J-A09002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

B.J.F. N/K/A B.J.S.                             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellant

                      v.

J.P.F.

                           Appellee                  No. 1543 MDA 2016


                Appeal from the Order Entered August 19, 2016
                 In the Court of Common Pleas of York County
                  Civil Division at No(s): 2013-FC-000212-03


BEFORE: SHOGAN, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                                 FILED MAY 31, 2017

         B.J.F. n/k/a B.J.S. (“Mother”) appeals from the order entered August

19, 2016, in the Court of Common Pleas of York County, which denied her

petition for modification of custody order, and maintained primary physical

custody of her minor son, D.F. (“Child”), with J.P.F. (“Father”) during the

school year. After careful review, we affirm.

         We summarize the relevant factual and procedural history of this

matter as follows.     Child was born in June 2004, during the marriage of

Mother and Father. Mother and Father separated in December 2012. Joint

Stipulation of Fact, 8/12/2013, at 1 (unnumbered pages).         Following her

separation     from   Father,   Mother   commenced   the   underlying   custody

proceedings by filing a complaint in custody on March 21, 2013. Currently,

Mother resides in Lancaster County, Pennsylvania, with her new husband
J-A09002-17



and their one-year-old son, while Father resides approximately fifty-two

miles away in York County, Pennsylvania, with his girlfriend.                  N.T,

8/11/2016, at 6, 8, 15; Trial Court Opinion, 10/2/2015, at 9. The parties

are subject to a final custody order, entered October 2, 2015, which awards

shared legal custody.        The order further awards Father primary physical

custody of Child during the school year, and awards Mother partial physical

custody. Specifically, the order awards Mother physical custody of Child on

the first, second, and fourth weekends of every month, from Friday after

school until Sunday at 7:00 p.m.               The parties exercise shared physical

custody on an alternating week basis during the summer.1, 2
____________________________________________


1
  The provision in the October 2, 2015 custody order describing the parties’
summer custody schedule appears to be incomplete.            The provision
provides, in its entirety, as follows.

       SUMMER SCHEDULE:

             Mother shall have custody the first Sunday after school
       concludes for the year at 7:00 p.m. Mother shall continue to
       have custody through the following Tuesday at 7:00 p.m. Father
       shall have from Tuesday at 7:00 p.m. through Sunday at 7:00
       p.m. Father shall be entitled to two non-consecutive weeks of
       custody during the summer with thirty (30) days advance
       written notice to Mother. Either party may sign the child up for
       summer camp which will be during their week of custody
       recognizing that the camp during Father’s week may overlap a
       few of Mother’s days.

             During the summer, if Father needs daycare for more than
       four (4) consecutive hours on any given day, he shall first offer
       Mother the time with the child. If Mother elects to exercise the
       time, she shall provide transportation to and from the Father’s
       residence.
(Footnote Continued Next Page)


                                           -2-
J-A09002-17



        On May 6, 2016, Mother filed a petition for modification of custody

order. In her petition, Mother averred that she should be awarded primary

physical custody of Child during the school year due to, among other things,

Child’s well-reasoned preference to live primarily with her.         Petition for

Modification of Custody Order, 5/6/2016, at ¶ 5. According to the trial court,

the parties agreed during a pre-trial conference that Child’s preference was

the only circumstance that changed since the entry of the October 2, 2015

order. Trial Court Opinion, 8/19/2016, at 3. Thus, the parties agreed that

the court should interview Child, but would not need to hear the testimony

of any other witnesses.          Id.   The court interviewed Child on August 11,

2016.    On August 19, 2016, the court entered an order denying Mother’s

petition, and maintaining primary physical custody of Child during the school




                       _______________________
(Footnote Continued)


Order, 10/2/2015, at 3 (unnumbered pages). However, the record reveals
that the parents exercised an alternating week summer custody schedule
prior to the entry of the October 2, 2015 order, and continued to exercise an
alternating week schedule following the entry of the order. See, e.g.,
Interim Order for Custody, Pending Trial, 6/10/2016, at 4 (“[T]he parents
share physical custody on alternate weeks during the summer.”). Child
reported that in the summer he spends “seven days with my mom and five
with my dad.” N.T., 8/11/2016, at 7.
2
  Mother appealed the October 2, 2015 order, which a panel of this Court
affirmed on April 18, 2016. See B.J.F. v. J.P.F., 145 A.3d 785 (Pa. Super.
2016) (unpublished memorandum).




                                            -3-
J-A09002-17



year with Father.3 Mother timely filed a notice of appeal on September 16,

2016, along with a concise statement of errors complained of on appeal.

       Mother now raises the following issues for our review.

       I. Did the Trial Court err in that it did not give adequate
       consideration to the specifically[-]stated and well[-]reasoned
       preference of the child to live primarily with Mother during the
       school year and to change school districts, as the court abused
       its discretion in determining that Father should maintain primary
       custody of the child during the school year and that the child
       should not change schools?

       II. Did the Trial Court err in that it did not give adequate
       consideration to the specifically[-]stated and well[-]reasoned
       preference of the twelve[-]year[-]old child to live primarily with
       Mother during the school year and to change school districts, by
       basing its opinion on the Court’s misunderstanding that the child
       was only eleven [] years old?

       III. Did the Trial Court err in that it did not give adequate
       consideration to and properly incorporate the findings contained
       in the Trial Court’s October 2, 2015 Opinion together with the
       specifically[-]stated well[-]reasoned preference of the child to
       live primarily with Mother during the school year and to change
       school districts?

       IV. Did the Trial Court err in that its conclusions are
       unreasonable and an abuse of discretion as shown by the
       evidence of record, specifically the Court’s conclusions with
       regard to the stated, well[-]reasoned preference of the
       twelve[-]year[-]old child to live primarily with Mother during the
       school year and to change school districts?

____________________________________________


3
   Father filed an answer and counterclaim to Mother’s petition for
modification of custody order on June 2, 2016, in which he requested that
the trial court award him counsel fees. The court denied Father’s request for
counsel fees in its August 19, 2016 order. Father does not attempt to
challenge this decision on appeal.



                                           -4-
J-A09002-17


Mother’s brief at 17-18 (suggested answers omitted).

     We consider these issues mindful of our well-settled standard of

review.

     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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

     “When a trial court orders a form of custody, the best interest of the

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)

(citation omitted). The factors to be considered by a court when awarding

custody are set forth at 23 Pa.C.S.A. § 5328(a).

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

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

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

                                    -5-
J-A09002-17


          adequate physical safeguards and supervision of the
          child.

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

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

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

          (5) The availability of extended family.

          (6) The child’s sibling relationships.

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

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

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

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

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

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

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

                                    -6-
J-A09002-17



            (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).

      Mother’s claims on appeal are interrelated, so we address them

together. Mother argues that Child presented a well-reasoned preference to

live primarily with her during the school year and to change school districts.

Mother’s brief at 29-42. Mother contends that the trial court erred by failing

to give adequate weight to Child’s preference, and by maintaining primary

physical custody with Father.     Id.    Mother contends that since both her

household and Father’s household are equally suitable, Child’s preference

should tip the scales in her favor. Id. at 35. Mother suggests that allowing

Child to live primarily with her would result in Child spending more time with

both parents, and more time with his half-brother.         Id. at 30-31, 34.

Mother also suggests that the court failed to give sufficient weight to Child’s

preference because the court believed that Child is eleven years old, when in

reality Child is twelve years old. Id. at 32-33.

      In order to understand the trial court’s decision to deny Mother’s May

6, 2016 petition for modification of custody order, we first must discuss the

court’s decision to maintain primary physical custody with Father in its prior

custody order entered October 2, 2015.        In its opinion accompanying that



                                        -7-
J-A09002-17



order, the court discussed each of the Section 5328(a) factors. The court

found that Sections 5328(a)(1), (3), (4), (9), and (11) weighed in favor of

Father, while Section 5328(a)(6) weighed in favor of Mother.              Trial Court

Opinion, 10/2/2015, at 6-10. The court found that the remaining factors did

not weigh in favor of either party.            Id.   The court concluded that Mother

failed to prove that awarding her with primary physical custody during the

school year would be in Child’s best interest.               Id. at 10.   The court

emphasized that Child was doing well under the parties’ current custody

arrangement, and expressed concern that an award of primary physical

custody to Mother would result in Child having to leave his current school

and community.         Id. at 10-11.       The court explained that while it was

confident that Child could adapt to such a change, “it would not be ideal for

him.”4 Id. at 11.

       In its opinion accompanying the order entered August 19, 2016, the

trial court incorporated its previous findings with respect to the Section

____________________________________________


4
   The trial court also discussed the ten relocation factors listed at 23
Pa.C.S.A. § 5337(h). As we discussed in our memorandum affirming the
October 2, 2015 custody order, “where neither parent is relocating, and only
the custodial rights of the parties are at issue, section 5337 of the Child
Custody Act is not per se triggered.” D.K. v. S.P.K., 102 A.3d 467, 474 (Pa.
Super. 2014). However, where “the children stand to move a significant
distance, trial courts should still consider the relevant factors of section
5337(h) in their section 5328(a) best interests analysis.” Id. at 476. The
court’s analysis of the Section 5337(h) factors was substantively identical to
its analysis of the Section 5328(a) factors, and focused on Child’s need for
stability. See Trial Court Opinion, 10/2/2015, at 4-6.



                                           -8-
J-A09002-17



5328(a) factors, and reexamined only Section 5328(a)(7), which requires

consideration of the well-reasoned preference of the child.          Trial Court

Opinion, 8/19/2016, at 3.    While the court acknowledged that Child would

prefer to live primarily with Mother during the school year, the court

concluded that such a change would not be in Child’s best interest. Id. at 4-

6. The court emphasized that Child has attended school in Father’s school

district for his entire academic career, is doing well in his current school, has

no behavioral problems, and participates in extracurricular activities. Id. at

5.   The court also emphasized that Child has established friendships and

relationships within his current school.    Id.   The court explained, “Child is

doing exceptionally well under the current custody arrangement and it would

not be in Child’s best interest to uproot him from his school, friends, and

activities he has known his whole life.” Id. at 6. “Child did speak to Father

about his concerns, and Father indicated he would change his work schedule

to allow him to be home when Child returns from school.” Id. at 5.

      During its interview with Child on August 11, 2016, the trial court

asked Child what he thought of the current custody arrangement.            Child

responded as follows.

      A. I do like the summer schedule.

      Q. Um-hum.

      A. And -- but during the school year, for school, I want to be at
      my mom’s during the week and my dad’s on the weekend. I say
      that because that way I’d be able to spend more time with both
      of them because when I’m at my dad’s during the week, I would


                                      -9-
J-A09002-17


     come home, and I would be with [Father’s girlfriend], but he
     would still take two hours. It would be like two hours or so until
     he gets home from work --

     Q. Okay.

     A. -- because he works later than schools goes.

     Q. The last time we were here, I think it was about an hour that
     he was -- when you were at your -- I think you were at your
     godmother’s for an hour. Has that changed?

     A. Huh-uh.

     Q. That’s the same?

     A. But for seventh grade, if I went there, I would come home,
     and I would be with [Father’s girlfriend], but it will take away
     time from being with him, and he said he can adjust his
     schedule, but in the morning, so he wouldn’t be there in the
     morning, and [Father’s girlfriend] would get me up. That way I
     would be able to spend a little more time with him because in
     the morning, it doesn’t take -- it would only be like not even half
     an hour, so I would be able to spend a little more time with him.

     But if I went to school at my mom’s, I’d be able to see her more,
     and then I could go to my dad’s on the weekend, and I could see
     him when he’s not working.

     Q. Okay. I’m just a little confused what you said in the morning
     time.

     If you went to school at your dad’s house, you’re saying that
     your dad would be there to get you -- get you off to school in the
     morning?

     A. [Father’s girlfriend] would.

     Q. [Father’s girlfriend] would, okay.

     And then I was a little confused. You would be able to see your
     dad a little bit more in the morning? You’re saying that’s --




                                       - 10 -
J-A09002-17


     A. So if he did adjust the schedule and he wasn’t there in the
     morning, that would only be like about half hour [sic] I don’t see
     him.

     Q. Okay.

     A. But if he didn’t adjust it, then it would be -- and I would see
     him in the morning, but it would be about two hours that I didn’t
     see him after school.

     Q. Okay. All right. I think I understand.

     A. But then I’d still not have extra time with my mom.

                                    ***

     THE COURT: [Child], I want to make sure I understand.

     The reason why you’re saying you’d like to go to school at your
     mom’s house is because you’re trying to maximize the time you
     have with both parents?

     [Child]: Yes.

     THE COURT: I didn’t want to put any words in your mouth, but
     that’s what I hear you saying.

     [Child]: Um-hum.

     [Counsel for Mother]: If I may interject, would it also be to
     spend more time with your brother?

     [Child]: Right.

     THE COURT: Okay.

N.T., 8/11/2016, at 9-11, 34-35.

     While it is true that Child expressed a preference to live primarily with

Mother during the school year, the trial court was under no obligation to

adjust the parties’ custody schedule based on Child’s preference alone.


                                   - 11 -
J-A09002-17


Section 5328(a)(7) is only one of sixteen factors that courts are required to

consider when making an award of custody.             Our case law is clear that

courts must consider each of these factors, and that the amount of weight

that a court gives to any one factor is almost entirely within its discretion.

See M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013), appeal denied,

68 A.3d 909 (Pa. 2013) (citing A.D. v. M.A.B., 989 A.2d 32, 35–36 (Pa.

Super. 2010)) (“It is within the trial court’s purview as the finder of fact to

determine which factors are most salient and critical in each particular

case.”).5

       In this case, our review of the record supports the trial court’s findings

that Child is doing well in Father’s custody, and that Child would benefit from

the stability that remaining primarily with Father during the school year

would provide.       Thus, the court was well within its discretion when it

concluded that Child’s preference pursuant to Section 5328(a)(7) should not

outweigh the other Section 5328(a) factors, particularly Section 5328(a)(4),

which requires consideration of the need for stability and continuity in the

child’s education, family life, and community life.




____________________________________________


5
  The one exception is that trial courts must give weighted consideration to
those factors which affect the safety of the child. See 23 Pa.C.S.A. §
5328(a).



                                          - 12 -
J-A09002-17


      Accordingly, we conclude that the trial court did not err or abuse its

discretion by denying Mother’s petition for modification of custody order, and

we affirm the court’s August 19, 2016 order.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2017




                                    - 13 -
