J-A19032-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.M.                                       :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
            v.                             :
                                           :
T.C.M.,                                    :
                                           :
                  Appellant                :            No. 745 EDA 2017

                Appeal from the Order entered January 26, 2017
             in the Court of Common Pleas of Montgomery County,
                       Civil Division, No(s): 2016-09945

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED AUGUST 21, 2017

       T.C.M. (“Father”) appeals from the Order (hereinafter, “the Custody

Order”) granting J.M. (“Mother”) primary physical custody, and shared legal

custody, of K.M. (born in November 2000), A.M. (born in August 2003), and

L.M. (born in October 2006) (collectively, “the Children”), and granting Father

partial physical custody and shared legal custody.1 We affirm.

       The trial court summarized the relevant factual and procedural history

of this appeal, which we incorporate as though fully set forth herein.      See

Trial Court Findings of Fact, 1/26/17, at 1-4.

       The trial court entered the Custody Order on January 26, 2017. On the

same date, the court issued its Findings of Fact, wherein it addressed the

seventeen custody factors (hereinafter, “the best interest factors”) set forth in




1
  The Custody Order provided that, during the Children’s summer vacation
from school, Father and Mother shall have shared physical custody.
J-A19032-17

subsection 5328(a) of the Child Custody Act (“the Act”).     See 23 Pa.C.S.A.

§ 5328(a).

      Father timely filed a Notice of Appeal, followed by a court-ordered

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement of

errors complained of on appeal, presenting eighteen separate issues.        The

trial court then issued a Pa.R.A.P. 1925(a) Opinion (hereinafter, the “Rule

1925(a) Opinion”).

      Father now presents the following questions for our review:

      A. Whether the [trial] court abused its discretion and committed
         an error of law in weighing the [best interest] factors by
         granting [] Mother primary custody of the Children?

      B. Whether the [trial] court properly applied the [best interest]
         factors in analyzing the best interests of the Children?

      C. Whether the [trial] court abused its discretion and committed
         an error of law in denying [] Father the opportunity to
         participate in the Children’s daily lives?

      D. Whether the [trial] court deviated from applicable standards
         in establishing a schedule of when [] Father would be able to
         have physical custody of the Children individually and
         together?

Father’s Brief at 5-6 (issues renumbered for ease of disposition, capitalization

omitted).

      “We review [a] trial court’s custody order for an abuse of discretion.”

M.G. v. L.D., 155 A.3d 1083, 1091 (Pa. Super. 2017).         In conducting this

review,

      [t]he appellate court is not bound by the deductions or inferences
      made by the trial court from its findings of fact, nor must the


                                  -2-
J-A19032-17

      reviewing court accept a finding that has no competent evidence
      to support it. However, this broad scope of review does not vest
      in the reviewing court the duty or the privilege of making its own
      independent determination.        Thus, an appellate court is
      empowered to determine whether the trial court’s incontrovertible
      factual findings support its factual conclusions, but it may not
      interfere with those conclusions unless they are unreasonable in
      view of the trial court’s factual findings; and thus, represent a
      gross abuse of discretion.

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citation, ellipses and

brackets omitted). This Court has further explained that

      [o]n issues of credibility and weight of the evidence, we defer to
      the findings of the trial court[,] who has had the opportunity to
      observe the proceedings and demeanor of the witnesses. The
      parties cannot dictate the amount of weight the trial court places
      on evidence. Rather, the paramount concern of the trial court is
      the best interest of the child.          Appellate interference is
      unwarranted if the trial court’s consideration of the best interest
      of the child was careful and thorough, and we are unable to find
      any abuse of discretion. The test is whether the evidence of
      record supports the trial court’s conclusions.

Id. (citations, paragraph breaks and brackets omitted); see also Ketterer v.

Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (stating that “[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.”) (citation omitted).

      In any custody case, the primary concern is the best interests of the

child. See 23 Pa.C.S.A. §§ 5328, 5338; see also M.G., 155 A.3d at 1091.

In assessing the child’s best interest, the trial court must consider the best

interest factors, enumerated at subsection 5328(a) as follows:




                                  -3-
J-A19032-17

     (a) Factors.—In ordering any form of custody, the court shall
     determine the best interest of the child by considering all relevant
     factors, giving weighted consideration to those factors which
     affect the safety of the child, including the following:

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

        (2) The present and past abuse committed by a party or
        member of the party’s household, whether there is a
        continued risk of harm to the child or an abused party and
        which party can better provide adequate physical
        safeguards and supervision of the child.

        (2.1) The information set forth in section 5329.1(a)
        (relating to consideration of child abuse and involvement
        with protective services).

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

        (4) The need for stability and continuity in the child’s
        education, family life and community life.

        (5) The availability of extended family.

        (6) The child’s sibling relationships.

        (7) The well-reasoned preference of the child, based on the
        child’s maturity and judgment.

        (8) The attempts of a parent to turn the child against the
        other parent, except in cases of domestic violence where
        reasonable safety measures are necessary to protect the
        child from harm.

        (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, education and special
        needs of the child.



                                  -4-
J-A19032-17


         (11) The proximity of the residences of the parties.

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

         (13) The level of conflict between the parties and the
         willingness and ability of the parties to cooperate with one
         another. A party’s effort to protect a child from abuse by
         another party is not evidence of unwillingness or inability to
         cooperate with that party.

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

         (15) The mental and physical condition of a party or
         member of a party’s household.

         (16) Any other relevant factor.

23 Pa.C.S.A. § 5328. “All of the [best interest] factors … are required to be

considered by the trial court when entering a custody order.”         J.R.M. v.

J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis omitted).

      Subsection 5323(d) of the Act mandates that, when the trial court

awards custody, it “shall delineate the reasons for its decision on the record in

open court or in a written opinion or order.”     23 Pa.C.S.A. § 5323(d).    “In

expressing the reasons for its decision, there is no required amount of detail

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

[best interest] factors are considered and that the custody decision is based

on those considerations.” A.V., 87 A.3d at 823 (citation and quotation marks

omitted); see also id. (stating that “[a] court’s explanation of reasons for its




                                  -5-
J-A19032-17

decision, which adequately addresses the relevant factors, complies with

Section 5323(d).”).

         Here, we will address Father’s first three issues together, as they are

closely related, and all essentially challenge the trial court’s weighing of the

best interest factors.

         In his first issue, Father contends that the trial court “erred in making

factual findings that suggested that both Mother and Father were capable of

[exercising] primary physical custody, but then granted [primary] physical

custody to [] Mother.” Father’s Brief at 16. Father additionally argues that

“[t]he [trial] court’s findings of fact[] are not reasoned, and instead, make

prejudicial statements in favor of [] Mother, such as ‘Mother worked as the

CEO of the family.’ The [trial] court frowned upon [] Father being a surgeon

and physician.” Id. at 17-18 (quoting Trial Court Findings of Fact, 1/26/17,

at 9).

         In his second issue, Father asserts that the trial court improperly

applied the best interest factors in analyzing the best interests of the

Children. Father’s Brief at 18. Father urges that “[t]here is no dispute that

[he] is able, available and wanted to have physical custody of the Children[,

yet he] … was only entitled to one overnight per week with all three Children

at the same time.”       Id. at 21; see also id. at 22, 23 (asserting that such

custody schedule causes disruption in Father’s relationship with the Children

and “separation among the Children”).        Father additionally argues that the




                                    -6-
J-A19032-17

trial court overlooked that (1) Mother made disparaging comments to the

Children concerning, inter alia, Father’s alleged alcohol abuse; (2) in

contradiction of Mother’s claim that Father is an alcoholic, Father submitted

an “expert report” opining that Father “had a low probability of having an

alcohol [] abuse” issue; and (3) paternal grandmother had often helped

Mother care for the Children.    Id. at 22, 23; see also id. at 22 (asserting

that Mother’s testimony at the custody hearing was not credible).

      In his third issue, Father argues that the trial court improperly denied

him the opportunity to participate in the Children’s daily lives.      Id. at 30.

According to Father,

      [t]here is no evidence in the record that [he] did not participate in
      the Children’s daily well-being. The [trial] court stated in its [Rule
      1925(a)] [O]pinion that the “majority of the household duties had
      always been, and currently were still, performed by Mother.”
      “Household duties” is not a statutory factor in awarding primary
      physical custody. Such an arbitrary statement punishes [] Father
      for being a physician and surgeon.

                                  ***

      Moreover, if [] Father is able to maintain fifty percent [physical]
      custody during the summer, when there are still household chores
      to be done and [] Father still works, it is unreasonable to suggest
      that the factors must change during the school year.

Id. at 32-33 (citations omitted). Father further points out that the trial court

found that “Father is also an involved, loving, doting parent[,] who attends to

the[] [Children’s] activities, participates in school programs and always

makes time to engage with the [C]hildren.” Id. at 34 (quoting Rule 1925(a)

Opinion, 3/31/17, at 15). Father contends that this finding “contradicts” the



                                  -7-
J-A19032-17

trial court’s awarding primary physical custody to Mother.     Father’s Brief at

34.

      In its Findings of Fact, the trial court thoroughly addressed all of the

best interest factors, and determined that it was in the Children’s best

interests to award Mother primary physical custody during the school year.

See Trial Court Findings of Fact, 1/26/17, at 4-12.     Additionally, the court

addressed Father’s above-described claims in its Rule 1925(a) Opinion,

adeptly summarized the relevant law, and determined that the court did not

abuse its discretion in weighing the best interest factors, or in awarding

Mother primary physical custody during the school year.      See Rule 1925(a)

Opinion, 3/31/17, at 6-9, 14-17. As the trial court’s analysis is sound, and

the record supports its factual findings, we incorporate it herein by reference.

See Rule 1925(a) Opinion, 3/31/17, at 6-9, 14-17; Trial Court Findings of

Fact, 1/26/17, at 4-12. Like the trial court, we decline Father’s invitation to

disturb the court’s findings and weighing of the evidence, in favor of the

findings and custody arrangement that Father proposes.          See M.J.M. v.

M.L.G., 63 A.3d 331, 337 (Pa. Super. 2013) (rejecting appellant/mother’s

argument asking this Court to reconsider the trial court’s findings and

credibility determinations with regard to the best interest factors); see also

A.V., supra (stating that a reviewing court should defer to the trial court on

issues of credibility and weight of the evidence).    Accordingly, as the trial

court’s sound analysis of the best interest factors was careful and thorough,




                                  -8-
J-A19032-17

and we discern no abuse of the court’s discretion in fashioning a reasonable

award of physical custody that was in the Children’s best interests, we defer

to the court’s decision.      See A.V., supra (stating that “[a]ppellate

interference is unwarranted if the trial court’s consideration of the best

interest of the child was careful and thorough, and we are unable to find any

abuse of discretion.”); see also id., supra, (stating that a reviewing court

may not interfere with a trial court’s conclusions where they are reasonable in

view of the trial court’s factual findings). We thus affirm on the basis of the

trial court’s Rule 1925(a) Opinion and Findings of Fact as to Father’s first

three issues. See Rule 1925(a) Opinion, 3/31/17, at 6-9, 14-17; Trial Court

Findings of Fact, 1/26/17, at 4-12.

      In his final issue, Father argues that the trial court rendered an

“arbitrary” physical custody award, which “was in deviation of the statutory

guideline and not in the Children’s best interests[,]” where “Father only has

[all] three Children together four times a month over a ten month period,

even though [Father] lives near [] Mother, closer to [the Children’s] school,

[and] on the bus route ….” Father’s Brief at 25-26. Father urges that

      [t]he better solution to meet the Children’s best interests was …
      [to award the parties] shared physical custody[, and] … a more
      balanced schedule[,] where all three Children could stay with []
      Father together more than four nights per month during the
      school year, [which is] … a disproportionate [and] unjustified
      holding. … The arbitrary decision of the [trial] court does not
      reflect the reasoning as to why [] Father can have the Children
      together 4 nights [per month] during ten months out of the year,
      and fifteen nights [per month] for two summer months.




                                 -9-
J-A19032-17

Id. at 29.

      In its Rule 1925(a) Opinion, the trial court explained that it (1) had

considered the Children’s “articulate and well reasoned” desires for a physical

custody schedule that was best suited to their respective individual needs;

and (2) was cognizant that the court had fashioned an unconventional

custody schedule, whereby the Children were not always together during

Father’s custodial time, and each had a slightly different schedule. See Rule

1925(a)      Opinion,   3/31/17,   at   10-11.   The   court   determined   that,

nevertheless, it was appropriate, and in the Children’s respective best

interests, to employ a physical custody schedule that the Children expressed

they prefer, even though it does not ensure that the Children are all together

at all times. Id. The trial court’s reasoning is sound and supported by the

record, and we discern no abuse of the court’s discretion in finding that the

unconventional physical custody schedule put into place was in the Children’s

best interests.2 Accordingly, we affirm on this basis in rejecting Father’s final

issue. See id.

      Order affirmed.


2
  Our determination is unaltered by Father’s pointing out that that he was
awarded shared physical custody during the Children’s summer vacation, but
not during the remainder of the year. The trial court found that such
arrangement was the one best suited to the Children’s best interests, and
their expressed preferences.        See Rule 1925(a) Opinion, 3/31/17, at 8-9
(stating, inter alia, that “the [C]hildren have a very strong preference towards
spending more time in Mother’s household during the school year in order to
provide them with consistency and stability, especially in their academic
pursuits.”); see also id. at 10-11. Contrary to Father’s assertion, this
physical custody arrangement is neither arbitrary nor unreasonable.


                                    - 10 -
J-A19032-17

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2017




                          - 11 -
                                                                     Circulated 08/03/2017 04:05 PM
                                                                      2016-09945-0042 Order, Page 1




    IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
                        PENNSYLVANIA
                       FAMILY DIVISION



J-M                                        :NO. 2016-09945

                                           Seq. 8 (5/20/ 16) Defendant's
                                           Emergency Petition for Custody
            ·vs.
                                           Seq. 9 (5/24/ 16) Plaintiff's
                                           Answer and New Matter'




                              FINDINGS OF FACT

I. History of the Case

      J-M-("Mother")
parents of three minor childr:en:
2000, age 16), A-        M-
                                    K-and T.C.
                                          M-
                                                     M-("Father.")
                                                       (date of birth: November.
                                    (date of birth: Augustll       2003, age 12) and
                                                                                       are the




L.<9111111 [date of birth: October"            2006, age 10).

      On October 9, 2015, the parents separated and Father moved out of the
marital residence,   located at -      Royal Oak Drive, Blue Bell, PA 19422.
Mother and the three children have lived primarily at the martial residence
since that date. After Father moved out of the marital residence, the parties
jointly decided that Father would have custody of the children on Monday
afternoons and Thursday afternoons and every Friday after school, overnight to
Saturday between 3:00 p.m. and 7:00 p.m. This arrangement              was constructed
based on what the parties felt was in the best' interests of each of the children
and was extremely flexible to take the children's extra-curricular           activities and
school work into consideration.      On many occasions,         one or more of the
children did not go with Father because of schoolw?_rkor oth~r_ activities.


                                                          1111 ~l·~·~~-1111
                                                          2016-09945-0042   1/26/2017 3:31   PM   # 11139064
                                                                                  Order
                                    Page 1 of 13          Rqn#Z3020533 F<!~:S0.00
                                                                   Mark L<!\'Y - MontCo Prothonotary

              THIS DOCUMENT WAS DOCKETED AND SENT ON 01/26/2017                                                , l
                                                                                                                d'
                                                                     2016-09945-0042 Order, Page 2




      When he first moved out, Father rented a three bedroom townhouse
located at.     Wick Lane, Blue Bell, PA 19422. In October 2016, he purchased
and moved into a home at      II       Amour Circle, Blue Bell, PA 19422. On May 18,
· 2016, _Mother filed a Complaint in Divorce, which included a Custody Count in
in which Mother sought primary custody of the children.

       Among the issues that led to the parties' separation was Father's use of
alcohol and its impact on Mother and the family. On April 30, 2016, at
approximately 11 :00 p.m., Father was involved in a two-vehicle car accident in
Montgomery County. As a result, Father· was charged with Driving Under the
 Influence and related traffic offenses.

       On May 20, 2016, Father             filed an Emergency Petition for Custody
 seeking (1) shared legal custody of the children; (2) shared physical custody of
 the children as set forth in his proposed order; (3) a nesting arrangement
 whereby Mother has custody of the children during the week and Father has
 custody of the children'on the weekends, with the non-custodial parent moving
 out of the marital residence when he or she does not have custody of the
 children; (4) Father having custody of the children every Monday after school
 until 8:00 p.m. during the school year and during the summer, from 1 :30 p.m.
 overnight to 12:00 p.m. the following Tuesday; (5) Father having physical
 custody of the children every Thursday from 3:00 p.m. to 8:30 p.m.; and (6)
 shared holidays and vacations.

        On May 24, 2016, Mother. filed an Answer and New Matter to Father's
 Emergency Petition in which I she requested that Father be directed to undergo
 hair follicle testing, participkte in an alcohol assessment        and that Father's
         .                .        I                            .

 overnight custody with the children be suspended until further order of Court
 or Agreement of the parties.      J




        On May 25, 2016, afterI a phone conrerence
                          =                r        · h
                                                   wit  counse 1 in
                                                                 · connection
                                                                           ·

  with Father's Emergency Petition, the Honorable Risa Vetri Ferman entered an
                                   I
                                           Page 2 of 13
                                                                        2016-09945-0042 Order, Page 3




Interim Custody Order which provided that (1) the parties shall comply with
the oral custody    agreement     in place since October 2015; (2) Father shall
undergo a drug and alcohol evaluation and a hair follicle test, the results of
which shall be provided to Mother's counsel; (3) Father shall not drive with the
       .                                       .
children unless mutually agreed upon by the parties; (4) an expedited custody
   .                .
conciliation shall be scheduled;      and (5) incorporating       the general rules of
conduct.

       On June 16, 2016, after conciliation, the parties entered into an Agreed
Custody. Order regarding custody of their children for the summer of 2016.               It
provided that ( 1) Mother had primary custody of the children; (2) during the
summer     Father   had physical    custody   from Thursday        at   1 :00 p.m. until
Saturday at 4:00 p.m. and overnight on every other Monday, beginning July
11, 2016 and on interim Mondays from 1 :00 p.m. until 9:00 p.m.; (3) neither
par.ent shall consume alcohol during his/her          custodial time; (4) the parties
shall participate in co-parent counseling; (5) the children shall attend Sunday
                                        .                     .
services · at Fairview Village; and      (6) directing   that 'the children      shall be
interviewed in August.

       On August 16, 2016, Custody Conciliator Sara Goren interviewed the
three children and thereafter on August 19, 2016' she issued a Conciliation
Report.

       Since the beginning of the· 2016-2017 school year, the Court's May 25,
2016 Order has been in effect. However, Mother has agreed that Father shall
 also have custody of their son Lii     overnight on Mondays.

       On October 11, 2016, the undersigned           held a short list conference m
 connection with Father.'s Emergency· Petition for Custody and Mother's Answer
 and New Matter.        After the short list conference, the Court entered an Order
 directing the parties to attend co-parent counseling and for the ·children to



                                       Page 3 of 13
                                                                      2016-09945-0042 Order, Page 4




participate    in family counseling.      The Court held a protracted       hearing on
January 6, 2017.

          After the hearing concluded, the Court gave the parties until January 20,
2017 to submit any post-trial memoranda             and proposed orders. In addition,
the Court permitted Father, by agreement of counsel, to submit a confidential
document.       Thereafter,   Mother's   counsel   submitted   a proposed   order and
Father's counsel submitted both the confidential document along with a letter
to the Court, which included extensive ex-parte argument.            Mother's counsel
correctly objected to the inappropriate       nature of the letter. The Court has not
considered the substance of Father's letter in any manner.

II.   Custody Factors

          In ordering any form of custody, the Court shall determine           the best
interests of the children by considering all relevant information pursuant to the
Custody Factors        set forth in 23 Pa. C.S.A. § 5328 (a), giving weighted
consideration      to those factors which affect the safety of the children. The
Court's analysis of those factors is detailed below:

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

      '   The Court finds: that Mother is more likely to encourage          and permit
 frequent and continuing contact between the children and Father, as she has
 demonstrated      consistently since the parties' separation.   When the parties first
 separated,     they established   a schedule by agreement, but have been flexible
 since that time. Mother maintains         the children's schedules and ensures that
 Father is aware of their events so he may attend and participate. Mother has
 routinely agreed to expand Father's time with the children beyond that which
 was previously agreed.

           This factor favors Mother.

                                          Page 4 of 13
                                                                                     2016-09945-0042 Order, Page 5




(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 for the child.

      There is no evidence that either party has ever abused the children, thus
this factor is neutral.

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

       Mother       has   been        the    primary    caregiver      of the     children    and     the
administrator       of the household ·since they were born.                     Mother gave up her
career as a high school English teacher at Lower Merion High School to be the
children's full-time caregiver.             Even on nights when the children are with their
Father, Mother continues              to transport     the children to and/or           from some of
their activities.

       Since .the parties' separation, when the children are with Father he has
been fully capable         of performing            all required      parental     duties.   Father     is
extremely loving and engaged in the lives of his children. Despite his schedule
and the. obvious demands                of his professional life, Father makes sure he is
available for his children during his custodial time and during their activities.
Father makes the children a priority in his life. The children love him and
 cherish their time together. Mother still maintains her role as the organizer and
 coordinator    of all activities and the children                   rely on her to maintain          the
 consistency of their home lives.

       This factor is neutral.

 (4) The need for stability            and continuity        in the child's education, family
 life and community           life.

        The Court firids that Mother can provide better stability and continuity in
 the children's education, family life and community life. Mother has been the
                                                Page 5 of 13
                                                                                 2016-09945-0042 Order, Page 6




children's     primary caretaker      for their entire lives.       She is the parent          the
children turn to when they have issues with school or friends.                   She is involved
in their school and their church.        She makes sure their homework is completed
and they get to their extracurricular          activities'. She also handles all of their
school       paperwork,   and      schedules     and       takes   them     to     all   of   their
medical/ dental/ orthodontia         appointments.     Mother has been and will be the
stable presence in the children's lives. The Court finds that the children rely on
Mother to ensure this stability.

         This factor favors· Mother.

(5) The availability      of extended family.

         Mother's parents    live 25 minutes         from the marital residence and are
available to help Mother when she needs it. Father's parents are one hour and
15 minutes away and they also have committed to being available if they are
needed.

         This factor is neutral. .

 (6) The child's sibling relationships.

         The children have a close and good relationship.                 They enjoy spending
 time together, but also look forward to the time they can each have alone with
 their parents.

         This factor is neutral.

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

     .    The Court interviewed all three children separately. The interviews were
 conducted in camera and on the record. Both parents agreed to waive their
 counsel's presence for the interviews.


                                            Page 6 of 13
                                                                               2016-09945-0042 Order, Page 7




      All three      children    presented      as    thoughtful,      kind,     mature      and
compassionate     individuals. Each of them was intelligent, articulate and well
reasoned in their thinking and possessed              a clear ability to articulate         their
thoughts and wishes. Each of the children demonstrated                  good judgment and
good sense in explaining         their preferences        to the Court. The Court gives
significant weight to the preferences expressed by the children because their
opinions each reflected an understanding             of what best suited their personal
needs without bias towards or against either parent. It was clear to the Court
that the. children love both of their parents.

      The Court finds that current custody schedule, though unconventional
m the .marmer      in that each child has a slightly different schedule,                   is the
schedule that the children currently ·prefer and that this Court finds meets the
best interests     of each child individually.         The Court credits           the parents'
willingness to create a schedule           that is clearly not in either parent's            best
interests, but instead best suits the needs of each child ..

      The youngest child, son Lii           (10), enjoys spending one on one time with
his Father, which he gets .during his Monday overnights without his sisters.
This is important Father/ son bonding time that he needs.

       The middle child, daughter A-                 (12), enjoys spending evenings with
Father and her siblings, but also feels the need to return to Mother's home to
 complete her school _work. Both girls enjoy having Mother/ daughter ti~e alone
 when Lii      i~ with Father.

       The oldest child, daughter           K-        (16), requires     the rnost flexibility
 because she is involved with the most activities. She has appreciated the way
 her parents     have given her the space to complete her work and activities
 without pushing her.

       At the custody       conciliation     conference,     both girls expressed         a clear
 preference to stay at Mother's home during the school week.                          Often their

                                           Page 7 of 13
                                                                               2016-09945-0042 Order, Page 8




preference     is to stay at Mother's         on Mondays      and Thursdays    so they can get
their schoolwork     done.

      This factor does not weigh in favor of either parent,                but rather weighs in
favor of maintaining          the carefully     crafted,   though   unconventional,    schedule
that is currently    in place, which satisfies        the best interests   of each child.

(8) The:attempts       of a parent: to tum the.child against the other parent,
except in cases of domestic violence where ·reasonable safety measures
are necessary to protect the child from harm.

       Both parents have, unfortunately,              engaged in· speaking negatively to the
children about the: other parent. This disparaging conduct is inappropriate                    by
both parents. The children are mature and perceptive enough that this conduct
has not turned them away from either parent. The children, instead, love both
                .                                             .
of their parents and wish they were not put in the middle. The Court finds that
the parents' conduct is not intended to turn any of the children away from the
other parent;       rather,    each parent       has tried to elevate him/herself           in the
children's eyes. The children have proven, to date, to be astute enough not to
fall into ·this trap. They each recognize the important role each parent has in
their lives.

       This factor is neutral.

 (9) Which party is more likely to maintain a loving, stable, consistent
 and nurturing relationship with the child adequate for the child's
 emotional needs.

        Both parents are clearly .loving and nurturing                with their children. The
 girls currently rely more on their Mother for emotional support, as one might
 expect with teenage girls.

        This factor is neutral.


                                               Page 8 of 13
                                                                                 2016-09945-0042 Order, Page 9




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

         While .Father worked as a physician, Mother worked as the CEO of the
family. Mother has been the primary-caretaker               of the children and is the parent
most     likely to attend       to the      daily   physical,    emotional,      developmental,
· educational and special needs of the· children. Mother has been the parent to
ensure that the needs of each child have been met, and provides stability for
the children. She coordinates all their activities, their required appointments,
 helps    them      stay   organized   and     balance      in   the   various     school    work,
 extracurricular,     social and medical commitments             they have. Mother ensures
 that all · their schoolwork is done and that home/ school communication                          is
 maintained. The children are all emotionally close to their Mother and rely on
 her to maintain       this sense of daily consistency.          Father is also an involved,
 loving, · doting     parent.   He attends      their    activities,   participates     in school
 p~ograms and always makes time to engage with the children.

     '   This factor weighs in Mother's favor.

 ( 11) The proximity of the residences of the parties.

         The parties reside several miles away from one another in Blue Bell. They
 both reside in the. same school district and the children can take the school
 bus to either parent's home.·

         This factor is neutral.

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

          Mother is not currently employed and is available to provide any care
  needed, for .the children.       Father    is , a practicing     physician      with a thriving
  practice who works long hours. Father does have support from his parents who
  live over an hour away. Mother has consistently                  provided backup care for
                                             Page 9 of 13
                                                                            2016-09945-0042   Order, Page 10




Father as well when his work schedule                   prevented   him from attending         to
something the children needed.

     This factor weighs in Mother's favor.

(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.

      The primary source of conflict between the parties·, as presented to this
Court, has been Mother's concern for the children's                  safety considering her
experience with Father's alcohol use during the marriage and the children's
occasional exposure to it. The oldest child has been impacted by Father's past
use of alcohol. Because of her exposure to Father's alcohol use and her status
as a beginning driver, Mother has cautioned her to be aware of signs of any
adult drinking and driving and has empowered her not to risk her own safety
by- getting in a car with someone who has consumed alcohol. On its face, it
might appear that this admonition could foster conflict between Father and
daughter,      but   the    Court     finds   it was an unfortunately         necessary,      but
appropriate,    caution to offer to a teenager who is a new driver and has been
exposed ·to alcohol use/ abuse.          The safety of this teen driver is paramount.

      Notwithstanding            this issue, the Court finds there is not a high level of
conflict    between        the    parties.    The   Court     appreciated   Mother's     honest
assessment      of Father's strengths and her own weaknesses as a parent.                     Both
parents have been willing and able to work together and cooperate in relation
 to issues surrounding the children.

       This factor is neutral.




                                              Page 10 of 13
                                                                            2016-09945-0042 Order, Page 11



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

      Mother testified credibly about Father's use and abuse of alcohol· during
the marriage and the way it impacted the family. She described a number of
alcohol related events including a citation for public drunkenness                   and a 2016
DUI charge. Mother described her credible observations of Father's history of
binge drinking and poor decision-making. She described his history of drinking
too much, apologizing, ceasing alcohol consumption for a brief period, and then
the cycle repeating itself. The parties' oldest child has been exposed to Father's
behavior under the influence of alcohol, which has impacted the level of trust
in her relationship with her Father.

      The Court      further     finds    that   Father     presented     credible    testimony
indicating his cessation of all alcohol consumption              since the event that led to
his arrest in the spring on 2016. Although Father failed to submit to hair
follicle alcohol testing until ordered by the Court, he exceeded the Court's
ordered   requirements     and     submitted      test     resuits   indicating   he has     not
consumed alcohol since his arrest. The Court finds that Father has, in fact,
ceased alcohol consumption.

       This factor weighs in Mother's favor.

 ( 15) The mental and. physical          condition of a party or member of a party's
 household.

       Father underwent        an assessment      with Spring-Ford Counseling Services
 in May 2016. The evaluator, Jennifer Gehret, M.S. recommended, "counseling
 sessions to address positive coping skills for life stressors              and the effects of
 alcohol should be addressed. This counseling may occur with current therapist
 who Mr. (Dr.) M-is                seeing for support during his separation or with a
 counselor who focuses on alcohol intervention                services." To date, Father has


                                           Page 11 of 13
                                                                         2016-09945-0042 Order, Page 12



not complied with this recommendation. There was no evidence presented to
the Court about Mother's mental or physical condition.

      This factor weighs in favor of Mother.

(16) Any other relevant factor(s).

      The Court heard no testimony about the facts of Father's current, open
Driving under the ·influence of 'alcohol charge. As a result, the Court cannot
ascertain whether there is a risk of danger to the children based upon the
record. Accordingly, the Court makes a negative inference that if evidence had
been presented it would have weighed against Father. Accordingly, this factor
weighs in Mother's favor.

       The Court ordered both parties to commence co-parenting counseling to
address       their   communication    challenge   in October        2016.     The Court   is
disappointed in both parties that this has not yet occurred.

       In conclusion,       the Court finds that     the best interests         of the three
children will be met by awarding Mother primary physical custody and Father
a: significant schedule of partial physical custody which can be expanded in the
summer         months.    Mother's    role in providing      stability   and     consistency,
especially during the· sch~ol year, will best serve the children's                needs. The
Court further finds that the schedule the parents                 adopted by agreement is
 serving the children        exceedingly well and        should    continue.    The current
 schedule is tailored to · meet the individual needs of each child and has been
 effective.




                                         Page 12 of 13
                                                              2016-09945-0042 Order, Page 13




      A Custody Order will be entered separately on this date. These Findings
of Fact and the Custody Order shall resolve all outstanding   petitions between
the parties.




Copies to: j-c;).5'-17
Plaintiffs Attorney: Cheryl L. Young, Esq.
Defendant's Attorney: Andrew Smith, Esq.
Chambers
Court Administration - Family Division
Custody· Conciliation




                                                                           '




                                   Page 13 of 13
                                                                                  Circulated 08/03/2017 04:05 PM
                                                                              2016-09945-0052              Opinion, Page 1




    IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
                        PENNSYLVANIA
                       FAMILY DIVISION



J-M                                               NO. 2016-09945

                                                  Superior Court No. 745 EDA 2017

              vs.

                                                          1111 llt:Mm\1~131111
                                                          2016-09945-0052   3/J 1/2017 J:06 P;>.·!
                                                                                  Opinion
                                                                                                     # 11223647

                                                          Rq,1!!23096474 Fee:S0.00
                                                                      \!ark Levv- MontCo Prothonotary




                                        OPINION

FERMAN, J.                                                        March 31, 2017

                                    I. Introduction

      Appellant,    TII C. M-              ("Father"), appeals to the Superior Court
of Pennsylvania from this Court's Final Custody Order dated January 25,
2017. On February 27, 2017, Appellant timely filed both the Notice of Appeal
and Statement of Matters Complained of on Appeal. On March 6, 2017, the
Superior Court of Pennsylvania designated Appellant's appeal as Children's
Fast Track Appeal.

      On January 25, 2017, following a protracted hearing on January 6, 2017
on Father's Emergency Petition for Custody filed May 20, 2016, this Court
issued its "Findings of Fact" and Final Custody Order.1 The Final Custody
Order awarded the parties shared legal custody, with Mother being awarded
primary physical custody and Father being awarded partial physical custody
during the school year. During the summer months, the Final Custody Order

I The Final Custody Order was signed January   25, 2017 and filed January 26, 2017. It can be
found.at docketing sequence forty-one (41). The Findings of Fact were filed January 26, 2017
and can be found at docketing sequence forty-two (42).
                                                                        2016-09945-0052 Opinion, Page 2




awarded the parties shared (50 / 50) physical custody, which was to be
determined by mutual agreement.

                         n. Facts and Procedural History

       The undersigned directs the Superior Court of Pennsylvania to her
"Findings of Fact" filed January 26, 2017 where the Facts and Procedural
History of this case are detailed.

                                 III. Issues on Appeal

       Overall, Appellant raises eighteen (18) issues in his Statement of Issues
Complained of on Appeal.? Appellant raises the following issues:

1. Whether {the} Court erred as a matter of law by failing to apply to Father the
presumption that each parent is capable of being the custodial parent.

  2. Whether [the} Court erred in ruling that factors (1), (4), (1 OJ, (12), (14), and (15)
  each/ all weighed in favor of Mother where the weight of the evidence favored
· Father or favored both parties equally.

3. Whether {the] Court erred in ruling Father is only entitled to one overnight per
week will all three (3) children at the same time.

 4. Whether /the] Court erred in allowing the son to stay with Father three (3)
 nights per week while refusing to grant Father custody of the 2 minor daughters
 on the same overnights.

 5. Whether the Court erred m entering an order that grants Father only 1
 overnight per week with his daughters thereby creating separation and
 alienation between the Children.

 6. Whether Court erred in entering an order where Father never has a weekend
 with all three (3) Children.

 7. Whether the Court erred in.finding Father is only entitled to four (4) overnights
 per month with all three of his children.                       ·



  See Appellant's Statement of Matters Complained of on Appeal filed February 27, 2017 and
 '2
 can be found at docketing sequence forty-four (42).
                                                                   2016-09945-0052 Opinion, Page 3




8. Whether the Court erred in finding Father cannot attend to the daily physical,
emotional, developmental, educational and special needs of the children as a
physician and surgeon while the Court clearly showed a female bias by stating
"Mother worked as the CEO of the family."

9. Whether the Court erred by considering alcohol as playing a part in the
marriage and in the raising of the Children.

1 0. Whether the Court erred in ruling that it is in the best interest of the children
to allow the parties' 2 children to commute back and forth at 8 pm at night during
the school week because "they feel the need to return to mother's home to
complete their school work" clearly showing Mother has alienated the daughters.

11. Whether the Judge erred in finding during the school year Father can only
have 1 overnight per week with all three children but during the summer Father
has 50 percent custody.

12. Whether the Judge erred in finding Father is completely capable of having
the children equally in the summer but cannot attend to their needs during the
school year.

 13. Whether the Court erred in denying Father's Motion in Limine and instead
 not only considered Mother's testimony but utilized that testimony as a factor in
favor of mother while her testimony was not credible and went against the
 weight of objective, non-bias evidence and medical testing.

 14. Whether the Court erred in ruling on custody when a custody evaluator was
 not appointed and no custodial evaluation was ever conducted.

 15. Whether the Court erred in interviewing the children outside the purview of
 counsel and asked the Children questions which may have showed favoritism
 and bias toward Mother.

 16. Whether the Court erred in finding Mother has not alienated the children,
 specifically the daughters when the evidence showed mother told the children
 the day before a vacation with Father that father had broken the bond of
 marriage and that father had drinking problems that their eldest daughter
 should be cognizant of his drinking and should ask Father every time she gets in
 the car with him.

 1 7. Whether the Court showed a bias to Mother and her counsel by conducting
 significant conferences in Chambers and allowing Mother's attorney to make
 continuous statements regarding father's alleged alcohol dependency and
 alleged infidelity which were evidence including 2 medical expert opinions and
 hair follicle testing not withstanding witness testimony.
                                                                   2016-09945-0052 Opinion, Page 4




18. Whether the Court erred in giving mother primary custody where the
evidence showed mother has, for almost 8 years, required help at least 1 day per
week from Father's mother and another day a week from her own parents to
care for the kids, clearly contradicting the Court's biased comment that Mother
was somehow a "CEO of the family."


                                  IV. Discussion

A. General Standard of Review

      In reviewing a custody order entered by a trial court, the appellate court's
scope is of the "broadest type [and the] standard [of review] is [an] abuse of
discretion." McMillen v. McMillen, 602 A.2d 845, 847 (1992). An abuse of
discretion only "occurs if, in reaching its conclusion, [the] trial court overrides
or misapplies the law or exercises judgment that is manifestly unreasonable,          or
reaches a conclusion that is the result of partiality, prejudice, bias or ill will as
shown by the evidence of record." Gates v. Gates, 967 A.2d 1024, 1028
(Pa.Super.2009).

      The appellate court "must accept findings of the trial court that are
supported by competent evidence of record." McMillen at 847. The role of the
appellate court "does not include making independent factual determinations."
Id. As it pertains to issues of credibility and the weight of the evidence, the
appellate court "must defer to the trial judge who presided over the proceedings
and thus viewed the witnesses first hand." Johns v. Cioci, 865 A.2d 931, 936
 (Pa. Super. 2004) (internal citations omitted). Moreover, the appellate court
 may reject the trial court's conclusions "only if they involve an error of law, or
 are unreasonable   in light of the sustainable findings of the trial court." Hanson
 v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005).

       As with all child custody cases, the "paramount concern is the best
 interests of the child, based on a consideration of all .factors that legitimately
 affect the child's physical, intellectual, moral and spiritual well-being." C. W. v.
                                                                     2016-09945-0052   Opinion, Page 5




K.A. W., 774 A.2d 745, 748 (Pa. Super. Ct. 2001) (quoting, E.A.L. v. L.J. W., 662
A.2d 1109 (1995)).
       In determining the best interest of the child, the court shall consider all
relevant factors including the sixteen custody factors set forth at Section
5328(a). The Custody Act requires the court to "delineate the reasons for its
decision on the record in open court or in a written opinion or order." 23
Pa.C.S.A.     §5323(d).

       Lastly, it is within the "trial court's purview as the finder of fact to
determine which factors are most salient and critical in each particular case.
M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. Ct. 2013). The parties cannot
dictate the amount of weight the trial court places on evidence. S.M. v. J.M.,
811 A.2d 621, 623 (Pa.Super.2002)(quoting Robinson v. Robinson, 645 A.2d
836, 838 (1994)).

       This Court's findings, generally, should be given the appropriate amount
of deference, and this Court's Custody Order should be affirmed. Following is
this Court analysis regarding the specific issues raised by Father in his
Statement of Matters Complained of on Appeal.

B. Presumption in Favor of Father

        In his Statement of Matters Complained of on Appeal, at Issue One (1),
Father asserts that this Court abused its discretion by failing to apply to Father
a presumption        that each parent    is capable of being the custodial        parent.
Father's assertion here fails, as this Court, under the law, is unable to apply
 any presumptions in favor of either parent.

        "In any action regarding the custody of the child between the parents of
 the child, there shall be no presumption        that custody should be awarded to a
 particular      parent."   23   Pa.C.S.A.   §   5327.   Additionally,   "In making        a
 determination      under subsection    (a), no party shall receive preference based
                                                                        2016-09945-0052 Opinion, Page 6




upon gender in any award granted under this chapter. 23 Pa.C.S.A.                § 5328(b).
Moreover, "the Custody Law does not countenance                  presumptions      between
parents based upon gender or any other characteristics."            D.K.D. v. A.L.C., 141
A.3d 566, 572 (Pa. Super. Ct. 2016), reargument denied (July 28, 2016), appeal
denied, 330 WAL2016, 2016 WL 6462545 (Pa. Nov. 1, 2016).

       Accordingly, based upon the evidence of record, this Court did not abuse
its discretion.

C. Weight of the Evidence and the Application of the Custody Factors

       Father raises three (3) issues in his Statement of Matters Complained of
on Appeal regarding this Court's weighing of the evidence and. its application of
the custody factors. Those issues are raised in Father's Statement of Matters
Complained of on Appeal at Issue Number Two (2), Number Sixteen (16), and
Number Eighteen ( 18). All of which will be discussed by this Court collectively
in this section.

       First, Father asserts at Issue Number Two (2) in his Statement of Matters
Complained of on Appeal that this Court abused its discretion by ruling factors
one ( 1), four ( 4), ten ( 10), twelve ( 12), fourteen ( 14), and fifteen ( 15) in favor of
Mother where the weight of the evidence either favored Father or both parties
equally. Father's assertion here fails, as this Court, as the finder of fact, has
the sole discretion to determine the amount of weight to place on specific
pieces of evidence and to determine which factors are critical to the best
 interest of the child in each particular case.

        Pursuant to 23 Pa.C.S.A. § 5328(a), when ordering any form of custody, .
 "the court shall determine the best interest of the child by considering all
 relevant factors, giving weighted consideration to those factors which affect the
 safety of the child ... " The parties are unable to dictate the amount of weight the
 trial court places on evidence. That is within the "sole discretion of the trial
                                                                            2016-09945-0052   Opinion, Page 7




court as the finder of fact, whose paramount concern is the best interest of the
[children]." S.M. v. J.M., 811 A.2d 621, 623 (2002). As the Superior Court
stated in M.J.M. v. M.L.G., "It is within the trial court's purview as the finder of
fact to determine which factors are most salient and critical in each particular
case." M.J.M. v. M.L.G., 63 A.-3d331, 339 (2013).

      Furthermore, the appellate court "must defer to the trial judge who
presided over the proceedings and thus viewed the witnesses first hand." Johns
v. Cioci, 865 A.2d 931, 936 (Pa. Super. 2004)(internal citations omitted). The
appellate court may reject the trial court's conclusions "only if they involve an
error of law, or are unreasonable       in light of the sustainable findings of the trial
court." Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005).

       Here, this Court's conclusions were not an error of law or unreasonable
based upon the evidence of record. As a result, this Court did not abuse its
discretion in weighing factors one (1), four (4), ten (10), twelve (12), fourteen
(14), and fifteen (15) in favor of Mother. This Court, sitting as finder of fact,
made determinations       of credibility and weighed the evidence presented
throughout the custody trial. Based upon the evidence of record, this Court
determined that factors one, four, ten, twelve, fourteen, and fifteen-favored
Mother."

       Second, Father asserts at Issue Number Sixteen (16) in his Statement of
Matters Complained of on Appeal that this Court abused its discretion by
 failing to conclude that Mother alienated the children when the evidence,
 according to Father, showed that Mother told the children that Father had
 broken the bonds of marriage and that Father had drinking problems that the
 eldest daughter should be aware of and should ask Father about every time
 she gets in the car with him.



 3This Court's application of the custody factors to this case can be found in its Findings of
 Fact filed January 26, 2017. •
                                                                           2016-09945-0052 Opinion, Page 8




      This Court, as the finder of fact, in its sole discretion, found no evidence
that Mother alienated the children from Father. In fact, while this Court found
evidence that both parents attempted to turn the children against the other
parent, neither of their attempts to turn the children against the other were
successful. In its Findings of Fact filed January 26, 2017, this Court found
that both parents "engaged in speaking negatively to the children about the
other parent."4 Moreover, this Court found that, "The children are mature and
perceptive enough that this conduct has not turned them away from either
parent."S

       As previously stated above, it is the sole discretion of the trial court as
the finder of fact to determine the amount of weight to place on evidence and to
determine which factors are critical to the best interest of the children as issue.
As a result, based upon the evidence of record, this Court did not abuse its
discretion in failing to conclude that Mother alienated the children.

       Third, Father asserts at Issue Number Eighteen (18) in his Statement of
Matters Complained of on Appeal that this Court abused its discretion in
awarding Mother primary custody where the evidence showed Mother has, for
almost eight (8) years, required help at least one (1) day per week from Father's
mother and another day a week from her own parents to care for the children.
Father's assertion here fails.

       Here, this Court conducted a detailed analysis of the custody factors and
concluded that it was in the best interest of the children to award Mother
 primary physical custody during the school year. In its Findings of Fact, this
 Court found based upon the evidence of record that Mother and Father are
 both loving and capable parents, but that the majority of household duties had
 always been, and currently were still, performed by Mother. This Court
 concluded that the children relied on Mother pre-separation               and currently to

 4 See factor 8 of this Court's Findings of Fact dated January 26, 2017.
 s Id.
                                                                    2016-09945-0052 Opinion, Page 9




manage their affairs, and that the children were emotionally close to Mother
and relied on her to maintain a sense of daily consistency. This Court also
found that Father is a loving and doting parent, who is fully capable of
performing all the required parental duties, and that he makes the children a
priority in his life despite his schedule and the demands of his profession life.
This Court also found that the children have a very strong preference towards
spending more time in Mother's household during the school year in order to
provide them with consistency and stability, especially in their academic
pursuits.

      The custody factors are not a mathematically equation. In reaching
conclusions about the applicability of the custody factor, this Court is not
mandated to calculate the number of factors that might favor each parent and
make a mathematical determination of which parent earned more factors to
fashion an award of custody. Rather, the Court makes a holistic analysis of the
familial situation and strives to fashion a custody award that is in the best
interest of the children.   Father is not entitled to select or mandate how the
Court analyses and weighs the various factors. This Court did not ignore the
fact that Mother receives help from others occasionally. This Court simply did
not weigh that fact as heavily as Father insists it should have been weighed.

       As stated previously, it is within the sole discretion of this court, sitting
as fact finder whose paramount concern is the best interest of the children, to
 determine the amount of weight to place on evidence. As a result, based upon
 the evidence of record, this Court did not abuse its discretion.

 D. Children's Preference

        Father assets at Issues Three (3), Four (4), Five (5), Six (6), Seven (7), Ten
 (10), Eleven (11), and Twelve (12) in his Statement of Matters Complained of on
 Appeal that this Court abused its discretion in giving significant weight to the
                                                                          2016-09945-0052 Opinion, Page 10




children's preferences. Father's assertion here fails as well. This Court did not
abuse its discretion in giving significant weight to the children's preference.


      "Although the express wishes of a child are not controlling in custody
decisions, such wishes do constitute an important factor that must be carefully
considered in determining the child's best interest." McMillen v. McMillen, 602
A.2d 845, 847 (1992) (internal citations omitted). The trial court, as the finder
of fact, can best determine the weight to be given to a child's testimony as to
their preference. Id. "The weight to be accorded a child's preference varies with
the age, maturity and intelligence of that child, together with the reasons given
for the preference." Wheeler v. Mazur, 793 A.2d 929, 937-38 (Pa. Super.
2002)(internal citations omitted). As the child grows older, more weight must
be given to the child's preference. Id. Where both parents are equally loving and
capable, the custodial preferences of the child or children may "tip the evidence
scale." McMillen, 602 A.2d at 848.

       All three children, who ranged from ages ten (10) to sixteen (16), were
interviewed by this Court separately on the record. Collectively, the children
presented as thoughtful, kind, mature, and compassionate individuals. The
children were intelligent, articulate and well-reasoned in their thinking, and
possessed a clear ability to articulate their thoughts and wishes. All three
 children expressed what type of schedule best suited their personal needs
 without a bias toward or against either parent. It was clear to this Court that
 the children loved both of their parents, and that both parents were equally
 loving and capable."

        Although this Court would have preferred a custody order that provided
 a more conventional custody schedule where the children are all together
 during a parent's custodial time, this Court concluded, after interviewing the


 6For a more detailed analysis of the children's preference, the Superior Court is directed to
 Factor Seven (7) of this Court's Findings of Fact filed January 26, 2017.
                                                                  2016-09945-0052 Opinion, Page 11




children, that this unconventional    schedule, in which each child has a slightly
different schedule, was the schedule that the children prefer and that most
effectively satisfied the best interest of each child individually.

         As stated in In re Russo, the general rule "must yield to the paramount
principle that the best interests of each individual child must be the
determining factor." In re Russo, 346 A.2d 355, 357 (Pa. Super. 1975). Here,
this Court concluded that in this case, with these children, the best interest of
the children was not served by the general rule and that there was no evidence
that the children's separation has caused alienation of each other or either
parent. As a result, this Court did not abuse its discretion in creating an
unconventional schedule in accordance with the preference of each individual
child.

E. Evidentiary Issues

         Father raises three (3) issues in his Statement of Matters Complained of
on Appeal that are evidentiary based, and will be discussed by this Court
holistically under this subsection. Those issues are raised in Father's
Statement of Matters Complained of on Appeal at Issues Thirteen (13),
Fourteen ( 14), and Fifteen ( 15).

         First, at Issue Number Thirteen (13) in his Statement of Matters
 Complained of on Appeal, Father asserts that this Court abused its discretion
 by denying his Motion in Limine and instead not only considered Mother's
 testimony but utilized her testimony as a factor in favor of Mother while her
 testimony was not credible and went against the weight of objective, non-
 biased evidence and medical testing. Father's assertion here fails, as this Court
 did not abuse its discretion in deferring its evidentiary rulings until trial as
 objections arose.
                                                                             .. ·····---   --------

                                                                          2016-09945-0052 Opinion, Page 12




         A Motion in Limine is a "procedure for obtaining a ruling on the
admissibility of evidence prior to or during trial, but before the evidence has
been offered." Com. Johnson, 582 A.2d 336, 337 (Pa. Super.1990), affirmed,
626 A.2d 514 (1993). A Motion in Limine may "preserve an objection for appeal
without any need to renew the objection at trial, but only if the trial court
clearly and definitively rules on the motion." Blumer v. Ford Motor Co., 20 A.3d
1222, 1232 (Pa. Super. 2011). On the other hand, "if the trial court defers
ruling on a motion in limine until trial, the party that brought the motion must
renew the objection at trial or the issue will be deemed waived on appeal." Id.
The admissibility of evidence is "vested in the sound discretion of the trial court
and will not be reversed on appeal absent an abuse of discretion." Com. v.
Brown, 839 A.2d 433, 435 (Pa. Super. 2003)(internal citations omitted.) An
abuse of. discretion occurs when a trial court, "in reaching its conclusions,
overrides or misapplies the law, or exercises judgment which is manifestly
unreasonable,        or the result of partiality, prejudice, bias, or ill will." Id.

         Here, on January 4, 2017, Father filed a pre-trial statement pursuant to
this Court's scheduling order. In his pre-trial statement, Father notified this
Court and opposing counsel that he would be motioning this Court for the
preclusion of certain evidence prior to the start of trial. Father sought to
preclude: (1) the testimony of Hollie Boizman and Priscilla Singleton; and (2),
evidence pursuant to Rules 104(a), 403, 404, 405, 410 (and 42 Pa.C.S.A. §
6142), 602, 702, and 706.

          Prior to trial, Mother notified the Court and counsel that she would not
call Hollie Boizman and/ or Priscilla Singleton as witnesses, resolving those
 evidentiary issues Father raised in his pre-trial statement regarding those
 witnesses.    7   This Court is unable to respond to specifics as Father failed to raise
 the specific evidentiary issues in which this Court abused its discretion.
 However, all other evidentiary issues raised by Father in his pre-trial statement

 1   See Notes of Testimony from January 6, 2017 at pages 4-5.
                                                                    2016-09945-0052 Opinion, Page 13




were not handled preliminary, but were deferred by this Court and ruled upon
as the evidentiary issues arose during trial upon Father's objection.

         For example, Father's counsel objected to the relevance of Mother's
counsel's question on cross-examination         pertaining to whether Father's
employer knew about his pending DUI charge.s This Court overruled Father's
counsel's objection stating, "You questioned him extensively about whether or
not he's been disciplined or whether consequences have been imposed at work,
and I think that's a fair cross-examination       question based upon the questions
you've asked." (N.T. 1 /6/ 17 pages 31-31). Accordingly, this Court did not
abuse its discretion in deferring its ruling on Father's Motion in Limine until
trial.

         Second, at Issue Number Fourteen (14) in his Statement of Matters
Complained of on Appeal, Father asserts that this Court abused its discretion
in ruling on custody when a custody evaluator was not appointed and no
custodial evaluation was ever conducted.

         Pursuant to Pa.R.C.P. No. 1915.8, "The court may order the child(ren)
and/ or any party to submit to and fully participate in an evaluation by an
appropriate experts or experts. The order, which shall be substantially in the
form set forth in Rule 1915.18, may be made upon the court's own motion,
upon the motion of a party with reasonable notice to the person to be
examined, or by agreement of the parties."

         Here, neither party filed a motion requesting the Court to appoint a
custody evaluator nor was there an agreement between the parties to appoint
 an evaluator, and the Court found no basis to raise the issue sua sponte. With
 no custody evaluator involved in the case, the Court was required to make a
 custody determination based upon the evidence presented of record and the
 Court's analysis of the best interests of the children with consideration of the

 e See page 31 of the Notes of Testimony from January 6, 2017.
                                                                         2016-09945-0052   Opinion, Page 14




statutory custody factors. Accordingly, this Court did not abuse its discretion
in ruling on custody without a custody evaluation.

      Third, at Issue Number Fifteen (15) in his Statement of Matters
Complained of on Appeal, Father asserts that this Court abused its discretion
in interviewing the children outside the purview of counsel and asked the
children questions which may have showed favoritism and bias towards
Mother.

      This Court interviewed the children outside the presence of counsel only
after counsel for both Mother and Father waived their presence on the record.
(N.T. 1/6/ 17 page 150). Furthermore, a careful review of the record will
demonstrate that this Court's questions were balanced and neutral, and void of
any evidence of favoritism and/or bias towards Mother.? As a result, Father's
assertion here fails. This Court did not abuse its discretion.

F. Bias Towards Mother

       Twice, Father asserts in his Statement of Matters Complained of on
Appeal, at Issue Number Eight (8) and Seventeen ( 17), that this Court
demonstrated a bias towards Mother in various ways.

       First, at Issue Number Eight (8) in his Statement of Matters Complained
of on Appeal, Father asserts that this Court abused its discretion in finding
that Father cannot attend to the daily physical, emotional, developmental,
educational and special needs of the children as a physician and surgeon while
showing a clear female bias towards Mother by describing Mother as the CEO
of the family in its Findings of Fact. The Court's used the phrase "CEO" to
 characterize Mother's role and responsibility for managing the family's affairs
 while Father was, based upon the evidence, managing his medical business.


 9The children's interviews have be sealed by this Court and have been sent to the Superior
 Court for review.
                                                                     2016-09945-0052 Opinion, Page 15




The record is completely devoid of any favoritism displayed by the Court for
Mother or the female gender. Father's assertion, accordingly, should fail.

          "One substantial    factor in determining if a modification of a custody
order is in the child's best interest, although not the sole factor, is the role that
one parent has assumed as the primary caretaker of the child." Johns v. Cioci,
865 A.2d 931, 937 (Pa. Super. 2004)(internal citations omitted). Here, this
Court, based upon the evidence of record, found that Mother has been the
children's primary caretaker. This Court found that Mother is more likely to
attend to those needs because "she coordinates all their activities, their
required appointments,        helps them stay organized and balance in the various
school work, extracurricular,        social and medical commitments they have."IO
This Court found that the children are emotionally close to their Mother and
rely on her to maintain this sense of daily consistency.

          However, this Court did not find that Father cannot attend to the daily
physical, emotional, developmental, educational, and special needs of the
children. In fact, in its Findings of Fact, at factor ten (10), this Court stated,
"Father is also an involved, loving, doting parent. He attends their activities,
participates in school programs and always makes time to engage with the
children."11 Additionally, as stated in this Court's Findings of Fact at factor
three (3), "Father makes the children a priority in his life."

          Father's assertion of bias must be demonstrated by the evidence of
 record. Here, the record is void of any evidence of bias. This Court's use of the
 term CEO does not establish or demonstrate a bias towards Mother, or her
 gender, as Father asserts. The term CEO simply describes Mother's role in the
 household, which was credibly testified to by Mother, Father, and children.
 Following this Court's use of the term, it listed Mother's household



 io Id.
 11   Findings of Fact dated January 26, 2017.
                                                                2016-09945-0052   Opinion, Page 16




responsibilities, such as coordinating all their activities, assignments and
appointments.


      Second, Father asserts, at Issue Number Seventeen (17) in his Statement
of Matters Complained of on Appeal, that this Court showed a bias towards
Mother and her counsel by conducting significant conferences in chambers and
allowing Mother's attorney to make continuous statements regarding Father's
alleged alcohol dependency and alleged infidelity which were unsupported          by
any credible evidence, and to the contrary, were against the weight of the
evidence including two medical expert opinions and hair follicle testing. not
withstanding witness testimony.

      This Court notes that both parties requested "off the record" conferences
in chambers. None of the statements made by either counsel during the off the
record conferences were made a part of the record or used by this Court in its
determination of what was in the best interest of the children. This Court's
award of custody was based solely on the evidence of record.

       Father's claim that his alcohol dependency and infidelity were
unsupported     by any credible evidence is unsubstantiated   by the evidence of
record. At trial, both Father and Mother testified regarding incidents where
Father drank to excess in several public situations. The Court found that
Father minimized all the incidents where he drank to excess. He argued these
were isolated incidents that did not reflect a problem with alcohol. In addition,
 Mother testified about other non-public incidents where Father drank to
 excess.

       Mother testified credibly to her observations of Father's history of binge
 drinking and poor decision-making. Mother described Father's history of
 drinking too much as a consistent cycle which typically began with a building
 up period, a crisis event, an apology, a promise to refrain from alcohol
 consumption, a period of time where Father in fact refrained from consumption
                                                                2016-09945-0052 Opinion, Page 17




and then the entire cycle repeating itself. One of the parties' daughters also
testified credibly to her exposure to Father's history of alcohol use during the
marriage and its impact on the family. This evidence was important to the
Court's analysis of the children's best interests.

      As it pertains to Father's infidelity, Mother's counsel attempted to
question Father about the specifics of his infidelity. This Court ruled, however,
that the evidence was not relevant and denied its admission on the record.

      Lastly, pertaining to this Court's bias towards Mother, the record is void
of any evidence of bias towards Mother. This Court's custody determination is
based solely upon the evidence of record. Accordingly, based upon the evidence
of record, this Court did not abuse its discretion.

G. Father's Alcohol Use

      Father asserts, at Issue Number Nine (9) in his Statement of Matters
Complained of on Appeal that this Court abused its discretion by considering
alcohol as playing a part in the marriage and in the raising of the children.

       Pursuant to 23 Pa.C.S.A. § 5328(a)(14), this Court is required to consider
the history of drug and/ or alcohol abuse of a party or member of a party's
household in determining the best interest of a child or children. In all custody
cases, alcohol abuse must be considered by the Court in determining what is
in the best interest of the children. As discussed above, the Court found
 credible, compelling evidence of Father's alcohol abuse, Father's history of
 binge drinking and poor decision-making as a result. The Court appropriately
 considered this evidence in its review of the custody factors. Accordingly, based
 upon the evidence of record, this Court did not abuse its discretion.
                                                            2016-09945-0052   Opinion, Page 18




V. Conclusion

      Based on the foregoing reasons, this Court's Custody Order dated
January 25, 2017 should be AFFIRMED.




Copies of Opinion sent to:
Plaintiffs Attorney: Cheryl L. Young, Esq.
Defendant's Attorney: Andrew Smith, Esq.
Chambers
Court Administration - Family Division
Superior Court of Pennsylvania
