2015
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 13, 2021
C.A.B. (Father) appeals from the order entered in the Court of Common
Pleas of Venango County (trial court) awarding primary physical custody of
the parties’ minor daughter, P.R.B. (Child) to S.D.G. (Mother), subject to his
periods of partial physical custody during school recesses. We affirm.
I.
A.
Mother grew up in Venango County and has resided there for most of
her life. Father is from Cobb County, Georgia, but lived in Venango County
for several years during his adolescence and high school years. Mother and
Father resided together in Venango County and Child was born in May 2014.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A09041-21
The couple married on February 13, 2015, and they immediately moved to
Cobb County with Child. They resided with Father’s grandmother, M.L.
(Paternal Grandmother), in her large home.
In early August 2015, without informing Father of her intentions, Mother
returned to Venango County with Child. On August 19, 2015, Mother filed
divorce and custody actions in the county. Father filed a competing custody
action in Cobb County, but the Georgia court refused to accept jurisdiction and
concluded that venue and jurisdiction were proper in Venango County.
Apparently, no appeal was taken from that order.
On June 3, 2016, the trial court entered an order awarding the parties
joint legal custody of Child and approving Father’s relocation to Georgia.
Father was granted primary physical custody of Child, subject to Mother’s
periods of two consecutive months out of every five months, with each party
exercising custody in their home state. After the order was entered, Mother
lived at different residences with then-boyfriends and family members in and
around Venango County.
On July 24, 2018, Mother filed a petition in Venango County seeking
modification of the custody order. During the custody trial, Father raised the
issue of jurisdiction and venue and on March 5, 2019, the case was transferred
to Butler County, where Mother then resided and continues to reside.
However, Butler County declined to accept transfer of the case, finding that
Father failed to file the requisite preliminary objections challenging jurisdiction
-2-
J-A09041-21
and venue. The court also concluded that Butler County is not the home
county of Child and that Child and Mother lacked significant contacts with the
forum. The court stated that Venango County was the appropriate forum and
transferred the case back to the county on August 5, 2019. No appeal was
taken from that order.
When Mother received custody of Child in August 2019 pursuant to an
arrangement she and Father had made before Child entered kindergarten, she
filed emergency petitions in Venango County. Mother sought modification of
the custody order and alleged Father failed to adequately communicate with
her when Child was in his care and that his lax childcare caused Child to
experience severe eczema outbreaks. The trial court heard oral argument on
August 14, 2019, and entered an order directing that Mother retain custody
of Child pending a hearing. After several scheduling issues, the trial court
held a custody trial on September 14-15, 2020.
B.
At trial, Mother testified that she married B.G. (Stepfather) in January
2020 and they live with their children in Butler County. Mother explained that
she is a homemaker and is working towards a bachelor’s degree in Criminal
Justice. Stepfather is employed as a service technician at an automotive
business. The couple began their relationship in 2016 and they have two
daughters together, O.G. (born 9/17) and C.G. (born 6/19). Mother was
pregnant with the couple’s son at the time of the hearing.
-3-
J-A09041-21
Mother explained that she and Father followed the initial June 2016
custody schedule alternating consecutive months with Child until August 2019
when Father advised her of his intention to enroll Child in kindergarten at the
same school she had attended pre-school. Mother then sought the emergency
order and Child has resided with her continuously since that time.
Mother testified that Child has struggled with eczema since she was two
years old and that this condition has resolved due to Mother’s use of an
effective product. Mother stated that she and Father “were never on the same
page about [treatment],” and that Father’s method was ineffective, leading to
severe rashes on Child’s legs, arm, neck and ear. (N.T. Trial, 9/14/20, at 24).
Mother also contended that when Child was in Father’s care, she had difficulty
regularly communicating with Child and Father did not timely respond to her
questions regarding school. Mother testified that she filed the emergency
petition out of concern for Child “because she was broke out, her skin was like
sandpaper, [Father’s] form of communication absolutely is horrible, and I
didn’t know where she was. I didn’t know where she was living. I didn’t have
a phone number for her [because] the two phone numbers that he gave me
in this Skype log did not work.” (Id. at 106). Mother acknowledged that
Father did provide her with contact information, but asserted that he gave her
three different home phone numbers in three months and that many of her
phone calls went unanswered.
-4-
J-A09041-21
Mother advised that Child attended kindergarten in Butler County and
that she did well academically, loved her teacher and made many friends. At
the time of the hearing, Child had entered first grade as was doing similarly
well. The family resides in a rural neighborhood in a home with a large yard
where Child enjoys playing outside. Mother’s parents live in Venango County
and Mother testified that Child loves them and is excited to see them. Mother’s
sister and mother visit their home on a weekly basis.
Mother described Child and her two half-sisters as “best friends” and
stated that they are inseparable. (Id. at 35). As to Child’s relationship with
Stepfather, Mother testified that it grew closer over time, that he provides for
her, plays with her and “treats her as if she’s his own.” (Id. at 37). Mother
and Stepfather are financially comfortable and able to support the children.
C.
At the time of the hearing, Father had recently married S.B.
(Stepmother) and they have a son together, C.A.B. II, who was born in May
2019. Father is a commercial truck driver and he typically works from 4:00
a.m. through 6:00 p.m., Monday through Friday. Father testified that he has
primarily resided in Grandmother’s home in Cobb County since February 2015,
though he briefly lived at another residence for only a few months during the
summer of 2019.
Father described his communication with Mother as “strained” and
testified that he provided her with his home phone number. (Id. at 195).
-5-
J-A09041-21
Father stated that Mother has used the same Skype email address for five
years to communicate with Child and he answered Mother’s phone calls when
he was at home. He did not answer her calls when he was at work, explaining
that “I can’t pick up my phone while operating an eighty thousand pound
vehicle on a highway.” (Id. at 201). Paternal Grandmother and Stepmother
are Child’s caretakers when he is on the road. Father has made Mother aware
of his work schedule and has asked her to contact them directly if he is unable
to take her call. Child generally returned any missed calls from Mother within
one day and Mother’s calls with Child were often lengthy, lasting for over one
hour.
D.
On September 28, 2020, the trial court entered its order awarding
Mother primary physical custody of Child, subject to Father’s partial physical
custody during school summer recess, every Christmas and New Year’s
holiday and school spring recess. Father timely appealed and he and the trial
court complied with Rule 1925. See Pa.R.A.P. 1925(a)(2)(i)-(ii).1
____________________________________________
1 When reviewing child custody orders,
our scope is of the broadest type and our standard is abuse of
discretion. This Court 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, this Court must defer to the trial judge who presided
over the proceedings and thus viewed the witnesses firsthand.
-6-
J-A09041-21
II.
A.
Father first contends that jurisdiction and venue are improper in
Venango County. Father acknowledges that Venango County was an
appropriate forum at the outset of the action, but contends that this is no
longer the case because Mother does not reside in the county. Father asserts
that Cobb County, Georgia, is instead the appropriate forum because that is
where Child attended pre-school and has extended family and friends.2
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)3
governs issues of child custody jurisdiction arising between Pennsylvania and
the other states of the United States. See J.S. v. R.S.S., 231 A.3d 942, 947
(Pa. Super. 2020). “The UCCJEA also governs questions of child custody
venue arising between the counties of Pennsylvania[.]” Id. (citing 23 Pa.C.S.
____________________________________________
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.
M.J.N. v. J.K., 169 A.3d 108, 111–12 (Pa. Super. 2017) (citations omitted).
2 A court’s decision to exercise or decline jurisdiction is subject to an abuse of
discretion standard of review. See B.A.B. v. J.J.B., 166 A.3d 395, 403 (Pa.
Super. 2017).
3 23 Pa.C.S. §§ 5401-5482.
-7-
J-A09041-21
§ 5471). If a Pennsylvania trial court with jurisdiction enters an order
awarding custody, the state will retain “exclusive, continuing jurisdiction”
unless or until certain conditions occur. See id. at 948 (citing 23 Pa.C.S.
§ 5422).
Here, Father concedes that Venango County properly exercised
jurisdiction when it made its initial custody determination regarding Child.
Child was born in Venango County, both parties lived there at that time and
Mother grew up in the county and has close familial ties to it.
As to whether Pennsylvania retained exclusive, continuing jurisdiction
after Father exercised physical custody of Child in Georgia, the relevant
section of the UCCJEA provides:
[A] court of this Commonwealth which has made a child
custody determination consistent with section 5421 (relating to
initial child custody jurisdiction) . . . has exclusive, continuing
jurisdiction over the determination until: (1) a court of this
Commonwealth determines that neither the child, nor the child
and one parent, nor the child and a person acting as a parent
have a significant connection with this Commonwealth and
that substantial evidence is no longer available in this
Commonwealth concerning the child’s care, protection,
training and personal relationships[.]
23 Pa.C.S. § 5422(a)(1) (emphases added).
A review of the record reflects that both Mother and Child have
significant connections with the Commonwealth and that substantial evidence
concerning all aspects of Child’s care are available in Pennsylvania. Moreover,
the trial court in Georgia where Father resides has expressly declined to accept
-8-
J-A09041-21
the case and Child’s ties to the Commonwealth have grown while she attended
school and spent time with family and friends in this state.
Insofar as Father challenges venue between counties in Pennsylvania,
Butler County has already declined to accept transfer of the case and it
specifically found that Venango County, where Child was born, is the
appropriate forum. Given that the Georgia court and the Butler County court
have both declined to exercise jurisdiction, Father’s challenges to jurisdiction
and venue in the county in which this action was initiated nearly six years ago
in 2015 merit no relief.
B.
Father next raises related claims challenging the delay in proceedings
for an approximate one-year period from August 3, 2019, until the custody
trial in mid-September 2020. Father points to the trial court’s grant of multiple
continuances, which he characterizes as sua sponte, and its consideration of
Mother’s emergency petition, which he claims was filed in bad faith. These
actions resulted in Father not seeing Child for over one year, without adequate
due process or consideration of Child’s best interests.
We begin by observing that the primary concern in any custody case is
the best interests of the child. In making a custody determination, a trial
court must consider all factors that legitimately have an effect on the child’s
physical, intellectual, moral and spiritual well-being. See M.J.N., supra at
112.
-9-
J-A09041-21
Due process is required during custody proceedings and is a flexible
concept, providing for such procedural safeguards as a particular situation
warrants to ensure fundamental fairness to the parties. See E.B. v. D.B.,
209 A.3d 451, 463 (Pa. Super. 2019). “The fundamental requirement of due
process is the opportunity to be heard at a meaningful time and in a
meaningful manner.” Id. (citation omitted).
This Court has recognized that an interim order, although only
temporary, can have a long-term impact in custody cases because of its effect
on the status quo. See id. at 466. This is because stability is typically in a
child’s best interest, and once an interim modification has been made on a
temporary basis, courts are hesitant to change the child’s routine again. See
id.
In this case, the trial court observed that Mother benefited from the one-
year delay in the proceedings because it provided additional time for Child to
bond with Mother, Stepfather and her half-sisters and to acclimate to school.
However, the trial court found that both Father and Mother were responsible
for any delay in the custody trial. The court noted that one of the continuances
was granted at the request of Father’s counsel because of a scheduling
conflict. The court also observed that although Mother’s filings were troubling
in that Father did not violate the terms of the 2016 custody order, “it was
further troubling to this Court that although Father had the ability to press for
earlier resolution of the pending petitions, he did nothing, preferring instead
- 10 -
J-A09041-21
to allow Mother time to strengthen her bond with Child.” (Memorandum
Opinion and Order Court, 9/28/20, at 24). The court concluded:
Regardless of the propriety or impropriety of either party’s
actions or inactions, the overriding relevant factor is and always
will be the best interest of Child. Therefore, based upon the
foregoing Findings, it is the conclusion that Child’s best interest is
and will be best served by maintaining the current custodial
relationship with Mother having primary physical custody and with
Father having partial physical custody for extended holidays and
summer school recesses, provided nonetheless that the non-
custodial parent will be permitted liberal periods of private
personal communications with Child.
(Id.). Because the record supports the trial court’s findings with regard to
the delay in the proceedings, Father’s claims do not merit relief.4
C.
Finally, Father contends the trial court erred in failing to allow evidence
relating to unidentified allegations of child abuse while Child was in Mother’s
care.5 Father maintains that although the allegations pre-date the June 2016
____________________________________________
4 We note that Father’s argument that the continuances violated Pennsylvania
Rule of Civil Procedure 1915.4 also fails. This Rule provides for the prompt
disposition of child custody cases and among its requirements is that a trial
be scheduled within 180 days of the pertinent filing. See Pa.R.C.P. 1915.4(b).
However, the Rule further provides that if the parties fail to comply with
certain filing requirements, the trial court may “dismiss the matter unless the
court finds that dismissal is not in the best interests of the child.” Id.
Instantly, the trial court acknowledged that it could have dismissed Mother’s
petitions based on procedural time limits but found that dismissal would not
be in Child’s best interests. (See Trial Ct. Op., at 12). We agree with its
assessment and discern no abuse of discretion.
5 The admission or exclusion of evidence is within the sound discretion of the
trial court and we will reverse its ruling only upon a showing of an abuse of
- 11 -
J-A09041-21
custody order, the trial court was nonetheless required to hear testimony
concerning this pertinent custody factor.6
One of the statutory factors a trial court must consider in making a
custody determination is 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.” 23 Pa.C.S. § 5328(a)(2)
(listing sixteen factors to consider when awarding custody).
At the beginning of trial, the trial court noted the comprehensive
proceedings held in June 2016 and advised that it was not revisiting any
events that occurred prior to entry of that order. The court, therefore,
restricted the testimony to events after June 2016 and counsel for neither
Mother nor Father objected. (See N.T. Trial, at 15). Although during Mother’s
testimony Father’s counsel briefly made a vague reference to a CYS contact,
he quickly indicated his agreement that the issue had already been decided.
(See id. at 130).
Further, regarding the custody factor relating to instances of past abuse,
the court specifically stated in its opinion that “there is no history of any abuse
____________________________________________
discretion or error of law. See Jordan v. Jackson, 876 A.2d 443, 454-55
(Pa. Super. 2005).
6 It appears from the record that the allegations involved Mother’s former
boyfriend.
- 12 -
J-A09041-21
by either parent or any member of a parent’s household, either physical or
emotional.” (Trial Ct. Op., at 21). Accordingly, the trial court did consider
this factor and properly limited the evidence at trial to events occurring after
entry of the 2016 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2021
- 13 -