J-S47008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 K.A.C.                                  :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 J.W.C.                                  :
                                         :
                    Appellant            :   No. 637 MDA 2019

              Appeal from the Order Entered March 27, 2019
    In the Court of Common Pleas of York County Civil Division at No(s):
                           2018-FC-001927-03


BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                         FILED OCTOBER 25, 2019

      Appellant, J.W.C. (“Father”), appeals from the March 27, 2019 Order

that, inter alia, awarded Appellee, K.A.C. (“Mother”), sole legal and physical

custody of the parties’ children, 5-year-old G.C. (“Child”) and 3-year-old H.C

(collectively, “Children”).   Because the trial court failed to engage in a

mandatory assessment of the 23 Pa.C.S. § 5328 custody factors prior to the

notice of appeal deadline, we are constrained to vacate the part of the Order

that addresses custody and remand this case for further proceedings.

      A detailed factual and procedural history is unnecessary to our

disposition. Briefly, Father and Mother married in August 2012 and are the

parents of Children, who were born during the marriage.          The parties

separated in March 2017 after Child disclosed to Mother that Father sexually

abused her. Custody Complaint, 9/24/18, at ¶19. On September 24, 2018,

Mother filed a Complaint for Divorce and Custody alleging that Father sexually
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abused Child and requesting that the trial court grant Mother sole legal and

physical custody of Children.

        On October 19, 2018, after a custody conciliation conference, the trial

court entered an Interim Order for Custody granting the parties shared legal

custody, Mother primary physical custody, and Father supervised visitation

every Saturday from 3:00 PM to 7:00 PM.

        On March 20, 2019, the trial court held a hearing on Mother’s Complaint

for Custody. At the beginning of the hearing, the parties submitted a signed

Stipulation of Facts to the trial court.1 N.T. Hearing, 3/20/19, at 3. Mother

testified on her own behalf and called the following witnesses: Jami Dumler,

Licensed Social Worker at Pennsylvania Counseling; S.A., Children’s maternal

grandmother; and O.A, Children’s maternal aunt. Father testified on his own

behalf.

        At the conclusion of the hearing, the trial court informed parties that it

was going to “dictate an opinion” and stated the following on the record:

        It is the opinion of this Court, based on credible testimony
        provided from [Child]’s therapist, mother, maternal grandmother,
        and [Child], and I have no doubt that Father has sexually abused
        Child.

        In addition to [Child]’s own disclosure of sexual abuse to me,
        credible testimony was provided that [Child] has exhibited a
        multitude of symptoms of sexual abuse including the following:

        Initiating sex acts with other children; describing sex acts she
        should have no knowledge of; playing out sexually activities with
        dolls; drawing out sexual scenes, particularly private parts on
____________________________________________


1   We are not able to locate this Stipulation of Facts in the certified record.

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       people; aggressive masturbation; asserting objects into her
       vagina; urinary accidents and potty training regression;
       encopresis; nightmares; night terrors; and recurrent fear based
       dreams; dramatic changes in behavior, particularly her fear of
       Father in clinging to Mother at custody exchanges; [Child]’s
       explosive anger and aggression; and [Child] showing fear of
       places or events with little explanation.

       For example, her fear of being left alone with her therapist; or her
       fear of being left alone with me when I was getting ready to
       interview her in chambers.

       And another example is when she threw-up on herself at a custody
       exchange with Father.

       Individually these symptoms may not necessarily be an indication
       of sexual abuse, but viewed together they have convinced me
       [Child] has been abused.

       Because this [c]ourt is making a finding of sexual abuse against
       Father, and I believe it is the only significant factor in this case,
       and I’m not going to review any other custody factors because
       they have no weight when compared with this finding of abuse.

       This finding of abuse necessitates that I grant sole legal and
       physical custody to mother, and I’m very sorry that the system
       has failed [Child] to this point.

N.T. Hearing, 3/20/19, at 168-170; Trial Ct. Op., filed 3/27/19, at 1-3. On

March 27, 2019, the trial court issued an Order that, inter alia, granted sole

legal and physical custody of Children to Mother and ordered Father to have

no contact with Children.2

       Father timely appealed and filed a contemporaneous Concise Statement

of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i)

(“Concise Statement”). In his Concise Statement, Father asserted, inter alia,

____________________________________________


2 The Order also found Father in contempt for violating the terms of the
Interim Order for Custody.

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that the trial court “erred and abused its discretion by failing to make findings

under each of the 16 child custody factors [pursuant to 23 Pa.C.S. 5328].”

Concise Statement, 4/22/19, ¶3. In response, the trial court issued a Rule

1925(a) Opinion that addressed the Section 5328 custody factors.

       Father raises the following issue for our review: “Whether the [c]ourt

erred and abused its discretion by awarding Mother sole legal and physical

custody of [Children] by concluding that Father sexually abused [Child] and

that such finding over-rules [sic] all other factors.” Father’s Brief at 5.

       This Court reviews a custody determination for an abuse of discretion.

In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We will not find an abuse

of discretion “merely because a reviewing court would have reached a different

conclusion.” Id. (citation omitted). Rather, “[a]ppellate courts will find a trial

court abuses its discretion if, in reaching a conclusion, it overrides or

misapplies the law, or the record shows that the trial court’s judgment was

either manifestly unreasonable or the product of partiality, prejudice, bias or

ill will.” Id.

       Further, our scope of review is broad, but we are “bound by findings

supported in the record, and may reject conclusions drawn by the trial court

only if they involve an error of law, or are unreasonable in light of the

sustainable findings of the trial court.” Saintz v. Rinker, 902 A.2d 509, 512

(Pa. Super. 2006) (citation omitted). Importantly, “[o]n issues of credibility

and weight of the evidence, we defer to the findings of the trial judge who has


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had the opportunity to observe the proceedings and demeanor of the

witnesses.” K.T. v. L.S., 118 A.3d 1136, 1159 (Pa. Super. 2015) (citation

omitted).   We can only interfere where the “custody order is manifestly

unreasonable as shown by the evidence of record.” Saintz, 902 A.2d at 512

(citation omitted).

      It is well settled that “[t]he paramount concern in child custody cases is

the best interests of the child.” C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018).

“The best-interests standard, decided on a case-by-case basis, considers all

factors which legitimately have an effect upon the child’s physical, intellectual,

moral and spiritual well-being.” M.J.N. v. J.K., 169 A.3d 108, 112 (Pa. Super.

2017).

      The Child Custody Act, 23 Pa.C.S. §§ 5321-5340, requires a trial court

to consider all of the Section 5328(a) best interests factors when “ordering

any form of custody.” 23 Pa.C.S. § 5328(a). A trial court must “delineate the

reasons for its decision when making an award of custody either on the record

or in a written opinion.” S.W.D. v. S.A.R., 96 A.3d 396, 401 (Pa. Super.

2014). See also 23 Pa.C.S. § 5323(a), (d). However, “there is no required

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

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

on those considerations.” M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super.

2013).   Notably, “section 5323(d) requires the trial court to set forth its

mandatory assessment of the sixteen Section 5328 custody factors prior to


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the deadline by which a litigant must file a notice of appeal.” C.M. v. M.M.,

2019 PA Super 216, *4 (filed July 12, 2019), quoting C.B. v. J.B., 65 A.3d

946, 955 (Pa. Super. 2013).

      In his Brief, Father argues that the trial court erred by failing to consider

all of the Section 5328 custody factors prior to issuing a Rule 1925(a) Opinion.

Father’s Brief at 13. We are constrained to agree.

      Our review of the record reveals that the trial court only considered one

of the Section 5328 custody factors when it made its custody decision. In

fact, the trial court conceded this when it stated the following on the record

and in a written Opinion: “Because this [c]ourt is making a finding of sexual

abuse against Father, and I believe it is the only significant factor in this case,

and I’m not going to review any other custody factors because they have no

weight when compared with this finding of abuse.” N.T. Hearing, 3/20/19, at

170; Trial Ct. Op., filed 3/27/19, at 3. As noted above, the trial court must

engage in a “mandatory assessment of the sixteen Section 5328 custody

factors prior to the deadline by which a litigant must file a notice of

appeal.” C.M., supra at *4. Thus, it is of no moment that the trial court

considered the Section 5328 custody factors in its Rule 1925(a) Opinion, after

Father filed his Notice of Appeal.

      Accordingly, we vacate the portion of the March 27, 2019 Order that

addresses custody, and remand this matter for further proceedings. The trial

court shall immediately enter an interim custody order. The trial court shall


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review the record, incorporating evidence from the March 20, 2019 custody

hearing and the parties’ Stipulation of Facts. If, after reviewing the record,

the trial court needs additional evidence on discrete issues, the trial court shall

schedule a hearing for that limited purpose. The trial court shall ensure that

the parties’ Stipulation of Facts is included in the certified record. The trial

court shall enter a final custody order based on its consideration and

assessment of the Section 5328 custody factors within 30 days of this

Memorandum or, if an evidentiary hearing is scheduled, within 30 days of the

conclusion of the hearing. Finally, the trial court shall delineate on the record

or in a written opinion the reasons for its decision—including consideration of

all of the Section 5328 custody factors—prior to the deadline by which Father

must file a notice of appeal.3

       Order vacated in part. Case remanded with instructions. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2019



____________________________________________


3 In light of our disposition, we decline to address Father’s remaining
arguments.

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