J-A07035-21
2021 PA Super 110
B.S.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
D.M.C. : No. 2000 EDA 2020
Appeal from the Order Entered September 21, 2020
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): No. 0C1406109
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: Filed: May 27, 2021
Appellant, B.S.G. (“Father”) appeals from the order entered in the Court
of Common Pleas of Philadelphia County that denied his petitions for contempt
against D.M.C. (“Mother”) and for primary physical custody of the parties’ 10-
year-old daughter (“Child”) and, instead, continued the parties’ shared legal
and physical custody arrangement, albeit with some modification.
Herein, Father contends that, as a matter of law, a shared legal custody
arrangement precludes a court from assigning to one parent ultimate decision-
making authority on certain aspects of a child’s life, as was done in the instant
case, and he asserts the court abused its discretion when it weighed the
evidence in favor of Mother on the majority of custodial factors enumerated
in 23 Pa.C.S. § 5328(a). We affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A07035-21
The lower court sets forth relevant facts and procedural history, as
follows:
[Father] appeals the custody order entered by [the] court on
September 21, 2020, that awarded shared legal and physical
custody of the minor child born on December 3, 2011 (“Child”) to
Father and [Mother].
...
In a prior custody proceeding, the Honorable Maria McLaughlin
entered a custody order on August 3, 2015, which awarded shared
physical and legal custody of the Child to Mother and Father. In
addition to setting forth custodial schedules and transportation
responsibilities, the 2015 custody order required the Child to
remain at a specific daycare center until further order of the Court.
In 2017, Father filed two petitions to modify custody, two petitions
for contempt and a motion for expedited relief on August 30, 2017
and granted a protracted (full-day) hearing for the remaining
outstanding petitions. Mother file a petition to modify custody in
February 2018, and a protracted custody hearing date for all
outstanding matters was eventually scheduled for May 10, 2019.
[The lower] court began the protracted hearing using a video
conference platform on that date. At the end of the day, that
hearing was bifurcated and [the] court entered a temporary order
that modified the 2015 custody order. [The] court also scheduled
a second protracted hearing date for all outstanding petitions on
August 10, 2020, which by that time, included three petitions for
modification and three petitions for contempt. The custody trial
resumed and was completed on September 9, 2020. [The] court
held its decision under advisement to review the lengthy record
before entering a decision.
The evidence showed that both parents love their Child, both are
capable of taking care of her, and that neither parent has
subjected the Child to abuse, neglect, substance abuse, or mental
illness. Neither parent has convictions for enumerated offenses
pursuant to 23 Pa.C.S. § 5329. [The court describes the present
case as] essentially a high-conflict dispute between two parents
who rarely communicate when they are not in court and cannot
-2-
J-A07035-21
agree about educational or medical decisions or a physical custody
schedule. The custody order at issue on appeal was then entered
on September 21, 2020.
[The September 21, 2020] custody order awarded shared legal
and physical custody of the Child to Mother and Father [and
assigned to each parent: 1
an affirmative responsibility to consult with each other on
a continuous and regular basis with respect to all
significant aspects of the child’s life, including but not
limited to medical, educational, legal and religious
decisions.
Each parent shall be informed of, or is entitled to
participate in and attend the Child’s special activities,
including but not limited to religious activities, school
programs, sports, school parent meetings, extracurricular
activities, regardless of whose custodial day they fall on
and each parent shall avail themselves on their own to
receive information pertaining to all of those activities.
Order, 9/21/20, at 1.]
Because [the court determined] during trial that the [parties have
demonstrated a “high-conflict nature” to their relationship that]
makes them incapable of co-parenting the Child in several
significant respects, the order provides certain limitations to both
Mother[’s] and Father’s shared legal custody. Specifically, Mother
retains exclusive authority to decide which school the Child
attends. [With respect to choice of school, the order directs:
If the Child is accepted into Philadelphia Academy Charter
school (“PACS”) [which both parents have agreed is an
acceptable school choice, see infra], the child will attend
PACS unless and until the parties agree to enroll her in a
different school. If the child is not accepted into PACS and
____________________________________________
1 We have supplemented the learned court’s discussion of pertinent facts and
procedural history with excerpts from its Order of September 21, 2020, as
they provide helpful detail regarding the extent of the parties’ respective rights
and responsibilities under the existing order. Excerpts appear in indented
portions within the block quote.
-3-
J-A07035-21
the parties are not able to agree on a school, Mother shall
have the authority to decide which school the child attends.
Order at 2.]
Further, Mother has authority to choose the Child’s pediatrician
and therapist while Father has authority to choose the Child’s
dentist[:
The Child shall not have two different pediatricians or
dentists. Mother shall choose the child’s pediatrician.
Father shall choose the child’s dentist. The dentist is not
required to be a pediatric dentist.
Mother may choose the Child’s therapist. Both parties are
to fully cooperate with respect to the child’s therapy
sessions. The parties will ensure that Child attends all
scheduled appointments and the parties shall
communicate with and meet with the therapist, at the
therapist’s requests and in any manner recommended by
the therapist, in order to properly treat the child. Any and
all out of pocket expenses regarding the child’s therapy
shall be shared equally between the parties and shall be
due at the time that the services are rendered. Both
parties will sign any and all documents required by the
therapist for any and all treatment. Neither party may
withdraw their consent for treatment of the child. Both
parties shall share the responsibility of getting the child to
and from therapy, at frequency required by the therapist.
Each parent shall ensure that the child has privacy when
talking to the therapist during any online therapy session.]
Order at 3.]
Regarding shared physical custody, the parties take turns having
physical custody of the Child every other weekend. Mother has
physical custody of the Child every Monday through Wednesday
[morning], and Father has physical custody of the Child every
Wednesday [morning] through Friday[:
Physical custody of the child will be as follows: The parties
will share physical custody of the child on the following
schedule.
-4-
J-A07035-21
Mother shall have physical custody of the Child every
Monday at 10:00 a.m. through Wednesday at 10:00 a.m.
All pickups and drop-offs will occur at school, camp,
daycare or [sic] at 10:00 a.m.
Father shall have physical custody of the Child every
Wednesday at 10:00 a.m. through Friday at 10:00 a.m.
and every other weekend from Friday to Monday at 10:00
a.m.
...
Mother may enroll the Child in summer day camp during
her periods of partial custody. Father must pick up and
drop off the child at the day camp if it coincides with the
child’s camp day.
...
The parties are to exchange email addresses and
communicate with respect to custody issues only via email.
The parties are to exchange emails pertaining to
extracurricular activities, daycare/school, and doctor’s
appointments.
Parties are to share equally in all of the transportation with
both parties ensuring that the Child is taken to and picked
up from daycare/school or the appropriate household if
there is no daycare/school.
Order, at 2, 3. Additionally, the order includes a detailed holiday
schedule [a first for the parties], and transportation of the Child
is shared equally between the parties. This physical custody
schedule provided Father with more physical custody time than
the 2015 custody order.
Trial Court Opinion, 9/21/20, at 1-4.
Father raises the following issues for our consideration:
1. Did the trial court err or abuse its discretion when it awarded
Mother the right to make decisions about where the child would
attend school if there was a dispute between the parties?
-5-
J-A07035-21
2. Did the trial court err or abuse its discretion in failing to grant
the parties reasonable contact with the minor child, while the
minor child is in custody of the other party?
3. Did the trial court err or abuse its discretion in failing to award
primary physical custody to Father?
4. Did the trial court err in failing to find custodial factors in favor
of Father?
Brief of Appellant, at 3.
Regarding custody matters, our scope and standard of review are as
follows:
[O]ur 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.
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.
E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011) (quoting A.D. v. M.A.B., 989
A.2d 32, 35–36 (Pa. Super. 2010)). Furthermore, we note 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.
-6-
J-A07035-21
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006)
(quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super.
2004)).
A.H. v. C.M., 58 A.3d 823, 825 (Pa. Super. 2012).
The primary concern in any custody case is the best interests of the
child. The best-interests standard, decided on a case-by-case basis, considers
all factors that legitimately affect the child's physical, intellectual, moral, and
spiritual well-being. Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006).
(citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004)).
In his first issue, Father argues that the court’s order giving exclusive
power to Mother to choose Child’s school, pediatrician, and therapist, and to
Father to choose Child’s dentist, contravenes this Court’s precedent
prohibiting the conferral of exclusive decision-making power to one parent
where there exists shared legal custody. Specifically, Father cites Hill v. Hill,
619 A.2d 1086 (Pa. Super. 1993) (superseded on other grounds by statute,
Act of Dec. 18, 2013, P.L. 1167, No. 107, § 1 (amending 23 Pa.C.S. § 5328))
for the proposition that, in shared legal custody, a court may not give one
parent power to override parental disagreements without undoing the shared
custody construct.
The Hill case concerned a situation in which the court’s order awarded
parents shared legal custody, but “[i]n the event of disagreement, [m]other's
preference [would] prevail.” Id. at 1088. On appeal, this Court held that the
trial court had given “the father authority in name only and deprived him of a
legal remedy because he was already awarded ‘shared legal custody.’” Id.
-7-
J-A07035-21
We further stated that “the concept of shared legal custody does not contain
the principle of giving one parent final authority in the event of a dispute.”
Id. at 1089 (relying on In re Wesley J.K., 445 A.2d 1243 (Pa. Super.
1982)).
On the question of whether a court may confer sole authority to one
parent in limited situations without undermining shared custody, it is salient
to recognize that Hill is factually distinguishable from the present matter.
Whereas Hill involved an order granting to the mother exclusive power to
decide literally every potential disagreement between the parties, which, this
Court concluded, effectively nullified the existing shared legal custody
arrangement, the order in the case sub judice limits the grant of sole authority
to four discrete, albeit important, decisions necessary to surmount impasse
on the selection of Child’s school, pediatrician, therapist, and dentist, and it
gives each parent sole authority over at least one decision.
Critically, therefore, the order before us does not extend unilateral
power beyond these several initial selections, thus making the parties’ future
decisions implicating Child’s interests within the broader educational, medical,
psychotherapeutic, and dental contexts subject to the collaborative decision-
making process typically required of both parents who share legal custody.2
____________________________________________
2We note that the trial court provides in its Pa.R.A.P. 1925(a) opinion (“TCO”)
a rationale for its school choice ruling that could be read to diverge from the
September 21, 2020 order’s limited grant of exclusive power in Mother to
select a school. Specifically, the opinion states, “this court found that it is in
(Footnote Continued Next Page)
-8-
J-A07035-21
Thus, we disagree with Father’s position that Hill altogether forecloses
a court’s exercise of discretion to give final decision-making power to one
parent over certain limited choices to be made in a Child’s life where, as here,
the record establishes parents have effectively reached impasse on such
matters. The best interests of the child may require that such choices be
made more expeditiously than through repeated petitioning of the courts, and
there will be instances where a court may preserve the essence of a shared
custody arrangement while selecting as the final arbiter a parent who has
exhibited good faith and acceptable judgment on the issue. Accordingly, we
conclude that the shared legal custody rubric in the case sub judice remains
in effect under the court’s September 21, 2020 custody order and deem
meritless Father’s argument to the contrary.3
____________________________________________
the Child’s best interests for Mother to have sole legal authority over the
Child’s education.” TCO, at 7 (emphasis added). The court goes on to opine
that Mother demonstrated a better record than did Father of prioritizing Child’s
educational best-interests in several relevant ways, including on the issue of
selecting a school. Id. at 7-8. While we find support in the record for the
court’s opinions in this regard and, thus, dismiss as meritless Father’s
arguments to the contrary, we clarify that the order itself limits Mother’s
exclusive authority in the educational setting to deciding which school Child
shall attend.
3 Father argues additionally that Mother and he had not reached impasse on
the task of selecting Child’s school, citing, for example, that they had
previously agreed to enroll Child in St. Catherine of Siena parochial school in
Philadelphia. However, shortly after their agreement, Father withdrew his
assent, citing his inability to afford the tuition. Appellant also testified that he
was not opposed to PACS as a school, it was just that he held concerns that
the travel time from Levittown to the Roosevelt Boulevard location of the
school was not in Child’s best interest. Notably, Child’s travel time to Father’s
(Footnote Continued Next Page)
-9-
J-A07035-21
In Father’s second issue, he posits the court abused its discretion by
failing to order that the custodial parent ensure the availability of
communications between Child and the non-custodial parent. In response,
the court opines that such a provision was unnecessary because the record
did not reveal any effort by either party to prevent such communications.
Father, however, argues that he “believes that Mother turns . . . off [Child’s
cell phone that he provided to her when she was six years old] purposely to
obfuscate his contact with the child.” Appellant’s brief, at 16. Father also
points to evidence that his emails to Mother during her custodial time have
gone unanswered. Mother, for her part, denied that she ever interfered with
Father’s ability to contact Child. N.T., 8/10/20, at 204-215.
Father fails to develop this legal argument with any further discussion
supported by reference to the record and citation to authority. It is beyond
cavil that, “where 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.” In re W.H., 25
A.3d 330, 339 n.3 (Pa. Super. 2011); see also Pa.R.A.P. 2119(a) (argument
section of appellate brief shall contain discussion of issues raised therein and
____________________________________________
first-choice school, People for People Charter School in North Philadelphia was
roughly equivalent, and, in any event, Mother opposed PFPCS primarily
because of its low scholastic ratings. Given the protracted inability of the
parties to settle on a long-term school for Child, therefore, the court
appropriately made the finding of fact that parents were at impasse on the
task of selecting a school.
- 10 -
J-A07035-21
citation to pertinent legal authorities). We, therefore, find Father’s second
issue waived.
Even if we were to address Father’s issue on its merits, it is evident that
his challenge goes strictly to the weight that the court attached to certain
factual testimonies of the parties, and to the trial court's credibility
determinations. While Father would have preferred for the trial court to have
placed more weight on testimony favoring him, we have explained that, 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.
See C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012); see also M.J.M.
v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013) (stating, “[i]t 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.”). For this reason, Father’s second
issue fails.
Finally, Appellant combines his third and fourth issues to maintain that
the court erred in failing to award him primary physical custody which an
appropriate analysis of the Section 5328(a) custody factors clearly warrants.
Father contends that the trial court's order, while offering conclusions with
respect to each enumerated factor that the evidence either favored Mother or
favored neither party, failed to provide reasons or analysis in support of these
conclusions.
Father likewise assails the court’s subsequent Pa.R.A.P. 1925(a) opinion
in which it explained that its credibility determinations where the parties’
- 11 -
J-A07035-21
testimonies conflicted favored Mother and that it additionally found Mother
demonstrated superior ability to meet child’s educational, developmental, and
emotional needs. According to Father, the court’s conclusions in this regard
are inconsistent with the evidence of record. He, therefore, asks that we
vacate the present order and remand for further proceedings from which the
trial judge shall first recuse himself.
“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)
(citing J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) ). A non-
exclusive list of factors a court should consider when awarding custody are set
forth at 23 Pa.C.S. § 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.
(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.
- 12 -
J-A07035-21
(5) The availability of extended family.
(6) The child's sibling relationships.
(7) The well-reasoned preference of the child, based on the child's
maturity and judgment.
(8) The attempts of a parent to turn the child against the other
parent, except in cases of domestic violence where reasonable
safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate for
the child's emotional needs.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the
child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or ability to make
appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness
and ability of the parties to cooperate with one another. A party's
effort to protect a child from abuse by another party is not
evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of
a party's household.
(15) The mental and physical condition of a party or member of a
party's household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
Section 5323(d), moreover, requires the trial court to set forth its
mandatory assessment of the custody factors prior to the deadline by which a
- 13 -
J-A07035-21
litigant must file a notice of appeal. A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super.
2014) (citation omitted). 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.” Id. (citation omitted). A court's
explanation of reasons for its decision, which adequately addresses the
relevant factors, complies with Section 5323(d). Id.
Essentially, Father challenges the court’s preservation of the parties’
shared physical custody arrangement as contrary to Child's best interests.
Father devotes the majority of his argument in this regard to opposing the
court order’s plain findings on the following factors: factor (1), that neither
party was more likely to encourage and permit contact between the child and
the other party; factor (3), that Mother better performed parental duties on
behalf of the child; factor (4), that Mother provided more stability and
continuity with respect to Child’s educational and medical needs; factor (5),
that neither party demonstrated superior availability of extended family;
factor (7), that neither parent was favored after consideration of the well-
reasoned preference of the child, if any; factor (9), that neither party was
more likely to maintain a loving, stable, consistent and nurturing relationship
with the child adequate for the child's emotional needs; factor (10) that
Mother was more likely to attend to the daily physical, emotional,
developmental, educational and special needs of the child; factor (12), that
neither party was more available to care for the child or more able to make
- 14 -
J-A07035-21
appropriate child-care arrangements; and, factor (13) that Mother
demonstrated a more favorable record regarding the level of conflict between
the parties and the willingness and ability of the parties to cooperate with one
another. In each instance, Father argues that the factor in question should
have been found in his favor.
We conclude that Father is not entitled to relief on these factors, as the
court’s decision on each was based on credibility determinations that have
support in the record. In summarizing its review of the factors that led it to
enter an order retaining the present shared physical custody arrangement,
the court reasoned:
the evidence in this case showed that both parents provide loving,
nurturing, and stable homes, and that the Child is thriving under
the prior custody order that awarded shared physical custody.
There was no reason at all to disrupt the shared physical custody
schedule and increase Father’s physical custody time to the extent
that he would have had primary physical custody. Doing so would
have been destabilizing for the Child and would have deprived her
of more time with a parent who has been performing many
parental duties extremely well.
TCO at 9.4
____________________________________________
4 Consonant with these overarching findings of fact and inferences supporting
the continuation of shared physical custody, the court specifically found in its
order that neither parent was favored under factors (5), (7), (9), and (12),
which focus, respectively, on the availability of extended family, any well-
reasoned preference of the child, the likelihood of each parent to maintain a
loving, stable, nurturing relationship adequate for Child’s emotional needs,
and the ability to care for Child or make child-care arrangements. In response
to Father’s claims that such factors clearly favor him, the court’s opinion again
acknowledges that “Father is able to attend to the Child’s daily physical,
emotional, developmental, educational and special needs,” but it nonetheless
(Footnote Continued Next Page)
- 15 -
J-A07035-21
More specifically with respect to each disputed factor, we note that in
factor (1), which the court concluded favored neither party, Father emphasizes
that he provided Child with a cell phone when she was six years old and,
therefore, stood in a superior position as promoting Child’s communication
with the non-custodial parent. The court found credible Mother’s testimony,
however, that she has neither limited Child’s use of the cell phone to
communicate with Father during Mother’s custodial time nor impeded in any
way Child’s contact with Father over the previous four years. N.T. at 204-
215. Thus, we find no abuse of discretion with the court’s conclusion that
factor (1) favors neither party.
Similarly with regard to factors (3), (4), and (10), which the court found
to favor Mother, the relevant evidence included Mother’s testimony that Father
did not enforce reasonable bed times, N.T. at 221, continually permitted Child
to sleep in his bed, Id., allowed her to watch movies and videos with
inappropriately scary content that caused her distress,5 N.T. at 197, 207, had
other children at his home for play dates on two separate occasions while Child
____________________________________________
continues that “Mother was better able to meet those needs for the Child”
such that “no relief is due” on Father’s claim. Id. at 12-13. Where the record
also supports that both parties benefitted from loving, supportive extended
families who were regularly part of Child’s homelife, we find no abuse of
discretion with the court’s order electing to find neither parent enjoyed favored
status for factors (5), (7), (9), and (12).
5 Father admitted he allowed Child unrestricted access to the internet on her
cell phone, testifying he has “100 percent confidence in her not to look at any
of that bad stuff.” N.T., 8/10/20, at 93. She was between the ages of 6 to 8
years old at the time in question.
- 16 -
J-A07035-21
was attending virtual therapy sessions from home, N.T. at 134-138, and
habitually failed to keep Child current on her homework, which required
Mother to work with Child to make up the deficit. N.T. at 177-183. Mother
substantiated claims of Child’s late hours with Father through an exhibit of
time stamps on Child’s text messaging records during her stays with Father.
N.T. at 208.
Other evidence that Father’s decisions affected Child’s sense of stability
within her social and educational settings included Father’s refusal to bring
Child to kindergarten on his two weekdays of custody, saying Child was
attending “Daddy School” on such days because he had “decided that she
could still benefit from learning from home just as good with kindergarten.”
N.T. 8/10/20, at 104-105. Similarly, Father occasionally acted in defiance of
the court’s 2019 order that he was to bring Child to day camp with her peer
group at “Adventure Land” on “Friday Fun Day”—Child’s favorite camp day—
again saying Child was attending “Daddy Camp” on such days. N.T. at 105-
107, 193-95. According to Father, kindergarten and summertime day-camp
were mainly sources of day care that were unnecessary on his custody days.
N.T. at 104-108. Under this record, we perceive no abuse of discretion with
the court’s decision to favor Mother on factors (3), (4), and (10).
With respect to factor (13) and its inquiry into the promotion of conflict
between the parties, Mother offered evidence that Father caused Child to be
denied entry to Mill Creek Elementary on her first day of first grade because
Father falsely informed the school that Mother and Child resided in
- 17 -
J-A07035-21
Philadelphia with Mother’s boyfriend rather than in the Bucks County school
district with Mother’s parents. Consequently, Mother and Child underwent a
school investigation into their residential status before the school officially
enrolled Child midway through the second day of school, causing Child to
become very upset. N.T. at 165-168.
In another segment of Mother’s testimony, she described how Father
would occasionally call Child on his non-custodial weekends to tell her how
much fun he and his extended family, including young cousins, were having
at a barbeque or similar type of event and how they all wished she were there,
which would inevitably cause Child to cry and beg Mother to take Child to
Father’s house. Father would also have Child call Mother on the final day of
his custody time to ask her if she could extend her time with Father. N.T. at
130, 184-88. Mother testified that, in contrast, she did not act in kind on the
many days where Child would ask to remain with her when it was Father’s
Day to pick up Child. Id. Again, the court found Mother’s testimony credible
with respect to these factor (13) considerations.
On balance, Mother’s testimony, which, as indicated in the September
21, 2020 Order, the court found to be credible and persuasive, served as
sufficient grounds for the trial court’s Section 5328 factors factual findings.
As the record supports such factual findings, we find the court’s legal
conclusions that the statutory factors favored either Mother or no party were
not unreasonable. Therefore, we conclude Father’s third and fourth issues
afford him no relief.
- 18 -
J-A07035-21
For the foregoing reasons, we discern no error with the court’s order
denying Father’s petition for primary physical custody, as it was within the
court’s reasonable exercise of discretion to conclude that preserving the
parties’ shared legal and physical custody arrangement was in Child’s best
interests. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/21
- 19 -