J-S15016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 H.W., I.W., AND A.R.                :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 D.R.                                :
                                     :
                                     :   No. 3712 EDA 2017
              v.                     :
                                     :
                                     :
 N.W. AND M.J.H.                     :
                                     :
                                     :
 APPEAL OF: A.R., FATHER             :

             Appeal from the Order Entered October 13, 2017
  In the Court of Common Pleas of Monroe County Civil Division at No(s):
                           No. 1497 CV 2015,
                            No. 185 DR 2015


BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                            FILED MAY 18, 2018

     Appellant, A.R. (“Father”) appeals from the October 13, 2017 Order

which, inter alia, awarded primary physical custody of N.R. (“Child”) to

Appellees, N.W. (“Maternal Grandmother”) and M.J.H. (“Maternal Step-

Grandfather”) (collectively, “Maternal Grandparents”) and partial physical

custody of Child to Father in six-hour increments when Father is in the New

York area. We affirm.
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FACTUAL AND PROCEDURAL HISTORY

      The relevant factual and procedural history, which we glean from the

certified record, is as follows. Mother and Father are parents to 6-year-old

Child, who was born in December 2011. Mother and Father remain married,

but have been separated since March 2014. Child lived with Mother and Father

at five different residences until parents separated. Father moved to Arizona

in May 2014 and Child remained in Mother’s care.       For approximately one

year, Mother and Child lived intermittently between the home of Maternal

Grandparents in Maspeth, New York and the home of I.W. and H.W. (“Maternal

Great-Grandparents”) in Pennsylvania. Father continues to reside in Arizona.

      On March 2, 2015, Maternal Great-Grandparents filed a pro se

Complaint in Custody and requested temporary physical custody of Child. On

March 25, 2015, Maternal Great-Grandparents filed a counseled Amended

Complaint for Custody, joined Father as a plaintiff, and requested that the

Court grant Father primary physical custody of Child.     On April 16, 2015,

following a Custody Conciliation Conference, the trial court entered an Interim

Order awarding shared legal custody to Mother and Father and temporary

physical custody to Mother subject to periods of partial physical custody for

Maternal Great-Grandfather every Saturday.

      In October 2015, Mother moved to New Jersey with Child and began

living with her current paramour. On or around October 19, 2015, the New

Jersey Division of Family Services removed Child from Mother and placed Child

in foster care pending an investigation into 1) allegations of unexplained

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injuries and bruising to Child and 2) Mother’s paramour having prior criminal

charges of sexual assault against a minor.

       On November 25, 2015, Maternal Grandparents filed a Petition for

Intervention and Modification of Custody. On December 22, 2015, the trial

court granted Maternal Grandparents’ Petition to Intervene and awarded

temporary emergency shared legal custody of Child to Maternal Grandparents

and Father. The court also awarded temporary emergency physical custody

of Child to Maternal Grandparents subject to periods of partial physical custody

to Mother, Father, and Maternal Great-Grandparents.1       The trial court also

ordered the parties to arrange for home study evaluations forthwith, and gave

the parties permission to file a petition with the court for a full evidentiary

hearing once the home studies were complete.

       On January 26, 2017, Father filed a Petition for Evidentiary Hearing.

The trial court held evidentiary hearings on May 19, 2017, September 11,

2017, and October 13, 2017. Father presented testimony from himself, his

paramour, his friend, and Maternal Great-Grandfather.         Maternal Great-

Grandparents presented testimony from Maternal Grandmother, Maternal

Step-Grandfather, and Mother.




____________________________________________


1The trial court awarded Mother supervised partial physical custody as agreed
upon by Mother and Maternal Grandparent, awarded Father 6-hour increments
of partial physical custody when he is in the New York area, and awarded
Maternal Great-Grandparents partial physical custody every Saturday.


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     Father testified on his own behalf. In sum, Father has lived in Arizona

since May 2014 and over the past three-and-a-half years he has had limited

contact with Child.    His contact consists merely of weekly telephone

conversations lasting approximately 15 minutes, and a total of 3 or 4 in-

person visits when he has returned to Pennsylvania for the purpose of

attending court proceedings. He has sent Child one Christmas card and one

birthday card. N.T. Hearing, 5/18/17, at 21-24, 64.

     Maternal Grandmother testified regarding Child’s social and academic

progress since living with Maternal Grandparents. In sum, when then 4-year-

old Child came to live with Maternal Grandparents, she had a speech delay,

she was afraid to take a bath and wash her hair, she was not potty-trained,

and she was behind on her immunization shots. Id. at 173, 177. Child is

currently up to date on all of her immunizations and medical and dental

appointments, and is fully potty-trained.       Id. at 175-76.       Maternal

Grandmother took child to multiple evaluations and the school district created

a full I.E.P. for Child, which included co-teaching, speech and language

therapy, and counseling. Id. at 178-79. Maternal Grandmother presented

evidence from Child’s general education teacher, special education teacher,

and speech teacher to show that Child made consistent progress throughout

the school year with school services and support from her Maternal

Grandparents.    Id. at 181; Maternal Grandparents Exhibit 6.        Maternal

Grandmother sent both parents a copy of Child’s I.E.P. N.T. Hearing, 5/18/17




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at 184.    Neither parent has requested papers or reports from the school

regarding Child’s progress. Id. at 186.

       Maternal Grandmother stated that Mother sees child once or twice a

month for six to eight hours, as well as holidays, supervised by Maternal

Grandparents. Id. at 193. Mother testified that she was in agreement with

the Maternal Grandparents having custody of Child. N.T. Hearing, 9/11/17,

at 51-52 .

       On October 13, 2017, the trial court, inter alia, awarded shared legal

custody of Child to Maternal Grandparents, Mother, and Father, and awarded

primary physical custody of Child to Maternal Grandparents. The trial court

awarded partial physical custody to Mother and Father.2

       Father timely appealed. Both Father and the trial court complied with

Pa.R.A.P 1925.

ISSUES RAISED ON APPEAL

       1. Did the trial court commit an error of law and/or abuse its
          discretion in its determination that an award of primary
          physical custody to [Maternal Grandparents] was in the best
          interest of the child, in view of [Maternal Grandparents’] failure
          to establish convincing reasons that [Child]’s best interest
          would be served by an award to them over [Father]?

       2. Did the trial court commit an error of law and/or abuse its
          discretion when it denied [Father]’s request for primary
          physical custody by failing to correctly apply the heavy burden


____________________________________________


2 The trial court awarded Mother supervised partial physical custody as agreed
upon by Mother and Maternal Grandparents and awarded Father 6-hour
increments of partial physical custody when he is in the New York area.

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         of proof required of third parties seeking custody over a
         parent?

Father’s Brief at 2 (reordered for ease of disposition; some capitalization

omitted).

STANDARD AND SCOPE OF REVIEW

      When reviewing child custody matters, our paramount concern is the

best interests of the child. Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super.

2006).      “The best interests standard, decided on a case-by-case basis,

considers all factors which legitimately have an effect upon the child's

physical, intellectual, moral and spiritual well-being.”    Id.   (quotation and

citation omitted).

      This Court reviews a custody determination for an abuse of discretion.

In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). We will not find an abuse

of discretion “merely because a reviewing court would have reached a different

conclusion.” Id. (citation omitted). Rather, “[a]ppellate courts will find a trial

court abuses its discretion if, in reaching a conclusion, it overrides or

misapplies the law, or the record shows that the trial court's judgment was

either manifestly unreasonable or the product of partiality, prejudice, bias or

ill will.” Id. (citation omitted).

      Further, when this Court reviews a trial court’s “best interests” analysis

in custody matters, our scope of review is broad:

      . . . we are not bound by deductions and inferences drawn by the
      trial court from the facts found, nor are we required to accept
      findings which are wholly without support in the record. On the

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      other hand, our broad scope of review does not authorize us to
      nullify the fact-finding function of the trial court in order to
      substitute our judgment for that of the trial court. Rather, we are
      bound by findings supported in the record, and may reject
      conclusions drawn by the trial court only if they involve an error
      of law, or are unreasonable in light of the sustainable findings of
      the trial court. Further, on the issues of credibility and weight of
      the evidence, we defer to the findings [of] the trial judge.
      Additionally, appellate interference is allowed only where it is
      found that the custody order is manifestly unreasonable as shown
      by the evidence of record.

Saintz, supra at 512 (quotation and citation omitted).

THE CHILD CUSTODY ACT

      The Child Custody Act (“the Custody Act”), 23 Pa.C.S. §§ 5321-5340,

governs all custody proceedings commenced after January 24, 2011. E.D. v.

M.P., 33 A.3d 73, 77 (Pa. Super. 2011). The Custody Act requires a trial court

to consider all of the Section 5328(a) best interests factors when “ordering

any form of custody.” 23 Pa.C.S. § 5328(a). A trial court must “delineate the

reasons for its decision when making an award of custody either on the record

or in a written opinion.” S.W.D. v. S.A.R., 96 A.3d 396, 401 (Pa. Super.

2014); see also 23 Pa.C.S. § 5323(a) and (d). However, “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).

      Moreover, Section 5327 states, inter alia, that:        “[i]n any action

regarding the custody of the child between a parent of the child and a

nonparent, there shall be a presumption that custody shall be awarded to the


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parent. The presumption in favor of the parent may be rebutted by clear and

convincing evidence.”    23 Pa.C.S. § 5327(b).       The clear and convincing

standard of evidence means “testimony that is so clear, direct, weighty, and

convincing so as to enable the trier of fact to come to a clear conviction,

without hesitation, of the truth of the precise facts in issue.” In re B.C., 36

A.3d 601, 605–06 (Pa. Super. 2012).

      In a custody dispute between a parent and a third party, the paramount

question continues to be: what is in the best interest of the child? McDonel

v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000). However, the evidentiary

scale is tipped hard to the parents' side, and trial court must “decide whether

the evidence on behalf of the third party is weighty enough to bring the scale

up to even, and down on the third party's side.”       Id. (quoting Ellerbe v.

Hooks, 416 A.2d 512, 513-14 (Pa. 1980)).

      As stated above, we review Father’s arguments particularly recognizing

that “we are bound by findings supported in the record, and may reject

conclusions drawn by the trial court only if they involve an error of law, or are

unreasonable in light of the sustainable findings of the trial court.” Saintz,

supra at 512.

Trial Court Properly Awarded Primary Physical Custody to Maternal

Grandparents

      In his first issue, Father avers that the Maternal Grandparents, as a third

party, failed to present clear and convincing evidence to overcome the



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statutory presumption in favor of Father. Father’s Brief at 9. Father argues

that the evidence presented by Maternal Grandparents was “unclear and

tenuous” in light of contradictory and inconsistent testimony.        Id. at 10.

Father is essentially challenging the trial court’s credibility and weight of the

evidence determinations.

       While Father argues that contradictory and inconsistent testimony

cannot meet the clear and convincing burden, he fails to cite any case law to

support this. Contrary to his assertion, “we defer to the findings [of] the trial

judge” on the issues of credibility and weight of the evidence. Saintz, supra

at 512 (quotation and citation omitted). Moreover, “we are bound by findings

supported in the record, and may reject conclusions drawn by the trial court

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

sustainable findings of the trial court.” Id.

       On the record, prior to issuing its Custody Order, the trial court

considered the sixteen custody factors enumerated in Section 5328. The trial

court found that a majority of the factors, namely ten total, were in favor of

awarding primary custody to Maternal Grandparents. Notably, the trial court

did not find any factors to be in favor of Father. Additionally, the trial court

found six factors to be either neutral or not applicable to the instant case. 3

____________________________________________


3 The court also properly considered the relevant relocation factors set forth
in 23 Pa.C.S. § 5337(h). See D.K. v. S.P.K., 102 A.3d 467, 468, 477 (Pa.
Super. 2014) (stating that in a custody case where neither parent is relocating



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       Specifically, the trial court found that Maternal Grandparents: (1) are

more likely to encourage and permit frequent and continuing contact between

Child and Father; (2) are more likely to perform the parental duties on behalf

of Child; (3) are more likely to provide stability and continuity in Child’s life;

(4) have more extended family in close proximity; (5) are more likely to

maintain a loving, stable, consistent, and nurturing relationship with Child;

(6) are more likely to attend to the daily physical, emotional, developmental,

educational, and special education needs of Child; and (7) are more likely to

be available to care for Child or make appropriate child care arrangements.

N.T. Hearing, 10/13/17, at 19-31. The trial court also found that Child was

emotionally closer to siblings that lived in Maternal Grandparents home and

that the location of the Maternal Grandparents’ home was favored over the

location of Father’s home. Id.

       Further, the trial court found the following “other relevant factors” to

weigh in favor of Maternal Grandparents: (1) Child only knows Father through

phone calls and does not know her siblings that live with Father; (2) Father

chose to move across the country and hasn’t “stepped up even for visits back



____________________________________________


but the child stands to move to a significantly distant location, the trial court
should consider the relevant relocation factors set forth in Section 5337(h),
that are not otherwise encompassed by the Section 5328 custody factors, in
order to determine what disposition is in the best interest of the child). Father
has not raised an issue regarding the trial court’s consideration of the Section
5337(h) relocation factors.


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here to be more active and involved in [Child]’s life;” (3) Father is not familiar

with Child’s special needs, including her I.E.P.; (4) Child has improved socially

and educationally under the care of Maternal Grandparents; (5) Maternal

Grandmother is able to foster a healthy relationship between Child and Mother

that is beneficial to Child and Mother’s infant; and (6) Maternal Grandparents

have taken Child for visits with Maternal Great-Grandparents, which has been

beneficial for Child, despite a strained relationship between the adults. Id. at

27-31.   Finally, the trial court found that it was in Child’s best interest to

remain in the care and custody of the Maternal Grandparents. Id. at 20. Our

review of the record supports the trial court’s conclusions.

      As stated above, we defer to the findings of the trial court on issues of

credibility and weight of the evidence. Saintz, supra at 512. Our review of

the record supports the trial court’s findings, and, thus, we conclude that the

trial court did not abuse its discretion when it analyzed the Section 5328

custody factors, determined that Maternal Grandparents had presented clear

and convincing evidence to overcome the statutory presumption in favor of

custody to Father, and determined that awarding primary physical custody of

Child to Maternal Grandparents was in Child’s best interest.

Trial Court Properly Considered Statutory Presumption in Favor of

Parent

      In his next issue, Father avers that the trial court failed to apply the

statutory presumption in favor of a parent, which applies to custody disputes


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involving parents and third parties, because the trial court failed to reference

the statutory presumption on the record or in its 1925(a) Opinion. Father’s

Brief at 6.   Father also asserts that the trial court failed to articulate with

specificity which clear and convincing evidence rebutted the statutory

presumption in favor of Father. Id. Father’s arguments lack merit.

      In his Brief, Father, once again, fails to cite any case law or statute that

requires a trial court to place the statutory presumption in favor of a parent

on the record in a custody dispute between a parent and a third party. On

the contrary, this Court has affirmed a comparable custody decision when the

trial court did not explicitly state that it applied a statutory presumption in

favor of a parent when weighing the evidence, but the custody order was

appropriate when reviewed under the statutory presumption. See McDonel,

supra at 1108 n.6.

      Moreover, Father fails to cite any case law or statute that requires a trial

court to articulate with specificity which clear and convincing evidence tipped

the scale, or “is weighty enough to bring the scale up to even, and down on

the third party's side.” Id. at 1107 (quotation and citation omitted). Rather,

as stated above, it is well settled that a court need only state its reasons for

its decision either on the record in open court or in a written opinion. See

S.W.D., supra at 401. Notably, “there is no required amount of detail for the

trial court’s explanation; all that is required is that the enumerated factors are




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considered and that the custody decision is based on those considerations.”

M.J.M., supra 336.

      Instantly, our review of the record indicates that the court gave its

reasons for its decision on the record in open court and the Order was

appropriate when reviewed under the statutory presumption in favor of a

parent. Accordingly, Father’s second issue is devoid of merit and, thus, no

relief is warranted.

      In conclusion, our review of the record indicates that the trial court did

not abuse its discretion when it determined that an award of primary physical

custody to Maternal Grandparents was in Child’s best interest.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/18




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