J-A02045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    M.J.R.,                                         IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellant

                        v.

    K.S.U

                             Appellee                  No. 1333 WDA 2017


                  Appeal from the Order entered August 21, 2017,
                in the Court of Common Pleas of Allegheny County,
                     Family Court, at No(s): FD 12-08295-008


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                      FILED: March 1, 2018


         Father, M.J.R., appeals from the order granting Mother, K.S.U., primary

physical and primary legal custody of the parties’ seven-year-old son, V.R.1

Because the trial court’s findings of fact and custody analysis were not abuses

of discretion, and therefore, the trial court did not otherwise err in its custody

decision, we affirm.

         The trial court summarized the relevant facts as follows:



____________________________________________


1 The trial court ordered that the parties shall share legal custody of the child
“except that Mother shall have legal custody as [it] relates to medical
decisions. She should inform and consult Father with an eye toward
agreement first. If the [p]arties are unable to agree, Mother may make the
decision. Father has the right to participate if he chooses.” The effect of a so-
called tie-breaker clause is an award of legal custody, per se. We note that
Father has not appealed this legal custody award.
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       The parties never married but moved in together before the
       child’s birth [in 2010]. Their relationship was often volatile,
       and the parties ceased living together in 2012. Mother
       claims Father was controlling and abusive. Father claims
       Mother was violent and that she abandoned the child when
       she left him.

       Mother has a daughter from a previous relationship, the
       child’s [ten-year-old half-sister, T.]. Mother and her fiancé
       currently live in Pittsburgh’s North Hills. [Also, in the home
       are the fiancé’s children, the child’s soon-to-be step
       siblings.] Father is married, and he and his wife are
       expecting a baby. They currently live in the Elizabeth
       Forward School District, which is where the subject child
       attended school previously. Father is a chiropractor with a
       chiropractic business which operates locally and in Chicago.
       Mother is a registered nurse.

       Both parties filed for primary custody in 2012. A consent
       custody order was filed on June 17, 2014, but the parties’
       custody arrangements have been fraught with difficulty,
       with both Parties again seeking primary custody of the child.
       Throughout the custody matter, the parties have been
       involved in contentious support litigation. In January of
       2016, Father filed for modification of custody, seeking
       primary custody and on July 18, 2016, he filed a Motion for
       Status Quo, asking that the child stay in the Elizabeth
       Forward School District. The trial court granted that relief
       on an interim basis since a School Choice hearing could not
       be scheduled until October of 2016. That hearing was
       subsequently cancelled, and the child remained in Elizabeth
       Forward for first grade.

       On March 10, 2017, Mother filed a petition seeking legal
       custody regarding medical decisions and the right of first
       refusal. Mother alleged that the child had become very ill
       with a high fever during Father’s custody time, but that
       Father was in Chicago and so the child was cared for by
       various family members. She alleged Father forbade his
       family from administering any medicines to aid the child or
       reduce his fever. She also claimed she was not informed
       that the child would not be with Father during his custody
       time or of the child’s illness for days. Upon taking custody
       of the child, Mother took him to the hospital as she could
       not take him to a pediatrician because the child was

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        unvaccinated at the time and exhibiting signs of serious
        illness. In response, Father, essentially, denied Mother’s
        allegations and indicated that she was blowing the matter
        out of proportion. [The trial court] gave Mother right of first
        refusal, but it reserved the question of legal custody
        regarding medical decisions for trial.

        A three-day custody trial was scheduled before the         trial
        court for August 1, 3, and 14, 2017. An additional hour    was
        scheduled for August 21, 2017 in order to obtain            the
        testimony of Mother’s 10-year-old daughter, T., who        was
        not available on any of the other days of trial.

        At trial, the court heard from both parties, Father’s wife,
        Mother’s fiancé, and members of Father’s family. The trial
        court also heard the psychological evaluator, Dr. Jan Marlan
        of Allegheny Forensic Associates, whose report was entered
        into evidence by Mother. The trial court interviewed the
        child, as well as Mother’s daughter.

        The trial court often found Father’s testimony not to be
        credible. Instead, the court found that he attempted to
        manipulate the facts to present whatever picture of himself
        he believed would win favor with the trial court. This was
        especially evident relating to two aspects of the child’s life –
        the child’s medical treatment including vaccinations, and the
        child’s involvement in athletics. Instead of focusing on the
        best interests of the child, Father was more concerned with
        his own views as to the child’s athletic performance and his
        own prowess as a medical care provider.

        In general, the trial court found Mother’s testimony to be
        much more truthful, and she presented as being more
        concerned with [the child’s] well-being. The trial court’s
        impressions were in line with and bolstered by the similar
        findings of the psychological evaluator.

        Accordingly, the trial court found Mother to be the more
        appropriate party to have primary custody during the school
        year as well as the parent who should have legal custody
        over medical decisions.

Trial Court Opinion, 10/13/17, at 1-3 (footnote omitted).




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      The trial court issued its custody order and findings of fact on August

21, 2017.      Among other critical factors was that the parties lived

approximately 50 minutes from each other. The trial court determined that

the distance was simply unworkable for shared physical custody during the

school year. However, shared custody would revert back on a week-on-week-

off basis during the child’s summer break. Father appealed.

      He raises the following claims:

         1. Did the trial court err and abuse its discretion in failing
            to award Father primary physical custody of the child,
            contrary to the best interest of the child where the
            totality of the facts and evidence of record elicited at trial
            support an award of primary custody to Father, when
            considering the same in light of the factors identified in
            23 Pa.C.S.A. §5328?

         2. Did the trial court err and abuse its discretion in ordering
            a schedule which will serve to damage and substantially,
            but negatively, impact the relationship between Father
            and the child, creating periods where the child will go
            without contact with Father for up to twelve (12) days?

         3. Did the trial court err and abuse its discretion in
            considering statutory factors and evidence regarding a
            child not at issue in this case, and in considering unsworn
            testimony of visitors in those factors?

Father’s Brief at 12.

      Our scope and standard of review of child custody orders are as follows:

         [O]ur 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 the
         presiding trial judge who viewed and assessed the witnesses

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          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.

J.M.R. v. J.M., 1 A.3d 902, 911 (Pa. Super. 2010) (quoting Collins v. Collins,

897 A.2d 466, 471 (Pa. Super. 2006)).

      “The primary concern in any custody case is the best interests of the

child.” J.M.R., 1 A.3d at 900.    “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.” Id. (citing

Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006)). When determining

whether modification of a custody order “is in a child’s best interest, the court

has an obligation to consider all relevant factors that could affect the child’s

well-being.” Id. (quoting Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super.

2006)).

      Specifically, pursuant to 23 Pa.C.S.A. § 5328(a), trial court must analyze

the various factors set forth by the legislature:

          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

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       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.

       (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.



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          (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.A. § 5328(a). Further, the “party seeking modification of custody

arrangements has the burden to show that modification is in the child’s best

interest.” J.M.R., 1 A.3d at 911.

      Father’s first issue challenges 10 of the trial court’s 16 custody factor

determinations.    Father lists these as examples of the trial court’s fatally

deficient analysis and/or as examples of determinations being against the

weight of the evidence.         The totality of these faults, Father contends,

constitutes reversible error.

      Initially, we note that the Custody Act requires the trial court to

“delineate the reasons for its decision on the record in open court or in a

written opinion or order.” 23 Pa.C.S.A. §5328(d). We have explained that the

trial court must do this prior to the deadline by which a litigant must file a

notice of appeal, and preferably at the time the custody order is issued or

shortly thereafter. See C.B. v. J.B., 65 A.3d 946 (Pa. Super. 2013). In the

instant   case,   we   note   that   the   trial   court   issued   findings   of   fact

contemporaneously with the custody order. Upon the filing of Father’s appeal,

the trial court then submitted its 1925(a) opinion in accordance with the Rules

of Appellate Procedure.

      As such, we must consider whether the trial court’s findings of fact are

deficient. To that end, we have further explained “[t]he Custody Act only



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requires that the trial court articulate the reasons for its custody decision […]

taking into consideration the enumerated [23 Pa.C.S.A. § 5328] factors.”

M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013). “[T]here is no required

amount of detail for the trial court’s explanation; all that is required is that

the enumerated factors are considered and that the custody decision is based

on those considerations.” Id.

      We find the trial court’s pre-opinion findings substantially complied with

23 Pa.C.S.A. § 5328(d).       All the factors were identified as being either

favorable to a parent, or neutral, or inapplicable. To be clear, some of the trial

court’s pre-opinion findings provided no detail; the trial court would do well to

provide a more thorough analysis in the future, outlining at least the primary

reasons for its findings, either in writing or on the record. This can always be

supplemented later if a party appeals. Otherwise the parties and this Court

cannot determine the trial court’s rationale for its decision. In this instance,

we do not believe the deficiencies are such that this Court is obligated to

remand the matter back to the trial court for a supplemental analysis. While

the court’s findings as to some factors, e.g., § 5328(a)(1), were largely devoid

of detail compared to others, e.g., § 5328(a)(9)-(10), all determinations were

supported by the evidence. Father was able to identify which of the factors

the trial court found against him, and he was able to articulate to us why these

findings were against the weight of the evidence.       We discuss sequentially

those factors that Father disputes.




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       In terms of § 5328(a)(1), which party would best encourage the

relationship with the noncustodial party, the trial court found Mother’s

testimony to be credible and Father’s testimony not credible. Mother testified

that Father did not permit contact between Mother and the child during

Father’s custodial times. Mother further testified that Father has withheld the

child in the past, e.g., when Mother filed for child support. The record supports

the trial court’s determination that this factor favors Mother.

       In terms of § 5328(a)(2), the trial court found Mother’s testimony about

the abuse she suffered at the hands of Father to be credible. The trial court

also noted that Mother’s other daughter, T., who is not related to Father and

not the subject of these proceedings, testified that she was also afraid of

Father when she lived with him. Father asserts as evidence of the trial court’s

error, the fact that the court cited T.’s testimony in its findings but downplayed

it in the trial court’s opinion. The argument fails; even if we were to ignore

the T.’s testimony, the finding is still supported by Mother’s testimony.

       A discussion of § 5328(a)(4), which considers the child’s need for

stability, should be made in conjunction with § 5328(a)(11), which pertains

to the proximity of the parties’ residences. The proximity finding is a critical

one.    The parties reside approximately 50 minutes apart. The trial court

correctly noted that shared physical custody is impractical. Even if the parties

could manage the commute, forcing the same on a child would adversely

affect his stability.   Father argues that because the child has attended

kindergarten and first grade in the Elizabeth Forward School District, the

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stability and continuity factor favors him. But, Father’s argument suggests

continuity for its own sake. This line of reasoning ignores the realities on the

ground. Despite Father’s claim that Mother is nomadic, the record reflects that

Father has moved around the area as well. It was only by default that the

child remained enrolled in the Elizabeth Forward School District. His argument

does not change the fact that Mother is now rooted nearly an hour away,

making the status quo untenable.

     The trial court found that it would not necessarily be in the child’s best

interest to stay in the same school district simply for the sake of staying in

the same school district. The trial court was within its discretion to arrive at

this conclusion. The trial court observed that the child possesses the ability to

succeed despite transferring to a new school district.          Moreover, as the

discussion below will reveal, it was the child’s preference to transfer. It was

within the trial court’s discretion to limit § 5328(a)(11)’s inquiry to the physical

distance between the parties, rather to assign cause or fault behind the

distance. It was also within the court’s discretion to place less weight on §

5328(a)(4).

     In terms of § 5328(a)(5), the court determined that the child has

extended family available to him on both sides and considered this factor to

be neutral. Father argues the Court ignored testimony from Father’s relatives

as to the closeness of their relationship. To the contrary, the trial court clearly

considered testimony regarding both extended families. The trial court simply




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did not find the paternal relationships were such that they should be afforded

more weight than the maternal relationships.

      In terms of § 5328(a)(6), the court considered the child’s siblings. The

trial court explicitly noted the child is the half-sibling to T., Mother’s other

child. In its findings, the court was silent to the fact that Father’s wife was

pregnant with a future half-sibling. The findings were also silent to the fact

that during Mother’s custodial time, the child would live with his step-siblings.

It was within the trial court’s discretion to find that the child’s present

relationship with his maternal older half-sibling was more meaningful to the

child than the future relationship the child would have with his paternal unborn

half-sibling.

      In terms of § 5328(a)(7), which concerns the preference of the child,

the court found his preference was to live with Mother but noted that he “feels

equally good in both houses.” The child was also agreeable to changing school

districts to be with his step-siblings. Based on the child’s testimony, the court’s

finding is not against the weight of the evidence or unreasonable, as Father

proclaims.

     In terms of § 5328(a)(8), which considers efforts by a parent to turn the

child against the other parent, although there are no specific findings by the

trial court as to this factor, we do not find that it affected the overall custody

analysis. Moreover, Father did not identify specifically which statutory factors

were not properly weighed by the trial court in his Pa.R.A.P. 1925(b)




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statement. Thus, we cannot fault the trial court for failing to provide a more

detailed analysis of this factor. See Trial Court Opinion, 10/13/17, at 4.

      In terms of § 5328(a)(9)-(10), which consider the parenting and

nurturing of the child, the court determined these factors favored Mother. In

arguing that these findings are against the weight of the evidence, Father

refers to the court’s use of an anecdote to describe Father’s controlling nature.

The trial court noted that Father refused to let the child wear his hair a certain

way. Had the trial court’s findings on these factors been based on this incident

alone, Father’s contention might have merit. But the trial court merely used

this instance as illustrative of Father imposing his personal preferences onto

a child who, one might conclude, is old enough to make his own choices about

such things. Similarly, the trial court did not find Mother to be better suited

to maintain a nurturing relationship because Father is a tough sports dad. The

trial court found Father’s views and attitudes about sports to be worrisome.

But the court was evidently not that concerned, as the child is to maintain his

enrollment in sports in Father’s geographic area if the child so desires. The

court explicitly sought to preserve this aspect of their relationship.

      The primary reasoning behind the trial court’s finding that § 5328(a)(9)-

(10) favored Mother was Father’s decision to prevent the child from receiving

proper medical attention. Indeed, § 5328(a) dictates that the court shall give

weighted consideration to those factors that affect safety. The most recent

round of litigation was precipitated by Father’s refusal to vaccinate the child,

despite the child experiencing a severe illness—an illness which Father sought

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to hide from Mother. In reaching its conclusion, the trial court also relied on

the forensic psychologist’s unequivocal recommendation that Mother is the

better parent to meet the needs of the child.         When considering all of the

evidence, it is somewhat disingenuous of Father to argue that the trial court

found for Mother because Father insisted the child’s hair be tidier.

      We note Father does not take issue with the trial court’s analysis as to

§ 5328(a)(3); (13); or (15), which were all found to be in favor of Mother.

Father does not contest the trial court additionally finding, pursuant to §

5328(a)(16), that Father’s communication was inconsistent and thus should

be counted against him. The trial court did not err or abuse its discretion on

any of these factors.

      In his second contention on appeal, Father submits that the trial court

erred when fashioning an award that will cause Father to be without custody

of the child for up to 12 days. For support, Father cites M.J.N. v. J.K., 169

A.3d 108 (Pa. Super. 2017), where we reversed a custody award that caused

a father to be without custody for 10 days. Father also cites M.A.T. v. G.S.T.,

989 A.2d 11 (Pa. Super. 2010), where we reversed the trial court for its

unsubstantiated fear that commuting to school from two separate households

would disrupt the child’s stability.

      Those cases are instantaneously distinguishable. In M.J.N., the parties

lived approximately 20 minutes apart.           In M.A.T., the parties lived even

closer: five minutes apart. In the present matter, where the parties reside 50

minutes apart from each other, the status quo would have caused Mother to

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spend over three hours driving the child to and from school. This is of no

consequence to Father, of course. But the status quo also would also cause

the child to spend over 90 minutes commuting daily. The trial court found the

schedule to be unsustainable now. The court also considered how the

instability will only get worse as the child grows older, starts school earlier,

and becomes more involved in the school community.

      The trial court did not simply rely on the clock and the odometer. Here,

common sense and the expert opinion aligned.               Dr. Marlan, in her

psychological evaluation, stated that the current arrangement is the least

beneficial arrangement for the child. We have said before that a trial court is

under no obligation to delegate its decision-making to expert testimony. See

M.A.T., 989 A.2d at 20. (citation omitted). “[W]hile a trial court is not required

to accept the conclusions of an expert witness in a child custody case, it must

consider them, and if the trial court chooses not to follow the expert’s

recommendations, its independent decision must be supported by competent

evidence of record.” Id. (citations omitted). Father’s cited authority stands

contradictory to his cause. The trial court wisely recognized that a shared

custody award in this circumstance could not be supported by the evidence.

      In his third contention, Father maintains that the trial court improperly

considered evidence concerning a child not at issue in this case, namely the

child’s half-sibling, T., and that the court negatively considered the fact that

T.’s relatives appeared in the courtroom on the final day of trial.




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      As for the allegation that the trial court’s decision to interview the non-

subject half-sibling was erroneous, we simply do not find that to be the case.

The sibling is related to the child and resides with Mother. The sibling was

also old enough to remember living with Father. This child’s testimony relating

to these individuals was relevant to the court’s custody analysis. In any event,

we believe the trial court when it stated that the sibling’s testimony hardly

factored into the custody decision.

      Additionally, we find no abuse of discretion or error in the manner in

which the trial court dealt with the appearance of T.’s relatives. Our review

of the record reveals that these “visitors,” as they were described by the trial

court, were T.’s father and his parents (T.’s paternal grandparents). None of

these visitors was related to the subject child. The visitors appeared on the

last day of testimony, which the court specifically scheduled to conduct an in

camera interview with T.      Father submitted that T.’s father and paternal

grandparents only appeared because they were concerned that a judge

wanted to speak with T., who was ten years old at the time of the trial. The

trial court did not find their “concern” about T. to be justified. Instead, as the

court told them, it found their presence to be “damaging behavior” toward T.

See Trial Court Opinion, 10/13/17, at 9. The trial court evidently believed

Father coordinated the visitors’ arrival; the trial court observed the tension

between Mother and both T.’s father and her paternal grandparents. The trial

court noted further that T.’s paternal grandparents had previously sought to




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influence the psychological evaluator’s recommendation, even though that

recommendation concerned the subject child and not T. Id.

       Ultimately, the trial court determined that T.s relatives’ appearance

“was clearly a show of animosity toward Mother,” and found their presence

“disturbing.” Trial Court Opinion, 10/13/17 at 3, footnote 1. However, in its

subsequent opinion, it addressed Father’s contention on appeal as follows:

            I spoke to the “Visitors” at the end of my interview of [T.]
            about what I found to be their damaging behavior with
            regard to [T.] but this had no bearing on my decision in this
            case. The presence of these non-parties did not factor into
            my decision nor did I assign any weight to anything they
            had to say to me. Although my conversation with them was
            transcribed, I did not consider it as evidence or testimony,
            unsworn or otherwise, nor did I use it in any way in my
            analysis or determination in this matter.

Id. at 9.

      Our review of the totality of the trial court’s findings, when coupled with

its analysis of all the statutory custody factors, supports the trial court’s

statement that it did not consider as evidence, or assign improper weight to,

T.’s relatives’ presence and/or discussion with the court.

      In sum, the trial court’s conclusions were reasonable, and it did not err

in awarding primary physical custody of the child to Mother.

      Order affirmed.

      Judge Bowes joins in this Memorandum.

      Judge Olson concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2018




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