J-A04042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.D.D.,                                         IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

M.D.,

                          Appellant                 No. 1022 WDA 2015


                Appeal from the Order Entered January 5, 2015
                In the Court of Common Pleas of Butler County
                 Civil Division at No(s): F.C. NO. 12-90161-C


J.D.D.,                                         IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

M.D.,

                          Appellant                 No. 1165 WDA 2015


                 Appeal from the Order Entered June 29, 2015
                In the Court of Common Pleas of Butler County
                  Civil Division at No(s): F.C. NO. 12-90161-C


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 2, 2016

        M.D. (“Mother”) appeals from the custody orders entered by the trial

court on January 5, 2015, and June 29, 2015. We affirm.

        The trial court summarized the factual and procedural history of this

case as follows:
J-A04042-16


           The parties hereto, [M.D. (“Mother”)] and [J.D.D.
     (“Father”)] are the natural parents of one child, [(“Child”) (Born
     in 2010)]. Mother and Father were married on June 10, 2010
     and separated on August 30, 2013. The divorce matter between
     the parties is still pending. Child is the only child of issue to the
     marriage. Mother also has four other children, [E.G.] (Age 17),
     [H.G.1] (Age 15), [H.G.2] (Age 13) and [A.G.] (Age 13), as a
     result of her previous relationship with [K.G.].


           A complaint for custody was filed by Father on September
     13, 2013, averring that he is better able to provide a stable,
     structured, loving and caring environment for Child. Father also
     expressed concerns of leaving Child alone with Mother’s oldest
     son, [E.G.], due to his history of sexual abuse towards his sister,
     [H.G.2].1 Through an Order of Court dated November 18, 2013,
     the parties were ordered to undergo custody evaluations. . . .
           1
               An investigation was conducted by Armstrong
           County’s Children and Youth Services which resulted
           in a conclusion that the case was “substantiated.”

           Numerous Petitions for Contempt and Special Relief have
     been presented to the court in the custody matter, as well as the
     parties’ divorce matter. There is also a history of cross-PFAs
     between the parties, which have all since been dismissed. Over
     the past year, the parties have engaged in constant litigation
     and have rarely been able to cooperate.          The issues of
     contention have included discussing adult custody issues around
     Child, allegations of sexual abuse and how to deal with Child’s
     behavioral issues. Most recently, allegations of sexual abuse,
     which allege that [H.G.2] was sexually molesting Child, were
     made and presented to the Court.

           A Custody Trial was scheduled for August 25 and 26, 2014.
     After the presentation of a Motion to Continue to allow Butler
     County Children and Youth Services (“CYS”) to conduct their
     investigation [of the allegation of abuse by H.G.2 against Child],
     an Order of Court was issued on August 25, 2014 granting said
     Motion. The same Order of Court also directed Mother’s custody
     time to take place two times per week for two hours, either
     supervised or in a public setting. Mother was not permitted any
     overnights with Child.       Lastly, the same Order prohibited
     Mother’s oldest son, [E.G.], from being around Child at any time,


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J-A04042-16


       for any reason. The five day custody trial was held on October
       27, 28, and 29, 2014, and November 24 & 25, 2014.1

Amended Memorandum Opinion and Order of Court, 6/29/15, at 1-2.

       Following trial, an order of court dated January 2, 2015 and entered

January 5, 2015, was issued granting Mother and Father shared legal

custody. Father was awarded primary physical custody with Mother having

visitation.   On January 15, 2015, Father filed a petition for special relief,

which resulted in change of exchange times for Mother’s custodial weekends.

Mother filed a motion for reconsideration that was dated January 16, 2015,

and was entered on the docket on February 4, 2015.

       Mother filed a notice of appeal and a Pa.R.A.P. 1925(b) statement on

February 4, 2015.         On the same day, the trial court entered an order

granting Mother’s motion for reconsideration of the January 5, 2015 order,

____________________________________________


1
  The trial court opinion also included, inter alia, the following relevant
factor:

             A new allegation was made on November 4, 2014 alleging
       Child had been sexually abused by [H.G.2]. This report was
       made by Child’s [therapist] after Child revealed [H.G.2] had
       contact with Child’s “private parts”. There is no evidence as to
       whether this was a new act or the report of a prior act. [CYS
       intake investigator] testified that CYS currently has an open case
       with the family, and is developing a Family Service Plan. [The
       investigator] recommended that Child continue with therapy . . .
       and Mother, Father, and all the children have a psychosexual
       evaluation. Furthermore, she recommended that [Child] and
       [H.G.2] have no further contact until this is “worked out”.

Amended Memorandum Opinion and Order of Court, 6/29/15, at 5.



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J-A04042-16


and scheduling argument thereon for February 19, 2015. Father’s counsel

submitted a proposal for holiday custody on January 28, 2015, and Mother’s

counsel submitted a holiday custody proposal on February 9, 2015.

        While no order on the reconsideration motion was entered, an

amended memorandum opinion and order of court was docketed on June 29,

2015.     The amended memorandum opinion and order included a holiday

schedule, which adopted Father’s proposal.

        By order dated June 30, 2015 and entered July 6, 2015, the trial court

addressed Mother’s motion for reconsideration, stating that it had erred in

attaching an unedited draft of procedural history and findings of fact to the

January 5, 2015 order.            The trial court granted Mother’s motion for

reconsideration, in part, to revise the findings of fact that the trial court

agreed were in error. The trial court therein acknowledged four errors to the

findings of fact and these corrections were reflected in the June 29, 2015

amended memorandum opinion and order of court.             On July 29, 2015,

Mother filed an appeal from the June 29, 2015 order2 and opinion. Mother

____________________________________________


2
  Mother acknowledged in her notice of appeal at 1165 WDA 2015, from the
June 29, 2015 order, that the appeal at 1022 WDA 2015, from the order
entered January 5, 2015, was then pending. Mother indicated that the
motion for reconsideration filed at 1022 WDA 2015 was never ruled on and
therefore the order entered January 5, 2015 became final on June 4, 2015.
Mother asserted that out of an abundance of caution and the fact that the
June 29, 2015 order addressed holidays for the first time, she filed the
notice of appeal at 1165 WDA 2015. Notice of appeal, 1165 WDA 2015,
7/29/15, at 1.



                                           -4-
J-A04042-16


also filed a Pa.R.A.P. 1925(b) statement on the same date. The trial court

issued opinions pursuant to Pa.R.A.P. 1925(a) in both appeals.             Upon

application by Mother, this Court consolidated the two appeals by order filed

August 12, 2015. Order, 8/12/15.

     Mother presents the following issues for our review:

           I. Whether the trial court’s Memorandum Opinions and
     Orders of Court dated January 2, 2015 and June 29, 2015 are
     replete with erroneous statements of fact; with the result that
     there is not competent evidence to support the legal conclusions
     of the trial court, such that the Honorable Trial Court abused its
     discretion and erred as a matter of law in its review and
     evaluation of the evidence presented and the application of the
     custody factors to such evidence.

           II. Whether the Honorable Trial Court erred and abused its
     discretion in limiting Mother’s custody of the Child to only every
     other weekend where Mother was the Child’s primary physical
     custodian from the parties’ separation in August 2013 until
     Father presented his Petition containing allegations on August
     21, 2014 four days prior to the date the custody trial was to
     commence, and the Trial Court’s stated purpose of safety could
     be met with a far less restrictive arrangement, as Mother has
     custody of her older children on a week-on, week-off basis.

            III. Whether the Trial Court abused its discretion, erred as
     a matter of law, and violated Mother’s due process where it
     limited Mother’s custody time to every other weekend when it
     made no finding that additional contact with Mother alone gives
     rise to a reasonable suspicion that the Child has been abused by
     Mother or is in imminent danger of abuse by Mother.

            IV. Whether the Trial Court abused its discretion, erred as
     a matter of law, and violated Mother’s due process where it
     eliminated all contact between siblings where it made no finding
     that contact between the Child and Mother’s two younger sons
     gives rise to a reasonable suspicion that the Child has been
     abused by those other children or is in imminent danger of abuse
     if only Mother and her two younger sons are present.


                                    -5-
J-A04042-16


            V. Whether the Trial Court abused its discretion, erred as
     a matter of law, and violated Mother’s due process where it
     eliminated all contact between siblings, where it made no inquiry
     into the availability of safe contact between the Child and her
     siblings.

            VI. Whether the decision of the Honorable Trial Court to
     limit Mother’s custody time with the Child to every other
     weekend and to prohibit contact between the Child and her two
     siblings against whom no allegations were made was not in the
     Child’s best interest.

           VII. Whether the Trial Court abused its discretion, erred
     as a matter of law, and violated Mother’s due process where it
     eliminated all contact between Child and her half-siblings, E.G.
     and [H.G.2], where it made no inquiry into the availability of
     safe contact between the Child and those two siblings.

            VIII. Whether the Trial Court erred and abused its
     discretion when it correctly ruled that the parties are capable of
     sufficient communication to share legal custody but then ruled
     that their conflict prohibits shared physical custody.

            IX. Whether the Trial Court abused its discretion and
     erred as a matter of law, when it ordered each party to sign a
     release for the therapist for each of the parties including the
     Child, to allow each therapist to communicate with the others as
     this is a violation of the fundamental right to privacy and the
     patient- therapist privilege.

            X. Whether the Honorable Trial Court erred and abused its
     discretion in adopting wholesale the holiday schedule proffered
     by Father where the schedule proposed by Mother was
     specifically tailored so that Mother’s holiday time with Child
     would not overlap with the holidays when Mother has custody of
     her children from a prior relationship, while the schedule
     proposed by Father effectively eliminates Mother’s opportunity to
     exercise holiday custody if custody of her children from a prior
     relationship coincides with the holiday granted her in the Trial
     Court’s Order.

Mother’s Brief at 18-21.




                                   -6-
J-A04042-16


      Initially, we observe that because the custody hearings in this matter

were held in October and November of 2014, the Child Custody Act is

applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding

when custody evidentiary proceeding commences on or after the effective

date of the Act, January 24, 2011, 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-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.

R.L.P. v. R.F.M., 110 A.3d 201, 207–208 (Pa. Super. 2015) (quoting

C.R.F., 45 A.3d at 443).

      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)).

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J-A04042-16


      In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we

stated the following regarding an abuse of discretion standard.

            Although we are given a broad power of review, we are
      constrained by an abuse of discretion standard when evaluating
      the court’s order. An abuse of discretion is not merely an error
      of judgment, but if the court’s judgment is manifestly
      unreasonable as shown by the evidence of record, discretion is
      abused. An abuse of discretion is also made out where it
      appears from a review of the record that there is no evidence to
      support the court’s findings or that there is a capricious disbelief
      of evidence.

Id. at 18–19 (quotation and citations omitted).

      In her first issue, Mother asserts that the trial court’s memorandum

opinions and orders entered January 5, 2015 and June 29, 2015, are replete

with erroneous statements of fact. Mother’s Brief at 33. As a result, Mother

argues, there is not competent evidence supporting the legal conclusions of

the trial court. Id. Thus, she maintains the trial court abused its discretion

and erred as a matter of law in its review and evaluation of the evidence

presented and the application of the custody factors to such evidence. Id.

In   her   brief,   Mother   reproduces   language    from   her   motion    for

reconsideration in which she specifies nine alleged factual errors made by

the trial court. Id. at 34-35. Mother acknowledges that in its order dated

June 30, 2015, the trial court stated that the “‘Procedural History and

Findings of Fact’ attached to this Court’s Order dated January 2, 2015, was

an unedited draft that, upon review, should not have been attached to the

Order.”    Id. at 35.   Despite the trial court’s correction of four specific


                                     -8-
J-A04042-16


findings, Mother argues that the trial court made multiple errors that

evidence a bias against Mother. Id. at 36, 41.

       We first note that despite claiming in her brief that nine specific errors

were made by the trial court, Mother makes the following vague claim

regarding these errors in her Pa.R.A.P. 1925(b) statement:

       1.    The Honorable Trial Court’s Amended Memorandum
       Opinion and Order of Court dated June 29, 2015 is replete with
       erroneous statements of fact and thus, there is not competent
       evidence to support the legal conclusions of the trial court.

       2.    In light of the number of factual errors set forth in the
       Amended Memorandum Opinion and Order of Court dated June
       29, 2015, it is clear the Honorable Trial Court abused its
       discretion, erred as a matter of law, and did not afford Mother
       due process in its review and evaluation of the evidence
       presented and the application of the custody factors to such
       evidence.

Concise Statement of Errors Complained of on Appeal, 7/29/15, at 2.3

       “An appellant’s failure to include an issue in his Rule 1925(b)

statement waives that issue for purposes of appellate review.” Lineberger

v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006). Moreover, this Court has

stated the following regarding vague or overly broad statements:

       When a court has to guess what issues an appellant is appealing,
       that is not enough for meaningful review. When an appellant
       fails adequately to identify in a concise manner the issues sought
____________________________________________


3
  We note that Mother included the identical language in her Pa.R.A.P.
1925(b) statement filed in her appeal at 1022 WDA 2015, with the exception
of reference made to the memorandum opinion and order of court entered
January 5, 2015. Concise Statement of Errors complained of on Appeal,
7/6/15, at 2.



                                           -9-
J-A04042-16


      to be pursued on appeal, the trial court is impeded in its
      preparation of a legal analysis which is pertinent to those issues.

      In other words, a Concise Statement which is too vague to allow
      the court to identify the issues raised on appeal is the functional
      equivalent of no Concise Statement at all.                   While
      [Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998)]
      and its progeny have generally involved situations where an
      appellant completely fails to mention an issue in his Concise
      Statement, for the reasons set forth above we conclude that
      Lord should also apply to Concise Statements which are so
      vague as to prevent the court from identifying the issue to be
      raised on appeal.

Id.

      Indeed, in its Pa.R.A.P. 1925(a) opinion, the trial court expressed its

inability to fully address Mother’s claim due to her failure to set forth in her

Pa.R.A.P. 1925(b) statement the specific “factual errors” she was alleging.

Trial Court Opinion, 9/17/15, at 2.       Because Mother’s vague Pa.R.A.P.

1925(b) statement has hampered appellate review, we find her first issue

waived.

      Moreover, we note the trial court’s explanation regarding its correction

of the findings of fact:

            The Memorandum Opinion and Order of Court is not
      “replete with erroneous statements of fact.” The “Procedural
      History of Findings of Fact” attached to the Court’s January 2,
      2015 Memorandum Opinion was an unedited preliminary draft
      that, upon review, should not have been the final copy attached
      to the Order. However, upon review of the thirteen and a half
      pages, the Court found four “errors,” most of which were clerical.
      . . . The Court did not base any decision on the above factual
      “errors,” but notes that they were clerical errors only, and that
      the Court’s legal analysis and decision were based upon the
      Court’s personal recollection of the facts which was consistent


                                     - 10 -
J-A04042-16


      with the record. None of the four “errors” were considered or
      given any weight in the Court’s decision.

Trial Court Opinion, 9/17/15, at 1-2.

      Thus, the trial court reviewed its Findings for errors, and subsequently

identified and corrected those errors as reflected in its June 29, 2015

amended memorandum opinion and order of court.           Additionally, the trial

court explained that its legal analysis and decision were based upon the trial

court’s personal recollection of the facts that were consistent with the

record.   Accordingly, we discern no abuse of discretion by the trial court.

Mother is entitled to no relief on this claim.

      In issues II through VII, Mother asserts various challenges to the

custodial arrangement created by the trial court.     Mother’s Brief at 41-48.

Mother summarized her argument on these issues as follows:

             The Trial Court erred and abused its discretion in limiting
      the Mother’s custody time to two days out of every fourteen,
      with twelve days intervening. One of the Trial Court’s rationale’s
      for so restricting Mother’s custody time was to ensure the Child’s
      safety due to concerns regarding her interactions with her older
      siblings, Mother’s children from a prior relationship. Any safety
      concerns of the Trial Court could have been assuaged with a far
      less restrictive regime, where Mother has custody of her older
      children on a week-on, week-off basis and the failure to
      implement a less restrictive custody schedule infringes on
      Mother’s fundamental interest in the care and welfare of her
      child. The Trial Court has also contradicted its own statement
      that it did not intend to restrict custody time, but rather to “give
      each family member as much time with the child, in a safe
      environment, as possible.”

           The Trial Court erred by limiting Mother’s custody time to
      every other weekend, where there was no finding that Mother
      was a risk to the Child, and by limiting or eliminating sibling

                                      - 11 -
J-A04042-16


      contact. The Trial Court failed to explore other options in this
      exceptionally “hard” case, electing instead to allow the unity of
      the family to suffer.

Mother’s Brief at 30-31.    Additionally, Mother specifically argues in her

second issue that the trial court erred and abused its discretion in limiting

Mother’s custody of Child to only every other weekend where Mother was

Child’s primary physical custodian from the time the parties separated in

August 2013 until August 21, 2014, when Father presented his petition.

Mother’s Brief at 41.

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

is the best interests of the child.      See 23 Pa.C.S. §§ 5328, 5338.

Section 5338 of the Act provides that upon petition, a trial court may modify

a custody order if it serves the best interests of the child.    23 Pa.C.S.

§ 5338(a). The best interest factors that the trial court must consider are

set forth at 23 Pa.C.S. § 5328. E.D. v. M.P., 33 A.3d 73, 80–81 n.2 (Pa.

Super. 2011).

      Section 5328(a) of the Act provides as follows:

      § 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.




                                   - 12 -
J-A04042-16


            (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)(1) and
     (2) (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.

           (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

                                    - 13 -
J-A04042-16


       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. § 5328.4

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

       “All of the factors listed in section 5328(a) are required to be
       considered by the trial court when entering a custody order.”
       J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
       in original). . . . The record must be clear on appeal that the
       trial court considered all the factors. Id.

             Section 5323(d) provides that a trial court “shall delineate
       the reasons for its decision on the record or in open court or in a
       written opinion or order.” 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
       of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
       appeal denied, 70 A.3d 808 (Pa. 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).



____________________________________________


4
    Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S. § 5328(a)(2.1), providing for consideration of
child abuse and involvement with child protective services.          Although
applicable at the time of the custody hearings in this matter, there was no
evidence that would have required the trial court’s consideration of this
factor as there was no claim regarding parental abuse.



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J-A04042-16


              In expressing the reasons for its decision, “there is no
        required amount of detail for the trial court’s explanation; all
        that is required is that the enumerated factors are considered
        and that the custody decision is based on those considerations.”
        M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal
        denied, 68 A.3d 909 (Pa. 2013).        A court’s explanation of
        reasons for its decision, which adequately addresses the relevant
        factors, complies with Section 5323(d). Id.

A.V., 87 A.3d at 822–823.

        In the present appeal, the trial court thoroughly discussed the sixteen

custody     best-interest   factors   in    its     opinion   and   order.   Amended

Memorandum Opinion and Order of Court, 6/29/15, at 16-29. We decline to

duplicate that lengthy recitation here. A review of the record reflects that

the trial court’s analysis and conclusions regarding those factors are

supported by the evidence of record. Thus, based on those determinations,

we conclude that the trial court did not err or abuse its discretion in crafting

the present custody arrangement and did so with Child’s best interest in

mind.

        Indeed, the trial court’s studied consideration of this matter is

reflected in the following statement it made to the parties:

        I’m going to be very honest with [you] in that because of the
        Court’s Findings of Facts in this case, from a practical standpoint,
        this is one of the hardest orders to draft. We have so many
        children. We have children that are not under this Court’s
        jurisdiction. And we have at least two children who have direct
        evidence, at least as my Findings go, where we have either
        sexual abuse or attempt at sexual abuse or concerns of sexual
        abuse at the very least. I mean -- so, I’m going to be honest
        with you: You are not going to get an Order that addresses it
        all. I just can’t. I mean, I went back for weeks and weeks,
        looking at: How do I let the children have time with the siblings

                                           - 15 -
J-A04042-16


      who are not involved with the two sexual issues, and how -- you
      know, how does Mom’s extended family get time with the – I
      mean, it is just nearly impossible to think of all the potential
      scenarios that could exist. And I have two parents who are
      going to need to be micromanaged. There is no question.
      Neither one of them are capable of taking a big picture and
      applying it appropriately and in the best interest of the children
      without micromanaging. So -- with a case that is very difficult to
      micromanage. So, I don’t doubt that you’re going to walk away
      with some questions . . . . You are going to walk away going,
      What do we do here? And I feel the same frustration that you
      do, and I’m sure it’s difficult in discussing it with your clients. I
      just want you to understand my mindset and where I’m coming
      from.

            My primary consideration will be to do as much as is
      humanly possible, what is [Child’s] best interest, balancing the
      interest of safety and emotional security with the interests of her
      not feeling like she’s the weird one, out of place, because she
      can’t be with some of her – I mean, there is no good answer
      here -- I’m just going to be honest – unless, or, in my hope, that
      through therapy some of these issues can be addressed. The
      Court can’t solve them. I can only try to draft an Order that, as
      much as possible, puts [Child’s] best interest with those
      balances.

N.T., 2/19/15, at 32-34.

      Furthermore, with regard to Mother’s argument that the trial court

erred by failing to afford proper consideration to her role as Child’s primary

caretaker, we note that this Court has reasoned that the Act indicates that

the only factors given weighted consideration are factors that affect the

safety of the child. M.J.M., 63 A.3d at 338. The M.J.M. panel explained:

            The language of [the Act] is clear. It explicitly provides
      that all relevant factors shall be considered by the trial court,
      and the only factors that should be given “weighted
      consideration” are factors that “affect the safety of the child[.]”
      Id. “When the words of a statute are clear and free from all
      ambiguity, the letter of it is not to be disregarded under the

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     pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b); see also
     Ario v. Ingram Micro, Inc., 600 Pa. 305, 317, 965 A.2d 1194,
     1201 (2009). If the Pennsylvania Legislature intended for extra
     consideration be given to one parent because of his or her role
     as the primary caretaker, it would have included language to
     that effect.   Stated another way, the absence of such
     language indicates that our Legislature has rejected the
     notion that in analyzing both parents, additional
     consideration should be given to one because he or she
     has been the primary caretaker.

             Furthermore, the consideration the primary caretaker
     doctrine sought to address (which parent spent more time
     providing day-to-day care for a young child) is addressed
     implicitly in the enumerated factors. See, e.g., 23 Pa.C.S.A. §§
     5328(a)(3) (“The parental duties performed by each party on
     behalf of the child.”); (a)(4) (“The need for stability and
     continuity in the child’s education, family life and community
     life.”). The considerations embraced by the primary caretaker
     doctrine have been woven into the statutory factors, such that
     they have become part and parcel of the mandatory inquiry.

            In short, the Legislature has created a mandatory inquiry
     to aid trial courts in determining the best interests of the child in
     a custody dispute. In doing so, it articulated the components of
     a parent’s obligations and characteristics, and a child’s needs
     and welfare, that must be incorporated in the trial court’s
     custody decision where the parents are incapable of doing so on
     their own. In setting forth these factors, the Legislature has
     required the trial court to give additional weight only to factors
     that it finds affect the safety of the child. This language is clear,
     and we cannot expand it to provide that a trial court must also
     give weighted consideration to a party’s role as primary
     caretaker. We simply cannot graft the judicially-created primary
     caretaker doctrine on to the inquiry that the Legislature has
     established, and so we conclude that the primary caretaker
     doctrine, insofar as it required positive emphasis on the primary
     caretaker’s status, is no longer viable.

           We hasten to add that this conclusion does not mean that
     a trial court cannot consider a parent’s role as the primary
     caretaker when engaging in the statutorily-guided inquiry. As
     discussed above, a trial court will necessarily consider a parent’s
     status as a primary caretaker implicitly as it considers the

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      section 5328(a) factors, and to the extent the trial court finds it
      necessary to explicitly consider one parent’s role as the primary
      caretaker, it is free to do so under subsection (a)(16). It is
      within the trial court’s purview as the finder of fact to determine
      which factors are most salient and critical in each particular
      case. See A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa. Super.
      2010) (“In reviewing a custody order . . . 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.”). Our decision here
      does not change that.

M.J.M., 63 A.3d at 338–339 (footnote omitted) (emphasis added).

      Based on this Court’s discussion of the primary caretaker doctrine in

M.J.M., we find no merit to Mother’s contention regarding the weight the

trial court afforded the fact that Mother was previously Child’s primary

caretaker.    We find that the trial court carefully considered all section

5328(a) factors, that the trial court’s conclusions are not unreasonable as

shown by the evidence of record, and we find no error of law on the part of

the trial court. We, therefore, will not disturb the trial court’s determination.

C.R.F., 45 A.3d at 443.

      In issue VIII, Mother asserts that the trial court erred and abused its

discretion in ruling that the conflict between the parties prohibited shared

physical custody.   Mother’s Brief at 48.     Mother seems to be arguing that

this determination is not supported by the trial court’s other findings,

specifically, the trial court’s conclusion that the parties are capable of




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communication sufficient to allow for shared legal custody. Id.5        Mother

argues that since the trial court found that the parties can share legal

custody, there should be no reason their conflict should prevent shared

physical custody. Id. at 52.

       In issuing its custody order, the trial court made the following

determination in considering factor 5328(a)(13): 6

       The parties are able to communicate at a minimum level, at
       best. They constantly point the finger at the other party and fail
       to look at themselves for any kind of blame. There is an
       extremely high conflict among the parties.          Co-parenting
       counseling as well as individual counseling would help them get
       through their communication issues with regards to Child. The
       parties should also keep their communication to the limited
       nature of Child and her needs and well-being. At this point in
       time, the Court believes the parties are capable of
       communicating on a minimal level so that shared legal custody is
       possible, however, their conflict prohibits shared physical
       custody.

Amended Memorandum Opinion and Order of Court, 6/29/15, at 28.

       Additionally, in its Pa.R.A.P. 1925(a) opinion, the trial court provided

the following analysis in response to this issue:

____________________________________________


5
  Despite identifying this as the issue, Mother focuses much of her discussion
in this section of her brief on how the change in Mother’s custodial time
would affect Child, and the fact that Mother previously had primary physical
custody of Child. Mother’s Brief at 48-51.
6
  This factor requires that the court consider “[t]he 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.” 23
Pa.C.S. § 5328(a)(13).



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             The parties are able to communicate, however minimally
      due to their hostility toward the other. While the level of
      communication may impact sole physical custody, there was no
      evidence to support anything but shared legal custody. In
      determining whether to award shared legal custody, the trial
      court must consider the following factors: whether both parents
      are fit, capable of making reasonable child rearing decisions, and
      willing and able to provide love and care for their children,
      whether both parents evidence a continuing desire for active
      involvement in the child’s life, whether the child recognizes both
      parents as a source of security and love; and whether a minimal
      degree of cooperation between the parents is possible. . . . . An
      award of shared legal custody is appropriate where the parties
      have not shown an inability to cooperate to a minimal degree or
      to isolate their personal conflicts from their role as parents. . . .
      The Court considered all of the above enumerated factors and
      the parties’ ability to communicate in awarding shared legal
      custody.

             Due to the serious nature of the alleged abuse, Mother’s
      inability or unwillingness to provide reasonable boundaries
      between her children so as to maintain a safe environment for
      Child, and the Court’s optimism that Mother would seek
      counseling, the Court found that it would be in Child’s best
      interest for Mother and Father to have shared legal custody.
      Prospectively it is important that each parent be able to
      participate in and have input in medical, emotional and
      educational decisions for Child.

Trial Court Opinion, 9/17/15, at 5-6.

      The trial court’s determination is supported by the evidence of record

and is not unreasonable in light of that evidence.      The trial court was the

sole judge of the credibility of the parties and the level of hostility exhibited

by the parties towards each other. We decline Mother’s invitation to second-

guess those determinations by the trial court. As we have noted:

      [t]he 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

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J-A04042-16


      unwarranted if the trial court’s consideration of the best interest
      of the child was careful and thorough, and we are unable to find
      any abuse of discretion.

S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002).            Because the trial

court’s determination on this issue and the overall custody arrangement is

reasonable and focused on the best interests of Child, we cannot agree that

the trial court erred or abused its discretion in making this determination.

Mother’s claim fails.

      In her next issue, Mother contends that the trial court abused its

discretion and erred as a matter of law when it ordered each party to sign a

release for their respective therapists so as to allow the therapists to

communicate. Mother’s Brief at 54. Mother argues that such compulsion is

a violation of the fundamental right to privacy and the patient-therapist

privilege. Id.

      In response to this issue, the trial court provided the following

explanation:

            It was the Court’s understanding that counsel for all
      parties agreed that the parties and Child would be best served if
      the counselors/therapists could communicate for treatment
      purposes only. On February 19, 2015, Counsel for Mother
      confirmed that Mother was still agreeable to do so. The Court
      agrees that the Order of Court dated January 2, 2015, paragraph
      seven, should be amended to read “may” rather than “shall.”

Trial Court Opinion, 9/17/15 at 6. Moreover, the amended custody order of

June 29, 2015, does not include a requirement that the parties sign releases

for their respective therapists to allow for sharing of information.


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      In her appellate brief, Mother asserts the following:

            This issue was raised in light of the Trial Court’s
      Memorandum Opinion and Order dated January 2, 2015. In
      reviewing the Trial Court’s Amended Memorandum Opinion and
      Order entered June 29, 2015, . . ., it appears clear there was no
      intention to impose on any party’s privacy rights.

Mother’s Brief at 54.

      Thus, there is no longer any requirement that the parties sign releases

as part of the custody order, and Mother is no longer asserting a violation of

her privacy rights. Accordingly, we need not discuss this issue further.

      In her final issue, Mother asserts that the trial court erred and abused

its discretion in adopting wholesale the holiday schedule proffered by Father.

Mother’s Brief at 55. Mother maintains that the schedule she proposed was

specifically tailored so that Mother’s holiday time with Child would not

overlap with the holidays when Mother has custody of her other children.

Id. Mother contends that the schedule proposed by Father and adopted by

the trial court effectively eliminates Mother’s opportunity to exercise holiday

custody of Child if custody of her other children coincides with that

designation. Id.

      The adoption of the holiday custody schedule by the trial court was

made in light of and consideration of the overall custody determination of

the trial court. As noted, the trial court thoroughly and carefully considered

all of the sixteen factors listed under 23 Pa.C.S. § 5328(a)(1)-(16) in

crafting the custody arrangement. The holiday schedule adopted by the trial


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court is consistent with those considerations and the trial court’s focus on

the best interests of Child. We cannot conclude that the trial court’s adopted

holiday schedule is unreasonable.

      Furthermore, we note that in her brief, Mother asserts that she does

not have a specific holiday schedule for custody of her other children.

Mother’s Brief at 56 n.34. Therefore, we determine that Mother’s assertion

that she will be effectively precluded from exercising any holiday custody of

Child due to a coincidence of custody of her other children lacks merit.

Accordingly, we cannot conclude that the trial court erred or abused its

discretion in establishing the holiday custody schedule.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2016




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