J-A18027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

L.S.                                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

R.A.L.

                         Appellee                  No. 203 MDA 2014


              Appeal from the Order Entered December 11, 2013
               In the Court of Common Pleas of Luzerne County
                      Civil Division at No.: 13285 of 2010


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                      FILED SEPTEMBER 26, 2014

        L.S                          December 11, 2013 order that awarded

                                                                  (born in

August 2009), awarded primary physical custody of Child to Father, and

awarded partial physical custody of Child to Mother.   The trial court also

                               elocation with Child to New Hampshire.   We

affirm.

        Mother and Father were married in June 2008, and divorced in June

2012.     In addition to Child, each parent has two children from prior

relationships.   Mother and Father both live in Kingston, Luzerne County.

Father works as a rabbi in the area. Mother is unemployed.

        After separation, Father filed a petition for an expedited custody

hearing, alleging that Mother had not allowed contact between Father and
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Child. Pending a custody conference, on October 29, 2010, the trial court

ordered that Father was allowed custody of Child in the marital residence on

Monday, Wednesday, and Friday mornings. Father alleged, and Mother later

admitted, that Mot

marital residence by placing video cameras in the home. Notes of Testimony

                          -64.

      On March 25, 2011, the trial court entered a custody order that

awarded shared legal custody of Child, granted Mother primary physical

custody, and provided Father partial physical custody every other weekend

and every Wednesday morning.

Child, Mother filed a petition for a hearing in which she alleged that Child

returned to Mother with a bruise on her neck and a rash on her buttocks.

Mother further alleged that

      On June 7, 2011, Mother filed a petition and notice for relocation,

seeking to relocate with Child to Sunapee, New Hampshire.        On June 30,

2011, Father filed a counter-affidavit objecting to the proposed relocation.

      On June 7, 2011, Mother also filed a petition for enforcement, in which

she sought a contempt finding against Father for failing to allow her phone

contact with Child, for failing to communicate with Mother about issues

involving Child, and for failing to provide Mother with information when



allegations and asserted that Mother was interfering with his custodial

periods.

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        On July 19, 2011, the trial court selected Robert Tanenbaum, Ph.D., to

perform a psychological evaluation on each parent and a comprehensive

custody evaluation.     Dr. Tanenbaum began the evaluations on August 11,

2011, and completed the evaluations on June 17, 2012.          Dr. Tanenbaum

issued a report on June 19, 2012.

        On October 4, 2011, Mother filed another petition for enforcement,

raising substantially the same issues as the first petition. On the same day,

Mother filed a petition to modify the custody order, asserting that Father was

unable to care for Child during his period of custody and had to use child

care.    Mother sought custody of Child during times when Father would be

unable to care for Child. Mother also sought a restriction on the number of

trips Father could make with Child to New Jersey, where his parents resided,

and Vermont, where his other children resided.        Mother also requested a

provision requiring Father to introduce any significant other to Mother before

introducing that other person to Child.     Mother further alleged that Father

was not feeding Child a kosher diet.      Mother requested that Father inform

Mother what Child was eating because Child allegedly was experiencing

stomach problems and rashes.

        On October 27, 2011, Father filed a petition for contempt, alleging that

Mother refused to allow Father his custodial time on three days because

Child assertedly was sick. Father averred that Mother took Child to religious

services and daycare on those days, demonstrating that Child was not too

sick for Father to exercise custody. Father also filed a petition to modify the

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custody order, seeking to enlarge his custodial periods.     Father filed an

additional petition for contempt, alleging that Mother had refused Father

three more custodial periods with only one make-up weekend scheduled.

       In response to various petitions, the trial court held another custody

hearing in December 2011 and filed another custody order on April 12,

2012

through Monday and every Wednesday overnight.         The court also denied



       On February 9, 2012, Mother filed a petition for contempt in which she

alleged that

rashes, stomach issues, and hygiene. Mother also claimed that Father did




                     alleged refusal to cross a street with Child within the

designated crosswalk. Mother asserted that Child chipped a tooth while in

                                                         not allowing Mother

to have telephone contact with Child.      On March 1, 2012, Father filed

another contempt petition, alleging that Mother refused to allow Father to

exercise custody of Child.    On March 5, 2012, the court entered an order

granting Father make-up periods of custody and dismissed the petitions for

contempt without prejudice.

       On March 23, 2012, Mother filed again for modification of the custody

order.   Mother alleged that Father was not available to supervise Child

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during his custody periods



was not communicating with Mother.        On April 13, 2012, Father filed a

petition for contempt alleging that Mother refused to allow Father custody of

Child during Passover and that Mother was not cooperating with the custody

evaluation.   On April 25, 2012, Father filed another petition for contempt

alleging that Mother shouted derogatory statements about Father in the

presence of Child and others and that Mother did not permit Father custody

of Child.   On May 10, 2012, the trial court found Mother in contempt for

making derogatory remarks in front of Child and for not permitting Father

custody. The court did not find Mother in contempt for the issues raised in



      On June 29, 2012, Father filed a petition for primary physical custody

of Child, seeking to modify the April 12, 2012 order.    On that same day,

Father also filed a petition for contempt, alleging that Mother would not

schedule one of his make-up periods of custody. On July 30, 2012, Mother

filed a petition for contempt alleging that Father did not allow Mother to

have telephone contact with Child, that Father was not communicating

information, including medical concerns, about Child to Mother, that Father

had enrolled Child in pre-

                                                           -school.

      The trial court held hearings on the petitions on September 19, 2012,

October 3, 2012, October 25, 2012, and December 4, 2012.              At the

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hearings, the trial court heard testimony from Father, Mother, Dr.

Tanenbaum, Luzerne County Children and Youth intake supervisor John

                                      el Harris, Jewish Community Center

Executive Director Richard Evans, and United Hebrew Institute secretary

Mary Lee Conway.

     On February 11, 2013, Mother filed another petition for contempt

alleging that Father was not permitting telephone contact with Child and that

Father was ignoring email communication from Mother. On April 22, 2013,

Mother filed an emergency petition for contempt, alleging that an unknown

male was living with Father and that Father refused to provide information to

Mother about that person.    On April 24, 2013, Mother withdrew both her

February 11 and April 22 petitions.

     On September 25, 2013, Father filed a petition for contempt alleging



pre-school that Father could not pick Child up from school despite a court

order allowing such, that Mother told Child that Father was not to spend

time with Child and told Child that Father was not caring for Child properly,

and that Mother sends Father harassing emails.     On September 26, 2013,

Mother filed a petition for contempt alleging that Father permitted Child to

sleep outside when it was too cold to do so, that Father did not provide

proper hygienic care for Child, and that Father refused to communicate with

Mother. On October 16, 2013, the trial court found Mother in contempt for




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for contempt.

     On October 21, 2013, Father filed a petition for contempt. He alleged

that Mother took Child to the emergency room, but refused to provide Father

with any information about the nature of the medical problem.         Father

averred that Mother refused Father contact with Child during her stay at the

hospital and that Mother had hospital security ask Father to leave.       On

November 19, 2013, Father filed a petition for emergency relief alleging that

the parties could not agree to custody for the Thanksgiving holiday.      On

November 20, 2013, the court issued an order for Thanksgiving custody and

an order finding Mother in contempt.

     On December 11, 2013, based upon the four-day custody hearing in

2012, the trial court issued an opinion and order modifying the custody

order, and awarding primary physical custody to Father and partial physical

custody to Mother every other Friday through Monday and every Wednesday

overnight

      Mother filed a timely notice of appeal on January 10, 2014. Mother

also filed a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(i) and (b) on the same date. On February 4, 2014, the

trial court filed a statement pursuant to Pa.R.A.P. 1925(a) adopting its

December 11, 2013 opinion and order.

     On appeal, Mother raises three questions for our review:




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J-A18027-14


       1. Whether the Trial Court committed an error of law and/or
          abused its discretion in reversing the custody schedule of the
          parties considering the expert testimony of record and many
          favorable findings as they relate to the then existing physical
          custody arrangement with Mother?

       2. Whether the Trial Court committed an error of law and/or
          abused its discretion in failing to consider the parental duties
          performed by Mother on behalf of the Child and/or failing to
                                                                     ibling


       3. Whether the Trial Court committed an error of law and/or
          abused its discretion in determining that inter-parental
          conflict was a reasonable basis to transfer primary physical
          custody to Father?

Moth

       Initially, we observe that, because the hearings were held in 2012, the

Child Custody Act (                                     et seq., is applicable to

the instant case.     C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012)

(holding that, if the custody evidentiary proceeding commences on or after

the January 24, 2011 effective date of the Act, the provisions of the Act

apply).

       In custody cases, our standard of review 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-
       deductions or inferences from its factual findings. Ultimately,
       the test is
       as shown by the evidence of record.            We may reject the
       conclusions of the trial court only if they involve an error of law,

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J-A18027-14


      or are unreasonable in light of the sustainable findings of the
      trial court.

Id. at 443 (citation omitted).

      We have stated:

      [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)).

      With any custody case decided under the Act, the paramount concern

is the best interests of the child. M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.

Super. 2013). In determining               best interests, the trial court must

consider the following sixteen factors:

      § 5328. Factors to consider when awarding custody

      (a) Factors. In ordering any form of custody, the court shall
      determine the best interest of the child by considering all
      relevant factors, giving weighted consideration to those factors
      which affect the safety of the child, including the following:

         (1) Which party is more likely to encourage and permit
         frequent and continuing contact between the child and
         another party.

         (2) The present and past abuse committed by a party or

         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.



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       (3) The parental duties performed by each party on behalf
       of the child.


       education, family life and community life.

       (5) The availability of extended family.



       (7) The well-reasoned preference of the child, based on


       (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


       (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.


       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 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


       (15) The mental and physical condition of a party or


       (16) Any other relevant factor.




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23 Pa.C.S. § 5328(a).1         See also E.D. v. M.P., 33 A.3d 73, 79-80 (Pa.



consideration of all of the section 5328(a) factors).2

       In its December 11, 2013 opinion and order, the trial court addressed

all of the factors enumerated in 23 Pa.C.S.A. § 5328, and detailed the

manner in which it arrived at its decision.        The trial court thoroughly



                                                         -parental conflict that

existed.

       Mother first argues that the custody evaluator

support the change in custody. Mother contends that, because the custody

evaluator did not recommend a switch in primary custody, the court acted

unreasonably in ordering the change.                         -11. Mother also

argues that the court did not properly weigh certain of the custody factors,



                                                          -14. Finally, Mother




____________________________________________


1
       Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration
of child abuse and involvement with child protective services).
2
                                                   ision to deny her petition to

consideration of the relocation factors pursuant to 23 Pa.C.S.A. § 5337(h).



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argues that the court erred in premising its custody change upon the conflict

                                                   -16.

       Mother    first   challenges     the    trial

Ta                             While the trial court is not required to accept the

conclusions of an expert witness in a child custody case, it must at least



recommendations, its decision must be based on competent evidence of

record.    See King v. King, 889 A.2d 630, 632 (Pa. 2005); Nomland v.

Nomland, 813 A.2d 850, 854 (Pa. Super. 2002).

                                                                   -cut as Mother has

alleged. In his report, Dr. Tanenbaum recognized that the level of conflict

between the parties was high. N.T., 9/19/2012, at 67. The conflict was so

great that Dr. Tanenbaum considered the option of reversing the custody

                                                                         Id. at 67-68.

However, Dr. Ta
                                                                         3
                                                                             Id. at 68.

Instead, Dr. Tanenbaum recommended keeping the custody schedule the

same, but with the option of Father receiving more time if

allegations against Father continued.            Id.      However, at the time of the

hearing, Dr. Tanenbaum testified that, if                    allegations against Father

____________________________________________


3
      Father filed his petition for primary custody shortly after the custody
evaluation was completed.



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Father to have primary custody. Id. at 150.

      Dr. Tanenbaum testified that Child was at risk of being alienated from



the local children and youth agency with unsubstantiated reports of abuse.

Id. at 47-51.      Dr. Tanenbaum stated that Father was more likely to

encourage and permit contact between Mother and Child. Id. at 145.              In



recommendations as required, as the court reviewed all competent evidence

of record to arrive at its decision. We find no error or abuse of discretion.

      Mother next challenges the weight the trial court assigned to various

factors.   The trial court considered all

provide                                                                -siblings.

Trial Court Opinion and                           2013, at 4-5. The trial court

heard testimony that Child has a good relationship with all of her half-

siblings. N.T., 9/19/2012, at 188-90; N.T., 10/25/2012, at 135. The court

also heard testimony that Mother is available to care for Child as a stay-at-

home parent while Father has work obligations in the evenings and on

weekends. N.T., 10/25/2012, at 141-46. However, the trial court focused

upon the fact

                            , and the fact that Father was more likely to

encourage contact between Child and Mother while Mother was more likely

                               hild.   T.C.O. at 3, 5.   Father testified about

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N.T., 9/19/2012, at 192-98, 200, 202; N.T., 10/3/2012, at 64, 138-39. The

trial court determined that it was required to change physical custody in

order to minimize the conflict and its repercussions for Child.    Id. at 6-7.

The record amply supports these conclusions, and we defer to the trial court

on issues of weight of the evidence. See C.R.F., 45 A.3d at 443.

      Finally, the




and unrelenting inter-parental confl         Id. The trial court appropriately

considered this among the other factors in providing a custody arrangement

calculated

record, we find no abuse of discretion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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