J-A03008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.W. & A.W.                                       IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
        v.

D.S.G.

        Appellant

        v.

A.M.W.

                                                      No. 1306 MDA 2014


                   Appeal from the Order Entered July 2, 2014
               In the Court of Common Pleas of Schuylkill County
                      Civil Division at No(s): S-2737-2011


BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                 FILED MAY 05, 2015

        Appellant, D.S.G. (Father) appeals from the July 2, 2014 order

granting primary physical custody of his son, J.G.1, to M.W. (Maternal

Grandfather), and A.W. (Maternal Grandmother, collectively, Maternal

Grandparents), and partial physical custody to Father. Upon careful review,

we affirm.

        We summarize the relevant factual and procedural history as follows.

Father and A.M.W. (Mother) are the natural parents of J.G.         Father and
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    J.G. was born in February 2008.
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Mother never married.     Pursuant to a stipulated order, dated October 29,

2010, Mother exercised primary physical custody, Father exercised partial

physical custody every weekend, and Father and Mother shared legal

custody. Petition for Grandparent Primary Custody, 12/30/11, at Exhibit 1

“Custody Stipulation.”

        On December 30, 2011, Maternal Grandparents filed a “petition for

grandparent primary custody” and a petition for emergency relief, wherein

they sought primary physical custody and shared legal custody of J.G. Id.

at ¶ 15. Maternal Grandparents alleged that J.G. resided in their home with

Mother from his birth until June 2009, when Mother and J.G. began residing

in Father’s home. Id. at ¶¶ 7-8. In addition, Maternal Grandparents alleged

that J.G. and Mother resided with them from March 2010 until October 29,

2011, when Mother and J.G. went to live with Mother’s new boyfriend, B.C.

Id. at ¶ 9. Maternal Grandparents alleged that Mother placed J.G. in their

temporary care on December 25, 2011, due to the arrest of B.C. Id. at ¶

10. Maternal Grandparents alleged that J.G. is at risk in Mother’s custody

because Mother and B.C. have serious drinking problems, and that B.C. has

a history of assaultive behavior and drug use. Id. at ¶ 13. On January 17,

2012,    Maternal   Grandparents   filed   an   “amendment   to   petition   for

grandparent primary custody” wherein they alleged that Father also suffers

from alcohol abuse and has a history of assaulting Mother. Amendment to

Petition, 1/17/12, at ¶ 14.


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       On January 17, 2012, Father filed preliminary objections wherein he

contended that Maternal Grandparents lacked standing to pursue custody of

J.G. On January 23, 2012, Father filed amended preliminary objections. A

hearing on Father’s preliminary objections and Maternal Grandparents’

emergency petition commenced before a custody hearing officer on January

31, 2012, during which Maternal Grandfather, Maternal Grandmother, and

Father testified.    The hearing was continued to February 15, 2012, during

which Mother testified.2,    3



       By interim order dated March 5, 2012, the trial court overruled

Father’s preliminary objections. In addition, the trial court denied Maternal

Grandparents’ petition for emergency relief.     With respect to a temporary
____________________________________________


2
  The trial court stated that the hearing was again “continued in progress
until February 21, 2012.” Trial Court Order, 3/5/12, at 3. We observe that
the February 21, 2012 hearing transcript was not made a part of the
certified record. “It is the obligation of the appellant to make sure that the
record forwarded to an appellate court contains those documents necessary
to allow a complete and judicious assessment of the issues raised on
appeal.” Hrinkevich v. Hrinkevich, 676 A.2d 237, 240 (Pa. Super. 1996)
(citation omitted); accord Kessler v. Broder, 851 A.2d 944, 950 (Pa.
Super. 2004), appeal denied, 868 A.2d 1201 (Pa. 2005). However, in this
case, we conclude that the February 21, 2012 hearing transcript is not
necessary for our review of Father’s first issue on appeal. Therefore, we
need not take any action with respect to Father’s failure to provide the
complete transcripts from the hearing on his preliminary objections. See
Pa.R.A.P. 1911(d).
3
  At the time of the hearing on Father’s preliminary objections and Maternal
Grandparents’ petition for emergency relief, Maternal Grandparents were
exercising primary physical custody, but not shared legal custody, pursuant
to a temporary order dated January 27, 2012, as a result of a second
emergency petition filed by Maternal Grandparents on January 26, 2012.



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custody order, the trial court granted Father and Mother shared legal

custody, and granted physical custody as follows.

            Mother shall have from Monday at 8:00 p.m. to
            Friday at 5:00 p.m., [p]rovided, however, that
            Mother’s shared physical custody shall be suspended
            if Mother begins either to cohabitate with [B.C.], or
            allows [B.C.] to be in the presence of the child, in
            which case the child shall return to the home of
            [M]aternal Grandparents for Mother’s shared
            custodial time.

            Father shall have alternating weekends from Friday
            at 5:00 p.m. until Monday at 8:00 p.m.

            Maternal Grandparents shall have intervening
            weekends from Friday at 5:00 p.m. until Monday at
            8:00 p.m.

Trial Court Order, 3/5/12, at 12.

      On September 20, 2012, Maternal Grandparents filed a petition for

contempt against Mother wherein they alleged that Mother violated the

March 5, 2012 interim order by cohabiting with B.C. and allowing J.G. to be

in B.C.’s presence. Petition for Contempt, 9/20/12, at ¶¶ 7, 9. The petition

further averred that Mother is pregnant with B.C.’s child.   Id. at ¶ 8. On

November 1, 2012, following a hearing, the trial court entered an interim

order which found Mother in contempt and suspended her physical custody.

The trial court directed that J.G. be returned to the home of Maternal

Grandparents, and that Mother shall have supervised custody at the home of

Maternal Grandparents on intervening weekends from Friday at 5:00 p.m.




                                    -4-
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until Monday at 8:00 p.m. Trial Court Order, 11/1/12, at 3.4 With respect

to Father, the court directed that he shall continue to exercise physical

custody pursuant to the March 5, 2012 interim order. Id.

       The custody trial occurred on June 24, 25, and 26, 2014, at which time

J.G. was six years old.           At the commencement of the trial, Maternal

Grandparents had exercised primary physical custody for nearly 20 months

pursuant to the November 1, 2012 interim order. During that time, J.G. had

completed kindergarten at St. Jerome’s Elementary School where he

received the highest mark in all areas of measurement. Trial Court Opinion,

7/2/14, at 6.     The trial court also noted that in July 2013, J.G. developed

Kawasaki Disease, a chronic disease, for which the Maternal Grandparents

have provided proper treatment. Id.; N.T., 6/24/14, at 211-212.

       Maternal Grandparents presented the testimony of Joseph Sheris,

Ph.D., the court-appointed custody evaluator, and Maternal Grandmother.

Father testified on his own behalf and presented the testimony of L.S.G.

(Paternal Grandmother); A.G. (Paternal Grandfather); and Father’s brothers,

A.G., Jr., and I.G.      Mother testified on her own behalf and presented the

testimony of B.C., her boyfriend; K.Y., a friend of Mother and B.C.; and J.B.,

the aunt of B.C.      In its opinion accompanying the subject order, the trial


____________________________________________


4
 The trial court’s November 1, 2012 order does not contain pagination. For
ease of review we have assigned each page a corresponding page number.



                                           -5-
J-A03008-15


court set forth its factual findings, which we adopt herein.           Trial Court

Opinion, 7/2/14, at 4-13.

       By order dated and entered on July 2, 2014, the trial court granted

shared legal custody to Maternal Grandparents, Father, and Mother.            The

court granted primary physical custody to Maternal Grandparents and partial

physical custody to Father and Mother as follows.

              3. Partial physical custody of the said Minor Child is
              AWARDED to his Father [ ], and his Mother [ ], every
              other weekend beginning July 11, 2014, from 5:00
              P.M. until Monday at 8:00 P.M. to be divided as
              follows:

                     3a. Mother shall have the Child from Friday at
                     5:00 P.M. until Sunday at noon.

                     3b. Father shall have the Child on alternating
                     weekends beginning July 11, 2014, from
                     Sunday at noon until Monday at 8:00 P.M.

Trial Court Order, 7/2/14, at 2. On July 31, 2014, Father filed a notice of

appeal.5 Mother did not file a notice of appeal, but she did file an appellee

brief wherein she argued in support of Father’s issues on appeal. On August

____________________________________________


5
  Father failed to file a concise statement of errors complained of on appeal
concurrently with the notice of appeal pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a)(2) and (b). By order dated August 19, 2014,
this Court directed Father to file a concise statement by August 29, 2014,
and Father timely complied. Because Father timely complied with this
Court’s order and no party claims prejudice as a result of Father’s procedural
error, we decline to find his issues waived on appeal. See In re K.T.E.L.,
983 A.2d 745, 748 (Pa. Super. 2009); cf. J.P. v. S.P., 991 A.2d 904, 908
(Pa. Super. 2010) (holding appellant waived all issues by failing to timely
comply with the trial court’s direct order to file a concise statement).



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6, 2014, the trial court directed that its March 5, 2012 interim order and July

2, 2014 order and opinion serve as its Rule 1925(a) opinion for purposes of

this appeal.

      On appeal, Father presents the following issues for our review.

               A. Whether the [t]rial [c]ourt committed an error of
               law by dismissing [Father]’s Preliminary Objections
               objecting   to     the    standing   of    [Maternal
               Grandparents], filed January 17, 2012, and amended
               January 23, 2012[?]

               B. Whether the [t]rial [c]ourt committed an error of
               law or abuse of discretion by awarding primary
               physical custody to [Maternal Grandparents] by not
               properly applying the legal standard of proof[?]

               C. Whether the [t]rial [c]ourt committed an error of
               law or abuse of discretion when weighing the
               custody factors set forth in 23 Pa.C.S.A. § 5328[?]

Father’s Brief at 2.

      The scope and standard of review in custody matters is as follows.

                          [T]he appellate court is not bound by the
                    deductions or inferences made by the trial
                    court from its findings of fact, nor must the
                    reviewing court accept a finding that has no
                    competent evidence to support it…. However,
                    this broad scope of review does not vest in the
                    reviewing court the duty or the privilege of
                    making its own independent determination….
                    Thus, an appellate court is empowered to
                    determine     whether     the     trial   court’s
                    incontrovertible factual findings support its
                    factual conclusions, but it may not interfere
                    with those conclusions unless they are
                    unreasonable in view of the trial court’s factual
                    findings; and thus, represent a gross abuse of
                    discretion.


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J-A03008-15


            R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.
            Super. 2009) (quoting Bovard v. Baker, 775 A.2d
            835, 838 (Pa. Super. 2001)). Moreover,

                         [O]n issues of credibility and weight of
                  the evidence, we defer to the findings of the
                  trial [court] who has had the opportunity to
                  observe the proceedings and demeanor of the
                  witnesses.

                         The parties cannot dictate the amount of
                  weight the trial court places on evidence.
                  Rather, the paramount concern of the trial
                  court is the best interest of the child.
                  Appellate interference is unwarranted if the
                  trial court’s consideration of the best interest
                  of the child was careful and thorough, and we
                  are unable to find any abuse of discretion.

            R.M.G., Jr., supra at 1237 (internal citations
            omitted). The test is whether the evidence of record
            supports the trial court’s conclusions. Ketterer v.
            Seifert, 902 A.2d 533, 539 (Pa. Super. 2006).

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (parallel citations

omitted).

     Further, we have stated the following must be applied in analyzing a

custody claim.

            The 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).

                                     -8-
J-A03008-15


        “[T]he paramount concern in a child custody case is the best interests

of the child[.]”    K.B. II v. C.B.F., 833 A.2d 767, 770 (Pa. Super. 2003),

appeal dismissed as improvidently granted 885 A.2d 983 (Pa. 2005). “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 wellbeing.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa.

Super. 2006), citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super.

2004).

        The Child Custody Act6 (the Act), became effective on January 24,

2011.     Because the proceedings in the instant case occurred after the

effective date of the Act, the Act is applicable.    See C.R.F. v. S.E.F., 45

A.3d 441, 445 (Pa. Super. 2012) (concluding that “where the evidentiary

proceeding commences on or after the effective date of the Act, the

provisions of the Act apply even if the request or petition was filed prior to

the effective date[]”).

        In his first issue, Father argues the trial court committed an error of

law in overruling his preliminary objections and finding that Maternal

Grandparents had standing pursuant to 23 Pa.C.S.A. § 5324(3)(iii)(C).

Father’s Brief at 5.



____________________________________________


6
    23 Pa.C.S.A. §§ 5321-5340.



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J-A03008-15


      “[T]he question of standing is whether the litigant is entitled to have

the court decide the merits of the dispute or of particular issues.” Silfies v.

Webster, 713 A.2d 639, 642 (Pa. Super. 1998).              “Where a statute

delineates the class of members who can assert a claim under the statute,

standing is governed by the language of the statute itself. Threshold issues

of standing are questions of law; thus, our standard of review is de novo and

our scope of review is plenary.” Bricklayers of W. Pa. Combined Funds,

Inc. v. Scott’s Dev. Co., 41 A.3d 16, 22 (Pa. Super. 2012) (en banc),

reversed on other grounds, 90 A.3d 682 (Pa. 2014).

      Additionally, our Supreme Court has explained as follows.

            “The object of all interpretation and construction of
            statutes is to ascertain and effectuate the intention
            of the General Assembly. Every statute shall be
            construed, if possible, to give effect to all its
            provisions.”    1 Pa.C.S. § 1921(a).       The plain
            language of the statute is generally the best
            indicator of legislative intent, Commonwealth v.
            McCoy, 962 A.2d 1160, 1166 (Pa. 2009), and the
            words of a statute “shall be construed according to
            rules of grammar and according to their common
            and approved usage ….” 1 Pa.C.S. § 1903(a). We
            generally look beyond the plain language of the
            statute only where the words are unclear or
            ambiguous, or the plain meaning would lead to “a
            result that is absurd, impossible of execution or
            unreasonable.”      1 Pa.C.S. § 1922; see also
            Commonwealth v. Diodoro, 970 A.2d 1100, 1106
            (Pa. 2009).

Commonwealth v. Garzone, 34 A.3d 67, 75 (Pa. 2012) (parallel citations

omitted).



                                    - 10 -
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      Maternal Grandparents sought standing pursuant to the following

provision of the Act.

            § 5324.    Standing for any form of physical
            custody or legal custody

            The following individuals may file an action under
            this chapter for any form of physical custody or legal
            custody:

                                      …

                  (3) A grandparent of the child who is not
                  in loco parentis to the child:

                        (i)   whose relationship with the child
                        began either with the consent of a parent
                        of the child or under a court order;

                        (ii) who assumes or is willing to
                        assume responsibility for the child; and

                        (iii) when     one   of   the    following
                        conditions is met:

                                             …

                              (C) The child has for a period of
                              at least 12 consecutive months,
                              resided with the grandparent,
                              excluding brief temporary absences
                              of the child from the home, and is
                              removed from the home by the
                              parents, in which case the action
                              must be filed within six months
                              after the removal of the child from
                              the home.

23 Pa.C.S.A. § 5324(3)(iii)(C).




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J-A03008-15


      In   analyzing   said   statute,    the     trial   court   made   the   following

conclusions based on the testimony during the hearing on Father’s

preliminary objections.

            The maternal grandparents are not in loco parentis
            with the child. The relationship of the child with the
            maternal grandparents began with Mother’s consent.
            Maternal grandparents have assumed and are willing
            to assume responsibility for the child. The child
            resided in the home of the maternal grandparents for
            a majority of his life and specifically for the twelve
            months from October 29, 2010, until October 29,
            2011. Maternal grandparents brought this action on
            December 30, 2011, which is within six months of
            the removal of the child by Mother.           Maternal
            grandparents have pleaded and have proven
            sufficient contact with the subject child to give them
            standing pursuant to 23 Pa.C.S.[A. §] 5324.

Trial Court Order, 3/5/12, at 11.         The record evidence supports the trial

court’s findings.

      Nevertheless, Father argues the court’s reasoning is flawed for the

following reason.

            During said twelve month period [from October 29,
            2010 to October 29, 2011], there is no dispute
            that Mother and Child resided in Grandparents’
            home, thereby making the issue whether time that
            both    Mother   and  Child   spent  residing  in
            Grandparents’ home should properly be considered
            when addressing the twelve month period set forth
            in the statute.

Father’s Brief at 7 (emphasis in original). We are not persuaded by Father’s

argument.




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J-A03008-15


       The text of Section 5324(3)(iii)(C) reveals no explicit intent by the

General Assembly to discount from the requisite 12-month time period any

time that a parent of the child resides, along with the child, in the home of a

grandparent who is not in loco parentis to the child.            Further, the plain

meaning of the provision does not lead to an absurd or unreasonable result.

See generally 1 Pa.C.S.A. § 1922. Indeed, it is not unreasonable for the

General Assembly to provide such a grandparent with the opportunity to

seek any form of physical or legal custody.             In fact, as Father’s own

argument illustrates, the General Assembly’s changes to the Act relaxed the

requirements for a grandparent to seek physical and legal custody.

       In support of his argument, Father relies on Gradwell v. Strausser,

610 A.2d 999 (Pa. Super. 1992), a case decided prior to the current Act, 7




____________________________________________


7
  Inexplicably, the portion of the predecessor act held inapplicable in
Gradwell was Section 5313(a) and provided as follows.

              (a) Partial custody and visitation.--If an
              unmarried child has resided with his grandparents or
              great-grandparents for a period of 12 months or
              more and is subsequently removed from the home
              by his parents, the grandparents or great-
              grandparents may petition the court for an order
              granting them reasonable partial custody or
              visitation rights, or both, to the child. The court
              shall grant the petition if it finds that visitation rights
              would be in the best interest of the child and would
              not interfere with the parent-child relationship.
(Footnote Continued Next Page)


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J-A03008-15


where the paternal grandfather resided with his adolescent granddaughter

and her parents for almost two years and sought physical and legal custody.

Contrary to the circumstance of the instant matter, the paternal grandfather
                       _______________________
(Footnote Continued)

23 Pa.C.S. § 5313 (repealed 2011). However, the applicable portion of the
statute, which the Court did not address, was subsection (b) which stated as
follows.

             (b) Physical and legal custody.--A grandparent
             has standing to bring a petition for physical and legal
             custody of a grandchild. If it is in the best interest of
             the child not to be in the custody of either parent
             and if it is in the best interest of the child to be in
             the custody of the grandparent, the court may award
             physical and legal custody to the grandparent. This
             subsection applies to a grandparent:

                       (1) who has genuine care and concern for the
                       child;

                       (2) whose relationship with the child began
                       with the consent of a parent of the child or
                       pursuant to an order of court; and

                       (3) who for 12 months has assumed the role
                       and responsibilities of the child’s parent,
                       providing for the physical, emotional and social
                       needs of the child, or who assumes the
                       responsibility for a child who has been
                       determined to be a dependent child pursuant
                       to 42 Pa.C.S. Ch. 63 (relating to juvenile
                       matters) or who assumes or deems it
                       necessary to assume responsibility for a child
                       who is substantially at risk due to parental
                       abuse, neglect, drug or alcohol abuse or
                       mental illness. The court may issue a
                       temporary order pursuant to this section.

23 Pa.C.S.A. § 5313(b).




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in Gradwell argued on appeal that he acquired in loco parentis status8 by

meeting the statutory time period of residing with his granddaughter under

Section 5313.9 The Gradwell Court concluded that the paternal grandfather

conflated the determination of standing based on in loco parentis status with

that of standing pursuant to Section 5313. As such, we affirmed the order

dismissing the paternal grandfather’s custody complaint because he did not

stand in loco parentis to his granddaughter.10                   In the instant matter,

Maternal    Grandparents       correctly       brought   their    claim   under   Section

5324(3)(iii)(C), and satisfied the necessary requirements of standing.                As

such, Father’s first issue fails.

       In the alternative, assuming Maternal Grandparents had standing to

seek primary physical custody, Father argues in his second and third issues
____________________________________________


8
 We have explained, “[t]he phrase ‘in loco parentis’ refers to a person who
puts himself in the situation of assuming the obligations incident to the
parental relationship without going through the formality of a legal adoption.
The status of ‘in loco parentis’ embodies two ideas: first, the assumption of a
parental status, and second, the discharge of parental duties.” Gradwell v.
Strausser, 610 A.2d 999, 1003 (Pa. Super. 1992) (citation omitted).
9
  As noted, paternal grandfather did not explicitly seek standing under
Section 5313.
10
   Father appears to rely on dicta in Gradwell regarding the trial court’s
finding that the paternal grandfather had not met the requisite time period
under Section 5313. Thus, if the paternal grandfather proceeded in the
future under Section 5313, we stated that the proceedings “would prove
fruitless.” Id. at 1005. Notably, we did not discuss the reason for the trial
court’s finding that the paternal grandfather had not met the statutory time
period. In the instant case, we will not disturb the trial court’s determination
based on unexplained dicta in Gradwell.



                                           - 15 -
J-A03008-15


that the court committed an error of law and abused its discretion in the

weight it placed on the evidence in light of Maternal Grandparents’

heightened burden of proof. We disagree.

      It   is    well   established   that   natural   parents   have   a   rebuttable

presumption against third parties in custody disputes, and the Act provides,

in relevant part, as follows.

                § 5327.    Presumption in cases concerning
                primary physical custody.

                                             …

                (b) Between a parent and third party.--In any
                action regarding the custody of the child between a
                parent of the child and a nonparent, there shall be a
                presumption that custody shall be awarded to the
                parent. The presumption in favor of the parent may
                be rebutted by clear and convincing evidence.

23 Pa.C.S.A. § 5327(b). “Clear and convincing evidence means testimony

that is so clear, direct, weighty, and convincing so as to enable the trier of

fact to come to a clear conviction, without hesitation, of the truth of the

precise facts in issue.”      V.B. v. J.E.B., 55 A.3d 1193, 1199 (Pa. Super.

2012) (citation omitted).

      Regarding this presumption, we have concluded as follows.

                [O]ur Supreme Court [has] noted that “these
                principles do not preclude an award of custody to a
                non-parent. Rather they simply instruct the [trial]
                judge that the non-parent bears the burden of
                production and the burden of persuasion and that
                the non-parent’s burden is heavy.”

Id., quoting Ellerbe v. Hooks, 416 A.2d 512, 514 (Pa. 1980).

                                         - 16 -
J-A03008-15



                   What the [trial] judge must do, therefore, is
            first, hear all evidence relevant to the child’s best
            interest, and then, decide whether the evidence on
            behalf of the third party is weighty enough to bring
            the scale up to even, and down on the third party’s
            side.

Id., citing McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000),

appeal denied, 782 A.2d 547 (Pa. 2001), quoting Ellerbe, supra at 513-514

(Pa. 1980). Accordingly, we recognize that when a grandparent is involved

in a custody dispute with a parent, the grandparent is a third party and

bears this heightened burden. Id. at 1198-1199, citing Charles v. Stehlik,

744 A.2d 1255, 1258 (Pa. 2000), cert. denied, Stehlik v. Charles, 530 U.S.

1243 (2000).

      When awarding any form of custody, the Act provides an enumerated

list of factors a trial court must consider in determining the best interests of

a child.

            § 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

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J-A03008-15


              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.

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

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

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

                     (16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).11

       This Court has stated that, “[a]ll of the factors listed in section

5328(a) are required to be considered by the trial court when entering a

custody order.”      J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)

(emphasis in original).

              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 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), appeal denied, 70 A.3d 808
              (Pa. 2013)….


____________________________________________


11
   The Act was amended, effective January 1, 2014, to include the additional
factor at 23 Pa.C.S.A. § 5328(a)(2.1).




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            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., supra at 822-823.

      Instantly, in its opinion accompanying the subject order, the trial court

applied the statutory presumption against Maternal Grandparents, and in

light of the Section 5328(a) custody factors, it concluded that the

presumption was rebutted by clear and convincing evidence.           Trial Court

Opinion, 7/2/14, at 15-20. For purposes of this disposition, we summarize

the findings of the court with respect to the most relevant custody factors in

this case, all of which the court weighed in favor of Maternal Grandparents.

      With respect to Section 5328(a)(2), concerning which party can

provide adequate physical safeguards and supervision of the child, the trial

court found that “Father’s parent[ing] skills are deficient at this time.” Id.

at 16. The trial court’s finding is supported by the testimony of Dr. Sheris,

the court-appointed custody evaluator.

            I found [Father’s] parenting skills were somewhat
            limited. He had limited parenting insights. He didn’t
            seem to have much information related to child
            development.     There was little indication in his
            responses, little elaboration in his responses that
            would indicate any anticipation of issues with


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              parenting or   problem    solving   in   his   parenting
              approaches.

N.T., 6/24/14, at 18.

      With respect to Section 5328(a)(3), the parental duties performed by

each party on behalf of the child, the court found that, “[w]hile there was a

short period of time that Mother and J.G. resided with Father, his only other

involvement was limited to weekend partial custody periods. It appears that

Father is capable of properly caring for J.G. during weekend custody periods,

but his personality structure and level of maturity at this time limit his ability

to be named as primary physical custodian.” Trial Court Opinion, 7/2/14, at

16-17.      The testimony of Dr. Sheris likewise supports the trial court’s

findings.

      With respect to Section 5328(a)(4), the need for stability and

continuity in the child’s education, family life and community life, the trial

court found that neither parent can provide for these needs of J.G. at this

time, but that Maternal Grandparents can provide for J.G.’s needs.           Trial

Court Opinion, 7/2/14, at 17.      The testimony of the parties supports this

finding.

      With respect to Section 5328(a)(5), the availability of extended family,

the court found that Father does have extended family available to assist

him in caring for J.G., but “their availability is limited due to their work hours

and living arrangements.” Trial Court Opinion, 7/2/14, at 17. This finding is

supported by the testimony of the paternal grandparents that they are the

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owners of a pizza shop where they work multiple hours per week.          N.T.,

6/24/14, at 137-138, 158.

      With respect to Sections 5328(a)(9) and (10), which party is more

likely to maintain a loving, stable, consistent and nurturing relationship with

the child adequate for the child’s emotional needs, and, which party is more

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

and special needs of the child, the trial court found that Maternal

Grandparents are more likely than Father to meet these needs of J.G.. The

testimony of Maternal Grandmother and Dr. Sheris supports this finding.

      With respect to Section 5328(a)(12), each party’s availability to care

for the child or ability to make appropriate child-care arrangements, the

court found that, “Father is available for part of the weekend when he has

custody, but when he and his parents are all working at the pizza restaurant,

J.G. is brought to the restaurant and plays in the alley behind it during those

work hours. Also, Father does not demonstrate parenting skills that would

suggest he is an appropriate primary physical custod[ian].”        Trial Court

Opinion, 7/2/14, at 18-19. Father’s testimony supports this finding in that

he works at the pizza shop owned by his parents every week on Wednesday

and Friday, from 10:30 a.m. to 4:00 p.m., on Thursday, from 4:00 p.m. to

approximately 9:30 p.m., when the shop closes, and on Saturday, from

10:30 a.m. to 4:00 p.m.      N.T., 6/24/14, at 158; N.T., 6/25/14, at 305.

Father testified that, on his custodial weekends, J.G. stays at the pizza shop


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J-A03008-15


with him. N.T., 6/25/14, at 306. In addition, he testified that J.G. “might

play out in the back [of the pizza shop] which is a parking lot.” Id.

      Finally, with respect to Section 5328(a)(14), the history of drug or

alcohol abuse, the trial court found that Father denied current substance

abuse, but acknowledged that it was a problem for him in the past.          The

court found that, “Father continues to go drinking on the weekends he does

not have partial custody of [J.G.]      While this is appropriate for partial

custody, it is not appropriate for a primary physical custodian, especially in

light of the fact that Father’s support system, his parents, must work at the

pizza restaurant on weekends.” Trial Court Opinion, 7/2/14, at 19. Father’s

testimony supports this finding.

      Based upon our careful review of the parties’ briefs, the certified

record, the notes of testimony, the applicable law, and the trial court

opinion, we discern no abuse of discretion or error of law by the trial court in

concluding that the statutory presumption in favor of Father was rebutted by

clear and convincing evidence by Maternal Grandparents. We defer to the

trial court’s determinations regarding credibility and weight of the evidence.

See A.V., supra. We conclude that the trial court’s consideration of J.G.’s

best interests was careful and thorough, and the record evidence supports

the trial court’s custody decision. Therefore, Father’s final issues on appeal

do not warrant relief.




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      Based on the foregoing, we conclude the trial court did not abuse its

discretion nor commit an error of law when it entered the underlying custody

order. Accordingly, the trial court’s July 2, 2014 order is affirmed.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2015




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