J-S37016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.A.G.                                           IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
      Appellee

                     v.

A.L.R.

      Appellant                                        No. 328 MDA 2014


                Appeal from the Order entered January 23, 2014
              In the Court of Common Pleas of Cumberland County
                         Civil Division at No: 2011-4372


BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                              FILED JULY 31, 2014

      A.L.R

entered in Court of Common Pleas of Cumberland County, modifying a March



                                                 retion on the part of the trial

court, we affirm.

      Mother and Father are the biological parents of Child, who was born

out of wedlock on September 4, 2009. As the trial court explained:

      Father brought this action seeking primary custody in May 2011.
      After five (5) conciliations were fruitless, an initial custody trial
      was held in March 2012 with a parenting plan order issued on 13
      March 2012. That plan gave the parties shared legal custody

      overnights with Father. Mother appealed that decision and the
      parenting plan was affirmed by the appellate court. Father has
      filed eight (8) petitions for contempt alleging that Mother is
      interfering with the time he was given in the parenting plan, five

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      prior to the affirmance and three subsequent to it. All were
      initially sent to conciliation in an attempt to allow the parents to
      actually make a joint parental decision. This attempt failed.
      Father has also requested a modification of the custodial
      parenting plan. Following an additional December 2013 custody
      trial, where the record was kept open until 8 January 2014 to
      allow counseling and to receive the co-
      report, the request for modification was granted.           The 23
      January 2014 Custody Modification Order gave Father primary
      physical custody and provided the specific start of the
      educational development plan.

                                             -2.1

      Mother filed a timely appeal from the January 23, 2014 order and

identified eight alleged errors in her statement of errors complained of on

appeal filed pursuant to Pa.R.A.P. 1925(a)(2).         She asks this Court to

consider two of those alleged errors in this appeal:

      1. Did the lower court abuse its discretion when it exercised
         manifestly unreasonable judgment in transferring primary
         physical custody of [Child] from [Mother] to [Father],


      2. Did the lower court abuse its discretion when it rendered a
         decision resulting from partiality, prejudice, bias, or ill will


1



Grandmother exclusively cared for Child from the time Child was four
months old until she was 17 months old while Mother was incarcerated and


privileges are suspended and cannot be restored until 2018. Nonetheless,
Grandmother is not a party to these proceedings. While her important role

issue of custody was to be decided between Mother and Father. At the same
time, the trial court welcomed G
              See T.C.O. at 9; Trial Court Opinion Pursuant to Pa.R.A.P.


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     This Court recently reiterated the applicable scope and standard of

review 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 whether t
     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.

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

     In her first issue, Mother asserts that the trial court abused its

discretion by transferring primary physical custody of Child from Mother to



decided on a case-by-case basis, considers all factors that legitimately have



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

Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). The factors to be




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J-S37016-14


considered by the court when awarding custody are set forth in 23 Pa.C.S.A.

§ 5328(a).2

     Section 5328(a) provides:

     § 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

          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.

            (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.

                                    relationships.

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


2
  In her brief, Mother addresses the sixteen factors listed in § 5328(a) but
she has rearranged and renumbered the factors. Father addresses the
factors in the same order as Mother. In its January 23, 2014 opinion, the
trial court addresses the § 5328(a) factors in the order presented in the
statute but assigns letters to the enumerated factors. For the sake of
clarity, we shall address the factors in the order presented in the statute

court opinion where appropriate.
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            (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.


          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

          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


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


            (16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).3

     In A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014), this Court held:


3
  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). Because

subsection, the subsection does not apply to the present case. See § 6 of
2013, Dec. 18, P.L. 1167, No. 107, effective 1/1/14.
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      All of the factors listed in section 5328(a) are required to be

     J.R.M. v. J.E.A., [] 33 A.3d 647, 652 (Pa. Super. 2011)
     (emphasis in original). . . .

     Section 5323(d)
     reasons for its decision on the record in open court or in a
                                  23 Pa.C.S.A. § 5323(d). Additionally,
      section 5323(d) requires the trial court to set forth its
     mandatory assessment of the sixteen [Section 5328 custody]
     factors prior to the deadline by which a litigant must file a notice
                  C.B. v. J.B., [] 65 A.3d 946, 955 (Pa. Super. 2013),
     appeal denied, [] 70 A.3d 808 (2013). Section 5323(d) applies
     to cases involving custody and relocation. A.M.S. v. M.R.C., []
     70 A.3d 830, 835 (Pa. Super. 2013).



     required is that the enumerated factors are considered and that
                                                                M.J.M.
     v. M.L.G., [] 63 A.3d 331, 336 (Pa. Super. 2013), appeal
     denied, [] 68 A.3d 909 (2013)
     for its decision, which adequately addresses the relevant factors,
     complies with Section 5323(d). Id.

Id. at 822-823.

     Mother asserts that no basis for a change in custody exists based on

      h party is more likely to encourage and permit frequent and



54-56, addressing 23 Pa.C.S.A. § 5328(a)(1).       Mother relies on her own

testimony as evidence that she has encouraged continuing contact between

Child and Father.   However, based on all the testimony the trial court



promoter of the continuing contact between [Child] and the other parent,



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Mother has shown negatively that she will not cooperate with Father unless



      Our review of the record reveals competent evidence supporting the




refusal to take Child to activities, failure to offer to pick up or drop Child off

at   functions   or   classes,   and   insistence   that   Mother   not   schedule

appointments during his custodial time.        M



specifically that she made threats and argued about holiday and regularly

scheduled visits, N.T., 8/8/13 at 7-8, failed to make or receive required

phone calls so Father can speak with Child, id. at 12-14, and failed to abide

by the default holiday schedule, id. at 15-21 and 24-26. Although Mother



as evidenced by her testimony during cross-

counsel:

      COUNSEL: [] Has he ever offered to pick [Child] up? Drop [Child]

      off?

      MOTHER: No, he has not.

                                   ***

      COUNSEL: This is an e-mail from [Father] to you on Saturday,

      January 19th; is that correct?


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                        correct.

     COUNSEL: Can you read the highlighted portions?

     MOTHER: I will pick [Child] up after her class.

     COUNSEL:      Okay. Is that an offer to pick [Child] up after

     gymnastics class?

     MOTHER: I guess it is.

     COUNSEL: Has he ever offered to attend school functions?

     MOTHER: No, he has not. Has he ever showed? No.

                                    ***

     COUNSEL: And this is an email from [Father] to you on Monday,

     April 15th; is that correct?

     MOTHER: That is correct.

     COUNSEL: Okay. Can you please read the e-mail?

     MOTHER: What kind of school thing? If you tell me where it is

     then I can bring her at 6.

     COUNSEL: Have you ever spoken negatively to [Father] to the



     MOTHER: No, I have not.

                                    ***

     COUNSEL: And this is an e-mail from you to [Father] on

     Monday, April 15th, is that correct?

     MOTHER: That is correct.


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J-S37016-14


     COUNSEL: Can you please read it?



                             want anything to do with her school.

                                   ***

     COUNSEL: Has [Father] offered to accompany [Child] to any of

     her appointments?

     MOTHER: No, he has not.

     COUNSEL:      Has he ever suggested to you the possibility of

     scheduling appointments during his periods of physical custody?

     MOTHER:       He told me do not put them during his time of



     did not want any appointments during his time. He can lie all he

     wants in e-                                            is going to

     do it.

                                   ***

     COUNSEL: Any this is an e-mail from [Father] to you on Friday,

     November 30th, is that correct?

     MOTHER: That is correct.

     COUNSEL: Can you please read the highlighted portion?

                                                                 nt on

     Monday or Friday at 4:00 p.m. or later or if you let me know it is




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     on Thursday, then I can decide on that times the doctor    we can

     call and schedule an appointment.

Id. at 83-86.

     When considering which parent is more likely to encourage and permit




conclusion.

     Mother acknowledges that the trial court found no evidence of abuse

by either party or a family member to warrant a custody determination



                                                                s being self-

                        -




at 19. Clearly, the trial court was not concerned with any threat of abuse by

either Mother or Father or members of their respective households and there

is no competent evidence of record to suggest otherwise.

     Mother contends there has been no change in the parental duties




§ 5328(a)(3)).   She acknowledges, and the trial court agrees, that both


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J-S37016-14


parties rely on extended family to                             Id. The trial court

did not cite the issue of performance of parental duties as a specific basis for

its custody ruling but clearly did consider it, as required.

                                                                               ity



25-39 addressing 23 Pa.C.S.A. § 5238(a)(4).          Mother offers reasons she

believes a change in custody is unwarranted and contends the trial court

failed to consider the effect that a change in physical custody would have on

Child. The record does not support her assessment. The trial court

consistently noted in its opinions the fact that Mother and Father are loving,

caring and fit parents.   However, the trial court also recognized that Child



time the court awarded shared physical custody in March 2012 until the time

of the August of 2013 hearing, Father filed eight contempt petitions alleging

         interference with the parenting plan. The trial court described that



crafted to promote the long term developmental needs of the parties as

bifurcated parents and the ongoing custod



                                               physically, intellectually, morally

and spiritually   requires that both parents step up now and take a greater

                           Id.


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letter, spirit and intent of this court order in denying Father this

                 Id. The trial court explained further:

      The stated intention of the initial custody plan was not to dictate
      or micromanage the parents but rather to allow the parents to
      grow into their roles within a framework with both parents
      having significant time with [Child]. It was only after much
      consideration that this court found the custody of [Child] needed
      changed; it was clear that her future and welfare was clearly

      actions.

Id. at 4.

      Father and his wife testified that they have a loving and stable home

and that Child loves being there. N.T., 8/8/13 at 33 and 122. Their work



be available to Child at all times.    Id. at 40.   Mother works full-time and

relies on Grandmother to care for and transport Child. Id. at 47 and 132-




                                                                    Id. at 78.




custody to Father. The cour

greater shared custody and involvement by both parents is a reflection of




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     The trial court next weighed the availability of extended family and




                                                      Id. at 5-6.     We find

competent evidence to support that conclusion.

     The next enumerated factor to be considered when awarding custody

           -



hearing, which commence

few months later.   The trial court determined Child was not capable of

making a choice but noted that, if asked, she would want to be with

Grandmother. T.C.O. at 6. As explained in n.1, supra, Grandmother is not a



and reinforced in the new parenting plan. 1925(a) Opinion at 6.

     A trial court must also consider whether either parent attempts to turn

a child away from the other parent.      23 Pa.C.S.A. § 5328(a)(8).   Mother




attempts to turn Child away from Father.


                                    13
J-S37016-14




[M

some concerns about the transition times and the anxiety that [Child] was
                                    4



the therapist understood the commencement of visitation with Father was

done very abruptly and believed the transition was hard on Child. Id. at 9-

10 and 15. Yet, the therapist was unaware that there had been four months

of visits with Father pursuant to a temporary custody schedule prior to

initiating any overnight visits.   Id. at 16. She was also unaware that the

initial visit with Child in January 2012 occurred 11 days after the issuance of

the order scheduling the initial custody hearing for February 29, 2012. Id.

at 17. She was not certain whether she knew that, concurrent with the third

and fourth visits with Child, Father had filed two contempt petitions due to

                                                                        Id. at

18. After seeing child on March 26, 2012, the therapist saw Child once in

April, twice in May and then not again until September, three weeks prior to

a scheduled October 4 contempt hearing, although she did not know any

reason for the gap in sessions. Id. at 19. She next saw Child on October 8

but not again until January 14, 2013. Id. When asked if she was suspicious



                                                             not [her] part of

4
  Father did not believe that Child needed therapy but gave his consent and
signed the necessary forms. N.T., 11/21/13 at 12.
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J-S37016-14


                                                        Id. at 20.      She did

acknowledge that Mother and Grandmother were the sources of information

concerning difficulties Child reportedly had with Father. Id. at 21.

      The trial court




                                                                ated above in



resulted in Father filing eight contempt petitions, and as shown in the



                                                                       y is more

likely to maintain a loving, stable, consistent and nurturing relationship with



§5328(a)(9).   Mother and Grandmother testified that Child was cared for

                               ome, see, e.g., N.T., 8/8/13 at 49-51; 61-62;

132-33; and 144, just as Father and his wife claimed Child was cared for

and happy in their home. Id. at 33; 110-14; and 122. There is competent



are not an issue as both homes, with the assistance and support of family,

are nurturing in their own ways. It is the way Mother tries to dictate what



T.C.O. at 6.


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       Co



daily physical, emotional, developmental, educational and special needs of

                                            .   Again, Mother, Grandmother,



                See, e.g., N.T., 8/8/13 at 49-51; 61-62; 132-33; 144; 33;

110-                                                                          s,



believed would be served by enrolling Child in his school district at a location

                                                                 Id. at 52-23;

87-89; and 27-29.     The trial court specifically addressed the educational

needs of Child and ordered that an educational plan be developed without

commenting on the other needs outlined in §5328(10). T.C.O. at 6. Mother

suggests that the trial court erred in focusing only on the educational needs

while ignoring the other needs mentioned in the subsection.       Although we

recognize that the trial court did not specifically discuss the other needs, it

did address them by implication throughout its opinion and in its Rule

1925(a) opini



needs. T.C.O. at 3; 5-6; 9.



required by 23 Pa.C.S.A. § 5328(a)(11) by simply noting the distance is 18


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miles. T.C.O. at 6. Neither party discusses this factor other than to note the

distance is 18 miles, as the trial court indicated.      There is competent

                                                with respect to this factor.



or make appropriate child-care arrangements, 23 Pa.C.S.A. § 5328(a)(12),



others when making arrangements, whereas Father has independent



Mother argues the trial court abused its discretion in this regard because

Mother also lacked a license at the time of the 2012 order granting Mother



court abused its discretion by simply making a factually accurate statement.



absence, N.T., 8/8/13 at 114, whereas either Father and/or his wife are

home at all times. Id. at 121.    The trial court recognized that both parties



lack of a license was a determining factor in its decision.   Because we find




                                                                        en the

parties and the willingness and ability of the parties to cooperate with one




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J-S37016-14


parties obviously cannot fully cooperate to promote the best interest of

[Child], even with th

to the playground bully who takes the ball and will not let others play unless

they play by her rules.      Father has become like a dog that has been

abusively disciplined too much and is in constant protection mode from

                 Id. There is competent evidence throughout the testimony

presented at the August 8, 2013 hearing, a taste of which is provided in our



evaluation of the level of conflict and the ability of the parties to cooperate.




                                               have been previously noted and

are well chronicled in her criminal history of repeated arrests and multiple



                                                                             ittle

weight when making a custody determination unless that conduct has an



protestation, we find there is competent evidence in the record to support

                                ch is merely a factual statement. Further, the



enumerated offense under Chapter 38 or Title 75 of the Pennsylvania Code




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and [crimen] falsi convictions.   Father has not alleged, nor has the court




23 Pa.C.S.A. § 5238(a)(15

prescribed pain medication for pain management, which has not impacted



                                                                      ement




there is competent evide

testified that a report was made to Children and Youth that Father and his

wife were drug addicts and neglectful to their children. Following interviews

and urine testing, the investigation was closed. N.T., 8/8/13 at 8-10. There




                   Id. at 77.

     In addition to the fifteen enumerated factors, the trial court is to



§ 5328(a)(16). The trial court explained:

     It was directed that [Child] should spend as much time with both
     Mother and Father as possible while she can before being limited

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J-S37016-14


      by school and other outside activities. Inexplicably, Mother
      violated the spirit and intent of this directive each and every
      time she denied court-ordered custody to Father and more so
      when denying a reasonable request for additional time by
      Father.

T.C.O. at 8. There is competent evidence in the record to support the trial



      Having reviewed the evidence of record, we conclude that there is



§ 5328(a

conclusions are based on its assessment of the credibility of the parties.



findings of the trial [court] who has had the opportunity to observe the

                                               A.V., 87 A.3d at 820 (quoting

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa. Super. 2009)). Further:

      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

      of the child was careful and thorough, and we are unable to find
      any abuse of discretion.

Id.   As stated previously, the test this Court must employ is whether the



record. V.B., 55 A.3d at 1197. We may reject those conclusions only if they

involve an error of law or are unreasonable in light of the sustainable

findings of the trial court.     Id.    We conclude that the trial court's

consideration of the best interest of the child was careful and thorough.

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Because the trial court did not commit error of law and because the trial



the part of the trial court for modifying the prior custody order to give father



      In her second issue,

primary custody to Father constitutes an abuse of discretion because the



                                                            at 13.    Again, of

paramount importance is the best interest of the child.       Saintz.   Mother

contends that the language used by the trial court when referring to Mother

and her conduct establishes that the trial court was partial and prejudiced

against her,

We cannot agree.

      The trial court clearly based its decision on evidence of record and




      dependent on Grandmother and her continued involvement in

      not to dictate or micromanage the parents but rather to allow
      the parents to grow into their roles within a framework with both
      parents having significant time with [Child]. It was only after
      much consideration that the court found the custody of the child
      needed changed; it was clear that her future and welfare was

      myopic actions.

1925(a) Opinion at 4.



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underlying bases for its conclusions appear in the record.      The trial court

commented:

      The fact that Mother lacks credibility with this court is of her own
      making and not the result of any bias or prejudice. The lack of
      honesty is most recently seen in what she did and did not make
      known to the play therapist, together with the not unexpected
      evaluation of the counselor.

Id. at 4-5.

      The trial court concluded:

      Grandmother still stands out as the family member who best
      promotes the parent-
                                                                   new
      parenting plan. It is expected that Grandmother, and by
      extension Mother, is liberally permitted to spend additional
      quality time with [Child]. The best interests of [Child] are also
      served by promoting unfiltered development of her family life
      with Father, while maintaining her relationship with Mother. The
      unproductive actions of Mother are removed by taking away her
      ability to continuously thwart the plan. While a shared physical
      custody plan, with each parent having significant custodial
      periods, is still the ultimate goal, the lack of co-parenting
      progress and dearth of an educational plan, which is a tactic of
      Mother, needs remedial action now and a decision had to be
      made to protect [Child] and promote her future.

Id. 6-7.

      We conclude that

prejudice, bias or ill will but rather on the testimony and evidence presented.



      Order affirmed.




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J-S37016-14

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/31/2014




                          23
