J-A14005-17

                               2017 PA Super 268



M.J.N .,                                         IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

J.K.,

                          Appellee                     No. 330 EDA 2017


              Appeal from the Order Entered December 23, 2016
               In the Court of Common Pleas of Lehigh County
                    Civil Division at No(s): 2009-FC-1636


BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.

OPINION BY BENDER, P.J.E.:                          FILED AUGUST 18, 2017

        M.J.N. (Father) appeals from the December 23, 2016 order that

awarded J.K. (Mother) and Father joint legal custody of Z.K. (Child) (born in

June of 2009), and awarded Mother primary physical custody of the Child

and Father partial physical custody in accordance with a schedule delineated

in the order. The order also held Mother in contempt for not complying with

the prior custody order. After review, we vacate in part, affirm in part, and

remand.

        The trial court set forth a summary of the factual and procedural

history of this case in its Pa.R.A.P. 1925(a) opinion, stating:

              The parties’ child, Z.K., was born out of wedlock [i]n June
        [], 2009. [Father] filed a Complaint in Custody on December 21,
        2009. Since March 12, 2012, the parties have been exercising
        custody pursuant to a stipulation into which they entered on that
        date. Pursuant to the stipulation, the parties agreed to shared
        legal custody of their son, and alternating physical custody on a
J-A14005-17


     two-week rotation with a roughly fifty-fifty split of custodial
     periods with the child.

            On June 21, 2016, [Father] filed a Petition for Contempt
     and Modification of Custody Order. The contempt component
     was based upon [Father’s] allegation that [Mother] withheld the
     minor child on several occasions during which exchanges were
     supposed to occur, including one specific incident where the child
     allegedly missed a keyboard lesson. [Father] asserted that
     [Mother] would not bring the child to [Father’s] residence unless
     [Father] was physically present despite the fact that [Father’s]
     live-in girlfriend was home at the times at issue. [Father]
     further claimed that [Mother] could be heard on the phone while
     [Father] was speaking to the minor child and that [Mother]
     coached the minor child on what to say.

           On December 1, 2016 and December 2, 2016, the [c]ourt
     conducted a custody trial during which both parties were
     represented by counsel.     The [c]ourt also conducted an in
     camera interview of the minor child.

           On December 23, 2016, the [c]ourt issued an Order
     granting in part and denying in part [Father’s] Petition for
     Modification. The Order reviewed each of the factors for a
     custody determination and made specific factual findings with
     respect to each factor. 23 Pa.C.S.[] §§ 5328, 5329.1. The
     [c]ourt granted [Father’s] Petition for Contempt and held
     [Mother] in contempt for failing to comply with the parties’
     March 12, 2012 stipulated custody schedule. As a remedy, the
     [c]ourt awarded [Father] make-up custodial time.

          On January 10, 2017, [Father] filed a Motion for
     Reconsideration and a Motion to Open the Record in order to
     present additional evidence. Both of the foregoing motions were
     denied by Order dated January 12, 2017.

          [Father] filed the instant Notice of Appeal on January 23,
     2017, along with a Concise Statement of Matters Complained of
     on Appeal pursuant to Pa.R.A.P. 1925(b).

Trial Court Pa.R.A.P. 1925(a) Opinion (TCO), 2/16/17, at 1-2.




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J-A14005-17



      As noted by the trial court, after entry of the December 23, 2016

order, Father filed the instant appeal and raises the following issues for our

review:

      A. Whether the Trial Court committed an Error of Law and Abuse
      of Discretion in issuing the Order entered on December 23,
      2016, as it failed to award Father Primary Physical Custody of
      the [C]hild, contrary to the best interest and general welfare of
      the subject minor Child where the totality of the facts and
      evidence of Record elicited at Trial support an award of Primary
      Physical Custody to Father, when considering the same in light of
      the Factors identified in 23 Pa.C.S.[] § 5328?

      B. Whether the Trial Court committed an Error of Law and Abuse
      of Discretion in issuing the Order entered on December 23,
      2016, as the Schedule imposed will serve to damage and
      substantially impact the relationship between Father and the
      Child as there will be, pursuant to the Order, periods of time
      when Father will go as many as ten (10) days without personal
      contact with the Child?

      C. Whether the Trial Court committed an Error of Law and Abuse
      of Discretion in issuing the Order entered on December 23, 2016
      in not including a Right of First Refusal or affording Father extra
      time in the Summer, or on days where the Minor Child does not
      have school to make up for his significant loss of custodial time
      with the child?

      D. Whether the Trial Court committed an Error of Law and Abuse
      of Discretion in issuing the Order entered on December 23,
      2016, as the facts and evidence of Record elicited at Trial in this
      matter, as well as the Trial Court[’s] finding Mother in Contempt,
      demonstrate that Father is more likely than Mother to encourage
      frequent and continuing contact between the Child and the other
      Parent, and this factor should weigh heavily in favor of Father?

      E. Whether the Trial Court committed an Error of Law and Abuse
      of Discretion in issuing the Order entered on December 23,
      2016, as the facts and evidence of Record elicited at Trial in this
      matter demonstrate that Father is more likely than Mother to
      maintain a loving, stable, consistent and nurturing relationship


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J-A14005-17


      with the Child and this factor should weigh heavily in favor of
      Father?

      F. Whether the Trial Court committed an Error of Law and Abuse
      of Discretion in issuing the Order entered on December 23,
      2016, as the facts and evidence of Record elicited at Trial in this
      matter demonstrate the level of conflict between the Parties and
      their willingness … to cooperate with one another, and this factor
      should weigh heavily in favor of Father?

      G. Whether the Trial Court committed an Error of Law and Abuse
      of Discretion in Denying Father’s Motion in Limine to Preclude
      the Testimony of the seven (7) year old Minor Child despite
      Evidence of Mother's influence upon the Minor Child regarding
      Father, and history of attempting to influence and tamper with
      witnesses during the pendency of this matter?

Father’s brief at 4-5.

      When presented with child custody matters, we are guided by the

following scope and standard of review:

      [O]ur scope is of the broadest type and our standard is abuse of
      discretion. This Court must accept findings of the trial court that
      are supported by competent evidence of record, as our role does
      not include making independent factual determinations.           In
      addition, with regard to issues of credibility and weight of the
      evidence, this Court must defer to the trial judge who presided
      over the proceedings and thus viewed the witnesses first hand.
      However, we are not bound by the trial court's deductions or
      inferences from its factual findings.     Ultimately, the test is
      whether the trial court's conclusions are unreasonable as shown
      by the evidence of record. We may reject the conclusions of the
      trial court only if they involve an error of law, or are
      unreasonable in light of the sustainable findings of the trial
      court.

E.D. v. M.P. 33 A.3d 73, 76 (Pa. Super. 2011) (quoting A.D. v. M.A.B., 989

A.2d 32, 35-36 (Pa. Super. 2010)).




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J-A14005-17


         The primary concern in any custody case is the best interests of the

child.     The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately have an effect upon the child’s

physical, intellectual, moral, and spiritual well-being. Saintz v. Rinker, 902

A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674,

677 (Pa. Super. 2004)). Furthermore, we recognize that the Child Custody

Act governs all proceedings commenced after January 24, 2011.                The

specific factors that a court must consider are listed at 23 Pa.C.S. §

5328(a)(1)–(16). See E.D., 33 A.3d at 79-80 (holding that “best interests

of the child” analysis requires consideration of all section 5328(a) factors).1


____________________________________________


1
 Section 5328 sets forth the following factors to be considered by the trial
court:

         § 5328. Factors to consider when awarding custody

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

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

                (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.

(Footnote Continued Next Page)


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J-A14005-17


                       _______________________
(Footnote Continued)

             (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, educational and special
      needs of the child.

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

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

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

(Footnote Continued Next Page)


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J-A14005-17


      In light of Father’s issues, we reproduce the trial court’s discussion

relating to each of the section 5328(a) factors as found in the court’s

December 23, 2016 order.

      1. Which party is more likely to encourage and permit frequent
      and continuing contact between the child and another party. -
      This [] factor is weighed slightly in favor of [Mother]. The
      testimony indicated [Father] is not always able to be present at
      the time [the child] is dropped off for the [Father’s] custodial
      periods. While his live-in girlfriend is seen by both parties to be
      an appropriate caregiver, [Father] alleges [Mother] refuses to
      leave the child in the girlfriend’s custody. [Mother] portrays
      herself as the selfless parent in this relationship, but [Father]
      testified [Mother] speaks to him in rude and derogatory terms.

      For his part, [Father] claims [Mother] interferes not only in his
      exercise of physical custody, but also in his attempts to speak to
      the minor child on the phone. [Father] claimed [Mother] will
      manipulate the custodial schedule and interfere in activities he
      has planned with the child, such as on Father’s Day. [Mother]
      claims she e-mailed [Father] a couple of times to verify the pick-
      up time clearly stated in the prevailing custody order to see if
      she could attend church with the child. The [c]ourt concludes
      the truth is somewhere between the versions of the parties.

      2. Present and past abuse committed by a party or member of
      the party's household, whether there is 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. - This
      factor is weighed in favor of [Father]. [Father] offered a number
                       _______________________
(Footnote Continued)

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

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

             (16) Any other relevant factor.

23 Pa.C.S. § 5328.



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J-A14005-17


     of witnesses to support the contention [Mother] has been
     physically, verbally, and emotionally abusive to [Father].
     However, there was not any evidence [Mother] abused the minor
     child. There was not any evidence indicating or even implying
     [Father] has been abusive to the minor child.

     3. The parental duties performed by each party on behalf of the
     child. - This factor is weighed slightly in favor of [Mother]. She
     is primarily a stay at home mother who works refinishing and
     repurposing furniture in her garage. As a result, she is the
     parent who most frequently is involved in taking the child to and
     from school, to and from athletic practices, and to medical or
     dental appointments. Each parent testified to their ability to
     ensure the child is fed, clean, and dressed appropriately. Each
     parent appropriately attempts to keep the child involved in
     extracurricular programs. [Father] has tried to interest the child
     in playing the keyboard, while [Mother’s] interests seem more
     focused on keeping the child enrolled in athletic activities.

     4. The need for stability and continuity in the child’s education,
     maturity, and judgment. – This factor is weighed in favor of
     [Mother]. While there is nothing wrong with [Father’s] having a
     busy professional life that requires occasional travel on business
     out of the area, for the simple fact that [Mother] is more
     physically available, she is able to offer more stability and
     continuity in the child's life. She is also more attentive to taking
     the child to athletic practices. She attends his games and
     competitions more frequently than [Father]. Because of the
     interest by the parties in keeping the child in his current school
     with his friends, [Father] also faces a challenge in transporting
     the child back to school on weekday mornings as well as to
     athletic practices in the evening.

     5. The availability of extended family. - This factor is weighed in
     favor of [Mother]. [Father’s] parents live in Vermont, where he
     takes the minor child to visit during vacations. He does not have
     any other family in the area, although he lives with his girlfriend
     and they have discussed getting married. [Mother] lives with
     her other son, with whom the minor child has a very strong
     attachment. While [Mother] does not speak with her biological
     parents or her sister, she has been able to keep up a cordial and
     close relationship with her grandparents and the mother of her
     former paramour, Ms. Andrews. [Mother] speaks with Ms.


                                    -8-
J-A14005-17


     Andrews each day and Ms. Andrews takes both boys out for
     dinner each Monday night.

     6. The child’s sibling relationships. - This factor is weighed in
     favor of the [Mother]. As stated above, [Mother] has another
     son from a previous relationship. That boy, who is two years
     older than Z.K., is a constant companion and playmate for Z.K.
     [Mother] also had a daughter who unfortunately passed away
     when she was approximately four years old. The loss of this
     child lingers over the relationship between the parties and their
     son.

     7. The well-reasoned preference of the child, based on the child’s
     maturity and judgment. – This factor is weighed in favor of
     [Mother]. During an in camera session with the minor child, in
     which both parties waived their personal attendance and that of
     their respective counsel, the [c]ourt was able to learn of the
     strong attachment the minor child has to his half-brother.
     Although this may be an aspect of his relatively young age, the
     potential of not being around his half-brother Owen and
     participating in activities with him is the single largest
     impediment to [Father’s] being able to establish the case for
     primary physical custody.

     In addition, moving forward, [Father] is strongly urged to make
     more of an effort to take his son to the practices for the child’s
     various athletic activities, to have the child there on time, and to
     attend as many practices and competitions as he can, even
     those events on [Mother’s] custodial periods.             It is also
     important for [Father] and his paramour to understand they
     have a growing boy to help raise who is not and does not want
     to be treated as if he is a toddler.

     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. –
     This factor is weighed in favor of [Father]. There was substantial
     evidence of [Mother’s] rudeness and intimidating personality,
     including cursing and uttering derogatory comments about
     [Father] in the presence of the minor child.        Whether one
     believes the minor child was coached or not by [Mother], based
     on the [c]ourt’s observation during the in camera session, this
     behavior by [Mother] seems to have made little impact on the


                                    -9-
J-A14005-17


     child. There was not any evidence of [Father’s] attempting to
     turn the child against [Mother].

     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. - This is a neutral factor. Both
     parents testified to their love and care for their son. They both
     possess the qualities and capabilities to provide for a loving,
     stable, and consistent environment for the child. Based on the
     in camera testimony, it is clear to the [c]ourt [Father] and the
     minor child have two very different perceptions of the level of
     involvement between [F]ather and child. [Father] has a busy
     professional life, but the [c]ourt suggests he become more
     actively engaged when he is at home with his son. [Mother] is
     able to take the child to school, to his practices, and have him
     home and in bed on a routine schedule, but she must also
     recognize the importance of encouraging the relationship
     between the child and [Father].

     10. Which party is more likely to attend to the daily physical
     emotional, developmental, educational, and special needs of the
     child. - This factor is weighed slightly in favor of the [Mother].
     Again, by sheer weight of the fact she has performed most of the
     daily activities of getting the child to school, to his athletic
     practices, and to any medical or dental appointments, she has a
     longer record of performing these tasks. The presence of the
     minor child’s half-brother cannot be understated in its effect on
     the child’s entire outlook on all custodial questions.

     11. The proximity of the residences of the parties. - The parties
     are approximately 20-30 minutes apart, based on the amount of
     traffic when one is driving between Coplay where [Mother] lives
     and Upper Macungie where [Father] resides. This factor is
     weighed in favor of [Mother], based on her proximity to the
     minor child’s school and to his athletic practice location.

     12. Each party’s availability to care for the child or ability to
     make appropriate child-care arrangements. - This factor is
     weighed slightly in favor of [Mother]. As stated above, because
     [Mother] works from home, she does not need to rely on any
     back up child care.       If needed, she can call upon the
     grandmother of the minor child’s half-brother to watch the
     children. [Father] is at work during the day, but his paramour is
     able to arrange her work schedule so that she can be home

                                   - 10 -
J-A14005-17


     when the minor child arrives for his custodial periods. However,
     if the child had to come home from school because he is sick, it
     seems [Mother] is the only one who could accommodate that
     situation without any great difficulty.

     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. - This factor is weighed in favor of [Father]. [Father]
     presented ample testimony that [Mother] is rude, combative,
     and possibly a very unpleasant person to be around to her
     neighbors and former boyfriends. She has a history of physically
     assaulting men in her life, and an apparent tendency to lie on
     numerous occasions when confronted with a number of
     discrepancies about her conduct. She has also formed a close
     bond with the minor child which remains unshaken even after all
     the obnoxious conduct to which she may have exposed her son.
     [Father] appears to be a caring individual who is portrayed as
     being distracted by his professional responsibilities.        The
     testimony about [Father’s] level of interaction with the
     [Mother’s] family during the physical decline and eventual
     passing of [Mother’s] daughter raises questions about his
     honesty, but has little to do with his relationship with the minor
     child.

     14. The history of drug or alcohol abuse of a party or member of
     a party’s household. - This is a neutral factor. Neither party
     characterized the other as abusive of drugs or alcohol.

     15. The mental and physical condition of a party or member of a
     party’s household. - This factor is weighed slightly in favor of
     [Father]. While neither party nor the other extended family
     members displayed any physical or mental health conditions
     which would impair their ability to care for the child, the wildly
     varying contradictions in the depictions of various episodes in
     the lives of the parties leads the [c]ourt to conclude it will
     require each party to obtain a mental health evaluation within 60
     days of the date of this Order. Said evaluation will be for the
     purpose of determining if either or both parties are
     recommended for any follow-up treatment or counseling as it
     relates to the ability of the parties to co-parent and to participate
     in raising their son.


                                    - 11 -
J-A14005-17


       16. Any other relevant factor. - This factor is weighed in favor of
       [Father]. [Mother] admitted she pled guilty to a summary level
       offense of harassment in New Hampshire in 2009. [Mother] was
       criminally charged after an altercation with [Father]. Beyond
       that one incident, [Mother] was described as frequently
       assaulting both [Father] and the man she was involved with in
       the last two years. This indicates to the [c]ourt the mental
       health evaluation of [Mother] also needs to include an evaluation
       if she needs to attend anger management training.

Trial Court Order (TC Order), 12/23/16, at 1-5 (footnote omitted).2

       With regard to his first issue, Father begins by claiming that the court

should have awarded him primary custody of the Child because the facts

elicited from the evidence support such a conclusion in relation to the

section 5328 factors.       Father argues that the court over-emphasized the

Child’s relationship with his half-brother, Mother’s child from a prior

relationship, who lives with her.        To illustrate his claim, Father quotes the

court’s statement that “[a]lthough this may be an aspect of his relatively

young age, the potential of not being around his half-brother … and

participating in activities with him is the single largest impediment to

[Father’s] being able to establish the case for primary physical custody.” TC

Order at 3 (Factor (7)). Father also notes the court’s statement that “the

presence of the minor child’s half-brother cannot be understated in its effect

on the child’s entire outlook on all custodial questions.”        Id. at 4 (Factor

____________________________________________


2
 The court also stated “[t]here is not any evidence of any determination of
abuse or neglect by a child protective service agency against either party.”
Id. at 5.



                                          - 12 -
J-A14005-17


(10)).     Father further explains that the Child’s half-brother has stayed at

Father’s home on numerous occasions when Father has had custody of the

Child, a fact not contradicted by Mother in any way. Furthermore, Father’s

mother testified that she has a strong relationship with the Child’s half-

brother and that she treats him like a grandson. Essentially, Father asserts

that without evidence to the contrary, these factors “should be considered

neutral and not weighed in favor of Mother as the [t]rial [c]ourt

determined.” Father’s brief at 11-12. Father also notes that the boys are

four years3 apart in age and do not attend the same school. Therefore, a

change in custody would not affect the Child’s time with his half-brother

during the school day.

         Next, Father centers his argument on the trial court’s finding that

Mother’s working from home was a valid basis for determining in Mother’s

favor factors (10) and (12), as well as factor (3). In other words, the court

found that Mother was more likely to attend to the daily physical, emotional,

developmental and educational needs of the Child, was more available to

care for the Child or arrange for appropriate childcare, and to perform

parental duties, simply because she worked at home. In response, Father

acknowledges that he travels approximately three days per month, but is
____________________________________________


3
  A search of the record does not provide a birth date for the Child’s half-
brother. While Father asserts that the boys are four years apart in age, the
trial court states that they are two years apart. See TC Order at 2 (factor
(6)).



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J-A14005-17


generally able to schedule his travel on days he does not have custody of

the Child, a fact about which Father’s fiancee likewise testified. Father also

points out that Mother testified that due to Father’s travel for work he was

often unavailable to exercise his custody time. However, Father claims that

no evidence supported Mother’s contention, and in fact, Mother had several

times requested Father to take custody of the Child earlier than called for by

the prior custody schedule.

      Father also references the court’s finding that Father has had difficulty

in transporting the Child to school on weekday mornings and to athletic

practices in the evenings as this relates to factor (4). In other words, the

court found in favor of Mother regarding the need for stability and continuity

in the Child’s education, maturity and judgment. Again, Father argues that

no evidence in the record supports this finding. Rather, he claims that the

evidence shows no problems with regard to his ability to transport the Child

in a timely manner and that the court’s order now on appeal directs Father

to take the Child to school every other Friday and Monday morning following

his custodial time. Father also indicates that he has a coaching position with

the Child’s basketball team and that he attends the games and practices,

even if they do not fall during his custody time.

      Additionally, Father takes issue with the court’s finding in favor of

Mother as to factor (11), “based on [Mother’s] proximity to the minor child’s

school and to his athletic practice location.” See TC Order at 4 (factor (11)).


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J-A14005-17


Specifically, Father claims that the record contains no evidence to support

this finding.    Furthermore, Father points to the factors relating to who “is

more    likely   to   attend   the   daily   physical,   emotional,    developmental,

educational, and special need of the Child [(factor (10))], each [p]arty’s

availability to care for the Child and to make appropriate child-care

arrangements [(factor (12))], and the parental duties performed by each

[p]arty [(factor (3))],” as factors that should have been found in his favor or

considered neutral. Father’s brief at 13.

       We agree with a number of Father’s contentions, recognizing that the

court’s conclusions based on the evidence in the record are not supported by

the court’s findings and in some instances contradict those findings.              For

example, the court determined that factor (1) weighs slightly in Mother’s

favor, yet the evidence the court relates suggests that this factor should at a

minimum be neutral.        See TC Order at 1 (factor(1)).             Also, the court’s

discussion regarding factors (13) and (16), which were weighed in favor of

Father, shows the court’s recognition of Mother’s rude and combative

behavior; however, the court simply concludes that it has no effect on the

Child. We are also troubled by the court’s emphasis, almost to the exclusion

of other factors, on the Child’s relationship with his half-brother. Moreover,

the court appears to overlook its own ruling that it found Mother in contempt

of the prior custody order. Interestingly, the court found factor (5) in favor

of Mother, recognizing that she has maintained a close relationship “with her


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J-A14005-17


grandparents and the mother of her former paramour, … [who] takes both

boys out for dinner each Monday night.”          TC Order at 2 (factor (5)).

However, the court also finds Mother lacks a relationship with her own

parents and sister, who live in the vicinity.

         Although we are cognizant of the emphasis on the best interests of the

child standard, we are also aware that the court’s conclusions must be

reasonable in relation to the facts. Based upon the foregoing, we hold that

some of the trial court’s findings are not supported by record evidence, and

that a number of its conclusions are unreasonable.

         The thrust of Father’s second and third issues rests on his allegation

that the custody schedule imposed by the court deprived Father of in-person

contact with the Child for periods of up to ten days at a time, after having

had a custody schedule in place that afforded a 50% split of time with the

Child.     Although the court determined that these ten-day periods are

minimized because daily phone contact is permitted, Father identifies

testimony revealing that Mother is uncooperative and interferes with Father’s

attempts to communicate freely with the Child. Additionally, Father asserts

that the telephone contact does not replace the lack of in-person custody

time, as suggested by the court. In this same vein, Father contends that the

court failed to provide a “right of first refusal,” which would allow custody

time for Father if Mother is unable to care for the Child during her regular

custody time, i.e., instead of using a babysitter or some third party. As part


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of this argument, Father also claims that the court erred by not providing

additional custody time during the summer months when the Child is not in

school.

      In Father’s issues D. through F., he asserts error by the court

regarding its conclusions to factors (1), (9) and (13).       Specifically, in its

discussion about issue D., which relates to factor(1), concerning which party

is more likely to encourage and permit frequent and continuing contact

between the child and the other party, the court found that “the truth is

somewhere between the versions of the parties.” TC Order at 1 (Factor (1)).

In reviewing the evidence identified by the court and its decision to weigh

this factor slightly in Mother’s favor, we are compelled to conclude that this

determination is unreasonable.    Although the court found neither parties’

testimony completely truthful, the court appears to again overlook the fact

that it held Mother in contempt of the prior custody order.

      Likewise, we are troubled by the court’s conclusion that factor (9) is

neutral in light of the fact that it directed that Mother’s mental health

evaluation should include a determination as to whether she needs anger

management counseling because of the confrontations Mother has had with

Father and others, which at times occurred in the Child’s presence.            TC




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Order at 10 (Item 17).4 The court’s discussion relating to this factor appears

to highlight Father’s shortcomings, i.e., the need for Father to become more

actively involved despite his busy professional life.          Yet, the court

emphasizes Mother’s ability to take the Child to school, his athletic practices,

and keep a routine schedule apparently because she works from home.

Again, we conclude that the court’s conclusion is unreasonable.

       Father’s issue F relates to factor (13), which the court weighed in

Father’s favor.      Father contends that despite the court’s recognition of

Mother’s rude and abusive behavior towards him and others in the Child’s

presence, the court concluded that “[s]he has also formed a close bond with

the minor child which remains unshaken even after all the obnoxious

conduct to which she may have exposed her son.”         TC Order at 4 (Factor

(13)). However, Father also points out that the court found that Mother’s

“rudeness and intimidating personality, including cursing and uttering

derogatory comments about [Father] in the presence of the minor child …

seems to have made little impact on the child.” TC order at 3 (factor (8)).

Therefore, Father contends Mother’s behavior, in addition to her being held

in contempt, unquestionably causes conflict between the parties, and that

this factor should have been weighed heavily in Father’s favor.

____________________________________________


4
  In the order presently on appeal, both parties were directed to undergo
mental health evaluations. Only Mother’s evaluation was to include the
possibility of counseling.



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      Although we do not conclude that the court’s weighing factor (13) in

Father’s favor as unreasonable, we do recognize that many of the weight

determinations regarding some of the factors, as noted above, are

unreasonable. Moreover, one of the most troubling facets of this case is the

court’s conclusion that Mother should be awarded primary physical custody,

despite its recognition of her anger issues. Also, this ruling reduces Father’s

custody time exponentially from what it was under the prior order and is

unreasonable under the circumstances of this case.

      Father’s last issue concerns the court’s denial of his Motion in Limine to

Preclude Testimony of the Minor Child. Father claims that his request was

based on Mother’s influence on the Child over the years “that poisoned the

Child’s mind against Father….”      Father’s brief at 24.    Moreover, Father

contends that little weight should have been given to the Child’s testimony

specifically relating to his desire to spend more time at Mother’s home so

that he could engage in more activities with his half-brother. We conclude

that the court’s denial of Father’s motion was not an error. See McMillen v.

McMillen, 602 A.2d 845, 847 (Pa. 1992) (stating “[a]lthough 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”).     However, the court’s emphasis on

the Child’s relationship with his half-brother appears to override most other

factors and, therefore, must be considered unreasonable.


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      Based upon our review of this matter, we conclude that because the

court’s determinations as to a number of the individual factors are

unreasonable, its custody order cannot remain in place.     Accordingly, we

vacate the custody order on appeal and direct that upon remand the prior

order of shared physical custody be re-imposed, thus, allowing for the 50-50

split of custody time. See M.A.T. v. G.S.T., 989 A.2d 11, 21 (Pa. Super.

2010) (en banc) (stating that, where the record is sufficiently developed, we

may substitute our judgment for that of the trial court and decide the case

on the merits). Furthermore, we direct that upon remand the trial court is

to consider Father’s request to modify the re-imposed custody order to allow

any responsible adult to retrieve or accept custody of the Child on behalf of

Father for his periods of custody.   See Father’s Petition for Contempt and

Modification of Custody Order, 6/21/16, at 5 ¶ 16. That portion of the order

finding Mother in contempt is affirmed.

      Order vacated in part and affirmed in part. Case remanded for the re-

entry of the prior custody order and to consider requested modification.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2017




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