J-A27035-18

                                2019 PA Super 126

 T.M.                                     :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 H.M.                                     :
                                          :
                    Appellant             :   No. 1081 EDA 2018

               Appeal from the Order Entered March 15, 2018
   In the Court of Common Pleas of Lehigh County Civil Division at No(s):
                               2015-FC-462


BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.:                            FILED APRIL 24, 2019

      H.M. (“Father”) appeals from the March 15, 2018 order awarding

primary physical custody of his son J.M. (“Child”) to T.M. (“Mother”); partial

physical custody to Father; and shared legal custody to both parents. We

conclude that the trial court did not abuse its discretion by awarding Mother

primary physical custody and denying Father’s petition to obtain increased

physical custody. Therefore, we affirm.

      Mother and Father were married in October 2009 and Child was born in

December 2010. By April 2015, Mother filed for divorce. Following a custody

conference in May 2015, the parties entered into an agreed interim order

which stipulated that they would share legal custody of Child but Mother would

have primary physical custody with partial physical custody on the weekends

and scheduled dinner visits for Father. In July 2015, the parties agreed to

enter a final custody order to this effect. However, thereafter the parties grew
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unsatisfied with the custody schedule and each filed cross-petitions for

modification. After a three-day custody trial in August 2016, the trial court

entered a final order on September 15, 2016, which increased Father’s

overnight custody to Wednesday to Sunday on alternative weeks. The court

fashioned Father’s periods of physical custody to coincide with his bi-weekly

work schedule as a doctor at a local hospital.

      Father filed yet another petition to modify custody less than two months

later in December 2016. Father contended that he had reduced his work

schedule in hopes of obtaining more physical custody of Child. Father

specifically pointed to the ten-day gap in custody he and Child experienced as

detrimental to their relationship. Father also requested telephone contact and

dinner visits during his non-custodial weeks. Mother filed an answer,

counterclaim, and petition for contempt seeking to reduce Father’s physical

custody. Meanwhile, Father filed another petition, on April 13, 2017, seeking

a full custody evaluation. After considering Father’s request at a May 9, 2017

pretrial conference, the trial court ordered a psychological evaluation but

declined to require a full custody evaluation.

       After multiple continuances, the trial court conducted yet another

multi-day custody trial in February 2018. During trial, Dr. Ronald J. Esteve

testified regarding the psychological evaluation he completed regarding Child.

Dr. Esteve testified about the positive relationship Child enjoys with both his

parents but noted that Child had a difficult time talking about his respective

parents in the presence of the other parent. He also acknowledged the

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considerable acrimony between the parties. Although Dr. Esteve opined that

a full custody evaluation might provide additional information to the court, he

also indicated that a custody evaluation could likely contribute to the tension

between the parties. Ultimately, the court decided not to order a full custody

evaluation.

      Also testifying at trial was Andrea Nation, Child’s counselor. Ms. Nation

reported that she did not feel focusing on requiring Child to call Father while

with Mother was worthwhile because Child had demonstrated a clear aversion

to making calls to the noncustodial parent. She explained that while both

parties had been generally cooperative, there had been a two month period

during which Father did not bring Child to counseling:

      [Mother’s counsel]: You said father was cooperative. Did he ever
      stop bringing [Child] to counseling sessions?

      [Ms. Nation]: He wouldn’t stop bringing [Child]. I just did not get
      consistent, as consistent requests from him for an appointment as
      I did from the mom, but I also – since I was only – I didn’t see a
      need for him necessarily to be in here every single week. So, you
      know, when she had him, she would reach out to me, and when
      she didn’t, he would reach out to me via e-mail, you know, and
      just, you know, say, how is [Child]? How is he doing? How is
      counseling? So, there’s some exchange for him to call and set up
      an appointment. That started happening more recently, I would
      say, in the past couple of months.

      [Mother’s counsel]: Yeah, didn’t he stop bringing [Child] though
      to counseling in September of 2017?

      [Ms. Nation]: There was a break in counseling. There was not a
      request -- I had sent out an email to both parents because I was
      making it clear what my role, what role I felt comfortable having
      going forward would be, and that I did not think that the focus
      should be on [Child] making these phone calls because he didn’t
      really have that interest nor did I see myself able to, at that

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      particular time, work through what was very contested between
      the two of them. Their relationship lacks trust on both ends, so I
      didn’t see how I could work, facilitate co-parenting strategies with
      them since they didn’t even speak to each other. So I didn’t want
      to get involved with that. So I told them that I was focused on
      [Child’s] expressions, you know, having a place for him where,
      you know, he felt safe and where he could share and learn how to
      share his emotions.

N.T., 2/13/18 at 71-72.

      Further, in an effort to prove that Father was reluctant to take Child to

counseling with Ms. Nation, Mother submitted a letter into evidence, written

by Father’s counsel, which indicated that Father had concerns about Ms.

Nation’s supposed faith-based counseling techniques and her alleged

reluctance to meet with men one-on-one. The trial court also conducted an

interview of Child, in camera, during which Child indicated that he wished to

maintain the status quo in terms of physical custody and specifically stated

that he did not want any additional overnight visits with Father.

      After the trial, the trial court issued an order, dated March 15, 2018,

which discussed the statutory factors set forth under 23 Pa.C.S. § 5328(a).

Germane to this appeal, the court determined that Mother was slightly more

likely to attend to the daily needs of Child due to her flexible work schedule.

To this end, the court specifically found that Father likely worked more hours

then he indicated. Likewise, the court noted that Mother could depend on her

mother, Child’s grandmother, for child care assistance, while Father could rely

upon his girlfriend. The court also weighed the factor of which party was most

encouraging of Child’s relationship with the other parent slightly in favor of

Mother. The court explained that Mother was more likely than Father to ensure

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that Child would attend counseling to facilitate his parental relationships. The

court deemed counseling particularly important due              to   the   parents’

acrimonious relationship.

      However, the court did note that both parties were equally capable of

maintaining a loving, stable, and nurturing relationship with Child. Further,

the court weighed Child’s stated preference to have the custodial schedule

remain the same only slightly in favor of Mother due to Child’s young age and

attendant lack of maturity. Ultimately, the trial court altered the parties

custody schedule only slightly by ordering partial physical custody for Father

on alternative weeks from Thursday until Monday morning.

      On April 11, 2018, Father filed the instant timely appeal, along with a

Concise Statement of Errors Complained of on Appeal.

      Father now raises the following issues for our review:

      A. Did the trial court err in failing to order a comprehensive
      custody evaluation, as requested by [Father], and as
      recommended by Dr. Ronald Esteve, the court ordered
      psychologist?

      B. Did the trial court err and abuse its discretion in failing to award
      [Father] additional time with [Child] based upon the statutory
      facts as enumerated in 23 Pa.C.S.A. § 5328(a) when [Father]
      works a week on/ week off schedule, and the effect of the court’s
      order dated March 15, 2018, is that the minor child continues to
      go approximately ten (10) days with no contact with [Father]?

      C. Did the trial court err in finding that 23 Pa.C.S.A. § 5328 factor
      #1 - which party is more likely to encourage and permit frequent
      and continuing contact between the child and another party - is
      weighed in favor of [Mother], and that factor #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 - was a neutral factor, despite the evidence of record,

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      including testimony from the court ordered psychologist and
      [Mother’s] own sister?

      D. Did the trial court err in finding that factor #7 - the well -
      reasoned preference of the child, based on the child’s maturity
      and judgment - weighed in favor of [Mother] given the court’s own
      recognition of the difficulties in measuring the maturity and
      reasoning of a seven-year-old child, as well as the fact that the
      court ordered psychologist opined that [Child] should not testify?

      E. Did the trial court err in overemphasizing [Mother’s] role as
      primary caretaker, despite the fact that [Father] has consistently
      requested additional time with [Child], has altered his work
      schedule to accommodate [Child], and tends to [Child’s]
      educational, medical and emotional needs when [Child] is in his
      care?

      F. Did the trial court err in its conclusion that [Father] stopped
      taking [Child] to therapy and that [Father] was not supportive
      [Child’s] counseling, based upon the evidence of record?

Father’s Br. at 16-17.

      When reviewing a custody order, our scope of review is broad and our

standard of review is an abuse of discretion. P.J.P. v. M.M., 185 A.3d 413,

417 (Pa.Super. 2018) (citation omitted). While this Court must accept the

factual findings and credibility determinations of the trial court which are

supported by competent evidence, we are not bound by the trial court’s

deductions or inferences from that evidence. Id. We will only reverse a trial

court’s custody order, if after giving due deference to a trial court’s credibility

determinations, we conclude that the court committed an error of law or an

abuse of discretion. Hanson v. Hanson, 878 A.2d 127, 129 (Pa.Super. 2005).

      “When a trial court orders a form of custody, the best interest of the

child is paramount.” P.J.P., 185 A.3d at 417 (citation omitted). A non-



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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.

         (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.



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         (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).

      In a custody action, it is within the trial court’s discretion based on the

record before it to determine the relevant weight to give each of the Section

5328(a) factors in a particular case. M.J.M. v. M.L.G., 63 A.3d 331, 339

(Pa.Super. 2013). Further, while a child’s custody preferences must be

considered in a custody action, “[t]he weight to be afforded to the child’s

preferences varies with the age, maturity and intelligence of the child,

together with the reasons given for the preference.” Gianvito v. Gianvito,

975 A.2d 1164, 1170 (Pa.Super. 2009).

      In his first issue, Father contends that the trial court erred by declining

to order a full custody evaluation. Father argues that the evidence adduced at



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trial demonstrated both Mother’s bias against him and her manipulative

behavior towards his relationship with Child. Thus, Father avers that a full

custody evaluation would assist the court in recognizing Mother’s malfeasance

and the need for Father to gain more physical custody of Child. To this end,

Father cites Johns v. Cioci, 865 A.2d 931 (Pa.Super. 2004), as an example

of a similar case in which this Court required a full custody evaluation.

      However, as noted by the trial court, pursuant to the Pennsylvania Rules

of Civil Procedure a court is not mandated to order a full custody evaluation

but may do so at its discretion. Pa.R.C.P. 1915.8(a); see N.H.M. v. P.O.T.,

947 A.2d 1268, 1276-77 (Pa.Super. 2008). Further, Johns, cited by Father,

is inapposite because in that case the factual background was vastly different,

including a desired relocation of the child there at issue. In this case, the trial

court aptly determined that a full custody evaluation was not necessary in

light of all the information elicited at the full custody trial. Further, the court

emphasized that Dr. Esteve indicated that a full custody evaluation might

result in increasing the already rampant animosity between the parties.

Therefore, we conclude that the trial court did not abuse its discretion by

declining to order a full custody evaluation and Father’s first issue lacks merit.

      In his next three issues, Father finds fault with the trial court’s findings

pursuant to Section 5328(a). Father begins by generally arguing that the court

erred by determining that increased time with Father would not serve Child’s

best interests. Father points to his increased availability for Child due to his

reduced work schedule. He also contends that the trial court wrongly weighed

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Section 5328(a)(1), regarding which parent would more likely encourage

contact between Child and the other party, against him. To this end, he

emphasizes that he has allegedly offered Mother more custodial time with

Child while Mother does not offer him the same but instead turns to Child’s

grandmother for childcare assistance.

      Father also avers that that the trial court incorrectly found that Section

5328(a)(9), regarding which party is more likely to maintain a loving, stable

and nurturing relationship with Child, was a neutral factor between the parties.

Father points to testimony from Dr. Esteve that he contends indicates that

Father has a closer bond with Child than Mother. Lastly, Father argues that

the trial court erred by placing any weight whatsoever on Child’s custody

preference. Father argues that Child’s stated desire to maintain the custody

status quo was made as the result of immaturity and was not supported by

any specific reasoning.

      The trial court addressed Father’s contentions by considering the

Section 5328(a) factors on the record as required. See M.J.M., 63 A.3d at

339. In its Pa.R.A.P. 1925(a) opinion, the court finds that Mother’s schedule

has proven to be more flexible over time and that Father was likely working

more hours than he avers. Plus, the court noted that Mother could rely on

Child’s grandmother. Thus, the court found that Mother was more likely to be

able to attend to the daily needs of Child. The trial court was well within its

purview when deciding which Section 5328(a) factors to accord the most

weight. M.J.M., 63 A.3d at 339. In essence, Father asks this Court to re-weigh

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the evidence and re-assess the trial court’s credibility determinations. This we

cannot do. See P.J.P., 185 A.3d at 417. Accordingly, Father’s second and

third issues challenging the trial court’s application of the Section 5328(a)

factors do not warrant relief.

      Moreover, we hold that the trial court did not abuse its discretion by

according weight to Child’s preference to maintain the custody status quo. As

mandated, the trial court considered Child’s maturity and acknowledged

Child’s likely propensity to feel “caught in the middle” of his parents. See

Gianvito, 975 A.2d at 1170. Thus, the trial court properly noted that Child’s

preference should be weighed only “slightly” in favor of Mother. We decline to

conclude that the trial court’s decision to accord weight, if only slightly, to

Child’s custody preference constitutes an abuse of discretion. Therefore,

Father’s fourth issue on appeal also must fail.

      Turning to his fifth issue, Father claims that the trial court placed undue

weight on the notion that Mother has served as Child’s primary caretaker.

Father points out that this Court’s decision in M.J.M. clarifies that the

caretaking responsibilities are but one factor to be considered under Section

5328(a)(3). See M.J.M., 63 A.3d at 338. Here, Father argues that Mother’s

increased caretaking is only a function of the current custody schedule and

contends that the trial court did not sufficiently take into account his reduced

work schedule.

      We cannot agree. The trial court specifically indicated that it did not

attribute substantial weight to the caretaking factor and weighed it only

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J-A27035-18



“slightly” in favor of Mother. Moreover, the trial court aptly noted that,

generally speaking, Mother’s schedule is more flexible and that Mother has

tailored her schedule around Child’s needs. Accordingly, the evidentiary record

supports the trial court’s findings and Father’s fifth issue also lacks merit.

      In his sixth and final issue, Father asserts that the trial court erred by

determining that he had failed to take Child to therapy when the evidence of

record did not support that conclusion. Father points to Ms. Nation’s testimony

at trial where she stated that both parents had brought Child to counseling

sessions and that scheduling issues of her own had impeded therapy. Further,

Father points to Ms. Nation’s testimony that Father has maintained “consistent

contact” with her regarding Child.

       Conversely, the trial court cites Ms. Nation’s testimony in which she

admits that a “break in counseling” did occur and that Mother more

consistently requested appointments for therapy. The court noted that Father

admitted that he did not take Child to therapy in October or November.

Further, the court points to Father’s counsel’s letter to Mother, noting his

objections to Ms. Nation as a counselor for Child. The trial court had ample

evidence of record to support its factual findings and credibility determinations

regarding Father’s reluctance to facilitate counseling with Ms. Nation.

Therefore, we are bound by those factual determinations and conclude that

Father’s sixth issue also does not merit relief. See P.J.P., 185 A.3d at 417.

       Based on the foregoing, we conclude that the trial court did not abuse

its discretion by awarding Mother primary physical custody and denying

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Father’s petition to obtain increased physical custody. Therefore, we affirm

the court’s March 15, 2018 order.

      Order affirmed.

Judge Stabile joins the Opinion.

Judge Bowes files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/19




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