J-S47016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


A.S.W.                                   :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                  Appellant              :
                                         :
                                         :
            v.                           :
                                         :
                                         :
H.M.W.                                   :   No. 2267 MDA 2015


           Appeal from the Order Entered November 25, 2015 in
           the Court of Common Pleas of Lancaster County Civil
                     Division at No(s): CI-15-05403


BEFORE: SHOGAN, LAZARUS, JENKINS, JJ.

MEMORANDUM BY JENKINS, J.:                      FILED SEPTEMBER 27, 2016

      A.S.W. (“Father”) appeals from the order entered on November 23,

2015, in the Court of Common Pleas of Lancaster County, awarding H.M.W.

(“Mother”) primary physical custody of E.M.W. (“Child”) (born in March of

2012), awarding Father partial physical custody, and awarding Mother and

Father shared legal custody of Child pursuant to 23 Pa.C.S. § 5328(a). We

affirm.

      The trial court set forth the extensive factual history of this case in its

opinion accompanying the subject order, and the trial court’s recitation is

supported by the testimonial and documentary evidence. As such, we adopt

it herein. See Trial Court Opinion, 1/22/16, at 2-9. Mother and Father are

husband and wife, but they have been separated since June of 2015. Both
J-S47016-16


are high school teachers at different high schools.   Mother teaches health

and physical education. Father teaches career education, driver’s education,

health, and physical education. Father is also the varsity soccer coach. In

addition to coaching at the high school during the high school season, Father

is involved in off-season and summer season soccer coaching.

      On May 28, 2015, Father filed a complaint for primary physical custody

and shared legal custody of Child. Thereafter, Father changed his request

from primary physical custody to shared physical custody.      On August 20,

2015, a custody conciliation conference was held, but no agreement was

reached.   On September 15, 2015, the trial court adopted the conciliation

officer’s recommendation and entered a temporary order awarding shared

legal custody of Child to Mother and Father. Mother was awarded primary

physical custody, and Father was awarded partial physical custody of Child

on alternating weekends.      The trial court order also directed a further

custody hearing to be held on October 30, 2015. The custody hearing was

continued to November 12, 2015 to obtain the testimony of Child’s therapist

to determine the best interest of Child.

      The trial court held a custody hearing on November 12, 2015 and

November 19, 2015. At the hearing the trial court heard the testimony of

Mother; Father; J.A., a parent whose child plays on Father’s soccer team;

J.S., Child’s therapist; B.L., an aquatic instructor; S.W., Child’s paternal

grandmother; and M.A.C., Child’s maternal grandmother. On November 23,


                                     -2-
J-S47016-16


2015, the trial court again awarded Mother primary physical custody, Father

partial physical custody on alternating weekends, and shared legal custody

of Child to both Mother and Father.

      On December 23, 2015, Father filed a notice of appeal and a concise

statement    of   errors   complained    on   appeal   pursuant   to   Pa.R.A.P.

1925(a)(2)(i) and (b).

      On appeal, Father raises the following question for our review:


         1. Whether the lower court erred in its application of the
            factors under 23 Pa.C.S.[] § 5328(a) in determining the
            best interest of the child?

Father’s Brief at 7.
      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-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.

C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa.Super.2012) (citation omitted).

      With any custody case under the Child Custody Act, 23 Pa.C.S.

§§ 5321-5340, the paramount concern is the best interests of the child. In



                                        -3-
J-S47016-16


applying the Custody Act, a trial court must determine a child’s best

interests through consideration of 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
            member of the party’s household, whether there is a
            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.




                                      -4-
J-S47016-16


            (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.

            (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. § 5328.

      Father   argues   that   the   trial   court   misapplied   the   factors   for

determining the best interest of Child pursuant to section 5328(a). Father’s

Brief at 11. Specifically, Father contends that the trial court “erred in finding

that Mother is more likely to encourage and permit frequent and continuing

contact between Father and Child.” Id. at 13. Additionally, Father argues

that the trial court erred in finding that “Father’s employment as varsity




                                       -5-
J-S47016-16


boys’ soccer coach prevents him from having sufficient [] time with [C]hild.”1

Id. at 17.

       With regard to section 5328(a)(1), which party is more likely to

encourage and permit frequent and continuing contact between the child and

another party, the trial court found:

       Mother is more likely to encourage and permit frequent and
       continuing contact between Father and [C]hild, than is Father.
       Despite a right of first refusal agreement between the parties, on
       a number of occasions Father called his mother to care for
       [Child] when he had a conflict, rather than Mother. This breach
       of commitment made by him is a serious sign to the [trial] court
       that he does not appropriately value either his word or Mother’s
       relationship with [Child]. He has refused to permit [Child] to go
       on a vacation with Mother and her family despite a history of
       such events in the family. Mother has honored the agreement.

Trial Court Opinion, 1/22/16, at 11.

       With regard to section 5328(a)(3), the trial court stated:

       While both parties perform parental duties, Mother has
       performed and continues to perform the majority of the parental
       duties for [C]hild. She has consistently had more available time
       in her schedule to spend with [C]hild and to attend to [C]hild’s
       needs. She can get [C]hild to day care at a later and more
       reasonable hour for [C]hild in the morning, and pick her up
       earlier in the afternoon, providing more parent time. Prior to the
       separation, Mother was for all intents and purposes, the parent
       who transported [C]hild to and from daycare. She was the
       major nurturing parent while the family was intact, and has
       continued that situation into separation. All of the testimony
       presented indicate[s] that Father is so involved in soccer that he
       is simply not available at significant time for [C]hild because he
____________________________________________


1
  While not specified in his brief, Father appears to challenge section
5328(a)(3), the parental duties performed by each party on behalf of the
child.



                                           -6-
J-S47016-16


      must attend various games, practices, training, and other sport-
      related activities.

Id. at 11-12.

      Moreover, the trial court stated it had “some problems with Father’s

credibility.” Id. at 16. The trial court stated that, “Father blamed Mother

for some of his problems” and “raised negative issues about the relationship

between Mother and [Child].” The trial court found that Father’s “hostility

colors those perceptions and makes it difficult to know the degree of their

accuracy.”    Id.   The trial court further found that Father “inaccurately

minimized the problems posed by his schedule and that much of his

testimony was confusingly difficult if not contradictory because of a variety

of inconsistencies contained therein.”     Id.   Consequently, the trial court

found that “an examination of the listed aspects of [C]hild’s life and her

relationship with her parents indicated that Mother as the primary custodial

parent would better serve [C]hild’s best interest.”     Id.   Father’s issue on

appeal seeks review of the trial court’s findings of fact and credibility

determinations.     Our standard of review, however, does not permit this

Court to re-find facts, re-weigh the evidence, or to impeach the credibility

determinations of the trial court.     We may only reject the trial court’s

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

sustainable findings of the trial court.   See C.R.F., III, 45 A.3d at 443.

Furthermore, the trial court analyzed each factor regarding custody and




                                     -7-
J-S47016-16


found that, as stated above, the factors weighed in Mother’s favor. See Trial

Court Opinion, 1/22/16, at 11-16. We find no abuse of discretion.

     For the foregoing reasons, we affirm the order of the trial court

awarding primary physical custody to Mother, partial physical custody to

Father, and shared legal custody to both Mother and Father.

     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2016




                                    -8-
                                                                                                 Circulated 09/07/2016 01:38 PM


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             IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                A- S-     l,J.      CIV.ILACTION-LAW


                             Plaintiff

                 . v.                                                        No. Cl-15-05403

                                                                             SUPER. CT. NO.: 2267 MDA 2015
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                                                            OPINION SUR APPEAL
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                                                              Procedural History                             ("'":}
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                  This matter was initiated on May 28, 2015, when a Complaint in Custody was
                        ~·                                                - J,l.,t.·lf..J•
           filed by-                                    (Father) agains-Mother)                         for custody of

       ·the parties' child-•
                                   - • .,._ • t,.J.                        ··lt·tJ·
                                                                             A, born on March 30, 2012. On June

           19, 2015, an Order of Court was issued scheduling a Custody Conciliation Conference

       for July 29, 201 S. An uncontested motion for continuance of the Conference and

       waiver of custody case time requirements was fired on July 20, 2015 and approved by

       the Court on July 21, 2015. The conference was held on August 20, 2015, and no

       agreement was reached. On September 15, 2015, the Court adopted the Conference

       Officer's recommended order and scheduled a hearing before the court for October 30,

       2015. On October 30, the Court and the attorneys for the parties discussed the child's

      ongoing participation in therapy and by agreement continued the matter until November

       12, 2015 in order to allow both parents time to confer with the child's therapist. The




                                                                      1
                                                                                    )


  therapist, whose.testimony was deemed to be necessary, was directed to prepare a

  written report to be sent to the attorneys.

           A hearing was begun but not completed on November 12, 2015, and was

  continued to November 19th, 2015 for the purpose of completing the testimony. On


      ,.,,.u. . .·.                                                      .
  November 20, 2015, the Court issued a Custody Order giving shared legal custody bf

•••to             the parties, primary physical custody to Mother and partial physical custody

 to Father on alternating weekends and every Tuesday and Thursday evening.

          On December 23, 2015, Father filed a notice of Appeal of the November 20

 Order to the Pennsylvania Superior Court. Said Notice was served upon the Court with

 a Concise Statement of Errors Complafned of On Appeal.

                                             FACTUAL HISTORY .               G,If• /,J,
                                   t'
          Father and Mother are husband and wife
                                        .          I
                                                                and••••
                                                                (
                                                                                                  is their

biological daughter. The child lived with both parents from her birth to her parents' date

of separation in June of 2015 when Mother left the marital residence. {N.T. 14) Since

separation, Mother has had primary physical custody of the child and Father has had

partial physical custody on alternate weekends and specific weekday evenings. (N.T.

18)

         Both parents are high school teachers at different schools. Father teaches

Career Education, Driver's Education, Health and Physical Education.(N.T. 13) Mother

teaches Health and Physical Education. (N.T. 173) Father is also the head varsity

soccer coach at his school". (N.T. 15)1 That position involves his coaching, monitoring


          I
           Although the hearing occurred on two separate dates, the two transcripts were paginated as one unit. The
citations to the transcript will therefore not refer to the hearing dates, but only the page numbers.

                                                         2
  and supervising the players as they play, and. his. schedule is dominated
                                                                        . ..
                                                                             by his soccer

  coaching duties. Outside of his school coaching, Father is also involved in off-season

  and summer soccer (N.T. 17) The beginning of soccer season is the first "teen"

 Monday in August. The season ends the second week in October, though it can go

 beyond that if the team goes post-season. On Fridays,.starting sometime in March and
         .                              .
 , continuing for the rest of the month; there are pickup games. When the pickup

 sessions end, Futsal league starts on Saturdays. The Futsal Saturday games continue

 until school ends in June and Futsal2 is then scheduled for Tuesday and Thursday,

. running from8 to 10 a.m. until the beginning of the season in August. (N.T. 70-73). On

 the first "teen" Monday of August, "two a day" practices begin, from 8 to 10 a.m. and 6

 to 8 p.m. and last for one week, Monday through Friday. (NT 16 -17) Thereafter,

school and soccer league then begin. Mother mentioned other events that intruded on

 Father's time with his daughter. For instance, he had to change their custody schedule

for the weekend before the hearing, because there was an all-star game he had to

attend for one of his soccer players. (N.T. 218) She also testified that "his soccer

schedule started in January and continues all the way up through summer. And as it

gets closer to the season, it becomes more intense and more involved." (N.T. 193) Both

parents testified to a number of occasions when his contact with his daughter had to be

changed, or he missed one of her activities because of a soccer event. (See, e.g., N.T.

64 (pickup from daycare), 85 {tumbling), 118-119 (library concert), 131 (therapist), 193

(swimming), 195 (dance)). Father informed the Court that he can make himself more

       2Futsal
                 is an indoor soccer game with a small ball that doesn't bounce. lt is a form of
indoor soccer.   N.T. 16.


                                                   3
)
      available than his schedule indicates, because during the soccer season he has

     assistants who can lead the practice. (N.T. 80) Mother said that he told her the same

     thing throughqut their marriage, but never followed through. (N.T. 218, 247) Father has

    . been more available for the child's activities in early 2015 after his lawyer told· him to be

     more involved._(N.T. 195-196)

              Mother has a full time teaching job during the school _year and teaches an




                                                                                       •. ,... .
    · online course during the summer with a one hour a week commitment for five weeks.

     (N.T. 174) Testimony was uncontradicted thatwhen Mother is not working h~attentt.
                                                        ..                   .

     and concern was directed toward her daughter. Before separation she and••••

     had a busy life, filled with activities for the child and a specific daily schedule. That

    situation continued after separation also. (N.T. 74, .1.85) _Father admitted that prior to
                                                             •• ,. • ._a.    .
    their separation he did not spend much time with                , his reason being that
                                                                       6.M.W•·
    Mother did not permit him to. He said she was rigid and kep                  on a tight

    schedule which excluded him. (N.T. 60)         Although April of 2015 was the first time he

    had ever watched the child overnight, he explained to the court that he had been given

    only limited opportunity to do so by Mother. (N.T. 128) Regarding medical

    appointments, he explained that he only had made them for the child a few times, but If

    he had been allowed by Mother he would have done so every time it was necessary ..

    (N.T. 129)

            Post separation, when each party had custody of the child alone, both engaged

    in many Interesting activities
                            .          ··"·"'· ,,.,,,. .....
                                   with9llmlllfand both
                                                     .  twe a healthy and organized

    schedule and environment for her. (N.T. 19 et seq.)                 also has her own

    activities such as gymnastics, dance and the like, for which the parents serve as

                                                   4
  spectators.            She has continuing swimming lessons, in which the parents are permitted

 to participate in the water with her. Mother has always been the participating parent for

 that event, and the swimming instructor told the court that the child is happy in class. ·
                           .                                         . ·                6.N.t.J•             .
 with her mother. When during one of Father's appearances,                                        was acting

 particularly active and energetic, he appeared tobe unsure and told theteacher he

 didn'.1.J<now why she was ~ing like this. The teacher had to reassure him that it was
       •• ... ..                    , .... t,.I•                                    .
 just•          I 5 acting lrke I          M.( N.T. 110) ·
              Mother was clearly the child's main care giver prior to separation and continues

 to use the schedule she had used since the child was born. (N.T. 74, 1_85). She

 always dropped the chUd off at daycare and picked her up after, except tor once or
                                                                                              .   .
twice when she had something she couldn't miss. (N.T. 179) Father agreed, saying

that he occasionally took the child to day care, but in summer he could not pick her up

because of soccer practice. (N.T. 25, 64) Mother got the child ready for ~hool. She
                                                                      I         -                 ,   .,,.       ,,.,.


made her breakfast and cooked dinner. The majority . of times,.she
                                                          . .     +
                                                                    gave                                                 her

bath. She scheduled medical appointments and did'the established bedtime routine.

(N.T. 188) During much of their life prior to separation, Father wasn't at home. His

school duties, particularly soccer, kept him away sometimes until well after dinner.

(N. T .. 189) Only Mother took her to gymnastics. (N. T. 84) Mother took her to dance

cla~ and Father would come                alt'e'r soccer.       (N. T. 194-95) f\,'1other arranges play dates
  ••     ,,    • .,.,.                                                    i~-           ..
for                  with friends from school and with neighborhood children. (N:T. 1 187)

Father also arranges play dates for her with her cousins from his family. He testified

that he has trouble arranging dates with friends because he finds it difficult to ascertain

the identities of appropriate neighborhood or school friends. (N.T. 79) For Halloween

                                                            5
                                                                         ,' 'i
)                                                       1..11.IJ.
      of 2015, Father-asked to trick and treat with••1       •1a.   When Mother agreed and asked

     him. to accompany them in her neighborhood, he decided not to participate. (N. T. 187)

                 Father has extended family in Lancaster County and the child interacts with them
                                                                                  ..
     often, particularly her grandparents. (N:T. 50) They have dinner with his parents every
                                                ',..,..t,.1.
     Sunday. (N.T. 86) He arranges play dates for       · with her cousins. (N.T. 79, )

    · Mother's parents live. in ~ew Jersey and she has two sisters who live in Virginia. They·

     visit back and forth several times a year and go on a longer family vacation in the
             '           '              . visits that
     summer. (N.T. 185) It is during these               '-"·""·     meets and interacts with her

                  '




    the family vacation with her parents, Father insisted that
                                                                    ,. ,,.,,,,.
     other family members. This year, when Mother spoke to Father in April about going for

                                                                     3
                                                                                          '



                                                                            7( could not go. (N.T.
     159)

            The parties had an agreement that each would have a right of first refusal if the

    custodial parent had a conrnct. Father has disregarded this agreement on several

    occasions, calling on his mother (the Paternal Grandmother) instead of Mot.bar .. Mother

    has always taken the child when asked to do so. (N.T. 213)

            Father at first requested primary custody, but has now changed that request to

    50/50 shared physical custody. He told the court that he was concerned at first that

    Mother would remove the child from Pennsylvania, and that if he had primary custody




                                                                         ,.,.. .,.
    re could keep her here. HE:! acknowledged at the hearing that he had spoken out of

    f'gar an~no longer would ask for sole custody. (N.T. 140) He minimized his busy

    schedule in his testimony, insisting instead that it would be in                   best interest to

    attend his soccer games with him, saying that at the Futsal games there is space for

    her to play while he is involved with the game and that at practices, she could interact

                                                    6
                                                                          ··.,
                               )                                                 i

    with the players and their parents, which would-enaole her to gain social skills (N.T. 32,·

    138-139) He asserted that he did have flexibility in his schedule to allow time for his

   child. Mother's opinion of that assertion is that he had repeatedly told her the same

   thing, but never exhibited the ability to change his schedule to spend more time with the

   child. He JJ.a~proposed a 4/3/3/4 day schedule- '(N. T,ii.,43) He believes that being with
               ~n-~~                            .                                    .         .
   him is in •       7 best interest because he lives in the home she grew up in, he
   doesn't push her the way Mother does, so that she is more. relaxed and is not afraid to
                                                            .   ~""   .
   make mistakes with him, he· doesn't get angry when the house is messy like Mother·

   does, and she acquires the values    ot trust, integrity and responsibility by watching him
· +coach his students at soccer games. (N. T. 53 et seq) There was also testimony from

   Mother and her mother who said that Father had told them that desp~e his schedule he

  could have full custody because hls parents would take care of

  205)
                                                                          '·"'·"'·       :•.       (N.T. 158, .



         Communication between the parents has its difficulties. Mother told the Court of

  three instances in which Father withheld information concerning the child from her.

  They had agreed to raise the child Catholic and did attend a Catholic Church on


           .

  separation, Father took•
                          ..,..~.
  occasion although Father has a Lutheran background. (N.T. 87) However, after

                                    &to an orientation at a friend's Lutheran church and

  enrolled her in Sunday School, although she never actually attended. (N.T. 33-34, 87)

  He not only did not discuss this with Mother; but did not put her contact information on

  the application. (N.T. 91, 202) Defending his action, he told the-Ccurt that he would not

  expect Mother to tell him if she changed the child"s religion. (N.T. 88) Second, after the

  child told her that she didn't like the way Mr. Ashley washed her hair, Mother asked and

                                                    7
                                                                   ..   ')

                                                                  E.11.1,1·
  learned from Father that he had left a male friend alone with•••           while she was in

 the bathtub because Father had to finish chairing a meeting dealing with soccer. The
 .third incident was
                 . a. time when··ft·~·
                               IT I 3 fell off the bed, and landed on her head; and
                                                                                    .
 although she exhibited physical symptoms that upset Father, he neither took her to the

 doctor nor called Mother, not telling her until two days later. There was also a time

 When the child's school sent a letter to the marital residence, but not to Mother's

 residence, that said the child was being transferred to a different class. Father did not

 Inform Mother. Mother said she lets father know what is going on with the child.

 Father testified that Mother hasn't notified him of all of the child's developmental

                                                           ,..... .,.
 milestones, although ~a was unable to remember a specific insta_nq,e. (N.T. 130)

       The child's therapy is another point of contention.-has               a habit of

chewing on her hair, fingernails and clothing. Mother arranged for a consultation with a

therapist in order to ascertain whether this was a sign of stress or just a b~d habit.
                                                                              i


Father did not attend the parents' first meeting with the therapist. (N.T:'216)' He at first

agreed with the decision, but now expresses disagreement, contending that the only

place that the activity occurs is at Mother's house, and neither he nor her teachers see

it. However, the child's paternal grandmother testified that she has seen the behavior

at Father's house, and that when she went to hug the child, her hair was wet. (N.T.152)

And during Father's testimony, he said he saw her chewing at his house, but thought it
                                -       .·~                   .
was just a bad habit. (N.T. 145) Her te'achers have also seen the behavior, because

they have told him that its no worse than other children in the class. (N.T. 48) Father

himself said that he heard from one of the teachers that the child was always chewing

on something unless she was very busy. (N.T. 45) Because of the early stages of

                                              8
)
      therapy, Jennifer Smoker, the therapist was unable to characterize the behavior in any

      meaningful way. The parents agreed that it should continue until the therapist had a
                                        •,t"


      better understanding of wha~was. Q.R,ing on. (N.T. 103)

             Father's testimony and actions contained a great deal of hostility towards, and

     criticism of Mother, sometimes subtle and sometimes      not so subtle.
                                                                      .

     instance, that prior to separation "she did not include him in her planning for
                                                                                     .   ......._.,.
                                                                                He said, for

                                                                                               ),

     met his plans with disdain and sometimes sabotage" his plans. He said he finds it

     difficult to speak with her because she isn't receptive to his discussions about custody.




                        . ........
     (N.T. 35-36) He told the Court also that the child exhibited negative body language

     when withher Mot~. (N.T. 38) When he missed an open house for preschool
                                                             . ,           .

     parents, he told -    that the reason for his absence was that Mother didn't remind
                                                                          J1!




     him. (N. T. 203) When Mother moved out, Father walked the child around the home,

     pointing out expressly everything that Mother had taken with her or left for them. (N.T.

     209) He did not always honor her right of first refusal if he had a conflict. (N.T. 212)

     He tried to limit his daughter's contact with Mother's family.

                                                ISSUE

           Whether the Court erred in granting primary physical custody of a three year old

    child when, although both parents love and parent the child appropriately, Mother has

    been the primary nurturing parent since the child's birth, has substantially more time to

    spend with the child than does Father, is more likely to foster the child's relationship

    . with Father, Father sometimes exhibits hostility toward mother in his testimony and

    communications with the child, Father failed to inform mother of substantial events in



                                                  9
                            )

 child's life, Father took action to interfere with contact between mother's family and the

 child, and Mother seems to be more aware ofthe child's needs and environment.

                                         ANALYSIS

 The Court's paramount decision in a child custody case Is to decide what is in the best

 interest of the child. Costello v. Costello, 666 A 2d 1096, 446 Pa. Super 371 (1995). A

 determination of what is in the best interests of the child is made on a case-by-case .

 basis and must be premised ..upon consideration of all factors which legitimately have

an effect upon a child's physical, intellection, moral and spiritual well-being. Alfred v.

Braxton, 659 A.2d 1040, 442 Pa. Super 381 (1995) A shared custody arrangement may

be ordered by the Court if both parents are 1) capable of making reasonable child

rearing decisions. and willing and able to provide love and care for their children: 2) both

parents evidence a continuing desire. for active involvement in the child's life; 3) both

parents are recognized by the child as a source of security and love; 4) and a minimal

degree of cooperation between the parents are possible; Hill     v.   Hi!/, 619 A.2d 1086,

422 Pa: Super 533 (1993); In re Wes/eyJ.K, 445 A.2d 1243, 299 Pa. Super 504

(1982) Additionally, the Superior Court has directed that in making its decision, the trial

court must consider the factors set out in Section 5328 of the Pennsylvania Custody

Statute.

       This Court included its §5328 conclusions in its order of November 20, 2015. An

expanded discussion of these items is as follows:

§5328. Factors to consider when awarding custody

   a. Factors -      .



                                             10
        (1) Which party is more likely to encourage and permit frequent and continuing
 contact between the child and another party.

        The Court finds that Mother Is more Hkely to encourage and permit frequent and .

 continuing contact between Father and child, than Is Father. Despite a right of first

 refusal agreement.Jletween the parties, on a number of occasions Father called his
                   ~·H·W•.                                          ·
 mother to care for       I JI: when he had a confHct, rather than Mother. This breach of



. ,. .....
                                  .   .       .

,.lue either his word or Mother's relationship with
                                                    ...,...,,.
 a commitment made by him is a serious sign to the court that he does not appropriately

                                                                  He has refused to permit

••     .. to go on a vacation with Mother and her family despite a history of such

 events in the family. Mother has honored the agreement.

        (2) The present and past abuse committed by a party. or member of the party's
household, whether there is a 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.

       There was no past or present abuse by either parent. There has been no

involvement with the Children and Youth Social Service Agency. However, the Court is

somewhat taken aback by Father's belief that his 3 year old child's best interest will be

served by attending frequent high school soccer games and practices with him when

his attention is taken up with the players and the action, and the child is left to play

alone, without an assigned caretaker. The Court can appreciate Mother's concern

about the lack of supervision during those times.

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

       While both parties perform parental duties, Mother has performed and continues

to perform the majority of the parental duties for the child. She has consistently had

more available time in her schedule to spend with the child and to attend to the child's

                                              11
                                              )

')
          needs. She can get the child to day care at a later and more reasonable hour for the
          .                                                                  .
          child in the morning, and pick her up earlier in the afternoon, providing more parent

          time. Prior to the separation, Mother was for all intents and purposes, the parent who

          transported the child to and from daycare. She was the major nurturing parent while the

          family was intact, and has continued that situation into the separation. All of the
                                         '•
                                                  ~~·~·
                                    .,
          testimony presented indicate tha1.,Father is so involved in soccer that he is simply not
     .        .             .                                      .                            .·
         available at significant times for-because             he must attend various games,

     . practices. training, and other sports-related activities:

              (4) The n·eed for stability and continuity in the child's education, _family life and
         community life.    ·         ·

                  Both parents evidence a stability and Father continues to live in the marital

         residence in which the child resided for all of her life. However, Mother has continued

         the schedule of time and activities which the child experienced. prior to the parties'

         separation, and has fewer extraneous distractions to interfere with her parenting

         schedule.

                  (5) The availability of extended family.

                                                       .

         Prior to separation, his parents visited with Father an~~ther and•••
                                                                                 ,.
                  Father has a close relationship with his family, who live in the Lancaster area.
                                                   .

                                                                                          every

     Sunday ·afternoon. Father's mother would baby-sit

     sees his parents often and the children of family members are          W
                                                                                 ,.
                                                                          at various times. He now

                                                                                   7 's only
     playmates when she is in his custody. Mother's family is not local. Her parents live in

     New Jersey and her sisters live in Virginia. However, prior to separation there were a

     number of yearly vislts back and forth and long vacation visits and it seems that these


                                                           12
,.

      will continue since Mother has a close relationship with her family. While•••

     would see father's parents more often, she clearly is connected to and will continue to

     see mother's family. ·

            (6) The child's sibling relationships.

            There are no siblings.

            (7) The well-reasoned preference of the child, based on the chHd's maturity and

     judgment.

            The child Is only three years of age and cannot express a preference.

             (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.
                                                                  .
                                                                '1,

           This is a troublesome area. While Father has not explicitly attempted to turn the

     child against Mother, some of his attitudes and behavior have that potential. He

 exhibited anger in nts demeanor on the witness stand that was very obvious to the

 court. Along with that anger, he expr4';d hostile and negative views of Mother, such

 as when he failed to attend one of Q           2 's activities and expressly blamed it on
 Mother to the child, saying that "Mommy forgot to tell me." He has failed to confer with

 Mother about several important and basic aspects of the child's life: he enrolled this

 Catholic child in a Lutheran Sunday School without telling Mother-; he failed to tell
                                            ,r.
 Mother in a reasonable time about -s                     hurting her head and exhibiting physical

 symptoms of great concern to~           •he has breached a right of first refusal agr~eme.~t:

 and. seems
       .    to prefer to have                                             .
                                             watched by his parents; h~. h!=IS        requested a
                                                                         . .· ,, .. ,,,



 complex 50/50 custody arrangement and expressed satisfaction that such would keep
                                                                      .              e_•.
 Mother from taking the child on long visits with her family.         As she grows, 'illlll         will

                                                     13
)
      certainly learn from such behavior that Father does not value her continued relationship ·

     with Mother .and Mother's family.

            (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.

               Both of these parties can maintain a loving stable nurturing relationship with th~ .

     child. It was clear to the court that both parents love the child and are dedicated to her

     welfare. However, the court is concerned about the possibility that stress has created

     nervous habits for the child, and is not convinced by Father's negative attitude toward

     giving the child help in the form of therapy. The Court also has concerns about Father's

     conveying negative attitudes to the child about Mother and Mother's family.

          (10) Which party lsmore likely to attend to the daily physical, emotional,
    developmental, educational and special needs of the child.

)          Again, both parties can parent according to this child's nee,.~ut the Court sees

    Mother as having the edge. For instance, her requirement that-go                  to bed on

    time was based on a reading of her child's crankiness when tired; Father attributed it to

    mother's rigidity as a "drill sergeant". It appears to the court that Father is allowing his

    hostility toward Mother to interfere with his pae1~ decision making, and he must learn

    to curtail this tendency. Father's belief that-will            be benefitted by being with

    him full time and attending his soccer activities also concerns the court. Attendance at

    the games every now and then wjth appr(¥>riate supervision will undoubtedly benefit the

    child. But for more than that, we must remember that soccer is father's thing, not the

    prefere'e~ a three year eld little,.girl. Mother appears to the Court to be more in sync

    with -·s           needs and preferences.
                                                                                         _.,
           (11) The proximity of the residences of the parties.                         . ·•
                                                    14
)   .
                  The parents live ten to twenty minutes from each otlier. "They can use the same

          day care provider and are close enough       to make alternate appropriate arrangements
         for the child.

                (12) Each party's availability. to care for the child or ability to make appropriate
         child-care arrangements.

                  Mother is more available to care for the .child, since she does not have the

         equivalent of Father's extra-curricular soccer activities. Both can certainly make

         appropriate child-care arrangements, in that they have each other and Father's mother

         available.

               (13) The level of conflict between the parties and the willingness of the parties to
         cooperate with one another ....

                 There is a certain level of conflict here, mostly seen in Father's hostile attitude
                                                                                                •
        and behavior toward Mother, andhis tendency to blame her for his shcrtcomlngs in

        relation to
                         G·       . The Court is· concerned that this approach will grow worse as the

        child grows older, and cautions Father to examine his own behavior and beliefs rather

        than blame others for any problems he has with the custody matter.

              (14) The history of drug or alcohol abuse of          a party .Gr member of a party's
        household.

                 There is no drug or alcohol abuse in either party's household.
                                                               •.
              (15) The mental and physical condition of a party or member of a party's
        household.

                 Neither party has a problematic mental or physical condition that will interfere

        with care of the
                     . . child..,,.,

                 Consideration of the above factors have convinced this Court that primary

        physical custody In Mother would serve Elizabeth's best interest. Mother is more likely

                                                         15
                                'l


                                     )                                   )
)
     to promote the child's relationship with Father, she has continued into separation her

     provision of the parenting duties connected with the child, she has more free time to

     devote to the child, she has less hostility toward father than he has toward her, which

     will maintain the custody arrangement without unnecessary difficulties.

            Mother believes that the child is doi.ng fine under the current schedule, and the



     his problems, such as when he asserted to
                                                       .
     Court accepts her opinion. (N.'T. 242) At the hearing, Father blamed Mother for some of

                                                    •s  ~                                '



                                                            athat he missed a school meeting

    because Mother hadn't reminded hi~~ather also raised negative issues about the

    relationship between Mother and~, such as his perception of Mother's rigidity

    and negativity in scheduling and interaction and the child's negative body language

    when with Mother. ( N.T. 35-38) However, the Court finds that his hostility colors those

    perceptions and makes it difficult to know the degree of their accuracy. The Court also

    finds that he inaccurately minimized the problems posed by his schedule and that much

    of his testimony was confusingly difficult if not contradictory because of a variety of

    inconsistencies contained therein. The Court therefore has some problems with
                            •
    Father's credibility. This does not mean that the Court denies that Father is not a loving

    and nurturing father; it is just that an examination of the listed aspects of the child's life

    and her relationship with her parents indicates that Mother as the primary custodial

    parent would better serve the child's best interests.

                                           CONCLUSION

           Based on the abov~.cuk1~'           the Court finds that Mother is the appropriate

    primary custodian of                       and that Father has not provided the facts



                                                   16
                          .·· t
                              ·1
                                ).                                }


supportinga shared custodyarrangement. The Order of November 20, 2015 shall

remain in effect.



                                      BY THE COURT:


                                             '~
                                      LESLIE GORBEY, JUDGE



Attest/rd/.)J.   '    ",_A~          a.J
      ~t~
                  1


Copies to:              ·
  ·   Michael E. McHale, "Esqui"re../
      Lisa J. McCoy, Esquire../




                                                       NOTICE Of ENTRY OF OROF:B OR DECREE
                                                       PURSUANT TO PA. B.C.P. NO: zse
                                                       NOTIFJCATION • THE ATif.\CHED DOCUMENT
                                                                        nus
                                                       HJ\$ BEEM Ffl..ED IN    CASE
                                                       PROTHONOTARY OF L-'\NCt\STER CO., PA
                                                       DATE:   /-ad..-{ <t,




                                       ,jl




                                                  17
