J-S10013-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    M.D.W.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    M.E.W.                                     :   No. 1612 MDA 2019

               Appeal from the Order Entered September 6, 2019
               In the Court of Common Pleas of Lycoming County
                 Civil Division at No(s): FC-2013-0021022-DC


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                   FILED: MAY 11, 2020

       M.D.W. (“Father”) appeals from the order entered in the Court of

Common Pleas of Lycoming County, which awarded Father and M.E.W.

(“Mother”) shared legal custody of the parties’ son, M.W. (“Child”), Mother

primary physical custody, and Father partial physical custody. We affirm.

       Mother and Father divorced in December 2013. Prior to the custody

order on appeal, the parties’ custody of their two children, their daughter,

A.W.,1 born in August 2002, and Child, born in March 2005, was governed by

an agreed custody order dated August 8, 2016. See Order, 8/8/16. The order

permitted Mother to relocate with the children from Pennsylvania to Montclair,

New Jersey, and required Child to attend a private school there (“the School”).

See id. at 1-2.
____________________________________________


1Neither Father nor Mother raises any issue with regard to the legal or physical
custody of A.W.
J-S10013-20



       During the school year, the order provided Father with physical custody

of Child every other weekend from Friday at 5:00 p.m. through Sunday at

5:00 p.m., as well as six days of custodial time in Montclair, New Jersey. See

id. at 2-3. During summer, the order provided that Child would primarily

reside with Father, while granting Mother physical custody of Child for two full

weeks and three weekends. See id. The order also set forth a holiday schedule

and provided Father and Mother with shared legal custody of Child. See id. at

1-4.

       On January 22, 2018, Mother filed a petition for modification of custody,

asserting that it would be in Child’s best interest to equally divide Child’s

school breaks between Mother and Father. By order entered May 15, 2018,

the trial court appointed Attorney Patricia Shipman to serve as Child’s

guardian ad litem.

       After several hearings, the trial court entered its custody order,

awarding the parties shared legal custody, Mother primary physical custody,

and Father partial physical custody. See Order, 9/6/19, at 1-2. The order

required Child to continue attending the School, and granted Father two

weekends of physical custody per month during the school year, with one

weekend per month in Williamsport, Pennsylvania, and one in the Montclair,

New Jersey, area, so Child would “be able to participate in activities with his

peers.”   See id. at 2. During summer, the order granted Father primary

physical custody, subject to Mother’s two weeks of partial physical custody,

and permitted either parent to unilaterally enroll Child in camps or similar

                                      -2-
J-S10013-20



activities. See id. at 2-3. Moreover, the order required Child to be enrolled in

counseling and afforded Mother the right to select the counselor and to give

Father notice of the selection. See id. at 5.

      Father timely filed a notice of appeal and a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On

appeal, Father raises the following issues for our review:

      1. Did the trial court err in not granting Appellant primary
         physical custody of the minor child when the evidence and
         application of the custody factors warranted the change in
         custody and school district?

      2. Did the trial court err in ordering in unclear and ambiguous
         terms that Appellant is to exercise one weekend per month in
         Williamsport, PA and one weekend per month in Montclair, NJ?

      3. Did the trial court err in allowing the child to attend any and
         all camps over the summer so long as he has one parent’s
         consent rather than requiring agreement by both parties as is
         set forth in the legal custody provisions of the custody order?

      4. Did the trial court err in permitting Appellee to unilaterally
         choose a counselor for the minor child which is contrary to the
         legal custody provisions set forth in the custody order?

Father’s Brief at 5-6.

      In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.

§ 5321-5340, 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


                                      -3-
J-S10013-20


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

      We have stated:

      [t]he discretion that a trial court employs in custody matters
      should be accorded the utmost respect, given the special nature
      of the proceeding and the lasting impact the result will have on
      the lives of the parties concerned. Indeed, the knowledge gained
      by a trial court in observing witnesses in a custody proceeding
      cannot adequately be imparted to an appellate court by a printed
      record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting Jackson

v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

      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).

      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. See 23

Pa.C.S.A. § 5338. Section 5328(a) sets forth the best interest factors that the


                                       -4-
J-S10013-20


trial court must consider. See E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super.

2011). Trial courts are required to consider “[a]ll of the factors listed in

section 5328(a) . . . when entering a custody order.” J.R.M. v. J.E.A., 33

A.3d 647, 652 (Pa. Super. 2011) (emphasis in original).

      Although the court is required to give “weighted consideration to those

factors which affect the safety of the child” pursuant to 23 Pa.C.S.A. §

5328(a), we have acknowledged that the amount of weight a court gives any

one factor is almost entirely discretionary. M.J.M. v. M.L.G., 63 A.3d 331,

339 (Pa. Super. 2013). Moreover, “[i]t 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.” Id. (citing A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa.

Super. 2010)).

      Section 5328(a) of the Act provides a non-exclusive list of factors that

a court should consider when evaluating custody:

             (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)(1) and
      (2) (relating to consideration of child abuse and involvement with
      protective services).




                                     -5-
J-S10013-20


           (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
     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.


                                     -6-
J-S10013-20


            (16) Any other relevant factor.

23 Pa.C.S.A. § 5328.

      This Court has explained that while the explicit desires of the child are

not controlling,

      such wishes do constitute an important factor that must be
      carefully considered in determining the child’s best interest. The
      weight to be attributed to a child’s testimony can best be
      determined by the judge before whom the child appears. The
      child’s preference must be based upon good reasons and his or
      her maturity and intelligence must also be considered.

Ketterer v. Seifert, supra (internal quotations and citations omitted). “The

significance placed on the preference of the child who is at the center of the

custody dispute is similarly within the discretion of the trial judge.” Masser

v. Miller, 913 A.2d 912, 920 (Pa. Super. 2006). Ultimately, “[w]hen a trial

court orders a form of custody, the best interest of the child is paramount.”

S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014) (citation omitted).

      Initially, Father argues that the trial court erred by failing to award him

primary physical custody of Child during the school year. See Father’s Brief

at 14. In particular, Father faults the trial court’s analysis of custody best

interest factors one (encouraging contact with other parent), four (stability),

seven (Child’s preference), nine (emotional needs), and ten (daily needs).

      With respect to factor one, Father argues that the trial court erred in

concluding this factor was neutral because he encouraged Child’s contact with

Mother and accommodated Mother’s requests for schedule changes. See id.

at 19-20. Father argues that Mother has not reciprocated. See id. at 20-21.

                                      -7-
J-S10013-20


Accordingly, Father asserts that factor one should have favored him. See id.

With respect to factor four, Father contends that this factor should have

favored him rather than Mother because of his long-term ties to his

community, and Mother’s various residences and her plan to move to Florida.

See id. at 21-24. Further, Father relies on the quality of his local school

system as compared to the School. See id. at 24-25. Moreover, Father faults

the trial court’s focus on Child’s education in its analysis. See id. at 26-27.

      With respect to factor seven, Father argues the trial court improperly

disregarded Child’s preference to move to Montoursville, Pennsylvania. See

id. at 27-30. Regarding factor nine, Father contends the trial court erred by

focusing on his decision to delay his wedding to his fiancée, K.G. See id. at

30-31. Additionally, Father argues that the testimony of Child and the GAL

establish that this factor should be equal or favor Father. See id. at 30-31.

With regard to factor ten, Father asserts the trial court should have concluded

this factor was equal rather than “slightly favoring” Mother because Father

meets Child’s educational needs and cares for Child. See id. at 31-32.

      At the conclusion of the August 23, 2019, hearing, the trial court

announced its evaluation of the custody best interest factors on-the-record.

As pertinent to Father’s appeal, the court stated,

             THE COURT: Let me say a couple things, generally, here.
      First of all, I want to commend each of you, [A]ttorney Dinges and
      [A]ttorney Protasio, for, as always, your performances. You both
      are very, very skilled, experienced family law practitioners. Your
      clients are very fortunate to have each of you as attorneys and I
      love having you be in court because you do thorough jobs and

                                      -8-
J-S10013-20


     save the [c]ourt a lot of work and I appreciate that very much.
     There are lots of attorneys who practice family law who don’t know
     what they are doing so I commend you for that.

            I also commend Tricia Shipman for one of the most thorough
     GAL reports I’ve ever seen and I can’t imagine how much time she
     spent with the children in this case and I really can’t think of a
     situation down in my home district where we’ve had that kind of
     comprehensive GAL report. She did a thorough job so I’m grateful
     for that.

            One other comment. I’m very sorry we did not have the
     participation of [A.W.;] I think it leaves a hole in the information
     that the [c]ourt should have. But since all of you are in the position
     that she should not be disturbed, I’m not going to subpoena the
     child to come in here against her will that has to be. I think there’s
     some unanswered questions that only she could have answered.

            I’ll tell you what the driver is here and I’ll go through the
     custody factors. The driver to me is the educational piece and I
     really responded to what [A]ttorney Dinges said about, you know,
     trying something that could be an experiment.

            We know for a fact -- and I’ll go through the factors -- we
     know for a fact that the child has been with mom since 2016, living
     with mom in New Jersey with her being the primary caretaker
     during that very important part of the time of the year where the
     child is in school.

            We also know an awful lot about [the School] and I want to
     say this, I think the information on the Montoursville High School
     is very impressive. It’s -- I think it’s a superb school from the
     things I’ve heard and seen in the testimony but I think for this
     child the continuation at [the School] is very important and I’ll tell
     you why I say that when I get to that factor.

           So what’s going to happen here is nothing is changing other
     than, perhaps, tweaking a bit on the periods of physical custody.
     One thing I didn’t tell you was that --and I think this is true -- that
     [Child] said that he was not concerned about coordinating times
     with [A.W.] for visits to family. He felt that [A.W.] was agile
     enough, my word, to work things out so that she could be with
     [Child] when they wanted to be together and he also pointed out
     that she’s going to be an adult in the not so distant future, two
     years from now, and she’ll be able to implement whatever she
     wants in terms of spending time with [Child].

                                      -9-
J-S10013-20


           Let me go down through the custody factors as I see them.

           Factor 1 – [] I will ask the Court Reporter to make a
     transcript[] of this which I’ll attach to my findings -- which party
     is more likely to encourage and permit frequent and continuing
     contact between the child and the other party. I don’t see that as
     a problem. I agree with the Guardian Ad Litem on that.

                                     ***

           Continuing on with the parental duties, factor 3 -- excuse
     me[,] let’s go to factor 4, the need for stability and continuity in
     the child’s education, family life and community life. We know that
     [Child] has been with [M]other for the past several years so that
     continuing his residence with [M]other during the school year does
     continue the stability and continuity in his education, family life
     and community life.

           We grant that [Child] is very familiar with life in
     Williamsport; he lived here for a period of time, he has friends
     here. I don’t see that anything we’re going to do is going to
     prevent him from continuing with those friendships.

            This is -- the problem with doing a custody case like this is
     that you’re making a decision, although I think the education piece
     is a big factor, in all other respects when you weigh these factors
     and favor against one parent or the other, sometimes you’re
     dealing with just a hair line [sic] difference that really doesn’t
     amount to anything.

            I just note that we talk about stability and continuity, there
     was testimony from [Father] and [K.G.], they have been together
     for two years, they have been in a -- living together for two years,
     they’ve been in a relationship for four years. I don’t know what to
     make of the fact that there was this -- what’s the word I want,
     failed or canceled -- we’ll call it a canceled marriage plan and that
     nothing further has happened with that. I mean, it’s undeniable
     that [Mother] is remarried and it would appear to me is in a very
     successful marriage. Again, this is just a minor factor but it is a
     difference between the two families, not something that really tips
     it either way for me but I do note that it was a difference.

                                     ***

           Number 7, well-reasoned preference of the child based on
     the child’s maturity and judgment. We do note that this is one of


                                    - 10 -
J-S10013-20


       17 factors, we had a point when if [Child] had said something
       different from what he said today at the day we first -- the day we
       first got together,[2] I don’t know what the outcome would have
       been, whether the parties would have made an agreement to shift
       the custody, but turns out that that was not truly [] what he
       wanted. He wanted to be in the Montoursville High School. I don’t
       feel that his reasons for doing that are based on sound educational
       needs and I’ll talk more about that when I talk about [the School].
       Class size, that is just one thing. So, his preference is recognized,
       I think he spoke honestly about it, but as I noted to you, it was
       not about which parent he wanted to live with or what school he
       wanted to go to.

                                           ***

             Number 9, which party is more likely to maintain a loving,
       stable, consistent and nurturing relationship with the child
       adequate for the child’s emotional and physical needs. I agree with
       the GAL on this and I think [Child] has demonstrated in his
       statement to me he’d be fine living either place. He has -- and
       that, to me, is a great credit to the parents who made him feel
       comfortable.

             Again, I am getting into these tiny little micro factors. I’m
       just -- I’m curious about why [Father] and [K.G.] have not
       solemnized their relationship. [Mother] is apparently successfully
       married and has a relationship with [Stepfather, J.O.,] which is
       locked in by virtue of the marriage contract.

             Number 10, which party is more likely to attend to the daily
       physical, emotional, developmental, educational and special
       needs of the child. Mom has a track record on this because she’s
       got the primary custody.

             One thing that’s curious to me, and I think Miss Protasio
       indicated, I don’t know why the parents aren’t coming through
       better with monitoring the homework piece. How do you not know
       that a child has or hasn’t done homework? Show me what you
       did and look up what the assignment is on the web page and you
       make a match and you ride hard. I don’t think that [Father’s]
____________________________________________


2The trial court spoke with Child off-the-record before the start of the first
hearing. The court reported to the parties that Child indicated his educational
needs were best met by attending the School, while his social needs would be
best met by living in Williamsport. See N.T., 7/22/19, at 5.

                                          - 11 -
J-S10013-20


     statement that he takes [Child’s] word for it when he says he has
     no homework is the way to go. My goodness, I would never take
     a child’s word for that. I would make sure the child show[ed] me
     that that wasn’t true or I’d investigate it myself.

            So both parents need to, I think, step up more on this
     homework question. Again, when I talk about [the School] I’ll
     flush that out. So, mom has the greater opportunities to do
     something with this and I can say why is the child not doing better,
     I’m talking about that now. So I’ll give mother a vote on that one
     in her favor slightly and also give her a vote on factor 4 about
     stability.

                                     ***

           And, of course, the recommendation of [the] Guardian Ad
     Litem was that the child stay where he is and continue at [the
     School]. And Miss Shipman, after interviewing the child, said that
     I could report to you -- and she’s now back in the courtroom --
     and her recommendation has not changed. To me it’s all about the
     educational piece and I reread – I reread the grades, I reread the
     emails between the teachers and the parents and the level of
     concern and interest on the part of [the School] in all dimensions
     of [Child’s] persona is impressive to me. And if this child is going
     to be successful educationally, it’s going to happen at a school like
     [the School].

            Why is he not doing better? Once upon a time he did okay.
     I think that definitely this custody case is wearing on his attention
     span, on his ability to focus, he said that to me although he tried
     to blend in some family losses and I can understand that. But I do
     think if there’s a recipe for success it’s going to be with [the
     School].

             One thing I noted was that the lowest final grade he got was
     a C minus. Under the scoring system given by [the School], and
     we like to have him get all A’s and in the past he’s seen that, that’s
     still a satisfactory grade under the criteria of [the School]. He has
     only one C minus which is in algebra.

           Several teachers said he needs to reach out for help. There
     are lots of suggestions from teachers about how he can improve
     and the parents need to be right on top of that at all times.

           I already commented about the fact that the homework is
     not getting done, assignments are not getting turned in. Just as

                                    - 12 -
J-S10013-20


     an example, the algebra teacher said it’s important for him to seek
     help. English teacher, same thing. The history teacher said that
     he has difficulty in completing assignments. Science teacher, less
     successful in completing assignments. Spanish talks about
     needing to practice grammar, review class notes. I would think
     that’s something that [Mother] and [Father] could well inquire
     into. I don’t know if either of them speaks Spanish but doing drills
     and making him do drills I think apparently is something that
     needs to happen.

           The media arts teacher said [his] project was late again so
     this business about not turning things in, not getting work done,
     I don’t see why that can’t be fixed by the parents and you can’t
     take [Child’s] word for it, you’ve got to be on top of it. I just don’t
     see that a switch of the schools is going to solve the problems. He
     can still turn things in late and not complete things and not do
     homework and my concern is that while Montoursville certainly is
     a great school, I don’t want [to] play games and take a chance on
     something that hasn’t been tested yet.

            And he said – [Child] said he’ll be perfectly happy if I say
     that he stays at [the School] and that’s what I’m going to do. I
     don’t want to tamper with what has a better, I think, opportunity
     for his success given that this is where he’s been, this is what we
     know. He’s never been in public school before and as good as
     Montoursville might be, I just I don’t have the confidence that
     [Child] will be able to take charge of things in the way that he
     tries to tell me he can.

           So, what’s going to happen is this, the existing -- we’re short
     on time -- existing custody order of 2016 will remain in effect. I’ll
     tinker with it a bit to try to improve some of the things and I’ll add
     a counseling requirement. In the final order I’ll also -- I thought
     about ordering a provision for parental counseling. I’ll be thinking
     about that. I think that’s hard to implement given how far away
     the parties are from each other but they possibly could do
     something individually. We’ll see about that. So that’s where we
     are. [Child’s] school begins the day after Labor Day and that’s
     where he’s going to be. And we’ll issue an order not right away
     because I am away for most of next week but we’ll get an order
     out to that effect.

N.T., 8/23/19, at 182-197.




                                     - 13 -
J-S10013-20


       The record supports the trial court’s conclusions and analysis. Mother

testified at length regarding her belief that it would be preferable to have

Father exercise one weekend of his physical custody time each month during

the school year in Montclair, New Jersey. See N.T., 7/22/19, at 14. Mother

asserted that by exercising custody in New Jersey, Child could participate in

activities with his peers. See id. at 15-16. Mother thought this was workable,

particularly because Father owns an airplane and flew back and forth

previously. See id. at 14-15. Mother testified that it took less than three hours

to drive from Williamsport to Montclair, and under one hour to fly. See id.

       Mother claimed that Child was frustrated with the current custody

arrangement because he missed out on activities with his friends in Montclair.

See id. at 70. Mother explained that the goal of the proposed schedule was

to have Child travel less and “make the schedule about the child not the

parent, to integrate the parent into the child’s lifestyle and to introduce the

parent into the peer group of the kid and not make it about the parent, make

it about the kid.” See id. at 40. Mother believed the schedule would allow

Father to be more involved with Child’s life in New Jersey.3 See id. at 15-16.

Although Father asserted that Mother spent most of her weekends away from



____________________________________________


3 While Mother lives in New Jersey during the school year, she is a
Pennsylvania resident as she resides at a Pennsylvania address 184 days per
year. See N.T., 7/22/19, at 32-33. Mother’s husband testified that he and
Mother eventually planned to buy a house in Florida. See N.T., 7/23/19, at
285-86.

                                          - 14 -
J-S10013-20


New Jersey, Mother testified that she is home in New Jersey for approximately

half of her weekends with Child. See N.T., 8/23/19, at 10-11. Further, Mother

asserted that Child is involved in activities at school and has a good group of

friends. See id. at 12-13, 34-35.

       With respect to summer, Mother testified that Child should attend a

three-week theater camp and Father and Mother should split the remaining

time so that Child could spend time with his friends in New Jersey. See N.T.,

7/22/19, at 16-17. While Mother asserted that she and Father should decide

on camp and divide the remaining time together, she did not believe that they

had a good enough relationship to accomplish that. See id. at 18. Accordingly,

Mother testified that she wanted either parent to be able to sign Child up for

camp, but explained that her intent was not to be punitive by, for example,

having one parent sign Child up for 12 weeks of camp. See id. at 43-44.

       Mother opined that Child should continue to attend the School. See id.

at 26. Mother further testified that Child attended private school starting in

first grade, and that the School provided a small class size. See id. at 28-29.

Mother expressed concerns that Montoursville Area High School had a student

to teacher ratio of 28-1.4       See id. at 45-46. Mother believed the personal

____________________________________________


4 Alyson Waldman, the director of admissions and financial aid at THE
SCHOOL, testified that the School has a challenging, engaging, and innovative
academic program that stresses personal responsibility. See N.T., 7/23/19,
at 84-87. Daniel Taormina, the principal of Montoursville Area High School,
testified that the student to teacher ratio is 15 to 1 and that the school offers



                                          - 15 -
J-S10013-20


attention at the School was important because Child is easily distracted. See

id. at 28-30. Further, Mother testified that Child needed to attend counseling

to develop “self advocacy skills.” See id. at 23.

       Father testified that he believed that it was in Child’s best interests to

stay with Mother in New Jersey until Child told the GAL that he wanted to live

with Father. See id. at 122; N.T., 7/23/19, at 60-61. Father testified that

Child’s grades declined throughout the year for the sixth and seventh grades.

See N.T., 7/23/19, at 52-54. Father also expressed concerns that Child does

not do homework while living with Mother. See id. at 13-15. Father asserted

that Mother did not do enough to get Child to do his homework, although he

acknowledged that both parties could do a better job about punishing Child

for not performing schoolwork. See id. at 93-98. With respect to the parties’

ability to work together in general, Father acknowledged there are times when

they do not get along, but he believed they cooperated better than was being

portrayed. See N.T., 7/22/19, at 116-17.

       After Child expressed a desire to move, Father took Child on a tour of

Montoursville Area High School, which Father described as a public school

offering a high caliber education. See N.T., 7/23/19, at 6-13. Father believed

that Child’s schooling issues at the School were related to his lack of


____________________________________________


a number of advanced placement classes and elective opportunities, including
the opportunity to attend classes at local colleges. See id. at 180-82.



                                          - 16 -
J-S10013-20


accountability, and asserted that Child could successfully transition to public

school. See id. at 14-15, 20-21. Father noted that Child’s transition would be

aided by his numerous friends in Montoursville. See id. at 28-29.

      With respect to Mother’s contention that Father should travel to New

Jersey to exercise custody, Father observed that Mother travels to

Pennsylvania for the vast majority of her custodial weekends, so Child

generally does not participate in activities in New Jersey. See id. at 26-28.

Based on Father’s calculation of the time Mother spent traveling, Father noted

that if he traveled to Montclair for nine weekends a year, he would spend twice

as many weekends a year in Montclair with Child compared to Mother. See

id. at 27-28. Father asserted that, under the current schedule, Child did not

miss any activities with friends in New Jersey because Father and Mother

generally swapped weekends. See N.T., 7/22/19, at 104-05. Although Father

did not object to occasionally travelling to New Jersey, he did not want the

order to require him to do so one weekend per month because Child might

wish to travel back to Williamsport to see his friends. See id. at 108-10.

      Father testified that after Mother gave him a list of potential counselors

for Child, Father took several weeks to contact them. See N.T., 7/23/19, 72-

3. This delay prompted a follow-up e-mail from Mother threatening to

unilaterally pick the counselor. See id. at 74. Father explained that he

eventually contacted the counselors and none would agree to counsel Child.

See N.T., 7/22/19, at 119-20. Father asserted that he was not against Child


                                    - 17 -
J-S10013-20


attending counseling, but claimed that he requested that the parties agree

that the counselor would not become involved in the litigation. See id. at 118-

19.

      With respect to camp, Father believed that both parents should be

required to agree before signing Child up for a camp, explaining his position

as follows:

      I think we need to try to work it out. That’s just life. I just think,
      though, the default of only one parent needs to have approval is
      an absolute recipe for disaster for that child approaching the
      parent who he thinks he will get the correct answer from, he or
      she.

Id. at 101. However, Father also testified that he unilaterally signed Child up

for a gaming camp because it occurred during his custodial time. See N.T.,

7/23/19, at 155-56.

      Father further testified regarding his relationship with K.G., asserting

that he and K.G. were going to marry on December 31, 2017, but decided not

to move forward at that time. See id. at 107-08. While Father and K.G. were

still engaged, Father explained that they decided to call a “time out” with

respect to scheduling the ceremony. See id. at 108. Father acknowledged

that K.G.’s daughter moved in with her grandmother at about the same time

that he and K.G. decided not to get married, but suggested that the issues

were not related. See id. at 108-12. Further, Father conceded that K.G.

previously attended an alcohol rehabilitation program, and that she still

drinks. See id.


                                     - 18 -
J-S10013-20


      Patricia Shipman, the GAL, expressed concerns about Child’s ability to

take responsibility for his education and testified that she believed that it

served Child’s best interests to attend the School because of the amount of

oversight. See id. at 197-98. Attorney Shipman believed that Child’s stability

in education weighed in favor of Mother. See id. at 219-20. Further, Attorney

Shipman testified that Father should not be required to go to New Jersey every

other weekend, asserting that it was more important for Child to inform Father

about his activities and for Father to accommodate them. See id. at 205-06.

Attorney Shipman questioned whether Child actually missed activities in New

Jersey while he was at Father’s house because Mother spent significant time

during the weekends outside of New Jersey. See id. at 208-09. Overall,

Attorney Shipman opined that Child’s social life was in Williamsport, but that

it was more important for Child to attend the School. See id. at 206.

      Child testified in camera, acknowledging that while he had previously

been neutral about where he wanted to live, he now wished to live with Father

during the school year. See N.T., 8/23/19, at 120-21. Child disclosed that he

initially favored staying at the School because he was concerned about the

potential to have 28 students in a class at Montoursville Area High School.

See id. at 121-22. However, he had visited the school and did not believe that

the rooms would hold that many students. See id. Accordingly, Child no longer

believed there was a difference between the two schools. See id. at 122. Child

acknowledged he did not know much about Montoursville Area High School


                                    - 19 -
J-S10013-20


beyond   the   class   size,   but   highlighted   his   interest   in   theater   and

Montoursville’s strong theater program. See id. at 124-25.

      Child further testified that he did well at the School and had friends, but

did not see them outside of school. See id. at 126. Child asserted that he had

more friends and connections to Williamsport and would have more

opportunities to spend time with friends in Williamsport. See id. at 126-27,

135-36. However, Child stated that he would be able to adjust if he stayed in

New Jersey. See id. at 140-41.

      While Father argues that the court erred in its evaluation of the custody

best interest factors in awarding Mother primary physical custody during

Child’s school year, our review of the record confirms that the trial court did

not abuse its discretion in its evaluation of the testimony and weighing of the

factors. Moreover, although Child testified that he wished to live with Father,

Child’s position changed throughout the litigation, and the trial court

appropriately explained its rationale for discounting Child’s preference.

Accordingly, Father’s first issue does not merit relief.

      In his second issue, Father contends that the trial court’s decision to

require Father to exercise one weekend of his partial physical custody in

Williamsport, Pennsylvania, and one weekend in Montclair, New Jersey, is

improper and vague. See Father’s Brief at 32. Father acknowledges Mother’s

testimony that Child’s time away from New Jersey for two weekends per

month impaired Child’s ability to participate in community and peer activities.


                                       - 20 -
J-S10013-20


See id. However, Father argues that, to the extent he travels to New Jersey,

he is unlikely to be able to participate in Child’s activities, and that both Father

and the GAL believed such a provision would be unworkable. See id. at 32-

33. Moreover, Father asserts that the requirement that his custody time occur

in Williamsport is vague and unworkable. See id. at 33-34. Father notes that

he lives in Montoursville rather than Williamsport, and that, accordingly, he

would be required to locate a hotel in Williamsport to comply with the order.

See id. at 34.

      Additionally, Father contends that, on weekends when Child does not

have activities, the order does not explicitly allow him to exercise custody in

Pennsylvania. See id. As structured, Father contends the order deprives Child

of the ability to see his friends and extended family. See id. at 34-35. Further,

Father contends that the logistics of traveling to New Jersey make exercising

his custody time difficult and punishes Father for historically being

accommodating to Mother. See id. at 35-36. Father argues that it would be

preferable for the parent with partial physical custody to have custody every

other weekend at the location of their choice. See id. at 36-37. Moreover,

Father observes that he previously had physical custody every other weekend

rather than twice per month, and that the order does not specify which

weekends Father has custody. See id. at 34-37.

      Initially, we note that in Father’s Rule 1925(b) statement, he did not

specifically assert that the trial court erred by requiring him to exercise one of


                                      - 21 -
J-S10013-20


his weekends of custody within the City of Williamsport, focusing instead on

the difficulties of traveling to New Jersey.5 Accordingly, that issue is waived.

See Krebs v. United Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super.

2006) (citations omitted) (stating, “any issue not raised in a statement of

matters complained of on appeal is deemed waived.”). Moreover, even if

Father had not waived this specific issue, it is apparent that the trial court’s

reference to “Williamsport” refers to the general area where Father lives. See

Order, 9/6/19, at 2 (“Father shall have partial physical custody of [Child] one

(1) weekend per month in Williamsport, PA, and one (1) weekend per month

in the Montclair, N.J. area in order for [Child] to be able to participate in

activities with his peers.”). While the language of the order could be more

precise, we do not find merit to Father’s argument that the custody order

requires Father to exercise his custodial time solely within the geographic

bounds of the City of Williamsport. Accordingly, we reject Father’s assertion

that the trial court’s order improperly limits the location of Father’s custodial

time to the City of Williamsport.


____________________________________________


5 Father’s Rule 1925(b) statement included the following: “[i]n ordering in
unclear and ambiguous terms that Appellant is to exercise one weekend per
month in Williamsport, PA and one weekend per month in Montclair, NJ when
clearly restricting the child’s custodial time with Appellant is not in M.W.’s best
interests and does not take into account the impracticality, expense and
Appellant’s ability to travel out of state each month. Moreover, the provision
does not accomplish the goal for which it was intended and as such was an
abuse of discretion by the trial court.” Rule 1925(b) Statement at ¶ 1c.



                                          - 22 -
J-S10013-20


      With respect to the order’s requirement that Father exercise custody

two weekends per month, with one weekend per month in the Montclair, New

Jersey, area, we again discern no abuse of discretion. While Father’s argument

relies on testimony that was favorable to him, additional testimony, primarily

from Mother, supported the benefits to Child for Father to travel to New Jersey

to exercise his periods of physical custody one weekend per month. Further,

there was testimony supporting the need to work around Child’s activities. It

is apparent that the trial court credited this testimony and concluded that

Father should have two custodial weekends per month, with one of the

custodial weekends in New Jersey to allow Child to participate in activities.

See Order, 9/6/19, at 2. We discern no abuse of discretion in the trial court’s

order. Accordingly, Father’s second issue fails.

      In his final two issues, Father argues that the trial court erred by

permitting Child to attend any and all camps over the summer if one parent

agrees, and by permitting Mother to unilaterally select a counselor for Child.

See Father’s Brief at 37-39. Father argues that both provisions contradict the

shared legal custody otherwise required by the custody order. See id.

Moreover, Father contends that allowing one parent to unilaterally select camp

will make vacation planning difficult and would, in a worst-case scenario, allow

Mother to deprive Father of significant custody time over the summer by

scheduling numerous camps. See id. at 37-38.




                                     - 23 -
J-S10013-20


      Although the trial court did not offer a specific rationale for allowing

either parent to choose a camp, or for Mother to choose Child’s counselor, the

court acknowledged the strained relationship between Father and Mother.

Further, the court stated that it “maybe, will back off from a more formal

tradition of legal custody in that talking about how the parents view this which

is not, as Miss Protasio pointed out, what we lawyers and judges see as legal

custody, shared legal custody, but I’m afraid if I try to tinker with this it’s

going to create another area of discord in interactions between the parties so

I’ll be thinking about that.” See N.T., 8/23/19, at 192-93.

      Our review of the record confirms that there was ample testimony

presented to establish that the parties were unable to communicate regarding

Child’s camp and counselor in a manner that advanced Child’s best interests.

Although the trial court awarded Father and Mother shared legal custody, it

carved out these two areas that were historically problematic.

      With regard to camp, Father’s concerns that Mother can deny him

substantial custody time over the summer are entirely speculative and are

inconsistent with Mother’s testimony at trial. To the extent that Mother

pursues such a strategy, Father would be entitled to seek relief with the trial

court. However, we do not discern any abuse of discretion or error of law with

respect to the manner in which the trial court addressed camp and counseling

for Child. Accordingly, we affirm the trial court’s order.

      Order affirmed.


                                     - 24 -
J-S10013-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/11/2020




                          - 25 -
