J-A25037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 T.C.T.,                                 :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
               v.                        :
                                         :
                                         :
 J.E.T.                                  :    No. 918 MDA 2019

                  Appeal from the Order Entered May 7, 2019
                in the Court of Common Pleas of Centre County
                       Civil Division at No(s): 2018-4509

BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                       FILED FEBRUARY 21, 2020

        T.C.T. (“Father”) appeals from the May 7, 2019, Custody Order with

parenting plan, which granted him and J.E.T. (“Mother”), the mother of the

parties’ female children, L.T. (born in March 2013), and J.T. (born in

September 2015) (collectively, “Children”), shared legal custody.          The

Custody Order further granted Mother primary physical custody of Children,

and Father partial physical custody, in accordance with a schedule set forth in

the Custody Order. We affirm.

        Father filed the underlying Complaint for Custody on November 13,

2018.     On January 8, 2019, the trial court entered a Temporary Order

governing custody for the time period between the scheduled custody

conference and the custody hearing.     The custody hearing commenced on

April 3, 2019, and concluded on April 24, 2019.
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      At the April 3, 2019, hearing, Father testified on his own behalf. Father

also presented the testimony of his neighbor; his friend, B.H.; his mother,

L.M.; his friend, K.K.; his friend, J.C.; and his live-in girlfriend, J.S. Mother

testified on her own behalf. On April 24, 2019, Father testified in rebuttal,

and Mother testified in sur-rebuttal to the previous witnesses’ testimony.

Mother additionally presented the testimony of the Children’s babysitter for

both parents, C.B.; and her mother, J.N.

      On May 7, 2019, the trial court entered the present Custody Order. In

the Opinion that accompanied the Custody Order, the trial court made the

following findings with respect to section 5328(a) of the Child Custody Act,

(“the Act”), 23 Pa.C.S.A. §§ 5321-5340, based on the testimony of the

witnesses and the documentary evidence:

      1. Which party is more likely to encourage and permit
      frequent and continuing contact between the [C]hildren
      and the other party.

             Mother testified that when the [C]hildren are in her custody,
      she allows daily phone calls to and from Father and encourages
      the [C]hildren to speak with Father. Mother also claimed that
      during the Christmas break, Father kept the [C]hildren and
      refused to return them until the older child had to return to school.
      Because of this, Mother filed for Emergency Custody. Other than
      this incident, the parties both seem willing and likely to permit and
      encourage contact between the [C]hildren and the non-custodial
      parent.

      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 [C]hild[ren].


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          An incident occurred in September of 2018[,] which resulted
     in both parents filing for Protection [F]rom Abuse [(“PFA”)]
     [O]rders against the other parent. Both PFAs were dropped by
     agreement of the parties. There was no evidence that any party
     has abused either of the children.

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

           The [trial court] has heard no testimony regarding any
     involvement of Children and Youth Services.

     3. The parental duties performed by each party on behalf
     of the [C]hildren.

            Both parties testified to performing all parental duties when
     the [C]hildren are in their custody. Mother and Father both attend
     medical appointments, school conferences, and the [C]hildren’s
     activities. Each parent feeds the [C]hildren, bathes them, and
     engages in activities such as cooking, dancing, and crafting with
     the [C]hildren.

     4. The need for stability and continuity in the [C]hildren’s
     education, family life and community life.

           Mother testified that she removed the [C]hildren from
     gymnastics lessons because the girls were becoming too
     exhausted from rotating custody and attending activities and
     school. Mother stated the girls asked for a night to stay home and
     play with their toys. The older daughter allegedly asked Mother
     to be the one to take her to school each morning.

     5. The availability of extended family.

           Paternal grandmother lives in Howard and testified that she
     has a close relationship with the [C]hildren. Mother testified that
     her grandmother is her largest support, as she lives directly
     behind Mother’s residence. Maternal grandparents live in Pine
     Grove Mills and the [C]hildren’s maternal uncle lives in Lock
     Haven.

     6. The [C]hildren’s sibling relationships.


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           The [C]hildren have no other siblings. Father testified that
     the [] [C]hildren have an extremely close relationship.

     7. The well-reasoned preference of the [C]hildren, based
     on the child’s maturity and judgment.

            The [trial court] did not speak with the [C]hildren due to
     their ages.

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

           Father testified the older child has stated that Mother’s
     family make derogatory remarks about Father.

     9. Which party is more likely to maintain a loving, stable,
     consistent and nurturing relationship with the child
     adequate for the [C]hildren’s emotional needs.

           Both parents appear well-situated to maintain a loving and
     nurturing home for the [C]hildren. With regard to stability and
     consistency, Mother is slightly better situated, particularly during
     the school year, as her work schedule allows her to personally
     deliver the [C]hildren to school and the babysitter’s residence.
     Mother also has the flexibility to pick up the older child at the end
     of the regular school day.

     10. Which party is more likely to attend to the daily
     physical, emotional, developmental, educational and
     special needs of the [C]hildren.

          It appears that both parents are very involved in the health,
     education, and activities of [the] [C]hildren and that neither is
     more likely than the other to attend to the [C]hildren’s needs.

     11. The proximity of the residences of the parties.

            Mother testified that her residence is approximately a
     fifteen[-]minute drive from Father’s residence.




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

             Father testified that his child-care plans, other than the
     babysitter who is utilized by both parents, would be to rely on his
     girlfriend or his mother. Father leaves for work early in the
     morning and is therefore unable to deliver the [C]hildren to school
     and the babysitter’s residence. Father’s girlfriend would be
     available to take the older child to school and the younger child to
     the babysitter’s residence. Father is also willing to pay for the
     older child to attend an after-school program which would allow
     Father’s girlfriend to pick up the child from school. Mother
     testified to concerns with Father’s child-care plan, as she does not
     believe it would allow for the younger child to be picked up from
     the babysitter’s residence on time. Also, Mother testified that the
     older child would like Mother to take her to school. Mother also
     would like the morning bonding time with [the] [C]hildren if Father
     is not the one directly caring for the [C]hildren.

           Mother’s child-care arrangements are with a babysitter
     throughout the day. If Mother needs child-care outside the
     babysitter’s hours, maternal great-grandmother is the usual
     caretaker.

     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 testimony indicated a fair amount of conflict between
     the parties and their families. Mother and paternal grandmother
     have not had a great relationship for at least the last several
     years. The parties are also distrustful of each other. Father
     testified that he does not believe what Mother tells him. Mother
     testified that Father does not provide structure for the [C]hildren
     and the [sic] she believes Father has a drinking problem.

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

            Mother believes Father has a problem with alcohol and
     testified that Father has smoked marijuana. On one occasion, the
     older child was with Father and wished to return to Mother’s

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      residence. Mother testified that she received a text message from
      Father asking that Mother pick up the child because Father had
      consumed too much alcohol to drive. Father testified that, during
      the marriage, Mother drank frequently and smoked marijuana
      with the [C]hildren in the residence, although Mother offered
      rebuttal testimony wherein she denied these allegations. Both
      parents deny abusing alcohol.

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

            Father testified that he does not have any medical
      conditions.  Mother did not testify to any current medical
      condition.

      16. Any other relevant factor.

            There are no other relevant factors for determining custody.

            Based on the foregoing, the [trial court] determines it is in
      the [Children’s] best interest to remain in Mother’s primary
      custody and to have periods of partial physical custody with Father
      as outlined below.

Trial Court Opinion, 5/7/19, at 2-6.

      On June 6, 2019, Father filed a Notice of Appeal, along with a Concise

Statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).

      Father presents the following claims for our review:

      A. Whether the trial court committed an abuse of discretion and
      erred as a matter of law, by using Father’s work schedule as the
      determining factor to not award Father shared physical custody of
      the minor [C]hildren when Father provided competent evidence of
      suitable childcare and transportation arrangements[?]

      B. Whether the trial court committed an abuse of discretion and
      erred as a matter or [sic] law, by weighing all sixteen (16) factors
      pursuant to 23 Pa.C.S.[A.] § 5328(a) equally between the parties,
      with the exception of factor [(a)](9), which was weighed slightly

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      in Mother's favor on the basis of Father’s work schedule and
      despite competent evidence being provided of suitable child care
      and transportation arrangements[?]

Father’s Brief at 4.

      In custody cases under the Act, our standard of review is as follows:

      In reviewing a custody order, our scope is of the broadest type
      and our standard is abuse of discretion. We must accept findings
      of the trial court that are supported by competent evidence of
      record, as our role does not include making independent factual
      determinations. In addition, with regard to issues of credibility
      and weight of the evidence, we must defer to the presiding trial
      judge who viewed and assessed the witnesses first-hand.
      However, we are not bound by the trial court’s deductions or
      inferences from its factual findings. Ultimately, the test is whether
      the trial court’s conclusions are unreasonable as shown by the
      evidence of record. We may reject the conclusions of the trial
      court only if they involve an error of law, or are unreasonable in
      light of the sustainable findings of the trial court.

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

are cognizant 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. Indeed, the knowledge gained
      by a trial court in observing witnesses in a custody proceeding
      cannot adequately be imparted to an appellate court by a printed
      record.

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

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

      With any custody case decided under the Act, the paramount concern is

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

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


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       (a) Types of award.—After considering the factors set forth in
       section 5328 (relating to factors to consider when awarding
       custody), the court may award any of the following types of
       custody if it in the best interest of the child:

           (1) Shared physical custody.

           (2) Primary physical custody.

           (3) Partial physical custody.

           (4) Sole physical custody.

           (5) Supervised physical custody.

           (6) Shared legal custody.

           (7) Sole legal custody.

23 Pa.C.S.A. § 5323.

       Section 5338(a) of the Act provides that, upon petition, a trial court may

modify a custody order if it serves the best interests of the child. 23 Pa.C.S.A.

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

must consider:1

       § 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.
____________________________________________


1 See E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011) (recognizing
that the trial court is required to consider the section 5328 factors).


                                           -8-
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       (2) The present and past abuse committed by a party or
       member of the party’s household, whether there is a continued
       risk of harm to the child or an abused party and which party
       can better provide adequate physical safeguards and
       supervision of the child.

       (2.1) The information set forth in section 5329.1(a)(1) and (2)
       (relating to consideration of child abuse and involvement with
       protective services).

       (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

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        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(a). Trial courts are required to consider “[a]ll of the

factors listed in section 5328(a) … when entering a custody order.” J.R.M. v.

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

      In addition,

      Section 5323(d) provides that a trial court “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). Additionally, “section
      5323(d) requires the trial court to set forth its mandatory
      assessment of the sixteen [Section 5328(a) custody] factors prior
      to the deadline by which a litigant must file a notice of appeal.”
      C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013) ….

      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 factors are considered and that
      the custody decision is based on those considerations.” M.J.M. v.
      M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, 68
      A.3d 909 ([Pa.] 2013). A court’s explanation of reasons for its
      decision, which adequately addresses the relevant factors,
      complies with Section 5323(d). Id.

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014).

      We will address Father’s issues together, as they are interrelated and

Father addresses them together in his brief. Father first claims that the trial

court improperly awarded primary physical custody to Mother, “based solely

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upon the consideration that Father works outside the home[,] when father is

capable of providing appropriate childcare and transportation arrangements.”

Father’s Brief at 9.    Father points out that the trial court “predominantly

considered” the factors set forth at 23 Pa.C.S.A. § 5328(a) to be “largely

equal” between the parties. Father’s Brief at 9. According to Father, the trial

court awarded Mother primary physical custody after finding that Father could

not transport the Children to school/preschool in the morning because of his

work schedule. Id. Father contends that this consideration, standing alone,

punishes him for working outside of the home, and does not warrant granting

Mother primary physical custody. Id. at 9, 10.

      Father argues that “[t]here is no evidence of record to establish that

there is a negative impact upon [Children] because Father works outside [of]

the home[,] or that [Children] are negatively impacted due to Father’s

absences while at work.” Id. at 11. Moreover, Father challenges the trial

court’s finding that Mother is in a better position to provide the Children with

more stability during the school year, because Mother is in a position to

personally transport the Children to school and/or the babysitter, as an abuse

of discretion. Id. at 18-19. Father complains that, because he has to rely on

a different form of transportation, i.e., his girlfriend, for the Children to get to

school and/or the babysitter, the trial court punished him because his work

schedule takes him outside of his home early in the morning. Id. at 19.




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        Father also contends that both parents should have the ability to spend

time with the Children and bond with them, and the fact that Mother may

bond with the Children during the morning ride to school is not more important

than his ability to bond with them by having equally shared physical custody.

Id. at 18. Father asserts that both parents’ ability to spend time with the

Children and bond with them should be weighed equally. Id.

        Father disputes Mother’s concerns regarding Father’s ability to ensure

that J.T. will be timely picked up from the babysitter as speculative, at best,

and do not warrant the denial of periods of physical custody to Father. Id.

Additionally, Father directs our attention to his testimony that he timely picks

up J.T. Id. (citing Reproduced Record (“R.R.”) at 81-82; N.T., 4/24/19, at

77).2

        Father relies upon this Court’s decisions in Witmayer v. Witmayer,

467 A.2d 371 (Pa. Super. 1983), and Johnson v. Lewis, 870 A.2d 368 (Pa.

Super. 2005), to support his claims. In Witmayer, which preceded the Act,

the appellant father alleged that an award of primary physical custody to him

would serve the best interests of the parties’ son, because the father was at

home on a full-time basis. Witmayer, 467 A.2d at 375. The father argued

that, unlike the mother, who worked and placed the child in daycare, he could


____________________________________________


2 The Children’s babysitter, C.B., testified on cross-examination by Father’s
counsel that Father occasionally has picked up J.T. late, which, up to the time
of the hearing had not been problematic, but could possibly be problematic in
the future, if, for example, C.B. had a medical appointment.

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devote almost all of his time to their son. Id. The Witmayer panel rejected

his argument, stating, “[t]he fact that a parent must work is certainly not a

factor that may be used to deprive the parent of custody where adequate

arrangements have been made for the child’s care in the parent’s absence.”

Witmayer, 467 A.2d at 375 (citation omitted).

      In Johnson, the mother argued that the trial court erred by awarding

equally shared physical custody to the parties, because the father might have

to work the night shift in the future. Johnson, 870 A.2d at 374. The panel

stated that, “where, as here, other factors favor awarding custody to a parent,

his “work schedule may not deprive that parent of custody if suitable

arrangements are made for the child’s care in his … absence.” Id. (quoting

Gerber v. Gerber, 487 A.2d 413, 416 (Pa. Super. 1985)). Relatedly, the

panel also considered whether the trial court erred by allowing any third party,

even a competent nanny, to care for the child, when the father is working

overnight, where the mother, a fit parent, would be available to watch the

child. Id. at 374-75. The panel held that maintaining the stable consistency

of a weekly shift in physical custody, even if the father would alter his work

schedule, was reasonably in the child’s best interest. Id. at 375.

      Witmayer and Johnson are distinguishable from the instant situation.

As set forth above, in Witmayer, the father stayed at home full-time, and the

mother went to work outside of her home. Here, both parents work outside

of the home. In Johnson, the panel observed that maintaining the stable


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consistency of a weekly shift in physical custody was in the child’s best

interest.   In its Opinion, as set forth below, the trial court evaluated the

evidence, weighed the statutory factors, and explained why a different result

was required in this case:

             Father’s first argument on appeal is that this [c]ourt abused
      its discretion with regard to using Father’s work schedule as the
      determining factor in not awarding Father shared physical
      custody, and Father’s second argument is that the [c]ourt abused
      its discretion with regard to weighing all sixteen factors pursuant
      to 23 Pa.C.S.A. §[ ]5328(a) equally between Father and [Mother]
      except for factor (a)(9)[,] which was weighed in favor of the
      Mother based on [Father’s] work schedule. Father argues that he
      provided evidence of suitable child care [sic] and transportation
      arrangements to negate these issues with his work schedule.

            [The trial court] believes that it did not abuse its discretion
      with regard to Father’s first issue. Shared physical custody is
      defined as “[t]he right of more than one individual to assume
      physical custody of the child[ren], each having significant periods
      of physical custodial time with the child[ren].” 23 Pa.C.S.A.
      §[ ]5322(a). [“]Shared physical custody does not necessarily
      mean equal time.[”] See T.B. and S.E. v. S.H. and K.W., [136
      A.3d 1027 (Pa. Super. 2016) (unpublished memorandum)
      (quoting, V.B. v. M.L.T.B., 467 A.2d 880, 883 (Pa. Super.
      1983))]. Primary physical custody is defined as “[t]he right to
      assume physical custody of the child for the majority of time.” 23
      Pa.C.S.A. § 5322(a). Awarding primary physical custody to a
      party does not foreclose the possibility of shared physical custody
      also being awarded to another party. See T.B. and S.E.[]

            In this case, although Mother did receive what [the trial
      court] termed “primary physical custody” in its Order of
      Court/Parenting Plan, both Father and Mother do have shared
      physical custody, as they both have “significant periods of physical
      custodial time.” For the summer schedule, each parent has seven
      (7) overnights during the two[-]week repeating schedule,
      approximating an equalization of the time available to each parent
      when the parents are not working. For the school year schedule,
      both [Father] and [Mother] each have one of the two weekends
      during the two[-]week repeating schedule, from Thursday through

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     Sunday, with Father’s weekend interrupted only by Mother
     transporting the [C]hildren to school and daycare on Friday
     morning. In awarding this transportation time to Mother, who was
     otherwise traveling in the same general direction as the two
     destinations for her own work purposes, the [trial court]
     attempted to promote frequent contact with Mother, with whom
     [the trial court] concluded the [C]hildren had a close and loving
     relationship.    Similarly, [the trial court] concluded that the
     [C]hildren have a close and loving relationship with [Father],
     and[,] therefore[,] awarded Father the Thursday evening at what
     is otherwise the commencement of Mother’s weekend, so as to
     promote Father’s frequent contact with the [C]hildren. Regarding
     the weekdays, the analysis of which overlaps with the forgoing,
     Father receives time in the evenings on five of the ten weekdays
     - Monday, Thursday and Friday evenings of week one (with
     Thursday and Friday being part of his weekend time), and Monday
     and Thursday evenings of week two.                [The trial court]
     acknowledges that Mother does receive more morning time in the
     school year schedule. The [trial court] determined that it was in
     the best interest of the [C]hildren to be in the overnight physical
     custody of Mother during the school year because Father’s early
     start to his work day [sic] does not allow him to take [the C]hildren
     to school/daycare, both of which are a significant distance from
     Father and Mother’s respective residences. [The trial court] felt
     that it was best for the [C]hildren to be transported to school and
     daycare by as [sic] parent, as discussed in more detail, infra,
     and[,] therefore[,] awarded Mother more overnights during the
     school year so as to minimize the disruption to the [C]hildren of
     being picked up by Mother at Father’s residence more often than
     provided for in the Order of Court/Parenting Plan.

            Given the forgoing, because “significant periods of physical
     custodial time” does not mean “equal” periods of physical
     custodial time, and because Father does have significant periods
     of physical custodial time with his children, Father does have
     shared physical custody. Therefore, [the trial court] believes that
     it did not abuse its discretion, and Father’s first issue is without
     merit.

           Father’s second issue focuses in on 23 Pa.C.S.A. § 5328,
     which enumerates sixteen (16) factors that [the trial court] must
     consider when awarding custody. Father contends that [the trial
     court] weighed all equally, except for 23 Pa.C.S.A. § 5328(a)(9),
     which [the trial court] found weighed in Mother’s favor. 23

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     Pa.C.S.A. § 5328(a)(9) requires [the trial court] to consider
     “[w]hich party is more likely to maintain a loving, stable,
     consistent and nurturing relationship with the child adequate for
     the child’s needs.” While [the trial court] is confident that both
     parties are able to maintain a loving and nurturing relationship
     with the [C]hildren, [the trial court] finds that Mother is better
     able, with her schedule, to provide stable and consistent
     transportation for the [C]hildren to get to school. Although Father
     has stated that his girlfriend can take the [C]hildren to school in
     the mornings and assist with picking them up in the evening, and
     Father’s mother, the [C]hildren’s paternal grandmother, could be
     of assistance as a backup plan, [the trial court] found Mother to
     be the more stable option. Furthermore, [the trial court] believes
     that it is in the [C]hildren’s best interest to spend time with a
     parent[,] rather than a third party[,] when one parent is available
     and the other is not, particularly when the proposed third party
     with whom the [C]hildren will be spending significant time is not
     related to the [C]hildren.

           Father’s girlfriend, [J.S.], testified that she had only been
     dating Father for approximately five (5) months when [the trial
     court] heard her testimony, and the two had only lived together
     for approximately three (3) months at that time. [J.S.] has never
     before picked the [C]hildren up from school/daycare, and she does
     not know Mother. Finally, [J.S.’s] testimony on direct examination
     centered almost solely on the logistics of transporting the
     [C]hildren, and Father elicited no testimony from her about the
     nature and quality of her relationship with the [Children].

           Father also offered his mother, [L.M.], as a backup
     transportation option. [L.M.] currently works as a self-employed
     driver of an escort vehicle for oversize loads. [L.M.] testified that
     she has job flexibility to provide transportation on an as-needed
     basis. She also testified that she would be beginning work as the
     general manager of a truck stop when it opens in the late fall of
     2019, and expects to have similar job flexibility. [L.M.] testified
     that she lives 20 miles from Father’s residence[,] where she would
     be required to pick the [C]hildren up and drop them off, if called
     upon to provide transportation. Additionally, [L.M.] gave no
     indication of the location of the truck stop relative to Father’s
     residence. In her present job, [L.M.] indicated that she only
     receives 48 hours’ notice of when she is needed to escort an
     oversize load. When asked on cross examination about the
     frequency of her work escorting oversize loads, to include the

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     number of escort cars her business needs to typically provide for
     a load, [the trial court] found [L.M.] to be evasive in answering
     the questions, particularly when she has been involved in the
     business for nineteen (19) years. [L.M.’s] evasiveness, combined
     with the future uncertainty of her availability in her next job as
     the manager of the truck stop, provides additional support to [the
     trial court’s] conclusion that Mother’s availability to provide
     transportation to be a more stable and reliable arrangement for
     the [C]hildren, and to clearly be in their best interest.

           In addition to all of the foregoing, Mother presented some
     concerns with regard to whether the [C]hildren will be able to be
     picked up on time in the afternoon by [J.S.], and the oldest child
     stated (as the parties had stipulated to the admissibility of hearsay
     statements) a preference for Mother to take them to school.
     Because of all of the above, and because Mother is willing and able
     to provide the [C]hildren with transportation to school, [the trial
     court] has concluded that Mother is the more stable and preferable
     transportation option for the each weekday.

                               CONCLUSION

            In summary, [the trial court] sought to promote frequent
     contact between the [C]hildren and each parent and to maximize
     the time that the [C]hildren could spend with a parent when a
     parent is available to the [C]hildren, as opposed to third parties,
     and[,] in particular, unrelated third parties with whom it did not
     appear to [the trial court] that the [C]hildren had developed a
     significant relationship over a substantial duration of time.
     Father’s first matter complained of, that [the trial court] abused
     its discretion with regard to using Father’s work schedule as the
     determining factor in not awarding Father shared physical
     custody, is without merit, as [the trial court] awarded Father
     shared physical custody. Furthermore, [the trial court] believes
     that it did not abuse its discretion in fashioning the custody
     schedule as ordered. Mother is willing and able to transport the
     [C]hildren on weekdays, whereas Father is unable to do so,
     without significant, ongoing assistance from third parties.




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J-A25037-19


Trial Court Opinion, 7/17/19, at 1-6.3

       We find competent evidence of record to support the findings of the trial

court. C.R.F. v. S.E.F., 45 A.3d at 443. As we are bound by the trial court’s

credibility and weight assessments regarding the evidence, and the trial

court’s conclusions are not unreasonable, we will not disturb the trial court’s

decision not to award equally shared physical custody to the parties, and to

award primary physical custody to Mother.          See id.; see also    M.J.M. v.

M.L.G., 63 A.2d 331, 339 (Pa. Super. 2013) (recognizing that “[i]t is within

the trial court’s purview as the finder of fact to determine which factors are

most salient and critical in each particular case.” (citation omitted)).

Accordingly, we affirm the trial court Custody Order.

       Order affirmed.




____________________________________________


3 In accordance with this Court’s Internal Operating Procedures § 65.37,
effective April 16, 2019, a non-precedential decision of this Court filed after
May 1, 2019 may be cited for its persuasive value, pursuant to Pa.R.A.P
126(b). As the decision in T.B. was non-precedential and filed on January 6,
2016, the trial court could not cite the decision in T.B. for its persuasive value.
However, the trial court also relied upon published case law, V.B., cited
therein.

                                          - 18 -
J-A25037-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2020




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