J-S10001-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 J.L.                                      :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                      Appellant            :
                                           :
                                           :
               v.                          :
                                           :
                                           :
 J.G.                                      :    No. 1755 MDA 2019

               Appeal from the Order Entered September 25, 2019
              In the Court of Common Pleas of Lackawanna County
                       Civil Division at No(s): 2018-41675


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:               FILED: APRIL 20, 2020

        J.L. (“Mother”) appeals from the order entered in the Court of Common

Pleas of Lackawanna County, dismissing Mother’s petition for primary custody,

and reaffirming an agreed custody order dated May 28, 2019, which awarded

Mother and J.G. (“Father”) shared legal custody of the parties’ son, E.G. (born

May 2015) (“Child”), Father primary physical custody, and Mother partial

physical custody. We affirm.

        The trial court set forth the following factual and procedural history of

this matter:

               This case involves a custody dispute between [Mother and
        Father], over their minor child, E.G. (hereinafter “E.G.”). By way
        of background, this action commenced with the filing of Mother’s
        Petition for Custody on November 27, 2018. The parties attended
        a conciliation conference before the Custody Master, (hereinafter
        “Master”), on January 29, 2019. At that time, the parties reached
        an agreement and the Master issued an Order dated February 7,
        2019 granting the parties shared legal custody, Father primary
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      physical custody and Mother partial physical custody on
      weekends. The matter was scheduled for a review hearing before
      the Master on May 28, 2019. During the May review hearing, the
      parties reached an agreement to modify the custody Order to
      extend Mother’s periods of partial physical custody to include
      Wednesday evenings. Pursuant to the Order, the parties have
      shared legal custody of E.G. Father has primary physical custody,
      and Mother has partial physical custody every weekend from
      Friday at 6:00 p.m. until Sunday at 6:00 p.m., and every
      Wednesday from 5:00 p.m. until 8:00 p.m.

            Then, less than a month later, Mother filed a Motion for a
      Primary Custody Hearing on her underlying Petition for Custody
      that was filed on November 27, 2018. In Mother’s Petition for
      Custody, she alleged that Father was preventing her from seeing
      E.G. However, in Mother’s Motion for Primary Custody Hearing,
      she avers that the best interests of E.G. would be served by
      awarding her sole or primary physical custody and legal custody
      because Father’s mental health issues prevent him from caring
      properly for E.G., that she is better able to provide adequate
      childcare, and better equipped to attend to the daily physical,
      emotional, and developmental needs of E.G.           A hearing
      commenced before this [j]urist on September 25, 2019. . . .

Trial Court Opinion, 11/15/19, at 1-2 (citations to the record omitted).

      At the hearing, four witnesses testified: Mother; Father; A.P., Father’s

best friend; and A.C., Father’s brother’s girlfriend. Mother testified that she

works full-time as a department manager at a retail store. See N.T., 9/25/19,

at 4-5. Mother further testified that Child is in Head Start and, if awarded

custody, Mother planned to enroll Child in daycare or school. See id. at 6, 8.

Mother also described her normal routine with Child and their free time at the

park and visiting Mother’s niece and nephews.       See id. at 5-6.    Mother

explained that her sisters and mother live in the area and that Child sees them

often. See id. at 6-7. Mother’s family also includes her daughter, although


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she does not live with Mother. See id. at 7, 11. Mother blamed the situation

with her daughter on unfounded allegations of abuse leveled by her daughter’s

father against Father. See id. at 11-12.

       Mother also testified to conflict between herself and Father, which

Mother blamed on Father’s anger related to his bipolar disorder. See id. at

8-9. Mother asserted that Father swears at her and “freaks out on me.” See

id.   Mother claimed that she should be awarded primary physical custody

because she keeps a “close eye” on Child and has better parenting skills than

Father. See id. at 10. If awarded primary physical custody, Mother testified

she would encourage contact between Child and Father “[b]y letting them

video chat or even call and talk to each other on the phone.” See id. at 5.

Upon inquiry by the court, Mother explained that she agreed to the prior order

granting Father primary physical custody because she “was in the middle of

getting my life straightened out. . . .” See id. at 10-11.

       Father testified that he does not work and collects disability due to his

schizophrenia and bipolar disorder.1 See id. at 18, 20-21. Father asserted

that he was in counseling and began collecting disability after his release from

prison, noting that he pled guilty to crimes arising out of a robbery he

committed in November 2014. See id. at 21. Father claimed that his criminal


____________________________________________


1 A.P. and A.C. testified that Father has a good relationship with Child and
provides him with a loving and appropriate home environment. See N.T.,
9/25/19, at 13-14, 16-17. Both denied any issues with Father’s mental health.
See id. at 14-15, 17.

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activity resulted from his inability to receive medical care for his mental health

issues. See id. at 21-22. Father described Child’s daily routine at his house

and further testified that, on weekends, Father and Child engage in activities

like going to the movies before Mother retrieves Child for her custody time.

See id. at 19. Father further testified that he helps Child with his homework.

See id. at 20.

      Father asserted that his relationship with Child helped Father’s mental

health and kept him out of trouble. See id. at 24. He also asserted that he

was taking medication to treat his mental health conditions, although he could

not recall the names of the medication.       See id.   Father acknowledged a

difficult relationship with Mother, claiming that Mother believed he was too

strict with Child.   See id. at 23-24.    Father conceded that he used harsh

language with Mother, but claimed that he did so because she was

unresponsive.    See id. at 24-25.       Father also expressed concerns with

Mother’s failure to accept additional time with Child when he offered it to her.

See id. at 25-27.     Despite the issues between Father and Mother, Father

testified that he understood it was important for Child to stay in touch with

Mother. See id. at 27.

      At the conclusion of the hearing, the trial court stated:

      THE COURT: I’m going to leave the custody the way it is. I think
      that it’s a generous Custody Order with mom gets the child every
      weekend. And due to her work schedule and dad’s not, you can
      pick him up at 3:00 at school, rather than him going in to the
      daycare for that period of time until mom gets out of work.


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        I think that all the factors are covered. And I do believe that - I
        believe that [Father] will ensure that his son has a relationship
        with his mother, as was evidenced by the fact that he tried to get
        her to go to see the child at Bee’s Backyard. And that’s it.

N.T., 9/25/19, at 27-28.

        Thereafter, the trial court entered an order dismissing Mother’s petition

for primary custody on September 25, 2019.2 On October 22, 2019, Mother

filed a notice of appeal and a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On appeal, Mother raises

the following issues for our review.

           1. Whether the trial court erred in law and/or abused its
           discretion in dismissing the [Mother’s] Custody Complaint.

           2. Whether the trial court erred in law and/or abused its
           discretion in considering the [Mother’s] work schedule as a
           basis for awarding custody.

Mother’s Brief at 4 (trial court answers omitted).3

        In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.

§ 5321-5340, our standard of review is as follows:

        In reviewing a custody order, our scope is of the broadest type
        and our standard is abuse of discretion. We must accept findings
        of the trial court that are supported by competent evidence of
        record, as our role does not include making independent factual

____________________________________________


2We note the trial court did not explicitly set forth the reasons for its decision
until it filed its opinion after Mother had filed her notice of appeal. Mother does
not directly challenge the legality of this chronology and we conclude she
suffered no prejudice from it. However, we remind the trial court that it must
provide its analysis at the time it issues its custody order. See M.P. v. M.P.,
54 A.3d 950, 955-56 (Pa. Super. 2012).

3   Father, who acted pro se in the trial court, has not filed a brief on appeal.

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     determinations. In addition, with regard to issues of credibility
     and weight of the evidence, we must defer to the presiding trial
     judge who viewed and assessed the witnesses first-hand.
     However, we are not bound by the trial court’s deductions or
     inferences from its factual findings. Ultimately, the test is whether
     the trial court’s conclusions are unreasonable as shown by the
     evidence of record. We may reject the conclusions of the trial
     court only if they involve an error of law, or are unreasonable in
     light of the sustainable findings of the trial court.

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

     We do not disturb the judgment of the trial court lightly:

     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) (citation omitted).

We have further explained the concept of an abuse of discretion:

     Although we are given a broad power of review, we are
     constrained by an abuse of discretion standard when evaluating
     the court’s order. An abuse of discretion is not merely an error of
     judgment, but if the court’s judgment is manifestly unreasonable
     as shown by the evidence of record, discretion is abused. An
     abuse of discretion is also made out where it appears from a
     review of the record that there is no evidence to support the
     court’s findings or that there is a capricious disbelief of evidence.

M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa. Super. 2010) (en banc) (citations

omitted).

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

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




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      Upon petition, a trial court may modify a custody order if it serves the

best interests of the child. See 23 Pa.C.S.A. § 5338. Section 5328(a) sets

forth the best interest factors that the trial court must consider. See E.D. v.

M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011). Trial courts are required to

consider “[a]ll of the factors listed in section 5328(a) . . . when entering a

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

(emphasis in original).

      Section 5328(a) of the Act provides as follows.

      § 5328. Factors to consider when awarding custody

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

            (1) Which party is more likely to encourage and permit
            frequent and continuing contact between the child and
            another party.
            (2) The present and past abuse committed by a party or
            member of the party’s household, whether there is a
            continued risk of harm to the child or an abused party and
            which party can better provide adequate physical
            safeguards and supervision of the child.
            (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.



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           (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.
           (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.

     We have delineated the trial court’s duties when addressing a petition

to modify custody:

     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.” Additionally, “section 5323(d) requires the trial
     court to set forth its mandatory assessment of the sixteen
     [Section 5328(a) custody] factors prior to the deadline by which
     a litigant must file a notice of appeal.” . . . .
     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.” A court’s
     explanation of reasons for its decision, which adequately
     addresses the relevant factors, complies with Section 5323(d).



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

     Here, the trial court evaluated the Section 5328(a) factors as follows:

            This [c]ourt considered all relevant factors which will be
     discussed in turn. Considering the first factor, the testimony on
     record shows that both parents are willing to allow continued
     contact between E.G. and the out-of-custody parent. However,
     Father stated his desire is that E.G. be able to spend time with
     Mother in person, even testifying that Mother’s failure to take
     advantage of time with E.G has been a source of conflict between
     the parties. In the time Father has enjoyed primary physical
     custody of E.G., he has demonstrated a willingness to encourage
     and permit frequent and continuing contact with Mother, and he
     has made it clear to this [c]ourt that he has no problem making
     sure that E.G. stays in contact with Mother. On the other hand,
     Mother’s testimony demonstrated an unwillingness to promote
     contact between E.G. and Father. Mother indicated that she would
     only be willing to allow video chats and phone calls. Therefore,
     this factor weighs in favor Father.

            The second factor for consideration was not afforded great
     weight by this [c]ourt. During the hearing, Mother was questioned
     as to why her daughter does not live with her. In her response,
     she indicated that her daughter did not live with her because of
     allegations of abuse that were made by her daughter’s father
     against Father when the parties were together. Further, she
     stated those allegations were false.        This [c]ourt was not
     presented with any supporting evidence of such allegations[,] nor
     did the parties present any other evidence in support of this factor.
     Therefore, this [c]ourt finds this factor weighs in favor of neither
     party.

           The third and tenth factors are considered here. Father has
     been the primary custodian of E.G. and testified to his daily
     schedule while in Father’s custody, which this [c]ourt finds speaks
     to an attentiveness to E.G.’s needs. Specifically, Father testified
     that he ensures E.G. attends the Head Start program daily and is
     available to assist E.G. with any homework assignments. E.G. has
     been attending the Head Start program for over a year and Father
     expressed a desire to continue such. Mother indicated that she
     attends to E.G.[’s] basic needs during her periods of custody.
     However, she failed to present a specific education plan for the
     minor child besides that she would enroll him in a daycare or

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     school as a means for childcare. Therefore, this [c]ourt finds these
     factors weigh in favor of Father.

             Fourth, as discussed above, Father has been the primary
     custodian of E.G. for at least the past year and in that time has
     developed an educational and daily routine for E.G. Further, this
     [c]ourt has expressed great concerns with E.G. having stability in
     his life. The current custody Order was agreed upon only a month
     prior to Mother’s request to modify it yet again. Such agreed upon
     Order was as a result of what was in the best interest of the minor
     child considering the parties’ schedules. Pursuant to the current
     Order, E.G. is able to spend consistent and quality time with
     Father during the weekdays and Mother during the weekends.
     Therefore, this [c]ourt finds this factor weighs in favor of Father.

           Regarding the fifth and sixth factors, Mother testified that
     E.G. spends time with her extended family, Maternal
     Grandmother, Maternal Aunt and Maternal Cousins, during her
     periods of custody. Mother also testified that E.G. enjoys a normal
     and loving sibling relationship with his sister during her periods of
     custody. Although Father testified that E.G. has a relationship
     with his fiancée’s minor children, such relationship does not
     compare to [] E.G.[’s] relationship with Mother’s family. Thus,
     these factors weigh in favor of Mother.

           The seventh factor is not applicable as E.G. is only four (4)
     years old and thus, cannot give a preference. Therefore, this
     factor is not relevant. Additionally, factor eight is not applicable
     as E.G. has not reached an age that a parent would be able to
     make any attempt to turn the child against the other parent.
     Further, there was no evidence presented in regards to this factor.
     Thus, this factor is also not relevant.

            Considering the ninth factor, Father testified as to Mother’s
     lack of consistently maintain[ing] a loving, stable, and nurturing
     relationship with E.G. Specifically, Father testified that E.G.
     wanted to see Mother so Father contacted Mother in [an] attempt
     for her to visit with E.G. However, Father testified that, “She
     (Mother) decided to tell me that she had other things to do.”
     Further, Father indicated that, “I (Father) got tired of telling her
     to spend more time with her son.” Mother failed to provide any
     credible testimony regarding Father’s lack of consistently
     maintaining a loving, stable, and nurturing relationship with E.G.
     Therefore, this [c]ourt finds this factor weighs in favor of Father.

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             The eleventh factor is not relevant in this case. Mother
      testified that she resides fifteen (15) minutes from Father’s
      residence. Further, there was no testimony presented regarding
      any concerns with the proximity of the residence of [the] parties.

             As for the twelfth factor, Father testified that he is available
      all day to care for [] E.G. and would make appropriate childcare
      arrangements if necessary. Mother testified that, although she
      works full time, she would be able to make arrangements for
      childcare for E.G. during her periods of custody. Mother went on
      to testify that there is a daycare across the street from her
      employment as well as down the street from her residence.
      Therefore, this [c]ourt finds this factor weighs in favor of neither
      party.

             There was evidence presented that there is some conflict
      between the parties. Father testified that, “I (Father) have very
      difficult issues with her. And, mainly, it has to do with my son.”
      As noted above, Father has admitted to becoming frustrated with
      Mother and losing his temper on the occasion when she did not
      come to see E.G. However, the evidence presented does not give
      rise to the presumption that either party would be unwilling to
      cooperate with the other in raising E.G. Therefore, this [c]ourt
      finds this factor weighs in favor of neither party.

            Neither party presented any evidence of a history of drug or
      alcohol abuse of a party or member of [the] party’s household.
      Thus, the fourteenth factor is not relevant.

             This [c]ourt heard testimony that Father suffers from bipolar
      disorder and schizophrenia. Further, Father’s mental state was a
      primary concern for Mother in filing her Motion for Primary
      Custody. However, Father testified that he is compliant with his
      mental health treatment. Specifically, Father indicated that he is
      currently on medication and receiving therapy. Mother did not
      present any evidence that would suggest that Father is in any way
      impaired in his ability to care for his son, nor has she provided
      any instances where E.G. has been harmed or endangered due to
      Father suffering from mental illnesses. Therefore, this [c]ourt
      finds this factor weighs in favor of neither party.

Trial Court Opinion, 11/15/19, at 4-7 (citations to the record omitted).


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       We address Mother’s issues together as they are interrelated. In her

first issue, Mother contends, “the trial court erred in giving appropriate weight

to the factors enumerated in the Custody Act.”           See Mother’s Brief at 10.

Mother argues that the trial court should have concluded that factors 1, 2.1,4

3, 5, 7, 8, 9, 11, and 14 were either neutral or inapplicable. See id. at 10-

13. Further, Mother asserts that factors 2, 4, 6, 12, 13, and 15 should have

favored her.5 See id.

       Beyond a cursory evaluation of many of the factors, Mother focuses on

her contention that Father has a strained relationship with Mother and a

history of mental health issues and criminal conduct. See id. Further, in her

second issue, Mother asserts that the trial court improperly considered

Mother’s work schedule as a determinative factor in awarding Father primary

physical custody.       See id. at 15.         Mother argues that she can provide

appropriate childcare, as contemplated by Section 5328(a)(12), and that this

factor should have favored her as she could place Child in daycare where Child

would “likely have some level of education[.]” See id. at 12. Based on her



____________________________________________


4Although the trial court did not specifically consider this factor, no testimony
suggested credible allegations of child abuse or the involvement of child
protective services.

5Mother addresses nearly every factor, despite the fact that the trial court
agreed with Mother’s analysis for several of the custody best interest factors.
Further, with respect to factor five, the availability of extended family, Mother
contends this factor is neutral despite the trial court finding it favored Mother.
See Mother’s Brief at 11.

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evaluation of the custody best interest factors, Mother concludes that she

should be awarded primary physical custody or, in the alternative, that,

because both parties are “fit,” “shared physical custody is desired.” See id.

at 13-14 (citing In re Wesley K., 445 A2d 1243 (Pa. Super. 1982)).

      In addition to setting forth its analysis of the custody best interest

factors, the trial court addressed Mother’s assertion that it improperly

considered Mother’s work schedule as follows:

      It is true that “a parent’s work schedule may not deprive that
      parent of custody if suitable arrangements are made for the child’s
      care in his or her absence.” K.L.H. v. G.D.H., 464 A.2d 1368,
      1374 (Pa. Super. 1983).            However, although this [c]ourt
      considered Mother’s work schedule, it was not a determinative
      factor in ruling that Father shall maintain primary physical custody
      of E.G. Consideration of a party’s schedule is necessary in order
      for this [c]ourt to determine not only whether suitable
      arrangements can be made for the child when the parent is
      unavailable during their periods of custody, but also to take into
      account several other factors. . . .

Trial Court Opinion, 11/15/19, at 8.

      Here, the trial court comprehensively considered the Section 5328(a)

factors, focusing on Father’s support of Child’s education and Child’s contact

with Mother, as well as Child’s daily routine in Father’s home. See id. at 4-6.

The court noted the conflict between the parties, but concluded that the

evidence did not demonstrate that either party would be unwilling to

cooperate with the other in raising Child. See id. at 7. Further, the court

discounted Father’s mental health issues as Father testified that he is

compliant with his mental health treatment, and noted that Mother did not


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present evidence to establish that Father’s mental health issues compromised

his ability to care for Child. See id. Moreover, the trial court appropriately

considered Mother’s ability to care for Child or make appropriate childcare

arrangements pursuant to Section 5328(a)(12).              Although the court

referenced Mother’s work schedule in its on-the-record statement, the court’s

opinion makes it clear that it did not find this factor determinative. Instead,

the court concluded that this factor favored neither party. See id.

      While Mother invites us to reweigh and reconsider the evidence

presented at trial, we find competent evidence of record to support the

findings of the trial court. See C.R.F. v. S.E.F., 45 A.3d at 443. The trial

court considered the evidence and determined that Child’s best interests are

served by awarding Father primary physical custody. As we are bound by the

trial court’s credibility and weight assessments regarding the evidence, and

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

court’s decision to award primary physical custody to Father. Accordingly, we

affirm the trial court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/20/2020

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