J-S21017-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    A.F.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    A.S. AND D. AND P.M.                       :
                                               :
                                               :   No. 30 WDA 2020
    APPEAL OF: D. AND P.M.                     :

               Appeal from the Order Entered September 19, 2019
       In the Court of Common Pleas of Allegheny County Family Court at
                           No(s): FD09-000772-017


BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                                  FILED JUNE 16, 2020

           Appellants, D. and P.M. (collectively, “Paternal Grandparents”), appeal

from the September 19, 2019 Order1 that, inter alia, granted sole legal and

physical custody of A.F. (“Child”) to Child’s mother, A.F. (“Mother”), and

awarded Paternal Grandparents supervised phone contact with Child. Paternal

Grandparents challenge the trial court’s continuing and exclusive jurisdiction

to make a custody determination under Section 5422 of the Uniform Child

Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S. § 5401-

5482, as well as the trial court’s custody award.        Upon careful review, we

affirm.


____________________________________________


1 The Order is dated September 16, 2019, but was not docketed until
September 19, 2019.
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PROCEDURAL AND FACTUAL HISTORY

        In its September 19, 2019 Opinion, the trial court set forth a detailed

procedural and factual history, which we adopt for purposes of this appeal. 2

See Memorandum and Order, 9/19/19, at 2-5. Mother and A.S. (“Father”)

are parents to Child, who was born in February 2012. In sum, Mother and

Father were never married, have always had a contentious relationship, and

both have a history of substance abuse. Father also has a criminal history.

        On September 5, 2013, Father filed a Complaint for Confirmation of

Custody alleging that Mother was homeless and struggling with substance

abuse, and that he had been Child’s primary caretaker since June 2013. On

the same day, the trial court issued an Order granting Father primary physical

custody of Child and directing any party or parent seeking relocation to file a

petition for relocation as required by Section 5337 of the Custody Act.3 Shortly

after the trial court awarded Father custody of Child, Paternal Grandparents

took Child to live with them in Arizona, at Father’s request.4 Neither Father

nor Paternal Grandparents notified Mother of Child’s relocation. Father did not

file a petition for relocation with the court.

____________________________________________


2  We note that this is a highly litigious custody dispute where parties have
filed numerous Petitions for Special Relief and Contempt, and the trial court
has issued numerous interim Orders. We highlight the procedural and factual
history most relevant to this appeal.

3   23 Pa.C.S. § 5337.

4Despite Father’s averments to the trial court, he was unable to care for Child
due to his recent release from prison and unsuitable housing.

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      On December 21, 2015, Mother filed a Petition to Modify Custody and

an Emergency Petition for Special Relief, alleging that Child was living in

Arizona with Paternal Grandmother, without Mother’s consent and in violation

of the September 5, 2013 Custody Order. On December 22, 2015, the trial

court granted the Emergency Petition, ordered Child to be returned to

Pennsylvania, and ordered the parties to follow the existing custody Order

pending further order of the court.

      On July 5, 2016, after Father failed to appear for several scheduled

conciliation conferences, the trial court issued an Order awarding Mother daily

phone calls and alternating weekend visitation with Child pending trial.

      On September 26, 2016, after conciliation, the trial court issued an

interim Order awarding Father sole legal custody, and both parties shared

physical custody, with Mother exercising custody of Child every other weekend

and Wednesday evenings. The Order further stated that Child shall not leave

the Commonwealth of Pennsylvania.

      On October 13, 2016, Mother filed a Petition for Contempt alleging Child

had remained in Arizona and Father was not complying with the September

26, 2016 Custody Order. On November 17, 2016, after a hearing, the trial

court found Father in contempt of several prior custody orders. The court

ordered Father incarcerated for 30 days, or until he was able to pay fines. The

court further ordered Father to arrange the return of Child to Pennsylvania

immediately.




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       On February 27, 2017, in response to Paternal Grandparent’s filing a

Petition to Involuntarily Terminate Mother’s Rights in Arizona, the trial court

issued an Order stating that Pennsylvania has exclusive and continuing

jurisdiction over the custody matter. The court, once again, ordered Child to

be returned to Pennsylvania.

       On March 7, 2017, the trial court issued an Order stating that Child shall

be returned to Pennsylvania within 10 days.5 In response, on March 20, 2017,

Paternal Grandparents filed a Complaint in Custody in Pennsylvania seeking

primary physical custody of Child.

       On November 20, 2017, the trial court scheduled a custody hearing to

take place in January 2018, ordered Paternal Grandparents and Child to

appear at the hearing, and ordered Mother to have daily electronic contact

with Child, who remained in Arizona.

       On January 10, 2018, after Paternal Grandparents failed to appear at

the scheduled hearing with Child, the trial court issued an interim Order which

awarded Mother         sole legal and physical custody of Child, effective

immediately, and directed local law enforcement in Arizona to ensure that

Paternal Grandparents turned over custody of Child to Mother.


____________________________________________


5 The Order also stated that if Paternal Grandmother failed to file a custody
action within 10 days, Child shall be returned directly to Mother’s custody.
However, if Paternal Grandmother did file a custody action, then Paternal
Grandmother “shall make Child available for reunification with Mother in
[Pennsylvania] every third weekend beginning [March 30, 2017.]” Order,
3/7/17.

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      Paternal Grandparents and Father filed multiple Emergency Petitions for

Special Relief, which the trial court denied. Mother traveled to Arizona and

took Child into her custody on January 10, 2018. Since that date, Child has

remained in Mother’s custody.

      In March 2018, following judicial conciliation, the trial court ordered all

parties to submit to psychological evaluations, awarded Paternal Grandparents

phone contact with Child, and awarded Father supervised visits and phone

contact with Child.

      On August 15 and 16, 2019, the trial court held a custody hearing. The

court heard testimony from Barbara Grimm, staff member at Light of Life

treatment facility, Mother; R.M., Sr., Mother’s uncle (“Maternal Uncle”); C.M.,

Mother’s aunt (“Maternal Aunt”); D.F., Mother’s stepmother (“Stepmother”);

Dr. Beth Bliss, an expert in psychology; Paternal Grandmother; Paternal Step-

Grandfather; Father; and Child.

      Ms. Grimm testified that Mother successfully completed and was fully

compliant with the Family Assistance Program at Light of Life, an intense

homeless and addiction treatment facility that addresses addiction, parenting,

and needs of children. N.T. Hearing, 8/15/19, at 7-9.

      Mother testified that she has been sober since August 26, 2014, is

employed at a restaurant and is starting school to become a nurse, has family

support, and lives with and cares for her three daughters, including Child and

Child’s 12-year-old and 2-year-old half-sisters.       Id. at 15-35.     Mother

admitted to her mistakes in the past, including substance abuse and leaving

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Child in the care of others while she attempted to get treatment. Id. at 36-

45, 57-58. Mother stated that Father did not inform her or obtain her consent

when he sent Child to Arizona. Id. at 21.

      Mother testified that she facilitates phone conversations between Child

and Paternal Grandparents, but they make Child anxious because the Paternal

Grandparents make disparaging comments about Mother. Id. at 28-30.

Mother explained that Child’s anxiety has manifested physical symptoms, and

that Child began “picking” her face, wetting herself, and having problems with

digestion; Mother sought medical treatment and counseling. Id. at 28-30.

Mother   testified   that   her   relationship   with   Paternal   Grandparents   is

“[t]errible.” Id. at 27. Mother explained that Paternal Grandparents scream

at her, call her names, call the police to check on Child, tell Child that Mother

abandoned her and that they are her parents. Id. at 27-35.           Mother further

testified that she is open to Paternal Grandparents being involved in Child’s

life if they change their behavior and act appropriately with “love and

affection.” Id. at 58.

      Maternal Uncle, Maternal Aunt, and Stepmother all testified that they

observed Mother when she was actively abusing drugs, that she has made an

incredible turnaround during her sobriety, that Mother is a great parent to her

daughters, that Mother loves Child, and that Child is happy. Id. at 67-111.

All three witnesses also testified that they have observed Child experiencing

anxiety during phone conversations with Paternal Grandparents while in their

care. Id.

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      Paternal Grandmother testified that she started caring for Child at

Father’s request in September 2013, when Child was 18 months old, after she

learned that Mother had left Child “with a stranger at an AA meeting” and

Father was living in a “three-quarters house” after being released from prison.

Id. at 116-119.     Paternal Grandmother bought clothing, supplies, and

furniture, and moved into a new apartment with a bedroom for Child. Id.

120-23

      Paternal Grandmother testified that she brought Child back to Pittsburgh

in December 2015 for a few months to stay with Father and Child had some

court-ordered supervised visits with Mother. Id. at 122-25. A few months

later, Father asked Paternal Grandmother to take Child back to Arizona, where

Child remained until 2018. Id. at 126. Paternal Grandmother admitted to

knowing that there was a visitation order in place when she took Child back

to Arizona. Id. at 179. Paternal Grandmother denied knowing that the trial

court issued numerous orders compelling Child to return to Pennsylvania. Id.

at 126-128.

      Paternal Grandmother testified that Mother does not allow regular phone

contact with Child, always monitors the phone calls on speaker, controls when

the phone calls occur, blocked Paternal Grandmother’s phone number from

incoming calls, and often hangs up in the middle of Paternal Grandmother and

Child’s conversation. Id. at 132-33. Paternal Grandmother denied saying

anything about Mother in front of Child, but admitted to getting loud during

confrontations with Mother, texting her “things[,]” and having animosity

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towards Mother “for how I’m treated. She acts like we’re the bad guys.” Id.

at 138, 168-69.

      Paternal Grandmother testified that, in her care, Child was happy,

enjoyed school, made many friends, and had stability, family and love. Id.

146-150, 156. She explained that Child required therapy because Child was

scared and starting wetting herself after police showed up at Paternal

Grandparent’s house in response to Mother’s claim that Child was kidnapped.

Id. at 143-144.

      Paternal Step-Grandfather testified that he loved having Child in his

home and he misses and loves Child. Id. at 206, 208, 211. He described

that he would take Child to the park, cuddle with her, and play counting games

with her. Id. at 206-07. Paternal Grandfather explained that the phone calls

with Child are limited, supervised, and sometimes cut short. Id. at 208-09.

Paternal Grandfather testified that he does not have conflict with Mother. Id.

at 212.

      Dr. Bliss testified that she interviewed all the parties and conducted

observations in Mother and Father’s home. N.T. Trial 8/16/19, at 4-5. Dr.

Bliss testified that in her opinion, to a reasonable degree of scientific certainty,

Child should remain in Mother’s physical custody and have continued contact

with Father and Paternal Grandparents.         Id. at 22. Dr. Bliss stressed the

importance of all parties not talking negatively about each other in front of

Child. Id.




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      Relevant to this appeal, Father testified that when Child was

approximately 18 months old and abandoned by Mother, he was not in a

position to care for Child and asked Paternal Grandparents to take Child to

Arizona to care for Child. Id. at 53. Father explained that he maintained a

bond with Child, initially engaged in “daily” telephone contact with Child, spent

considerable amounts of time with Child when Paternal Grandmother

“intermittently” brought Child back to Pittsburgh, and “at one point he

exercised custody for approximately three months by himself without

[Paternal Grandparents] present . . . and participated in all of the primary

caregiving activities.”   Id. at 54-55, 66.       Father also testified that his

preference was for Paternal Grandparents to care for Child. Id. at 56-57.

      Child testified in camera. Child testified that it is “really fun” living with

Mother and her sisters, that she feels the most comfortable there, and she

wants to stay there. Id. at 79.        Child testified that she talks to Paternal

Grandparents on the phone, but sometimes it makes her uncomfortable

because they say “all types of mean stuff” about Mother and her sisters. Id.

at 85-86. Child testified that, if she wanted to, Mother would let her talk on

the phone with Paternal Grandparents every day. Id. at 86-87. Child testified

that she would like to visit Paternal Grandparents “[o]nly for a day” in

Pennsylvania instead of Arizona so they could not keep her in Arizona. Id. at

87-88. Child stated that she wants to live at Mother’s house and see Father,

and that she did not want to talk to Paternal Grandparents more often on the

phone. Id. at 89-90.

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       On September 19, 2019, the trial court issued a Memorandum and

Order, which awarded Mother sole legal and physical custody of Child,

awarded Paternal Grandparents supervised phone contact whenever Child

initiates and during Father’s visits with Child, and awarded Father supervised

visitation upon completion of recommended drug and alcohol treatment and

parenting classes. Memorandum and Order, 9/19/19, at 13-16.

       Paternal Grandparents filed a timely appeal. On December 19, 2019,

Paternal Grandparents filed a Concise Statement of Errors.6 The trial court

filed a responsive Opinion.

ISSUES RAISED ON APPEAL

       Paternal Grandparents raise the following issues for our review:

       A. Did the lower court possess exclusive, continuing jurisdiction
          under the UCCJEA, when the subject child had been residing in
          another state for a period of over two years with [Paternal
          Grandparents], rather than with the biological parents who
          were the parties to the initial court order?

       B. Alternatively, did the lower court err by entering a custody
          order that effectively eliminated all contact with the subject
          child and the paternal grandparents who had raised her for the
          majority of her life?

Appellants’ Brief at 2.
____________________________________________


6  Paternal Grandparents failed to comply with Pa.R.A.P 1925(a)(2)(i) and file
the Concise Statement of Errors contemporaneously with the Notice of Appeal,
resulting in a defective Notice of Appeal. See In re K.T.E.L., 983 A.2d 745,
747 (Pa. Super. 2009) (holding that noncompliance with Pa.R.P. 1925(a)(2)(i)
results in a defective notice of appeal and the disposition of the defective
notice of appeal will be decided on a case by case basis). Because the late
filing of the Concise Statement of Errors did not result in prejudice to other
parties, we decline to quash or dismiss this appeal. See id.


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LEGAL ANALYSIS

The Trial Court Had Continuing and Exclusive Jurisdiction Pursuant to

Section 5422 of the UCCJEA

      In their first issue, Paternal Grandparents aver that the trial court did

not have continuing and exclusive jurisdiction over the custody matter

pursuant to Section 5422 of the UCCJEA.         Appellants’ Brief at 5 (citing 23

Pa.C.S. § 5422).    Paternal Grandparents concede that the trial court had

jurisdiction to enter the initial custody Order, but argue that when Mother filed

the Petition to Modify Custody, Child did not have significant connections to

Pennsylvania because she was living in Arizona and her parents were not

“exercising any parenting time within Pennsylvania.”         Therefore, Paternal

Grandparents argue, the trial court lacked jurisdiction to decide the custody

matter. Id. We disagree.

      A trial court's decision that it retains exclusive, continuing jurisdiction

over a custody determination pursuant to Section 5422 implicates the court’s

subject matter jurisdiction and is purely a question of law. S.K.C. v. J.L.C.,

94 A.3d 402, 408 (Pa. Super. 2014). Accordingly, this Court’s standard of

review is de novo and our scope of review is plenary. Id.

      This Court has explained, “[t]he purpose of the UCCJEA is to avoid

jurisdictional competition, promote cooperation between courts, deter the

abduction of children, avoid relitigating custody decisions of other states, and

facilitate the enforcement of custody orders of other states.” A.L.-S. v. B.S.,

117 A.3d 352, 356 (Pa. Super. 2015).          Section 5422 provides, in relevant

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part, that a court that has made a initial child custody determination has

exclusive, continuing jurisdiction over the determination until “a court of this

Commonwealth determines that neither the child, nor the child and one

parent, nor the child and a person acting as a parent have a significant

connection with this Commonwealth and that substantial evidence is no longer

available in this Commonwealth concerning the child's care, protection,

training and personal relationships.” 23 Pa.C.S. § 5422(a)(1).

      The Section 5422 comments explain, “even if the child has acquired a

new home state, the original decree state retains exclusive, continuing

jurisdiction, so long as the general requisites of the “substantial connection”

jurisdiction provisions of [Section 5421] are met. 23 Pa.C.S. § 5422 cmt.

Moreover, “[i]f the relationship between the child and the person remaining in

the state with exclusive, continuing jurisdiction becomes so attenuated that

the court could no longer find significant connections and substantial evidence,

jurisdiction would no longer exist.” Id.

      “[A] significant connection exists where one parent resides and

exercises parenting time in the state and maintains a meaningful relationship

with the child.” S.K.C., 94 A.3d at 412 (citation omitted). Nevertheless, in a

situation where a parent fails to exercise parenting time with a child in

Pennsylvania due to the other parent’s contemptuous behavior, this Court has

declined to find a lack of significant connection and, consequently, “reward”

that contempt. Id. at 412–13. In this situation, the Court has unequivocally


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stated, “we refuse to incentivize contemptuous behavior on the part of a

litigant. Contemptuous behavior should be punished, not rewarded. To reward

contempt would undermine the very nature of the judicial process.”          Id.

Finally, “when making a determination under [S]ection 5422, the trial court

must rely upon the factual circumstances as they existed when the

modification petition was filed.”   T.D. v. M.H., 219 A.3d 1190, 1197 (Pa.

Super. 2019) (citation omitted).

      It is undisputed that the trial court had jurisdiction to make the initial

custody determination in this case on September 3, 2013. On December 21,

2015, Mother filed a Petition to Modify Custody, which resulted in the

September 19, 2019 final custody Order that is the subject of this appeal. In

the Petition, Mother averred that Child was living in Arizona without Mother’s

consent and in violation of the existing custody Order. At trial, Father and

Paternal Grandmother’s testimony confirmed this allegation. However, Father

also testified that he participated in daily phone conversations with Child,

spent considerable amounts of time with Child on her trips back to

Pennsylvania, and cared for Child for several months in Pennsylvania.

Accordingly, because Father resided in Pennsylvania, maintained a meaningful




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relationship with      Child,   and exercised parenting          time, a    “significant

connection” to Pennsylvania existed at the time that Mother filed her Petition.7

       Accordingly,     because     Child      had   a   “significant   connection”   to

Pennsylvania, the trial court had continuing and exclusive jurisdiction over this

custody matter despite Child residing in Arizona in violation of court Orders.

The Trial Court Did Not Abuse its Discretion When it Awarded Paternal

Grandparents Supervised Phone Contact with Child

       Paternal Grandparents next aver that the trial court erred when it

awarded them phone contact with Child during Father’s supervised visitation

or at Child’s discretion. Appellants’ Brief at 12. Paternal Grandparents argue

that by “making their visitation subsidiary to that of the Father, the Father’s

failure to adhere to the requirements of the order will effectively terminate”

their relationship with Child. Id. Paternal Grandparents argue that the trial

court failed to give sufficient weight to their years of raising Child, Mother’s

abandonment of Child, Mother’s efforts to preclude Child from contacting

them, and Mother’s failure to allow Child to participate in court-ordered

visitation with them during the pending litigation. Id. at 13. In turn, Paternal

Grandparents assert that the trial court gave too much weight to Child’s

____________________________________________


7Moreover, we decline to find that Mother failed to exercise parenting time in
Pennsylvania and, in doing so, reward Father’s contemptuous and egregious
behavior of removing child from Pennsylvania in violation of the existing
custody Order.




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preferences, the contents of their phone conversations with Child, the

negative things they said, and alleged efforts to keep Child away from Mother.

Id. Paternal Grandparents are not entitled to relief.8

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

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

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

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

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

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

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

ill will.” Id.

       Further, our scope of review is broad, but we are “bound by findings

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

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

sustainable findings of the trial court.” Saintz v. Rinker, 902 A.2d 509, 512

(Pa. Super. 2006) (citation omitted). Importantly, “[o]n issues of credibility

and weight of the evidence, we defer to the findings of the trial judge who has

had the opportunity to observe the proceedings and demeanor of the



____________________________________________


8 Paternal Grandparents also make the argument, for the first time on appeal,
that the trial court “misapplied the evidentiary burden” when awarding
Paternal Grandparents supervised visitation. Appellants’ Brief at 12. This
argument is waived. See Pa.R.A.P 302 (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”).

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witnesses.” K.T. v. L.S., 118 A.3d 1136, 1159 (Pa. Super. 2015) (citation

omitted). We can interfere in the trial court’s weight determinations only

where the “custody order is manifestly unreasonable as shown by the evidence

of record.” Saintz, 902 A.2d at 512 (citation omitted).

      The Child Custody Act, 23 Pa.C.S. §§ 5321-5340, requires a trial court

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

any form of custody.” 23 Pa.C.S. § 5328(a). It is well-settled that “[t]he

paramount concern in child custody cases is the best interests of the child.”

C.G. v. J.H., 193 A.3d 891, 909 (Pa. 2018). “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.”

M.J.N. v. J.K., 169 A.3d 108, 112 (Pa. Super. 2017).

      Our review of the record reveals that the trial court engaged in an

analysis of each of the Section 5328 custody factors and made specific findings

regarding each factor, which the record supports.        See Memorandum and

Order, 9/19/19, at 2-12.          The trial court determined, based on its

consideration of those custody factors, that it was in Child’s best interest to

award sole legal and physical custody to Mother, conditional visitation to

Father, and supervised phone contact to Paternal Grandparents. Here, the

Paternal Grandparents do not challenge the court’s application of the custody

factors; rather, they challenge the weight the court gave to the evidence.

Regarding Paternal Grandparents, the trial court opined:


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      [T]he evidence presented at trial on behalf of the [Paternal
      Grandparents] fell far short of clear and convincing such that this
      Court’s decision to award Mother with sole legal and physical
      custody would qualify as error. The record was replete with
      evidence to support this [c]ourt’s determination that it would not
      be in [Child]’s best interest to have awarded PGP’s with any
      physical parenting time, the least of which included Paternal
      Grandmother’s absurd and upsetting phone calls to [Child] in
      which she would tell [Child] that she, not Mother, was her mother
      and the Mother had abandoned her, something this [c]ourt
      determined had no legitimate purpose and borderlined as
      emotionally abusive, as well as [Child]’s fear that if she visited
      Arizona that [Paternal Grandparents] would not allow her to return
      to Pennsylvania.

      Essentially, the [Paternal] Grandparents argue that they should
      get credit for raising [Child] for several years and that this credit
      should outweigh their admitted bad behaviors; that this [c]ourt
      should have given more weight to Mother’s bad behaviors and
      past substance abuse history. This argument is flawed, as it would
      inherently relieve them of the aforementioned heavy burden set
      forth in § 5327(b) and, instead, place that burden upon Mother.

Trial Ct. Op., filed 1/31/20, at 17-18.

      The record supports the trial court’s findings. We decline to usurp the

credibility determinations of the trial court or reweigh the evidence.

Accordingly, we find no abuse of discretion.

CONCLUSION

      In sum, the trial court had continuing and exclusive jurisdiction over this

custody dispute, and did not abuse its discretion when it awarded Mother sole

legal and physical custody, Father conditional partial custody, and Paternal

Grandparents supervised phone contact with Child.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2020




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