J-S77044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.S.,                                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                   Appellant

                        v.

T.T.,

                   Appellee                     No. 2170 EDA 2014


                 Appeal from the Order entered June 19, 2014,
              in the Court of Common Pleas of Delaware County,
                  Domestic Relations, at No(s): 2013-006464

BEFORE: STABILE, JENKINS, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED MARCH 05, 2015

        R.S. (Father) appeals from the final custody order entered June 19,

2014, in the Court of Common Pleas of Delaware County, which awarded

primary physical custody of Father’s minor son, E.S. (Child), to his mother

(Mother) during the school year, and awarded Father and Mother shared

physical custody during the summer months.       The order also awarded the

parties shared legal custody. We vacate and remand for further proceedings

consistent with this memorandum.

        Child was born in December of 2007, as a result of Father’s

extramarital affair with Mother. On June 19, 2009, Father filed a complaint

for partial physical custody and shared legal custody of Child. Father filed an

amended complaint for custody on February 1, 2011, in which he requested

* Retired Senior Judge assigned to the Superior Court.
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shared physical custody of Child. This culminated in a custody order entered

October 3, 2011, which awarded the parties shared legal and physical

custody. Subject to a special schedule for vacations and holidays, Father was

granted physical custody of Child each week from 8:00 a.m. Monday

morning until 6:00 p.m. on Wednesday. Father also was granted physical

custody on alternating weekends.

      On June 28, 2013, Mother filed a petition to modify the custody order,

in which she requested that she be granted primary physical custody of

Child. Father filed a petition to modify the existing custody order on July 23,

2013, in which he requested primary physical and legal custody of Child. A

custody trial was held on April 28, 2014.       Following the trial, by order

entered June 24, 2014, the trial court granted Mother primary physical

custody of Child.   Subject to a holiday, birthday, and vacation schedule,

Father was awarded partial physical custody of Child each Wednesday during

the school year from 4:00 p.m. until 7:00 p.m., and on alternating

weekends from Friday after school until Sunday at 8:00 p.m.        During the

summer months, Father was awarded shared physical custody on alternating

weeks. Mother and Father retained shared legal custody.

      Father timely filed a notice of appeal on July 15, 2014.       However,

Father failed to file concomitantly a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). Father later filed a concise




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statement on July 29, 2014. Father filed an amended notice of appeal the

following day.1, 2

      Father now raises the following issues for our review.

      1. Should this Court vacate the lower court’s final custody order
      because it was based on unreasonable conclusions relative to the
      Child’s need for stability, and therefore does not further the best
      interest of the Child, because:

          a) The court’s most important conclusion (relative to
          [Child’s] commuting time) was not supported by any
          evidence and was thus not a sustainable finding;

          b) The court’s order was unreasonable because it failed to
          address the fact that the Child will now be deprived of
          Father’s care for extended periods during the school
          week, which is particularly problematic in light of the
          court’s simultaneous conclusion that Mother will not
          further the Child’s relationship with Father?

Father’s Brief at 4.

      We address Father’s claims mindful of our well-settled standard of

review.

      In reviewing a custody order, our scope is of the broadest type
      and our standard is abuse of discretion.         We must accept
      findings of the trial court that are supported by competent
      evidence of record, as our role does not include making
      independent factual determinations. In addition, with regard to
      issues of credibility and weight of the evidence, we must defer to

1
  As Mother has not objected to this late filing or claimed any prejudice, we
have accepted Father’s concise statement in reliance on our decision in In
re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009) (holding that an
appellant’s failure to comply strictly with Pa.R.A.P. 1925(a)(2)(i) did not
warrant waiver of the appellant’s claims, as there was no prejudice to any
party).
2
  Father amended his notice of appeal to indicate that this is a Children’s
Fast Track appeal.
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      the presiding trial judge who viewed and assessed the witnesses
      first-hand. However, we are not bound by the trial court’s
      deductions or inferences from its factual findings. Ultimately,
      the test is whether the trial court’s conclusions are unreasonable
      as shown by the evidence of record.            We may reject the
      conclusions of the trial court only if they involve an error of law,
      or are unreasonable in light of the sustainable findings of the
      trial court.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

      Section 5338 of the Act provides that, upon petition, a trial court may

modify a custody order if it serves the best interests of the child. 23 Pa.C.S.

§ 5338. “The best[-]interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon 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)).

      The factors to be considered by a court 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.


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        (3) The parental duties performed by each party on
        behalf of the child.

        (4) The need for stability and continuity in the child's
        education, family life and community life.

        (5) The availability of extended family.

        (6) The child’s sibling relationships.

        (7) The well-reasoned preference of the child, based on
        the child's maturity and judgment.

        (8) The attempts of a parent to turn the child against the
        other parent, except in cases of domestic violence where
        reasonable safety measures are necessary to protect the
        child from harm.

        (9) Which party is more likely to maintain a loving,
        stable, consistent and nurturing relationship with the child
        adequate for the child's emotional needs.

        (10) Which party is more likely to attend to the daily
        physical, emotional, developmental, educational and
        special needs of the child.

        (11) The proximity of the residences of the parties.

        (12) Each party’s availability to care for the child or
        ability to make appropriate child-care arrangements.

        (13) The level of conflict between the parties and the
        willingness and ability of the parties to cooperate with
        one another. A party's effort to protect a child from
        abuse by another party is not evidence of unwillingness
        or inability to cooperate with that party.

        (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.

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23 Pa.C.S. § 5328(a).3

      Instantly, the trial court considered the Section 5328(a) custody

factors, and concluded that factors 1 and 12 favored Father, while factors 2,

3, 4, and 10 favored Mother.       Final Custody Order, 6/24/2014, at 4-7

(unnumbered pages). The court also found that factors 5, 6, 7, 8, 9, 13, 14,

and 15 did not favor either party and that, because the parties live 14 miles

apart, factor 11 “favors a non-shared custody schedule.” Id. at 5-7.

      In response, Father contends that the trial court abused its discretion

by concluding that factor 4 favored Mother. Father’s Brief at 13-15. Father

directs our attention to the following discussion of this factor from the trial

court’s final custody order.

      The need for stability and continuity in the child’s education,
      family life and community life: This factor favors Mother. The
      [c]ourt is very cognizant that stability and continuity are
      important to the [C]hild’s best interest, which would favor
      keeping the shared custody schedule in place. However, the
      [c]ourt believes that positive benefits the [C]hild will receive
      from Mother having primary physical custody outweigh the
      benefits of maintaining the status quo in this case. The [C]hild
      will benefit from being with Mother primarily during the school
      week. [Child] already has friends at his current school district
      where Mother resides. The [c]ourt believes it is in the [C]hild’s
      best interest to remain in his current school district. Father
      testified that he believes [Child’s] current school is a good school
      for the [C]hild. Both parties agree that the current schedule
      requires the [C]hild to be driven in a vehicle back and forth too

3
  Section 5328 has been amended to include an additional factor at 23
Pa.C.S. § 5328(a)(2.1). Because Mother’s petition to modify custody order
was filed prior to January 1, 2014, the effective date of Section
5328(a)(2.1), that factor does not apply to this case. See § 6 of 2013, Dec.
18, P.L. 1167, No. 107, effective January 1, 2014.
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      frequently and that time spent doing this is not in the best
      interest of the [C]hild. The [c]ourt finds that the [C]hild should
      be primarily with one parent during the school week so that he
      can establish a routine, but that the parties should have custody
      in the summer, on an alternating week basis, to minimizing [sic]
      the time [Child] must ride in a car back and forth.

Final Custody Order, 6/24/2014, at 5 (citation omitted, unnumbered pages).

      Father argues that the court’s finding that “[b]oth parties agree that

the current schedule requires the [C]hild to be driven in a vehicle back and

forth too frequently and that time spent doing this is not in the best interest

of the [C]hild” is not supported by the record, and requires reversal.

Father’s Brief at 13-16.   Father contends that “[t]here was no testimony

adduced relative to the effect that the commute of [Child] was detrimental

to him.   Moreover, the record is devoid of any evidence that the ‘parties

agreed’ to such a proposition.” Id. at 14. Father also argues that the trial

court abused its discretion by failing to “consider the effects of depriving

[Child] of his Father during the school year,” particularly in light of the

court’s conclusion that factor 1, concerning which party is more likely to

encourage and permit frequent and continuing contact between the child and

the other party, favored Father.   Id. at 14, 16-18.

      An examination of the trial court’s analysis in light of the record before

us, accepting the trial court’s factual findings and credibility determinations,

leads us to conclude that several of the trial court’s conclusions are

unreasonable under the circumstances of this case, and ultimately, the trial



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court abused its discretion in awarding Mother primary physical custody of

Child during the school year.

      As noted, the main reason Mother sought a change in custody is that

Child will be starting elementary school and she believes that Child would be

better off living with a single parent in order to establish a more stable

routine.    See   Petition   to   Modify   Custody   Order,   6/28/2013,     at   2

(unnumbered pages) (“Mother contends that shuttling [Child] back and forth

each mid-week between his parents will not be beneficial to [Child] once he

enrolls in regular school as the same would be disruptive, confusing and

detrimental.”). Mother explained as follows.

      A. It’s just going to make it a lot more difficult and hard than it
      has to be. It’s unnecessary. It’s going to put obstacles in front
      of [Child’s] education because it’s going to be confusing and
      detrimental and it’s going -- that stability won’t be there. So he
      needs one primary home base where he can get a structured
      routine, so that he can focus and concentrate on his studies and
      his academics without being shuttled back and forth. Because if
      you shuttle back and forth, it’s just going to disrupt things and
      projects will be due again, and then second grade, third grade,
      fourth. It’s going to get -- I mean, I’ve graduated. I’ve gone to
      Penn State. It gets harder and harder, the higher up you go. So
      the more prepared, the more stability, the more structured that
      home base is and -- he can’t have that with having two home
      bases….

                                      ***

      ….my only concern is that during the school weeks, the school
      term, so that he can get that structure and get a routine, and
      get -- and the emotional and the psychological also impacts of it,
      too, the extracurricular activities. That school has a lot of events
      and things going, so it’s just he needs that stability and that
      structure now. If we continue as it is, as it goes, it will just get


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      more and more disruptive and more confusing and more
      detrimental and his education will suffer.

N.T., 4/28/2014, at 157-59.

      Mother’s concerns, while well-meaning, do not require modification of

the 2011 shared physical custody order. We agree with Father that there

appears to be no evidence of record indicating that he agreed that Child was

being driven back and forth too frequently, or that Child’s time in transit was

not in his best interest. To the contrary, the trial court acknowledged in its

opinion that Father “submitted a post-trial proposed order requesting a

schedule of shared physical custody.        The proposed schedule for shared

physical custody was the same as the schedule established by the Order in

custody dated October 3, 2011.”       Final Custody Order, 6/24/2014, at 2

(unnumbered pages).      This is consistent with the argument of Father’s

counsel prior to trial, and with Father’s testimony, that Father would accept

a shared physical custody arrangement in lieu of primary physical custody if

the court would include “some caveats” in the custody order to prevent

Mother’s alleged attempts at alienating Child from Father. N.T., 4/28/2014,

at 13, 302.

      Additionally, the record does not support the trial court’s conclusion

that the distance between the parties’ residences militates against a shared

custody arrangement.     Mother testified that she lives within 2 miles of

Child’s school, id. at 53, and that Father lives approximately 14 miles away.

Id. at 54. She testified that she drives Child to school during her periods of

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custody. Id. at 48. According to Mother, it would take Father about 35 or

40 minutes to transport Child from Father’s home to school and/or her

home. Id. at 54. Father disputed this claim, stating that the drive took him

only 20 minutes and, sometimes, only 15 minutes.          Id. at 281.    Father

testified that, under the 2011 custody schedule, he picks up Child directly

from school on Monday and Tuesday, and he is willing to continue doing so.

Id. at 272, 280. Additionally, Father also expressed a willingness to allow

Child to participate in a baseball league near Mother and to attend those

games. Id. 333-34.

      Nothing presented by Mother convinces us that a change to primary

custody is necessary here.    Even if we could infer that the trial court was

concerned with the amount of time Child would spend being driven to school

from Father’s residence each day, rather than the time being driven to and

from custody transfers, it was an abuse of discretion for the court to

conclude that Father’s time with Child should be limited based on the slight

unpleasantness Child may experience as a result of a, at maximum, 35 to 40

minute car ride.4

      Based on the foregoing, we find that the trial court abused its

discretion in determining that a shared custody schedule would limit Child’s

ability to remain in Mother’s school district, participate in activities there,

4
  Arguably, in light of the parties’ relative close proximity to one another and
their willingness to drive Child to school during their periods of custody, the
transportation issues that concern the court could be resolved by
implementing a week on/ week off custody schedule.
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and maintain his established friendships. Accordingly, we reject the court’s

conclusion that Child’s entrance into full-day schooling requires that one

parent must have primary physical custody so that Child may establish a

routine. This is the situation faced by every set of parents of a school-aged

child, and does not present a special circumstance requiring a primary

custody arrangement. To the contrary, this Court has long held that

      [i]n determining whether to award shared [] custody, the trial
      court must consider the following factors: (1) whether both
      parents are fit, capable of making reasonable child rearing
      decisions, and willing and able to provide love and care for their
      children; (2) whether both parents evidence a continuing desire
      for active involvement in the child's life; (3) whether the child
      recognizes both parents as a source of security and love; and (4)
      whether a minimal degree of cooperation between the parents is
      possible.

Yates v. Yates, 963 A.2d 535, 542 (Pa. Super. 2008), quoting In re

Wesley J. K., 445 A.2d 1243, 1249 (Pa. Super. 1982). The record herein

demonstrates that all four of the preceding factors have been met such that

shared legal and physical custody of Child is in his best interest.

      Finally, we note the “[i]n a case which presents the possibility of a

change in custody, it is incumbent on the court to fully discuss the possible

effect on the child of the proposed transfer of custody.” E.A.L. v. L.J.W.,

662 A.2d 1109, 1117 (Pa. Super. 1995) (quotation and citation omitted).

See also Masser v. Miller, 913 A.2d 912, 921 (Pa. Super. 2006) (quoting

Johns v. Cioci, 865 A.2d 931, 937 (Pa. Super. 2004)) (“The court must give

attention to the benefits of continuity and stability in custody arrangements


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and to the possibility of harm arising from disruption of longstanding

patterns of care.”).

      In the instant case, there is no discussion by the trial court about the

possibility of harm to Child in uprooting him from the care pattern he has

known from a young age.        We agree with Father that the trial court’s

decision is rendered more problematic by the conclusion that Mother is less

likely than Father to encourage Child’s relationship with the other parent.

The court’s decision dramatically reduces Father’s custodial time with Child

during most of the year, and may result in considerable damage to Child’s

relationship with Father, despite the court’s conclusion that Father is a

capable parent.

      Accordingly, because we conclude that the trial court abused its

discretion by awarding Mother primary physical custody during the school

year, we vacate the trial court’s order and remand this case for the court to

enter a new custody order awarding both parties shared physical custody.

      Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/5/2015

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