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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 J.W.I.,                                 :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 H.A.I.                                  :    No. 1955 MDA 2017


            Appeal from the Order Entered, November 17, 2017,
               in the Court of Common Pleas of York County,
                Civil Division at No(s): 2006-FC-002108-03.


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

MEMORANDUM BY KUNSELMAN, J.:                          FILED JUNE 28, 2018

      In this matter, J.W.I. (Father) appeals the modification of his physical

custody of his 11-year-old daughter, who has special needs. Upon the request

of H.A.I. (Mother), the trial court reduced Father’s physical custody from

shared to partial; legal custody remains shared. After careful review, we find

no abuse of discretion and affirm accordingly.

      On November 15, 2017, the trial court held a hearing on Mother’s

petition to modify the parties’ long standing arrangement of shared physical

custody. Mother had previously sought primary physical custody as recently

as 2013. At that time, the trial court denied her request, opting to keep the

arrangement the same.      Since then, the parties continued to experience

difficulties co-parenting. The subject of these proceedings is the parties’ 11-

year-old daughter, C.I.    The daughter suffered a stroke in utero and is
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developmentally delayed as a consequence. She did not speak until she was

four years old. MRI scans revealed that she has use of approximately half of

her brain. Moreover, she presents weakness on the right side of her body.

She was in a neurological support class in the fifth grade, where she achieved

high marks. Mother argues that modification of shared custody is warranted

because Father has failed to fully participate in the child’s life, and as such,

the child is not living to her potential.

      Father is an electrician. Testimony revealed that he worked Monday

through Friday, 6:00 a.m. to 2:00 p.m. During his custodial period, which he

exercised on a week-on-week-off basis, the child resided in the home of

Paternal Grandmother during the school week and in Father’s apartment

during the weekends. On his custody days, Father picked the child up from

school and took her to Paternal Grandmother’s where he stayed until around

the child’s bedtime at 8:00 or 9:00 p.m. Paternal Grandmother made dinner,

helped with homework, assisted with brushing the child’s teeth and showering,

and finally put the child to bed.     Around this time, sometimes before and

sometimes after, Father would leave to go to his own apartment.          In the

morning, Paternal Grandmother drove the child to school.

      The trial court’s order reduced Father’s shared custody to partial custody

– alternating weekends plus an additional weeknight visit each week. The

weeknight visit does not include an overnight. The court further ordered the

parties to resume the week-on-week-off shared custody schedule during the

summer. Father presents this timely appeal.

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      He raises the following issues for our review, which we have reordered

for ease of disposition.

         1. Did the trial court err by finding that Father had not
         fulfilled his parental duties in the months prior to trial in light
         of Father’s debilitating surgery in February 2017 and his
         required convalescence?

         2. Did the trial court err in its analysis of the custody factors
         pursuant to 23 Pa.C.S.A. § 5328, in finding that said
         analysis warranted a change in the long-standing equal
         physical custody arrangement?

         3. Did the trial court err by changing the equal physical
         custody schedule and awarding Mother majority physical
         custody as insufficient evidence was produced at trial
         demonstrating the existing long-standing arrangement did
         not serve the best interest of the child?

         4. Did the trial court err in utilizing the change in Father’s
         work schedule as one of the bases for alternating the equal
         physical custody schedule?

Father’s Brief, at 5-6.

      Our scope and standard of review of an appeal from a custody order 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 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.

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

      We may dispose of Father’s first issue instantly. Father argues that the

trial court held against him the fact that he temporarily could not fulfill

parental duties after he underwent a surgery that required a convalescence

period. While the trial court concluded that Father abdicated his parental role

to his mother, the Paternal Grandmother, the court did not reach this

conclusion on account of the surgery and Father’s recovery time. In its opinion

pursuant to Pa.R.A.P. 1925, the trial court dismissed this notion.

         The     [trial  court]    entirely   disagrees    with    this
         characterization…. Father testified that he was able to
         reengage with his daughter after his surgery, returning to
         normal day-to-day activities, at the beginning of the 2017-
         2018 school year. [] [The trial court] did not take into
         consideration the time period that Father was recovering
         over the summer of 2017 from his surgery to change the
         primary custody during the school year. Rather, the [trial
         court] looked at this school year…and found that it is in the
         best interest of the child for primary physical custody to be
         with Mother during the school year.

Trial Court Opinion (T.C.O.), 12/16/17, at 5-6 (citation to transcript omitted).

Thus, it is clear that the trial court did not penalize Father for his temporary

inability to fulfill his parental obligations while he recovered from surgery.

      Father’s remaining issues pertain to both specific and general aspects of

the custody analysis mandated by § 5328(a). Father argues that the trial

court should have continued the previous arrangement given its long-standing

nature. He claims he did not abdicate his parental role, but merely made

proper child care arrangements as authorized under the custody statute.


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Additionally, he surmises, the trial court’s decision is against the weight of the

evidence. We discuss these “inextricably intertwined” contentions together,

just as Father does in his brief. See Father’s Brief, at 16.

       Father argues that we must view this case against the “backdrop” of

the previous custody litigation, including the findings the trial court made in

2013, as well as this Court’s decision affirming those findings. See H.A.I. v.

J.W.I., 5 MDA 2014, 2014 WL 10896813 (Pa. Super. 2014) (unpublished

memorandum). Five years ago, the trial court denied Mother’s request for

primary custody. We affirmed. In doing so, we observed the trial court’s

finding that the child, given her special needs and her age, did not respond

well to changes in her routine.       Id., at *14.    We also noted the close

relationship the child – then 8 years old - had with Paternal Grandmother. Id.

      Father cites to our previous memorandum and observations.              See

Father’s Brief, at 38.     He calls the trial court’s oversight of these facts

“grotesquely disturbing.” Id., at 37. He further describes the trial court’s

present decision as “cavalier” because the court left “completely unaddressed”

the impact the decision would have on the child. Id., at 38. It seems Father

desires us to impose upon the trial court a “law of the case” rule regarding

prior custody findings.

      We disagree. Custody law is not the law of inertia. We do not force

petitioners and custody courts to obey the status quo in perpetuity absent a

showing of some change.       Rather, “[u]pon petition, a court may modify a

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

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This provision codifies the standard set forth by our Supreme Court in Karis

v. Karis, 544 A.2d 1328, 1332 (Pa. 1988)(“A petition for modification of a

partial custody to shared custody order requires the court to inquire into the

best interest of the child regardless of whether a ‘substantial’ change of

circumstances has been shown”). See 2010 Comment to §5338.

      Similarly, there is no presumption that custody shall be awarded to a

particular parent. See 23 Pa.C.S.A. § 5327(a). In other words, neither parent

maintains the high ground when defending against a custody modification.

The legislature has only mandated that a court may modify a custody order

to serve the best interests of the child. See 23 Pa.C.S.A. § 5338. It placed

upon neither parent an initial burden to establish that modification is in the

best interests of the child. This situation is markedly different from relocation

cases, where the legislature explicitly provided that the party moving shoulder

the burden of proof. See 23 Pa.C.S.A. § 5337(i).

      Contrary to Father’s argument, had the trial court not conducted a new,

contemporaneous review of the custody factors under § 5328(a) in response

to Mother’s petition, its decision would have been erroneous. See M.E.V. v.

F.P.W., 100 A.3d 670, 682 (Pa. Super. 2017) (holding that the trial court

failed to provide the requisite contemporaneous review of the § 5328 factors

in determining whether to modify a 17-month-old custody order).

      Finally, to the extent our custody law demands homage to the custody

arrangement’s status quo, the same is explicitly contemplated by §

5328(a)(4), which requires the court to consider “the need for stability and

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continuity in the child’s education, family life and community life.” Reverence

for “how it has been” is implicitly contemplated by other factors as well, e.g.,

§ 5328(a)(10): “Which party is more likely to attend to the daily physical,

emotional, developmental, educational and special needs of the child.” The

status quo might be a perfectly fine basis for denying a modification, but that

decision must be ascertained through a proper analysis of the factors identified

by § 5328(a).

      With these guideposts in mind, we conclude that the trial court

conducted a proper, contemporaneous review of the case under § 5328(a).

To the extent that the child needed a strict routine, complete with Paternal

Grandmother’s involvement, such a need has evidently dissipated over the

last several years.   As is the trial court’s exclusive prerogative, the court

afforded these facts little weight in the instant analysis. Custody orders are

fluid by their nature; an application of the custody factors must be able to

adapt to the child’s growth and change.

      In terms of the need for stability and continuity, the trial court found

factor 4 favored neither parent. See 23 Pa.C.S.A. § 5328(a)(4). The court

determined that both parties exaggerated minor issues – e.g., the stepfather’s

disciplinary tactics, and the child’s exposure to Father’s girlfriends. The court

found both parents have done a good job keeping their daughter’s life stable.

      In terms of the Paternal Grandmother’s role in this child’s life, the trial

court found that this relationship was not as essential as it had been

previously.   Specifically, the court found that the Paternal Grandmother

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frustrates the daughter’s attempt to learn and achieve independence. To the

extent that the Paternal Grandmother performs “long-standing” parental

duties – i.e., cooking, bathing the child, putting her to bed, waking her up,

driving her to school – the trial court determined that those tasks were

detrimental to Father’s case.

      The Paternal Grandmother, whose devotion to the child bleeds through

the record, is simply not a party to this case. And if she was, there would be

a presumption – embossed in the custody statute – that custody should be

awarded to the parent. See 23 Pa.C.S.A. § 5327(b). In other words, the

court is not bound by its previous recognition of the Paternal Grandmother’s

altruism. And to the extent that she would have hypothetically been placed

on equal standing with Mother, there would still have been a presumption that

Mother should have primary custody.

      Having determined that the trial court did not need to adhere to the

long-standing arrangement between Paternal Grandmother and child, we

address Father’s alternative argument. He counters that the custody factor §

5328(a)(12)(relating to the party’s ability to make appropriate child-care

arrangements) is the codified proposition that a parent’s work schedule may

not deprive that parent of custody if suitable arrangements can be made. See

Father’s Brief, at 36.

      For support, Father cites to a line of cases decided under since-repealed

sections of our custody law. See Gerber v. Gerber, 487 A.2d 413, 416 (Pa.

Super. 1985); and see Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998);

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and see Johnson v. Lewis, 870 A.2d 368 (Pa. Super. 2005). These holdings

may still retain persuasive value, but the custody criteria upon which these

cases were decided have been assimilated into the § 5328(a) analysis. See

P.J.P. v. M.M., 2018 Pa. Super. 100, 2018 WL 1979832 (Pa. Super. April 27,

2018) (holding that the shared custody factors set forth in Wiseman v. Wall,

718 A.2d 844 (Pa. Super. 1998), which predated the 2011 amendments to

the custody law, assimilated into the custody factors set forth in 23 Pa.C.S.A.

§ 5328(a)); see also M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super.

2013)(“We simply cannot graft the judicially-created primary caretaker

doctrine on to the inquiry that the legislature has established, and so we

conclude that the primary caretaker doctrine, insofar as it required positive

emphasis on the primary caretaker’s status, is no longer viable.”).

      As such, Father cites no binding authority beyond § 5328(a)(12) to

support his claim. But more to the point, Father assumes a false proposition;

in reality, the trial court did not deprive Father of custody because he utilized

the Paternal Grandmother to help get the child to school.

      Section 5328(a)(12) recognizes that the custodial parent is in many

ways a single parent, who must make alternative child care arrangements.

Certainly this factor is not designed to punish working parents, particularly

those children who have children with special needs. But surely there is a

difference between hiring a nanny when the parent has to work the nightshift,

as was the case in Johnson, and allowing the childcare provider to fulfill all

parental obligations while the parent resides in a completely different home

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from the child.         Given the supporting facts, the trial court was within its

discretion to conclude that Father chose to delegate his parental role to

Paternal Grandmother. Father suggests he was well within his rights to make

this choice under §5328(a)(12). He is mistaken. The trial court did not award

primary custody to Mother because it believed the child would be better off

with Mother than with a babysitter. The basis for the decision was the court’s

conclusion that Father abdicated his parental role.             This conclusion was

supported by the record.

        Not only did the court articulate reservations about Father’s role as a

caregiver, but the court also identified the quality of his custodial time as being

less beneficial to the child than the time the child spent in Mother’s custody.

For instance, the court heard testimony that the subject child desires to fulfill

her role of being the “big sister” to Mother’s other child, a half-sibling E.W.,

age 4. Because the child feels the need to be an example, the child wants to

do everything first. In this sense, the younger sibling keeps the child on her

toes.        Their relationship has the effect of advancing the child’s own

development. Although Father is quick to point out that the child articulated

exasperation with her half-sister (“she drives me nuts”), the court was still

within its discretion to find the sibling relationship factor in favor of Mother.

See 23 Pa.C.S.A. § 5328(a)(6).

        In    another    example    of   Mother’s   custodial    time   being   more

advantageous, the trial court noted that Mother takes the child to a personal

trainer. Mother testified that Father has frustrated her attempts to coordinate

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this therapy, because he does not take the child to appointments that occur

on his time.

       Finally, in articulating her preference to live with Mother, the child

explained during her in camera interview that Paternal Grandmother is prone

to complete the child’s daily tasks for her, e.g. showering. She stated Paternal

Grandmother also “drives her nuts.”1           The court determined that Paternal

Grandmother’s       child   rearing    style   was   overbearing   in   light   of   the

developmentally beneficial independence that the child enjoys in Mother’s

home. Given the differing levels of care at each household, the court placed

a fair amount of weight on the child’s preference that she live primarily with

Mother. See 23 Pa.C.S.A. § 5328(a)(7).

       In his brief, Father argues that the court should not place such weight

on the “ambiguous” testimony of a “neurologically challenged 11-year-old.”

See Father’s Brief, at 26. He contends that “the child was not as cognitively

and intellectually sound as the court painted her to be.” Id., at 27. We have

long held, and reaffirm today, that “[t]he weight to be given to a child’s

preference can best be determined by the judge before whom the child

appears.” Cardamone v. Elshoff, 659 A.2d 575, 583 (Pa. Super. 1995). On

____________________________________________


1 Father argues that the trial court abused its discretion by downplaying the
child’s frustration with her half-sibling while exaggerating her frustration with
Paternal Grandmother when the child used the exact same phrase (“she drives
me nuts”) to describe both. But Father fails to realize that, to the extent these
emotions are even the same, the frustration the child has with her half-sibling
drives the child toward independence. Conversely, the frustration the child
has with Paternal Grandmother hinders her growth.

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issues of credibility and weight of the evidence, we defer to the findings of the

trial judge who has 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) (emphasis added).

      The trial court determined that the child, despite her limitations, was

nevertheless able to express a well-reasoned preference with normal cognitive

abilities for an 11-year-old child. See T.C.O., at 4-5. The cold record reveals

some hesitation in some of the child’s answers.       But we cannot ascertain

whether such hesitation reflected a shy child who was forced to speak with an

adult stranger, or a child with limited intellectual functioning, or some

combination of both. In delineating its reasons for finding this factor in favor

of Mother, the trial court explained:

         It would be easy to say that this child who is 11, because of
         her developmental delays physically, emotionally, and
         socially, has some developmental delays intellectually, and
         she does slightly, but her immature communication with the
         court in the interview was not – immature wasn’t the right
         word. It was a lack of articulation. She articulated more like
         a 9 or 10-year-old would, but it was clear to this judge that
         her cognitive abilities and her ability to think through things
         is actually quite normal.

         She was able to articulate to me relationships, opinion, so
         forth, and give reasons. The reasons were not always
         incredibly articulate, but they made sense, and I find this
         child’s maturity and judgment frankly impressive given the
         other developmental delays she has.

N.T., 11/15.17, at 266-267.




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      This explanation from the trial judge exemplifies why we must afford

discretion to trial judge presiding over these custody cases. In a case like this

where parents evidently disagree about the extent of child’s intellectual

disability, it would be absurd for this Court to substitute its own judgement

for that of the trial judge, who was uniquely situated to observe the child.

      Like the other findings discussed above, the trial court’s summation of

the child’s preference is supported by the facts. Father’s main argument is

that the trial court placed the wrong weight on the evidence.         Here, too,

Father’s point is deficient. We have said:

         The parties cannot dictate the amount of weight the trial
         court places on evidence. Rather, the paramount concern
         of the trial court is the best interest of the child. Appellate
         interference is unwarranted if the trial court’s consideration
         of the best interest of the child was careful and thorough,
         and we are unable to find any abuse of discretion.

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citation omitted). In sum,

Father disagrees with the weight the trial court placed on the facts yielded by

the testimony and evidence presented at trial.       Our review of these facts

support the trial court’s conclusions. As such, we cannot discern any abuse

of discretion.




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     Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2018




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