J-S01016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.R.W.                                          IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

A.E.Y.

                         Appellee                    No. 1093 EDA 2015


               Appeal from the Order Entered March 12, 2015
            In the Court of Common Pleas of Philadelphia County
                     Family Court at No(s): OC0704615


BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                          FILED JANUARY 27, 2016

      Appellant, A.R.W. (Father), appeals pro se from the March 12, 2015

child custody order which, inter alia, provided that Appellee, A.E.Y. (Mother),

continue to have primary physical and legal custody of the parties’ minor

child, A.S.W., born in October 2006, as originally provided by order of court

entered on October 20, 2010. Upon careful review, we affirm.

      The trial court explained as follows.

                  Father is presently incarcerated at [the] State
            Correctional Institution at Graterford, where he is
            serving a sentence of 21 to 53 years on aggravated
            assault and firearms convictions.      He has been
            incarcerated since his date of arrest on July 17,
            2007, which was nine months after the birth of
            [A.S.W.].

Trial Court Opinion, 6/11/15, at 3.
J-S01016-16


      On July 22, 2014, Father filed a complaint for partial physical and

shared legal custody of A.S.W. The trial court convened a hearing on March

12, 2015. Father testified by telephone from SCI Graterford. In addition,

Father’s mother, S.W. (Paternal Grandmother) appeared to testify, as did

Mother.

      At the outset of the hearing, the trial court and Appellant engaged in

the following exchange.

            THE COURT:        … I can make the order that
            Mother retains primary physical custody and I could
            put that Father shall share legal custody, to the
            degree that he may have access to school and
            medical information concerning the child. But he
            cannot participate in decision making because he’s in
            jail and [M]other is the one who has to bear all the
            responsibility.   But he is certainly entitled to
            information.

                   And then my order can further say that Father
            may have visitation with the child at the state
            institution,  as   arranged    between     [P]aternal
            [G]randmother and Mother. And because that is
            apparently happening—is that correct, sir?

            [APPELLANT]:      That’s currently what’s happening.

N.T., 3/12/15, at 14-15.

      Father confirmed that on July 17, 2007, he was sentenced to 21 to 53

years of incarceration, and has been in prison for nearly all of A.S.W.’s life.

N.T., 3/12/15, at 11.      Father testified that A.S.W. has “seen me all

throughout my incarceration, on and off … I just recently saw her last week

or two weeks ago.” Id. at 12. However, Father asserted that A.S.W. should


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J-S01016-16


be in private school, and should not “be taken out of this private school that

can help [A.S.W.] excel.” Id. at 31. When the trial court asked Father to

identify the private school, he responded “the private school that my mother

paid for … my mother can tell you the exact name of the school.” Id. at 32.

Father knew the name of the public school A.S.W. attends, but opined that it

“was not the proper place” for A.S.W. Id. at 33.

      With regard to religion, Father asserted that A.S.W. should be raised

Muslim, and that Mother not wanting to force A.S.W. “to have morals and

values of a certain etiquette is not right.” Id. at 35. Concerning visitation,

Father testified that “the visitation is too loose” and asked that A.S.W. “be

brought to see me every two weeks, specifically,” without putting the

responsibility on Paternal Grandmother, and that A.S.W. be given a cell

phone to communicate with Father directly.      Id. at 36-38.        Additionally,

Father stated that he “also has [an] issue with the grooming of the child,”

and “it’s important to me that [A.S.W.] have her hair done, her nails done,

and all those different things.” Id. at 41. Father expressed that he would

like to have his current wife “be in [A.S.W.’s] life.”   Id.    Finally, Father

testified that he “would like that it be ordered” that A.S.W. “not be put on”

social media. Id. at 41-42.

      Paternal Grandmother testified that Mother “always has” allowed

Paternal Grandmother to take A.S.W. to visit Father.           Id.     Moreover,

Paternal Grandmother said, “although [the October 20, 2010 custody order]


                                    -3-
J-S01016-16


says [I have] custody [of A.S.W.] every other weekend, I can see my

granddaughter whenever I want to see her.” Id. at 19.

      Mother testified that relative to A.S.W.’s education, she did not mind

A.S.W. attending private school, but did not “have the funds for it,” and

A.S.W. “made honors every report, no matter if she’s in private school or

public school”; as to the Muslim faith, Mother did not “want to force [A.S.W.]

to do anything she [does not] want to do.      She [doesn’t] want to go to

Islamic school and I don’t want to force her to do that.” Id. at 26-27, 43-

44. Mother opined that she had “the right if I want to show my daughter on

any social media.” Id. at 43. Mother also testified that she “did not think it

was fair” that she should have to take A.S.W. to see Father. Id. at 45. She

stated, “I don’t have the means to go all the way out there.” Id.

      After hearing from Father, Paternal Grandmother, and Mother, the trial

court referenced, recited and reviewed the custody factors set forth in 23

Pa.C.S.A. § 5328.   Id. at 47-51.   The trial court then concluded that the

October 20, 2010 order “shall remain that Mother has primary physical and

legal custody of the child,” and entered the March 12, 2015 order at issue in

this appeal. Id. at 53. In addition to continuing primary physical and legal

custody of A.S.W. with Mother, the order provides that Father have “legal

access to all school and/or medical information concerning the child,”

Paternal Grandmother “may continue to have periods of partial physical

custody on alternating weeks from Friday through Sunday, and/or as


                                    -4-
J-S01016-16


otherwise agreed between Paternal Grandmother and Mother,” and “Paternal

Grandmother may transport the child to visit with Father in a State

Correctional Institution during her periods of partial physical custody.”

Order, 3/12/15. The trial court noted that it “declined to enter an award of a

specific visitation schedule for the child with Father in lieu of [Paternal]

Grandmother’s willingness to transport the child at times determined by

her.” Trial Court Opinion, 6/11/15, at 2.

       On April 13, 2015, Father filed a timely notice of appeal.1 On May 19,

2015, this Court, after determining that the trial court had not properly

entered and docketed its April 21, 2015 order directing compliance with

Pennsylvania Rule of Appellate Procedure 1925, entered an order directing

Father to file a Rule 1925 statement by May 29, 2015. Father filed his Rule

1925 statement on or about May 12, 2015. This Court received the certified

record, including the trial court opinion, from the trial court on June 15,

2015. Disposition in this matter was further delayed by Father’s failure to

file his brief by the July 15, 2015 due date, which resulted in this Court

dismissing the appeal on August 14, 2015, and upon application by Father,

reinstating the appeal on September 22, 2015.

       On appeal, Father presents six issues for our review as follows.


____________________________________________


1
 The 30th day for filing an appeal fell on Saturday, April 11, 2015, such that
Father’s filing on Monday, April 13, 2015 was timely. 1 Pa.C.S.A. § 1908.



                                           -5-
J-S01016-16


            1. Did the trial court err and abuse its discretion by
               not giving [Father] a meaningful opportunity to
               present testimony in support of his position and
               the Petition that was before the court?

            2. Did the trial court err and abuse its discretion by
               failing to Order the recommended educational
               stipulations despite there being no objections by
               [Mother]?

            3. Did the trial court err and abuse its discretion by
               failing to meaningfully consider the religious
               recommendations despite the fact that the
               recommendations are in the best interest of the
               child?

            4. Did the trial court err and abuse its discretion by
               failing to adequately review the miscellaneous
               recommendations in the Petition?

            5. Did the trial court err and abuse its discretion by
               failing to Order Shared Legal Custody and
               Visitation stipulations?

            6. Did the trial court err and abuse its discretion and
               deprive [Father] of his right to Due Process by
               exhibiting a pre-disposition for [Mother] and by
               not applying a “best interest” standard?

Father’s Brief at 5.

      Father’s six issues are interrelated in that they challenge the trial

court’s determinations relative to A.S.W.’s best interest, and specifically

concern Father’s desire for shared legal custody, particularly with regard to

A.S.W.’s education and religious upbringing, as well as visitation.

      Our scope and standard of review in custody matters is as follows.

                  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

                                     -6-
J-S01016-16


            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 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.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted)

(emphasis added).

      Further, we have stated the following.

            [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.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006), quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004).

      Pursuant   to   Pennsylvania’s    Child   Custody   Act,   in   considering

modification of an existing custody order, “a court may modify a custody

order to serve the best interest of the child.” 23 Pa.C.S.A. § 5338(a). “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,


                                       -7-
J-S01016-16


moral, and spiritual well-being.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa.

Super. 2006), quoting Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super.

2004). Further, the party seeking modification of custody arrangements has

the burden of showing that modification is in the child’s best interest.

Ketterer, 902 A.2d at 539 (citation omitted).

      Consistent with the foregoing, the trial court was obligated to consider

A.S.W.’s well-being.    J.M.R. v. J.M., 1 A.3d 902, 911 (Pa. Super. 2010).

Upon careful review of the record, we find that the trial court did so, and

discern no abuse of discretion or error of law by the trial court. The record

supports the trial court’s conclusion that “Father’s lengthy period of

incarceration and his limited contact with the child prior to incarceration

render him unable to provide parental care such that he would be entitled to

share in the ability to make major decisions concerning same.      Moreover,

Mother’s willingness to allow Paternal Grandmother to take A.S.W. to see

Father and the absence of any unreasonableness on her part with regard to

the visitation eliminate[s] the need for a specific visitation schedule for

Father.”   Trial Court Opinion, 6/11/15, at 16-17.      Further, we find the

entirety of the trial court opinion to be comprehensive in expounding on

Father’s issues, such that we adopt and incorporate the trial court’s June 11,

2015 opinion with this Memorandum in affirming the March 12, 2015

custody order.

      Order affirmed.


                                    -8-
J-S01016-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2016




                          -9-
                                                                               Circulated 01/13/2016 03:19 PM




                      IN THE COURT OF COMMON PLEAS
                 FIRST JUDICIAL DISTRJCT OF PENNSYLVANIA                              IECEIIED.
                       DOMESTIC RELATIONS~                                            1   JUN 11) 2~t4
                                                           'JU~ 11 20\4           CLERKOF COURT
 A.f\.w.
                Appellant                               CLERKOf COURT
        vs.                                                      DOCKET NO. OC0704615

                                                                 1093 EDA 2015
                Appellee




BY:     DORJS A. PECHKUROW, J.

                                                OPINION

        Appellant,     A. (Z. W.           ("Father") appeals from the child custody order

entered March 12, 2015.

        Said order provides that the order dated October 20, 2010 will remain without

modification, such that Appellee         A. E. Y. ·    "Mother") shall retain primary physical

and legal custody of the child            ;.S. W.       , born October 15, 2006, and Paternal

Grandmother,         s.«           ·, shall continue to have periods of partial physical custody

of the child on alternating weekends or as otherwise agreed between Grandmother and

Mother. The March 2015 order further provides that Grandmother is penni tted to continue

to transport the child to visit with Father at the state correctional institution where he is

serving a sentence, and that Father has the right of access to all school and/or medical

information concerning the child.
           The court declined to enter an award of a specific visitation schedule for the child

 with Father in lieu of Grandmother's willingness to transport the child at times determined

 by her.

           Father filed his Notice of Appeal on April I 3, 2015, but failed to include a

 Statement of Errors Complained of on Appeal, as required pursuant to Pa.R.App.P.

 905(a)(2) and 1925(a)(2)(i). By order dated April 21, 2015, Father was directed to file said

 statement within twenty-one (21) days. Said Statement was then filed in accordance with

the "prison rule" on May 12, 2015, as appears on documents entered by prison personnel

showing the Statement was delivered to them on May 12, 2015. It was received in judicial

chambers on May 21, 2015.

Procedural History

           Complaints for Primary Custody and for Partial Physical Custody filed by Mother

and Paternal Grandmother, respectively, in June and July, 2007, were dismissed for lack

of prosecution in September, 2007. After Mother filed another Complaint for Custody in

July, 2009, an order was entered on December 3, 2009, awarding her sole physical and

legal custody. Father was incarcerated and did not participate 'in the hearing. The matter

was then scheduled for a subsequent hearing, it appearing that service on Father was called

into question. In the meantime, Paternal Grandmother filed a Petition for Modification in

August, 2010, and a final order was entered by agreement between Mother and Paternal

Grandmother on October 20, 2010, providing that Mother would retain primary physical

custody and legal custody of the child and Paternal Grandmother would have partial

physical custody on alternating weekends. Father participated by telephone during the

hearing.



                                               2
        No further action occurred until Father filed a Complaint for Partial Physical and

Shared Legal Custody on July 22, 2014. The hearing before the Master, where Father

participated by telephone, was attended only by Paternal Grandmother.     The matter was

continued to March 12, 2015, for service on Mother.

Factual Background

        Father is presently incarcerated at State Correctional Institution at Graterford,

where he is serving a sentence of 21 to 53 years on aggravated assault and firearms

convictions. He has been incarcerated since his date of arrest on July 17, 2007, which was

nine months after the birth of the child.

Statement of Errors

       Father's Concise Statement of Matters Complained of on Appeal is as follows:

            And now comes,         ·   A. R-. W.
                                             ... ·, the Appellant, acting prose,
         who files the Concise Statement of Matters complained of on Appeal in
         accordance with Pa.R.A.P. 1925 (b) and the Court's Order dated April
         21, 2015.

             1.) The Court erred and abused its discretion by not giving the
         Appellant a meaningful opportunity to present testimony in support of
         his position and the Petition that was before the court.

           2.) The Court erred and abused its discretion by failing to Order the
        education recommendations enumerated at 1, 2, 3, 6, 7, and 8, of the
        Petition for Shared Legal Custody despite the Appellee not objecting to
        the recommendations.

            3.) The Court erred and abused its discretion by failing to
        meaningfully consider the religious recommendations outlined in the
        Petition for Shared Legal Custody despite the fact that the
        recommendations are in the best interest of the child. Specifically, the
        Court did not consider the religious recommendations relative to:
               (a) Appropriate Clothing for Muslim females
               (b) Foods approved for consumption by a Muslim
               (c) Appropriate Rituals as delineated in the Qur'aan
               (d) Appropriate burial rituals in accordance with the dictates of
        Islam in the event of death



                                               3
             ( 4.) The Court erred and abused its discretion by failing to adequately
          review and consider miscellaneous recommendations in the Petition for
          Shared Legal Custody.

             (5.) The Court erred and abused its discretion by denying to Order
          that the Appellant be included in all major medical decision [sic]
          involving the minor child.

             (6.) The Court erred and abused its discretion by failing to Order
          Shared Legal Custody and Visitation Stipulations despite it being
          appropriate to do so.

             (7.) The Court erred by failing to provide the Appellant with an Order
          and Opinion stating the reasons for denying the Appellant's Petition for
          Shared Legal Custody.

             (8.) The Court erred, abused its discretion and deprived the Appellant
          of his right to Due Process by exhibiting a predisposition to the position
          of the Appellee and by failing to apply a 'best interest of the child'
          standard.

Discussion

Predisposition of the court and a finding of best interest

        Paragraph 8 of Father's Statement of Errors will be discussed first to address the

applicable standard for determining the best interests of the child. He states in paragraph

8 that the court exhibited a predisposition concerning Father's petition and failed to apply

a best interest standard in rendering the decision.

        Father fails to reference any of the factors set forth in 23 Pa.C.S. § 5328 of the

custody code in his statement of errors, and does not otherwise identify anything specific

which was not considered by the court in rendering the decision. Section 5328 provides

that, "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: ... ," and the text continues



                                             4
 listing 15 factors.   These enumerated factors were discussed on the record during the

 hearing prior to the entry of the order and will not be re-addressed herein.        Notes of

 Testimony, March 12, 2015, at 47-52. As was noted on the record, however, many of the

 factors do not apply when one parent is incarcerated and will remain so for an extended

 period of time.

        The application of the custody code when rendering a decision where a parent is

incarcerated was reviewed by the Pennsylvania Supreme Court in D.R.C. v. J.A.Z., 31 A.3d

677 (Pa. 2011), where the Court concluded that, "Examination of Chapter 53 of the

Domestic Relations Code in its entirety reveals that many of its provisions and certain of

its commands regarding factors for the court's consideration lack relevance in the context

of a request for prison visitation." Id. at 686. In that case, the issue was whether the trial

court erred in denying father's petition for visitation at the prison because the required

counseling set forth in subsections 5303(b) and (c) of the custody code (since replaced by

Section 5329) for individuals convicted of any of the enumerated offenses was not done.

        New custody code provisions effective in January, 2011, replaced the controlling

provisions implicated in the D.R.C. case. However, while the new custody code eliminates

mandatory counseling for individuals convicted of enumerated offenses (23 Pa.C.S. §

5329) and sets forth a list of 15 factors which must be considered when ordering any form

of custody (23 Pa.C.S. § 5328), replacing the more narrow list of factors in Section 5303,

a few of the Section 5303 factors are contained in Section 5328, such that the Supreme

Court's reasoning is relevant to the current factors and an incarcerated parent:

                       Clearly, an award of any type of physical custody is
                       unavailable to an incarcerated parent. Similarly, it
                       would make no sense for a court to take into
                       consideration 'which parent is more likely to


                                             5
                          encourage, permit and allow frequent and continuing
                          contact and physical access between the
                          noncustodial parent and child,' or assess an 'adult
                          household member's present and past violent or
                          abusive conduct' as required by section 5303 (a)(2)
                          and (3). Likewise, we find that it was not the
                          General Assembly's intent for subsections (b) and (c)
                          to be applied to requests for prison visitation. "

 D.R.C., at 686-87 (emphasis added).

         The Court further noted that factors other than those set forth in the custody code

 were relevant when deciding a question of visitation with an incarcerated parent such as

 the age of the child, the distance and hardship in traveling to the site, who would transport

 the child, whether contacts were maintained in the past, etc.            Id. The case was then

remanded to the trial court for a hearing on father's request for prison visitation without

resort to Section 5303 of the custody code. 1

         The new custody code is also silent about what factors are applicable in a child

custody matter when a parent is incarcerated for a period of time. Thus, it is unknown if

the appellate court will apply the reasoning and findings in D.R.C. to the instant case, or

the holding in C.B. v. J.B., 65 A.3d 946, 948 (Pa.Super. 2013) (the custody code requires

that the trial court address each of the factors prior to the deadline for filing an appeal), or

the decision in M.O. v. J.T.R., 85 A.3d 1058 (Pa.Super. 2014) (the trial court is not required

to address all sixteen factors in Section 5328 when the court decides a discrete and narrow

issue to a materially unchallenged custody arrangement).            Consequently, this court will




1 Section 5329 requires that a determination be made that the party poses no threat of harm to the
child where that individual has a conviction for any of the enumerated offenses, which include
aggravated assault, as was required by the prior Section 5303 discussed in D..RL. However, because
the child has been visiting Father without objection from Mother, it can be concluded that the visits
did not raise any concern for a threat of harm to the child.


                                                  6
 undertake no additional discussion of the 5328 factors in this opinion and will, instead,

 address the specific issues raised in Father's Statement of Errors.

         With regard to any evidence of predisposition on the part of this court, the fact that

 this court repeatedly explained to Father that his incarceration limited his ability to parent

 the child, which affected whether he had the right to make demands concerning legal

 custody or parenting, does not constitute predisposition on the part of the court. Nor was

 it a predisposition on the part of the court to disallow complaints about how and/or whether

 or not Mother followed the existing custody order since Paternal Grandmother, who was

 the partial custodial party under the order, testified that she saw the child whenever she

wanted to. Moreover, Father's complaints about Mother were not directed to any safety

concerns - i.e., he was not concerned whether Mother would harm the child or allow

anyone else to do so, and the court declined to provide Father a forum to simply criticize

Mother's parenting. N.T. at 18, 31.

Opportunity to present testimony

        Father alleges he was denied a meaningful opportunity to present testimony in

support of his position.   As noted above, while the court disallowed testimony of Father

that only constituted criticism of Mother, Father was not denied the opportunity to state his

requests concerning custody of the child and reasons for same.

       At the onset of the hearing, after setting forth some factual and procedural

background, this court inquired if anyone had ever brought the child to see Father. He

replied that he had seen the child all throughout his incarceration, off and on, and as

recently as two weeks ago. Id. at 12. Grandmother interjected that she has always taken

the child to Father. Id. When Father proceeded to testify that Mother was not following




                                              7
 the schedule for partial custody for Grandmother, the court interrupted to question

 Grandmother, who alone could provide non-hearsay testimony on that issue, and she

 testified that she can see her granddaughter whenever she wants to. Id. at 19.

        Father then requested that the custody order be modified to provide for the

 following:

        (a)     To allow his child to attend a private Muslim school (N.T., 31-32);

        (b)     To have the child raised in Muslim beliefs (N.T., 34-35);

        (c)     A visitation schedule for alternating weeks with his wife providing

                transportation (N.T. at 36, 45-46);

        (d)     To have the child's hair and nails done (N.T., 41);

        (e)     To have his wife involved in the child's life (N.T., at 41);

        (t)     To have the child kept off social media (N.T., at 42).

        Other than the matter of a visitation schedule, the above requests of Father seek to

impose restrictions on Mother's legal custody and ability to parent the child, and were,

therefore, rejected.

        Father was arrested in July 2007, when the child was only nine months old, and has

remained incarcerated ever since. The child will reach adulthood before Father is eligible

for parole. Hence, Father's incarceration at a state institution renders Father unable to

parent the child and leaves Mother with sole responsibility - physically, monetarily,

emotionally and otherwise - notwithstanding whether or not Father wants to see the child

and/or spend time with the child. Thus, on December 3, 2009, Mother was awarded sole

legal custody, which gives her the right to "make major decisions on behalf of the child,

including but not limited to, medical, religious and educational decisions." 23 Pa. § 5322,




                                              8
 Definitions.2    That same order was entered in October 2010 and Father did not appeal

 either order.

          While this custody matter is not a dependency proceeding and does not concern

 termination of parental rights, it must be noted that the Pennsylvania Supreme Court has

 found that lengthy incarceration in itself can be grounds for terminating parental rights

 because it renders the person unable to provide essential parental care, control or

 subsistence:

                          [W]e now definitively hold that incarceration, while
                          not a litmus test for termination, can be determinative
                          of the question of whether a parent is incapable of
                          providing 'essential parental care, control or
                          subsistence; and the length of the remaining
                          confinement can be considered as highly relevant to
                          whether 'the conditions and causes of the incapacity,
                          abuse, neglect or refusal cannot or will not be
                          remedied by the parent,' sufficient to provide
                          grounds for termination pursuant to 23 Pa.C.S.
                          2511(a) (2) ....     '[A} parent who is incapable of
                          performing parental duties isjust as parentally unfit
                          as one who refuses to perform the duties.'

In re Adoption of S.P., 32 A.3d 817, 830 (Pa. 2012) (citations omitted, emphasis added)

(affirming the trial court's decision terminating parental rights of father who was

incarcerated before the child's birth and was serving a sentence of 5 to 10 years because

he was not capable of providing for the basic needs of the child, notwithstanding his

repeated requests for visitation and attempts to keep in contact with the child).

        Hence, it is wholly appropriate that Mother retain sole legal custody, coincident to

her singular responsibility for parenting the child in light of Father's incarceration, and the




2 In 2009, the definition of legal custody was contained in Section 5302, since replaced by Section
5322 with the same wording.


                                                  9
 finding by the Pennsylvania Supreme Court that incarceration essentially renders a person

 parentally unfit.

         In her capacity as sole legal custodian, Mother has the right to decide where the

 child will attend school. To Mother's credit, she was not closed to suggestions about

 schooling options, but she was unable to afford and/or accommodate school arrangements

 other than where the child was presently enrolled:

                       Mother: A.           [sic] has been on honor roll ever
                since she's been in school. She made honors every report,
                no matter if she's in private school or public school.

                         I can't afford for her to go to private school. Like I
                said before, if we come to an agreement and find a school
                that's good for her, then I don't mind doing that. And the
                reason why she was tooken [sic] out of that school, like he
                said, it was inconvenient for me to take her there. But I don't
                mind to put her in private school or to better her education.

N.T. at 44. It must also be noted that Father did not know the name of the school he wanted

the child to attend, nor could he provide any information as to why the child's current

school was not satisfactory.

        With regard to religion, Father's request to have the child raised in the Muslim faith

would impose an unconstitutional restriction upon Mother's right to inculcate religious

beliefs in the child absent a substantial threat of present or future physical or emotional

harm to the child. Zummo v. Zummo, 574 A.2d 1130, 1157 (Pa.Super. 1990). In

Pennsylvania there are "long-standing legal principles that the court will not interfere with

the religious preferences of either parent." Tripathi v. Tripathi, 787 A.2d 436, 442 (Pa.

Super. 2001). Hence, Mother and Father are both free to "pursue whatever course of

religious indoctrination which that parent sees fit, at that time, during periods of lawful

custody or visitation." Zummo, at 1140.



                                             10
         In addition, Mother testified that the child did not want to go to Islamic school and,

 just as she was never forced to be part of any particular religion, she did not want to force

 her daughter to do so. N.T. at 27~28.

        Mother's legal custody also includes the authority to oversee adult interactions with

 the child and Father has no right to insist that his wife have contact with the child. The

 wife has no standing to seek any form of custody and was never part of the child's life as

might have been the case had Father been married before he was arrested and had the child

spent considerable periods of time with the wife and developed a relationship with her.

Significantly, Mother made no request concerning this matter and no restrictions were

incorporated into the order. Hence, until such time that Mother objects, nothing would

preclude contact between Father's wife and the child during Paternal Grandmother's

periods of custody.

        While the child's grooming does not encompass a major category related to legal

custody, it certainly constitutes parental care and control which only Mother has the

authority to provide as primary physical and legal custodian. Hence, Mother has the right

to groom the child in the manner she deems appropriate and Father's request to have the

child's hair and nails done is an attempt on Father's part to superimpose his preferences

for child care on Mother when he has no ability to assume responsibility for same.

        Similarly, Father's request that the child be kept off social media is an attempt to

impose his parenting preferences upon Mother, much to her dismay as it implied that she

was not a responsible person. He complained about putting the child's picture on social

media where there is "homosexual activity, drinking, drugs so forth, make (unintelligible)




                                             11
    about sexual comments and in the next picture down is my daughter's picture." Id. at 41-

    42. Mother responded as follows:

                           Mother: Idon't even know how to respond to that.
                   Ifeel as though Ihave the right ifl want to show my daughter
                   on any social media. She's not in any pictures where there's
                   drugs around her or alcohol around her. There's no pictures
                   like that anywhere. I don't do drugs around her and I don't
                   drink around her, so I don't know what he's talking about
                   with that.

    Id. at 43.

            With regard to Father's request to set a schedule that he have visitation with the

    child at the state prison on alternating weeks, his initial concern was that Grandmother was

    becoming "older", which concern was summarily dismissed by the court since

    Grandmother is only 50 years old. Id. at 13.3

            Both Father and Grandmother made a point of stating that Father had always been

seeing the child, although neither party provided information about frequency. Hence, the

March 12, 2015 order provides that Grandmother may continue to take the child for visits

with Father and, since Grandmother was doing same voluntarily, the court declined to

require that a particular schedule be followed. 4 Should a time occur that Grandmother is

unable or unwilling to continue to bring the child for visitation, then Father can petition for

modification and can consider whether another person can provide that assistance to Father,

including his wife. However, absent any indication that Grandmother was not willing or

able to transport the child for visitation with Father, it was not appropriate that the court


3 An Errata Sheet has been appended to the Notes of Testimony concerning this testimony. The
printed transcript shows that Father said his Mother was 59, whereas the actual testimony was that
he said his Mother is 50, which is her correct age as reflected in court records.
4 Mother expressed that she did not have the means to travel to take the child for visits, nor the time
because she takes care of a family and works. Moreover, she noted that Father is presently able to
see the child . .!..d, at 45.


                                                   12
 enter an order at this time contingent upon an occurrence in the future where custody of a

 child is concerned.

 Consideration of recommendations in Petition for Shared Legal Custodv

          Paragraphs 2, 3 and 4 of Father's Statement of Errors allege errors for failing to

 consider and/or order matters set forth in a "Petition for Shared Legal Custody." No such

 document is shown as having been filed in the docket entries of this custody case, nor was

 any such document referenced during the court hearing or introduced into evidence.5

          Upon receipt of Father's Statement of Errors, this court examined the court file, lest

 some filing not have been appropriately docketed, and discovered a document entitled

 "Plaintiffs Proposed Stipulations of Custody." The document bears no stamped markings,

 and was not attached to anything else. This trial court will not address the contents of the

document since it is not part of the record below, and it is unknown if Mother knew of its

existence. However, it will be included in the record transmitted on appeal as Exhibit "A"

and copies of same will be sent to all parties with a copy of the instant Opinion should the

appellate court conclude that the document should be subject to appellate review.

Denial of shared legal custody and inclusion in medical decisions

         Father alleges in paragraphs 5 and 6 of his Statement of Errors that it was error to

deny the request that he be included in all major medical decisions involving the child and

to deny award of shared legal custody. He also alleged that it was error to fail to order a

visitation schedule, which issue was discussed above.




s Father's Complaint for Custody filed July 22, 2014 is set forth in the pre-printed form provided by the
First Judicial District, which mirrors the format of Pa.R.Civ.P. 1915.15, and has been included in the record
transmitted on appeal.


                                                     13
        In In re D.C.D., 105 A.3d 662, 676 (Pa. 2014), the Pennsylvania Supreme Court

 cited the doctrine that, "the right to make decisions concerning the care, custody and

 control of one's children is one of the oldest fundamental rights protected by the Due

 Process Clause," quoting from Hiller v. Fausey, 904 A.2d 875, 885. Yet, in that case, the

Court held that terminating father's parental rights where he was incarcerated before the

child was born and would not be released before the child turned seven did not infringe

upon that right where the safety and permanency needs of the dependent child were

concerned. The Court opined that the length of father's incarceration was relevant to his

incapacity to parent the child, notwithstanding his attempts to seek video and in-person

visits, sending gifts and cards and corresponding with caseworkers regularly.

        Again, while the instant case is not a dependency matter and does not involve

termination of parental rights, the Supreme Court has established a direct correlation

between the ability to parent a child and the fact of incarceration, regardless of whether or

not the incarcerated parent makes an effort to be involved in the child's life, which is

relevant when considering a request for visitation with an incarcerated parent.

       As stated above, Father's incarceration has rendered him largely incapable of

parenting the child. He cannot provide food, shelter, child care, recreation, oversight or

fulfill any other of the many responsibilities involved in parenting a child. While he can

communicate with the child during periods of visitation and can write to the child and/or

telephone the child, those activities alone do not constitute parental care or control.




                                            14
    Moreover, even in these limited parental acts, father is dependent upon the good will and/or

    assistance of others and cannot perform them independently.6

            Nor is this a situation where Father had been parenting the child for a period of time

    before his incarceration and participating in decision-making as well as in the performance

    of parental duties.

            An award of shared legal custody to Father would require that Mother make contact

    with Father, provide background information on the issue at hand (school selection, choice

    of pediatrician, selection of day care provider, assessing risks among potential medical

    treatment recommendations, etc.), then either concede to Father's decision or follow her

    own judgment in the event of a disagreement and risk facing a petition for contempt. Since

    Father is incarcerated, contacting him and communicating with him would require

    considerable effort and energy on her part since telephoning, texting and/or communicating

    by email with Father are not available options. Moreover, Father is not capable of assisting

Mother in executing legal decisions such as, for example, transporting the child to and from

his preferred school when her preferred neighborhood school is close to home or taking the

child for medical appointments or treatment.

           In addition, there are no consequences for Father if his legal preferences are

unreasonable such that nothing would prevent his making arbitrary decisions. The fact that

he sought to impose upon Mother the responsibility for raising the child in the Muslim

religion, enrolling the child in a Muslim school which was selected by Paternal Grandfather

and about which Father had no Information and grooming the child according to Father's



6 Someone must transport the child to and from Father's visitation periods, must be present to
accept a telephone call to the child and must receive the mail sent by Father as well as provide any
paper or postage the child might need to respond.


                                                  15
 specifications was evid~nce that he sought to impose his. will upon Mother without- any -

 consideration for whether she agreed and/or could accommodate his requests, more so than

 that he had an interest in sharing decision-making.    Hence, it cannot be concluded as a

 matter of law that the denial of shared legal custody was an error.

 Absence of opinion in support of decision concerning legal custody

        In paragraph 7 of Father's Statement of Errors, he alleges it was error to fail to

 provide an opinion stating the reasons for denying his request for shared legal custody.

        Section 5323(d) of the custody code requires that the court "delineate the reasons

for its decision on the record in open court or in a written opinion or order." Thus there is

no requirement for a written opinion, as opposed to a delineation ofreasons on the record,

which was done by this court. Pages 47-53 of the transcript contain the court's discussion

of the custody factors under section 5328 of the custody code prior to the entry of the

custody order and pages 20, 24, and 25-26 contain additional reasons for the court's denial

of the request for shared legal custody.

        "The Custody Act requires only that the trial court articulate the reasons for its

custody decision in open court or in a written opinion or order taking into consideration

the enumerated factors.    23 Pa.C.S.A. §§ 5323(d), 4328(a).     ... [T]here is no required

amount of detail for the court's explanation; all that is required is that the enumerated

factors are considered and that the custody decision is based on those considerations."

M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013).

Conclusion

       Father's lengthy period of incarceration and his limited contact with the child prior

to incarceration render him unable to provide parental care such that he would be entitled




                                             16
                                        decisions concerning same. Moreover, Mother's

willingness to allow Paternal Grandmother to take the child to see Father and the absence

of any unreasonableness on her part with regard to the visitation eliminate the need for a

specific visitation schedule for Father. Hence, there was no error in the order of March 12,

2015.



                                                             BY THE COURT:



DATE:     June 11, 2015                                       clJ(jQ
                                                             DORIS A. PECHKUROW, J.


                                                         I hereby certify th~t the t?regomg
                                                         is a true copy of the orlgtnal. as same .
                                                         appears in the records ·of this court this


                                                         :~2~
                                                            FAED<"i<E"t\.~Rourt
                                                            CLERK OF FAMILY COlJF.T




                                           17
