J-S41001-18


                                   2018 PA Super 235

    T.D.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    E.D.                                       :   No. 515 EDA 2018

                Appeal from the Order Entered January 25, 2018
      in the Court of Common Pleas of Philadelphia County Family Court at
                              No(s): 0C1605792


BEFORE:       GANTMAN, P.J., OLSON, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                            FILED AUGUST 28, 2018

        Appellant, T.D. (“Father”), appeals from the order entered on January

25, 2018, in the Philadelphia County Court of Common Pleas, denying Father’s

Petition to Modify Custody, in which he requested that the child, A.D. (“Child”),

born in February 2009, be permitted to travel on an airplane between

Philadelphia and Boston as an unaccompanied minor. Pursuant to a motion

filed on June 14, 2018, Father further moves to suppress Mother’s brief filed

on June 8, 2018. After a careful review, we affirm the trial court’s order and

deny Father’s motion to suppress Mother’s brief.

        The trial court summarized the relevant procedural and factual history

as follows:


____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S41001-18


       I.     Procedural History (See Docket)

              Father currently resides in Boston. E.D. (“Mother”) and A.D.
       live in Philadelphia. Father and Mother entered into a final custody
       Order by agreement on September 19, 2016, granting them
       shared legal custody of A.D. Pursuant to the Order, Mother has
       primary physical custody, and Father has partial physical custody
       every other weekend. The Order also outlines custodial rights for
       holidays, summertime vacations, travel costs, etc. The clause at
       issue states: “If child is flying/traveling, he must be accompanied
       by parent and/or agreed upon third party (designee, au pair,
       babysitter) at that parent’s expense.” (Order dated September
       19, 2016.) The Order goes on to state: “At ten years old, child
       may fly as an unaccompanied minor unless either parent files a
       timely petition to modify.”
             On April 17, 2017, Father filed a Petition to Modify Custody
       requesting that the court allow A.D. to fly to and from Boston and
       Philadelphia as an unaccompanied minor. No other issues were
       presented in the Petition. The court held a full hearing on January
       25, 2018,[1] and denied Father’s Petition. Father filed the instant
       notice of appeal and Pa.R.A.P. 1925(b) statement on February 14,
       2018.[2]
       II.    Facts

             The parties began their relationship in Boston. Father has
       resided in Boston since July 2009 and has lived in the Boston area
       since 1999. Mother moved to Philadelphia toward the end of
       2008.
             The flight time between Boston and Philadelphia is
       approximately one hour. When visiting A.D. every other weekend
       over the past eight years, Father would fly from Boston on Friday
____________________________________________


1 Both Father and Mother were present and represented by counsel. Each also
testified on their own behalf.

2 Father filed a Petition for Reconsideration on February 6, 2018. This petition
was not ruled upon by the trial court and is deemed denied. See Pa.R.C.P.
1930.2(b) (“A party aggrieved by the decision of the court may file a motion
for reconsideration in accordance with Pa.R.A.P 1701(b)(3). If the court does
not grant the motion for reconsideration within the time permitted, the time
for filing a notice of appeal will run as if the motion for reconsideration had
never been presented to the court.”).


                                           -2-
J-S41001-18


     and arrive in Philadelphia at approximately 7:00 – 8:00 p.m. He
     would then go to Mother’s house, pick up A.D., and spend the
     weekend with A.D. at a hotel. The weekends in Philadelphia are
     often filled with extracurricular and other activities, with a portion
     of the time spent watching movies in the hotel room. On Sunday
     evening, Father drops off A.D. at Mother’s house and flies back to
     Boston. Father testified that, in the time he has been flying to
     and from Philadelphia, only one flight has been diverted, and no
     flight has been cancelled. Occasionally, flights have been delayed,
     but by no more than thirty minutes.
            Father believes it would be unfeasible for him to fly to
     Philadelphia and accompany A.D. on a flight back to Boston on
     Friday evening, only to turn around and accompany A.D. back to
     Philadelphia on Sunday evening and return to Boston the same
     night.
           The parties agree that A.D. has been on numerous flights,
     both nationally and internationally.     Both parties would be
     agreeable to a babysitter or designated third party accompanying
     A.D. on an airplane to and from Boston, but Father testified that
     the third party would have to be “vetted.”
           Father and Mother have concerns about A.D. flying as an
     unaccompanied minor. But Mother is opposed to the child flying
     as an unaccompanied minor at age eight, and Father believes the
     child can fly as an unaccompanied minor at age eight. Father
     reached this conclusion after reviewing airline procedures, talking
     to people who are responsible for operating those programs, and
     talking to other parents who have allowed their children to fly as
     an unaccompanied minor. Father maintains his belief that A.D. is
     mature enough to fly as an unaccompanied minor because of
     A.D.’s well-mannered demeanor around adults, his behavior on
     airplanes, and his lack of fear of flying.
           Mother is opposed to A.D. flying as an unaccompanied minor
     because she is concerned for A.D.’s safety and does not believe
     he is sufficiently mature. Mother is concerned about A.D. talking
     to strangers due to his sociable and trusting disposition. In
     addition, she testified about a turbulent flight she and A.D. took
     that made A.D. feel scared and nervous; Mother said A.D. did not
     share this anecdote with Father. In the many times A.D. has flown
     with Father, Mother has never received any communications from
     Father about A.D. having any issues. Mother stated that A.D.
     enjoys spending time with Father but does not want to travel alone
     because he is scared.


                                     -3-
J-S41001-18


Trial Court Opinion (“T.C.O.”), 3/16/18, at 1-4 (citations to record omitted)

(footnotes omitted).

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

       1. Did the trial court abuse its discretion and err as a matter of
          law by determining that the child need not be interviewed by
          the [c]ourt at the January 25, 2018, hearing?
       2. Did the trial court abuse its discretion and err as a matter of
          law and fact by precluding testimony about the unaccompanied
          minor protocols set forth by various airlines as contained in the
          exhibits and admitted into evidence at the hearing?
       3. Did the trial court abuse its discretion and err as a matter of
          law and fact by failing to consider testimony and evidence
          regarding security measures for unaccompanied minors such
          as seat assignments, flight attendant assignments, call button
          protocols, protocols for flight changes, cancellations,
          scheduling irregularities, identification requirements, and
          phone call availability while in flight?[3]
       4. Did the trial court abuse its discretion and err as a matter of
          law and fact when it considered evidence that was not part of
          the record and not necessarily accurate, such as protocols for
          an in-flight disaster and that the child would be sitting with
          strangers (possibly a registered sex offender)?
       5. Did the trial court abuse its discretion and err as a matter of
          law and fact when it made findings that were not supported by
          record evidence and reached conclusions that were
          unreasonable based upon the evidence presented?[4]

Father’s Brief at 4 (footnotes omitted).



____________________________________________


3 The trial court addressed Father’s second and third issues together as it
found them interrelated. T.C.O. at 5 n.5. Further, Father addresses these
issues together in his brief. Father’s Brief at 4 n.1.

4Father addresses his fourth and fifth issues together in his brief. Father’s
Brief at 4 n.2.


                                           -4-
J-S41001-18


     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 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). See

E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015).

     This Court consistently has held:

     [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) (quotation

omitted). In addition,

     [a]lthough 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.


                                     -5-
J-S41001-18


M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa.Super. 2010) (en banc) (citations

omitted).

      The paramount concern in any custody case decided under the Act is

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

5323 of the Act provides for the following types of awards:

      (a) Types of award.—After considering the factors set forth in
      section 5328 (relating to factors to consider when awarding
      custody), the court may award any of the following types of
      custody if it is in the best interest of the child:
         (1) Shared physical custody.
            (2) Primary physical custody.
            (3) Partial physical custody.
            (4) Sole physical custody.
            (5) Supervised physical custody.
            (6) Shared legal custody.
            (7) Sole legal custody.

23 Pa.C.S.A. § 5323(a).

      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.A.

§ 5338. Section 5328(a) sets forth the best interest factors that the trial court

must consider in doing so.        See E.D. v. M.P., 33 A.3d 73, 79-80 n.2

(Pa.Super. 2011); 23 Pa.C.S.A. § 5328(a) (listing the factors).

      However, we have clarified that the factors set forth by Section 5328(a)

are not required to be addressed where an order merely deals with a discrete

and distinct issue. S.W.D. v. S.A.R., 96 A.3d 396 (Pa.Super. 2014).




                                         -6-
J-S41001-18


       It is also true that resolution of an otherwise ancillary matter may
       affect a form of custody and require consideration of the § 5328(a)
       factors. For instance, the choice of a child’s school may factor into
       a trial court’s decision to award a form of custody when the trial
       court is addressing a request to establish or change legal or
       physical custody in connection with the choice of school. One
       parent in a custody dispute may argue that he or she is entitled
       to primary physical custody because his or her residence has much
       better schools. On the other hand, many times- like here- these
       items may appear as independent, discrete issues advanced by
       motion or petition that does not require a change in the form of
       custody. Although any decision requires consideration of the
       child’s best interest, only the former situation requires
       consideration and application of the § 5328(a) factors.


Id. at 403. See M.O. v. J.T.R., 85 A.3d 1058, 1062-63 (Pa.Super. 2014)

(“Because the trial court did not make an award of custody, but merely

modified a discrete custody-related issue, it was not bound to address the

sixteen statutory factors in determining the children’s best interest.”).5

       Before we address Father’s issues on the merits, however, we first

address his motion to suppress Mother’s brief. Father argues that Mother’s

brief not only fails to comply with Pennsylvania Rule of Appellate Procedure

2185(2), as well as a specific order of this Court as to timeliness, but should

be “entirely suppressed from this Court’s consideration in this matter because

the brief fails to materially comply with the Pennsylvania Rules of Appellate

Procedure, specifically, but not limited to, 2101; 2119(a) and (b); 2119(c),

____________________________________________


5 Instantly, the trial court determined that Father’s petition raised only a
discrete issue, not requiring examination of the Section 5328(a) custody
factors. T.C.O. at 6. This determination was not challenged by either party
in the court below or on appeal.


                                           -7-
J-S41001-18


and 2132(a) and (b) and prejudices [his] ability to even ascertain, let alone

verify, the statements within the brief.” Application to Suppress Appellee’s

Brief, 6/14/18, at 3-4, ¶¶12, 17.              He asserts that Mother filed her brief

seventeen days after the May 23, 2018, deadline set by this Court pursuant

to Mother’s request for an extension;6 failed to cite to any legal authority

and/or to the record within her argument and discussion; and included

exhibits that were not part of the record. Id. at 1-3, ¶¶4-17.

       While we note with disapproval the untimeliness of Mother’s brief and

the lack of citation to legal authority within her brief,7 we decline Father’s

motion to suppress. We observe that Mother’s brief, although filed after May

23, 2017, was, nonetheless, filed prior to the matter being assigned to a panel

on June 25, 2018. Moreover, Father filed a reply to Mother’s brief on June 15,

2018, also before the matter was assigned to a panel.               Further, although

____________________________________________


6 Pursuant to order dated May 15, 2018, in granting Mother’s request for an
extension of time to file a brief, this Court stated, in part, “Absolutely no
further extensions shall be granted. Indeed, the Prothonotary of this
Court is directed to assign this appeal to a panel of this court without further
notice if appellee’s brief is not properly filed by May 23, 2018.” Order,
5/15/18 (emphasis in original).

7 See Pa.R.A.P. 2101 (“Briefs and reproduced records shall conform in all
material respects with the requirements of these rules as nearly as the
circumstances of the particular case will admit, otherwise they may be
suppressed….”); In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011) (quoting
In re A.C., 991 A.2d 884, 897 (Pa.Super. 2010) (“[W]here an appellate brief
fails to provide any discussion of a claim with citation to relevant authority or
fails to develop the issue in any other meaningful fashion capable of review,
that claim is waived.”)).



                                           -8-
J-S41001-18


deficient in some instances, Mother’s brief does, in fact, provide substantial

citation to the record with her argument and discussion. Notwithstanding, we

disregard the exhibits appended to Mother’s brief, as they are not part of the

certified record. See Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.Super.

2006) (en banc) (noting that an appellate court may only consider that which

is in the certified record).

      Turning now to Father’s issues on appeal, with his first issue, Father

argues that the trial court erred in not interviewing Child with regard to flying

as an unaccompanied minor. Father’s Brief at 13-17.

      As to the interview of a child, Pennsylvania Rule of Civil Procedure

1915.11(b) is discretionary and does not mandate that a trial court interview

a child in a custody matter. Pa.R.C.P. 1915.11(b). Likewise, Pennsylvania

Rule of Civil Procedure 1915.11(c) does not mandate a child’s attendance at

a custody hearing. Rule 1915.11 provides, in relevant part:

      Rule 1915.11. Appointment of Attorney for Child. Interview of
      Child. Attendance of Child at Hearing or Conference
                                     ...
      (b) The court may interview a child, whether or not the child is
      the subject of the action, in open court or in chambers. The
      interview shall be conducted in the presence of the attorneys and,
      if permitted by the court, the parties. The attorneys shall have the
      right to interview the child under the supervision of the court. The
      interview shall be part of the record.
      (c) Unless otherwise directed by the court, the child who is the
      subject of the action shall not be required to attend a hearing
      before the court or a conference.

Pa.R.C.P. No. 1915.11(b), (c) (emphasis added).


                                      -9-
J-S41001-18


      In determining that it was contrary to Child’s best interest to fly as an

unaccompanied minor and there was no abuse of discretion in declining to

interview Child, the trial court reasoned:

            Considering the factors relevant to the issue of whether it
      would be in A.D.’s best interest to fly as an unaccompanied minor,
      the court found that it was in A.D.’s best interest to keep the
      underlying Order intact. The record is devoid of any competent
      evidence showing that A.D.’s flying as an unaccompanied minor
      would further his best interest. Rather, Father’s evidence was
      probative of his own desire to spend more time with A.D. in
      Boston, as well as Father’s grievances regarding the
      inconveniences of traveling to and from Philadelphia….
                                      ...
            The weight afforded to the child’s preference as to the
      custodial parent in the context of a custody proceeding varies with
      the age, maturity, and intelligence of that child, together with the
      reasons given for the preference. [B.C.S. v. J.A.S.], 994 A.2d
      600 (Pa.Super. 2010); [Gianvito v. Gianvito], 975 A.2d 1164
      (Pa.Super. 2009). Here, both parties were able to paint a vivid
      picture of A.D. and discuss A.D.’s level of maturity….
            The record clearly indicates that Father and Mother love A.D.
      and enjoy spending time with him, and both parties were able to
      eloquently articulate their wishes and concerns during the
      hearing….
             Based on the testimony presented, the court stated it
      assumed A.D. would have said that he wanted to fly to Boston as
      an unaccompanied minor and that he was mature enough to do
      so. N.T. p. 72, l. 24 – p. 73, l. 2. However, the “well-reasoned
      preference of the child” pursuant to 23 Pa.C.S.[A.] § 5328(a)(7)
      is not an controlling factor, particularly in an situation where a
      child has expressed a desire that was determined not to be in his
      best interest. [Altus-Baumhor v. Baumhor], 595 A.2d 1147,
      1150 (Pa.Super. 1991). In its rationale, the court stated:
            []I find that it is not in [A.D.]’s best interest to fly as
            an unaccompanied minor because of safety
            concerns. He is eight years old. He cannot handle a
            situation where a flight would be diverted. He cannot
            handle a situation where he could be sitting on a
            tarmac by himself.

                                      - 10 -
J-S41001-18


           If there’s an emergency on the flight, all of the flight
           attendants would be dispatched to care for all of the
           passengers on the flight and to handle the
           emergency….
           But this isn’t about [A.D.] being ready. This is about
           [A.D.] being too young to be able to handle a situation
           and protect himself. I think that the very idea that we
           think that at age eight, a child can protect him or
           herself is dangerous and it’s impractical. I think, Dad,
           you yourself said, ‘I would be okay with a babysitter
           flying with my son, as long as it’s someone who is
           vetted.’ Your son would be on that flight with a
           complete     stranger,   surrounded      by    complete
           strangers.
           He could be sitting next to a sex offender, and neither
           of you would be aware of it.[]
     N.T., p. 72, l. 14 - p. 73, l. 16 (emphasis added).
           The decision not to interview A.D. was not an unreasoned
     one. The court determined that retrieving A.D. from school would
     not be in his best interest in light of the narrow scope of the issue.
            There is no statutory rule or decision of law that requires a
     trial court to interview a child in a custody hearing. It is evident
     from a review of the testimony, the exhibits, and the memoranda
     submitted by counsel that the court was able to render the
     appropriate ruling in A.D.’s best interest based on the evidence
     presented. In addition, the Pennsylvania Rules of Civil Procedure
     read that the court may interview a child, whether or not the
     subject of the action, in open court or in chambers, and state that
     a child who is the subject of an action for custody, partial custody,
     or visitation is not required to attend a hearing before the court
     or a conference, unless otherwise directed by the court. Pa.R.C.P.
     1915.11(b) and (c) (emphasis added). The plain language of Rule
     1915.11 makes interviewing a child in a custody proceeding
     optional.

            In prioritizing a child’s best interest, there are several
     instances that would warrant keeping a child away from court
     when the child’s participation is not necessary. The stress and
     emotion involved in coming to court to testify, even for an adult,
     particularly about situations involving children and their parents,
     could have an adverse effect on a child. Placing a child in a
     position of feeling like he or she has to choose or opine on even a


                                    - 11 -
J-S41001-18


     discrete custody matter could aggravate relationships to the
     detriment of the child’s best interest. “[T]he presence of a child
     in court is not always necessary or desirable. The experience may
     be traumatic and disruptive. Consequently, the child should not
     be required to attend a hearing or conference in every case.” See
     Domestic Relations Committee Explanatory Comment to Pa.R.C.P.
     1915.11 (1991).

         The court, furthermore, finds the case of [Bovard v.
     Baker], 775 A.2d 835 (Pa.Super. 2001) to be distinguishable….

            The circumstances in the present case differ from those in
     [Bovard]. [Bovard] involved an entire custody determination of
     four children, the youngest of whom was ten years old. The
     present case involves a single eight-year-old child with no other
     siblings (who hypothetically may or may not have been able to
     accompany him on a flight). Moreover, the issue here was not
     whether the child preferred to live with a particular parent, nor did
     the issue here involve a ruling that would materially alter the
     current custody arrangement. On the contrary, the court here
     decided a discrete and narrow issue ancillary to an otherwise-
     undisputed custody arrangement pertaining to a single eight-
     year-old child.

            It should be noted that several cases involving parties with
     shared legal custody who litigated issues that could alter their
     child’s daily routine did not require testimony from the children at
     issue. [See, e.g.] [Staub v. Staub], 960 A.2d 848 (Pa.Super.
     2008) (deciding between public and home schooling); [Fox v.
     Garzilli], 875 A.2d 1104 (Pa.Super. 2005) (ordering that the
     children attend school in the mother’s school district); [Dolan v.
     Dolan], 548 A.2d 632 (Pa.Super. 1988) (deciding between public
     and private school).

           The factual findings and the conclusions of law drawn by the
     court as a result of this hearing did not require the court to hear
     testimony from A.D. It was apparent that allowing A.D. to fly as
     an unaccompanied minor was not in A.D.’s best interest. As this
     issue is within the discretion of the trial court and not
     unreasonable in light of the evidence presented, no abuse of
     discretion occurred….


T.C.O. at 7-11 (some citations omitted).



                                    - 12 -
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      Father, however, indicates that interviewing Child would have given the

trial court a perspective into Child’s physical appearance, as well as his

maturity level and preference. Father’s Brief at 13. Father observes that the

court was obviously concerned with Child’s physical appearance, in particular

height and weight, related to his traveling as an unaccompanied minor, as the

court inquired as to these details of Mother and Father.         Id. at 14-15.

Moreover, Father notes both Mother and Father testified as to Child’s maturity

level and preference, although each offered conflicting testimony.        Father

states:

             Although the court is not required to interview the child
      under Pa.R.C.P. 1915.11(b) and (c), in this situation, a simple
      interview of A.D. would have given the trial court an objective
      view of A.D.’s height and weight to better understand his
      perceived physical appearance. Further, A.D.’s wishes constitute
      an important factor that the trial court should have considered,
      while simultaneously gaining insight as to A.D.’s disputed maturity
      level.

Id. at 13. We disagree.

      We conclude the trial court did not abuse its discretion in electing not to

interview Child.     The trial court’s findings are supported by competent

evidence of record, and it set forth ample reasons for its decision not to

interview Child. See T.C.O. 7-11; E.R., 129 A.3d at 527.

      We next consider Father’s remaining issues challenging the trial court’s

consideration of record evidence and inferences therefrom together as we find

them interrelated.



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      The trial court made it clear that it reviewed the airline policies as to

unaccompanied minors presented by Father, and the court acknowledged

Father’s testimony as to his research, experiences, and conversations. T.C.O.

at 13-14.    Finding it not currently in Child’s best interest to fly as an

unaccompanied minor, as supported by the evidence of record and reasonable

inferences therefrom, the trial court stated:

              The record supports a reasonable inference that unexpected
      emergencies and safety concerns do exist in spite of airline
      protocols for unaccompanied minors. Although Father believes
      that the benefits of A.D.’s traveling to and from Boston (rather
      than Father traveling to and from Philadelphia) outweigh any
      potential risks or dangers of A.D. flying as an unaccompanied
      minor, the court must consider the evidence presented and may
      also consider other common-sense and real-world scenarios that
      may impact child safety. Father’s unwavering faith and optimism
      in airline equipment and employees are supported neither by the
      record nor common sense. Any mechanical malfunctions, defects
      or inclement weather that could delay or re-route a flight, or
      worse, be life-threatening, are certainly within the realm of
      possibilities and are not uncommon on flights. Even assuming the
      flight attendants are well-versed regarding in-flight emergency
      procedures, they have several duties and are responsible for the
      safety of everyone on the airplane, not just A.D. In the event of
      a crisis, it is not feasible to believe airline employees would be
      able to provide adequate attention to A.D. amongst a frenzy of
      passengers, or be specifically designated to cater to A.D.’s well-
      being. Moreover, neither the individuals seated next to A.D., nor
      any other passenger on the airplane, can be “vetted” by Father or
      Mother – a process that Father himself would require before
      allowing A.D. to fly with a baby sitter or third party. N.T., p. 32,
      l. 24 – p. 33, l. 3. While Father would require the “vetting” of a
      babysitter or third party before that person could fly with A.D., he
      expressed no concern about a stranger – who could very well be
      a hardened criminal or pedophile – sitting on either side of A.D.
      on an airplane.

            Both parties testified extensively on direct examination and
      cross-examination, and answered questions asked by the court.


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J-S41001-18


       While Father steadfastly believes his concerns are addressed by
       airline protocols, Mother clearly expressed concerns about the
       inherent dangers associated with A.D. flying as an unaccompanied
       minor. The court had a duty to assess whether allowing A.D. to
       fly as an unaccompanied minor would be in his best interest. In
       so doing, the court need not ignore concerns about safety and
       common sense dangers associated with a minor traveling alone.
       Based on the evidence presented, the court found no compelling
       reasons to modify the current custody Order. In hearing the
       testimony, the court made a factual determination and drew
       reasonable inferences from the evidence, and no abuse of
       discretion occurred.

T.C.O. at 14-15.

       Father, however, asserts the trial court abused its discretion and erred

when it failed to consider evidence of record, precluded testimony related to

the evidence of record, and made findings contrary to the evidence of record.8

Father’s Brief at 17-20.        Father contends, “Here, a plain reading of the

evidence submitted by Father, specifically the six different airline policies on

flying as an unaccompanied minor, show that the trial court’s determinations

were contrary to the evidence of record.” Id. at 17.

       Specifically, Father argues that the trial court misinterpreted American

Airlines’ (“AA”) policy when it noted that Boston, Massachusetts was not on

____________________________________________


8 Father appears to abandon any claim as to preclusion of testimony within
his actual argument, resulting in waiver. See In re M.Z.T.M.W., 163 A.3d
462, 465-66 (Pa.Super. 2017). Moreover, we note the statement of counsel
for Father, “Your Honor, I’d like to mark as exhibits and move into evidence
the other airlines – what the policies are. And I don’t mean to ask questions
about the exhibits, but I’d like to have the exhibits marked and moved.” Notes
of Testimony (“N.T.”), 1/25/18, at 30.




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J-S41001-18


the list of approved cities for children eight-to fourteen-years-old to travel on

connecting flights through.9 Id. at 17-18. Further, Father suggests that the

court’s statement, “Even assuming the flight attendants are well-versed

regarding in-flight procedures, they have several duties and are responsible

for the safety of everyone on the airplane, not just A.D.,”10 is speculation and

not supported by the United Airlines (“UA”) policy offered.         Id. at 18-19.

Father asserts:

              The trial court’s determination is clearly contrary to the
       evidence of record because the UA Policy alone is clear that flight
       attendants do have specific responsibilities regarding an
       unaccompanied minor on the flight. There was no reason for the
       trial court to speculate as to the flight attendants’ responsibilities
       when they are clear on the face of the UA Policy, as well as the
       other airline policies of record.

Id. Additionally, Father challenges the court’s statement, “In the event of a

crisis, it is not feasible to believe airline employees would be able to provide

adequate attention to A.D. amongst a frenzy of passengers, or be specifically

designated to cater to A.D.’s well-being.”11 Id. at 19-20. Father looks to the



____________________________________________


9 Upon review, the court’s statement in its Opinion of AA’s unaccompanied
minor policy, T.C.O. at 13 n.6., appears to be an accurate restatement of the
policy. See Exhibit 1. Moreover, there is nothing to suggest that the trial
court misinterpreted or misapplied it in any way.

10This is stated by the trial court in its Opinion and noted in the section quoted
above. T.C.O. at 14.

11This is stated by the trial court in its Opinion and noted in the section quoted
above. T.C.O. at 14-15.


                                          - 16 -
J-S41001-18


policies of JetBlue and Southwest Airlines (“Southwest”) as to seating,

boarding, and rules and/or instructions. Id.

       Lastly, Father further argues that the trial court erred when it considered

evidence that was not part of the record and made findings based on this non-

record evidence. Father’s Brief at 20-23. Father opposes the trial court’s

utilization of “real-world scenarios” in place of evidence of record. Id. at 21.

He states:

       The case law is clear, and, like in [Ney v. Ney, 917 A.2d 863, 866
       (Pa.Super. 2007)],12 the trial court cannot transpose
       independently created ‘real-world scenarios’ for evidence that the
       parties entered on the record. Despite this, the trial court made
       at least two improper determinations based on ‘real-world
       scenarios’ that the trial court considered rather than from the
       evidence of record.

Id. Specifically, Father highlights the trial court’s statement, “Any mechanical

malfunctions, defects, or inclement weather that could delay or re-route a

flight, or worse be life-threatening, are certainly within the realm of

possibilities and are not uncommon on flights.”13 Id. at 21-22. He recounts

his testimony of only experiencing one diversion in his time flying between

Boston and Philadelphia, and Southwest’s policy where it references

____________________________________________


12 Ney involved a child support matter where the trial court improperly
considered evidence obtained from its own internet research as to
employment availability. Ney, 917 A.2d at 866-67.
13This is stated by the trial court in its Opinion and noted in the section quoted
above. T.C.O. at 14.




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J-S41001-18


availability to answer telephone calls due to flight irregularity.    Id. at 22.

Father also points to the court’s indications that the child could be seated next

to a criminal or a sex offender.14 Id. Father asserts,

       [T]here are infinite situations in which A.D. could be in proximity
       to a sex offender, pedophile, or ‘hardened criminal’, such as
       anytime A.D. is in a public setting (i.e., a movie theater). It is
       improper for the trial court to use this possibility as a factor in
       making this determination, especially because the airline policies
       directly address where an unaccompanied minor sits on the plane
       and neither party submitted this as a concern for this situation.

Id. at 22-23.

       Upon review, we find no abuse of discretion. The trial court engaged in

a detailed analysis of Child’s best interest as it relates to flying as an

unaccompanied minor. Its findings are supported by competent evidence of

record, and its conclusions are not the result of an error of law or

unreasonable. E.R., 129 A.3d at 527; C.R.F., 45 A.3d at 443. As such, we

do not disturb them.

       We observe that, while Father recounted only one diversion, he admitted

occasional delays, although not over thirty minutes, with regard to his travel

between Boston and Philadelphia. N.T. at 30. Further, only the Southwest

policy indicates that they “will not transport [unaccompanied minors] on

flights that may be diverted or cancelled due to inclement weather or other


____________________________________________


14This is stated by the trial court on the record at the conclusion of the
hearing, N.T. at 73, as well as in its Opinion and noted in the section quoted
above, T.C.O. at 15.


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J-S41001-18


occasional irregularities.” Exhibit 6 at 1. In addition, the Southwest policy,

while indicating that a flight attendant will check on an unaccompanied minor

“periodically” during a flight, specifically provides that this is “as duties allow,”

and that a flight attendant “will not continuously monitor” an unaccompanied

minor. Exhibit 6 at 2. Although the UA policy provides similarly for periodic

check, see Exhibit 2 at 3, the other policies are silent as to the flight process.

Moreover, despite several policies addressing recommended or preferred

seating in general terms, only JetBlue provides for specific seating for

unaccompanied minors. See Exhibit 3 at 2. As such, the court’s inferences,

or reliance on “real-world scenarios” and/or “common sense,” are reasonable

in this case.

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

Father’s motion to suppress Mother’s brief.

      Order affirmed. Father’s motion to suppress Mother’s brief denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/18




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