J-A28016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.J.,                                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                  Appellee

                            v.

R.A.L.,

                  Appellant                     No. 1209 EDA 2015


                 Appeal from the Order Entered April 2, 2015
               in the Court of Common Pleas of Chester County
                    Civil Division, at No(s): 2013-07228-cu

BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY PANELLA, J.                       FILED DECEMBER 29, 2015

        R.A.L. (“Father”) appeals from the order entered on April 2, 2015, in

the Court of Common Pleas of Chester County, which denied Father’s

petition for shared legal and physical custody of the parties’ minor, male

child, A.L., born in April 2011 (“Child”); directed that C.J. (“Mother”) retain

primary physical custody; and reduced Father’s partial custody to every

other weekend. We affirm the portion of the order providing for Mother

continuing to have primary physical custody and Father continuing to have

partial physical custody. However, we vacate the order to the extent that it

reduced Father’s partial physical custody of Child and remand the case to

the court with instructions to enter an order providing Father additional

partial custody of Child.
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      Father and Mother married in April 2012. Both are thirty-six years old.

Father holds a Bachelor of Science degree in Business Administration and

works as a pharmaceutical wholesaler. Mother holds a Bachelor of Science

Degree and works as an occupational therapist.

      On July 25, 2013, Mother filed a complaint in divorce and petition for

custody of Child. Under a custody order dated December 17, 2013, pursuant

to an agreement between the parties, Mother and Father shared legal

custody of Child, with Mother having primary physical custody and Father

having partial physical custody. The custody schedule provided Father with

five overnights with Child during every two-week period.

      On July 29, 2014, Father’s child support obligation for Child was

increased to $703.00 a month. On August 11, 2014, Father filed a petition to

modify custody. Father argued that it would be in Child’s best interest for

him to have primary physical custody of Child and for Mother to have partial

physical custody of Child.

      On March 29, 2015, the trial court held a custody trial. At the trial,

Father clarified his position, stating that the modification that he sought was

shared physical custody with each party to have custody of Child seven

nights out of every fourteen nights on a 2/2/3/2/2/3 schedule. By the order

entered on April 2, 2015, the trial court denied Father’s petition for shared

physical custody, directed that Mother retain primary physical custody, and

reduced and changed Father’s partial physical custody of Child to every

other weekend.

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      Father filed a timely appeal. He raises the following issue for review.

      1. Whether the trial court abused its discretion when it modified
         the parties’ long-standing child custody arrangement where
         (1) the record does not reflect that it was in the child’s best
         interests to do so, and (2) where the court failed to provide
         adequate reasons for its Decision or an adequate assessment
         of the factors listed in the Domestic Relations Code at 23
         Pa.C.S. § 5328(a) as they relate to the modification in the
         present case[?]

Father’s Brief, at 17.

      Our scope and standard of review of an appeal from a custody order is

as follows.

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

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

      [T]he discretion that a trial court employs in custody matters
      should be accorded the utmost respect, given the special nature
      of the proceeding and the lasting impact the result will have on
      the lives of the parties concerned. Indeed, the knowledge gained
      by a trial court in observing witnesses in a custody proceeding
      cannot adequately be imparted to an appellate court by a printed
      record.

A.H. v. C.M., 58 A.3d 823, 825 (Pa. Super. 2012) (citation omitted).

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      The primary concern in any custody case is the best interests of the

child. The best-interests standard, decided on a case-by-case basis,

considers all factors that legitimately affect the child’s physical, intellectual,

moral, and spiritual well-being. See Saintz v. Rinker, 902 A.2d 509, 512

(Pa. Super. 2006).

      The best interest factors set forth in Section 5328(a) of the Child

Custody Act (“Act”), 23 Pa.C.S.A. §§ 5321-5340, provides as follows.

        (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.

        (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.

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        (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(a).1

      The trial court considered the factors set forth in Section 5328(a) of

the Child Custody Act to determine the best interest of the Child. When

considering the factors as a whole, the court determined that it was in

Child’s best interest for Mother to retain primary physical custody and Father

to retain partial physical custody.



1
  The Act was amended, effective January 1, 2014, to include an additional
factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration of child
abuse and involvement with child protective services). See A.V. v. S.T., 87
A.3d 818, 822 n.2 (Pa. Super. 2014). The trial court found that neither party
has been involved in any child abuse investigation, or involved with
protective services.
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     In applying the section 5328(a) factors, the trial court found in this

case the following, which we set forth below.

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

           Both parties encourage such contact. This factor favors
           neither party.

     (2)   Abuse committed by a party or a member of a party’s
           household.

           No evidence of abuse by either party was offered at the
           hearing held in this matter.

                                        …

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

           Prior to the parties’ separation, Mother performed the
           majority of parental duties. Now, both capably perform all
           necessary parental duties on [Child’s] behalf.

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

           Mother, who has had primary physical custody of [Child]
           since the parties’ separation, and who performed the
           majority of parental duties prior to the parties’ separation,
           has consistently provided to [Child] a stable and loving
           home. Father, during his periods of partial physical custody
           has also provided [Child] with stability and consistency.

     (5)   The availability of extended family.

           This factor favors Mother. Although her parents live in
           Duncansville,      Pennsylvania,    [Child’s]     maternal
           grandparents have always been actively involved in his
           life. Testimony revealed that they often come to Chester
           County to visit, and that they have celebrated all holidays
           and birthdays with [Child] since his birth. In addition,

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           Mother’s brother, wife and five children are also involved in
           his life. N.T., 3/24/15, pp. 87-89.

           Father was estranged from his parents for a period of time
           after [Child’s] birth but they have since reconnected. N.T.,
           3/24/15, pp. 64. Father testified that [Child] now sees his
           grandparents every week at his swimming lesson at the
           YMCA. N.T., 3/24/15, pp. 16-17.

     (6)   The child’s sibling relationships.

           [Child] presently has no siblings. Mother is pregnant with a
           daughter and expects to deliver in August, 2015.

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

           [Child] is four, and his input into these proceedings was
           not sought.

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

           Neither party has attempted to turn [Child] against the
           other party.

     (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.

           Mother has maintained such a relationship with [Child]
           since his birth. Father has also apparently maintained such
           a relationship with [Child] since the parties’ separation.
           The parties agreed that both are committed to maintaining
           these relationships. However, we must note our
           observation that during Father’s testimony, he showed
           surprisingly little emotion when speaking about his son. In
           fact, the lack of emotion was so striking that the [c]ourt
           found it necessary to mention it in the custody order.




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J-A28016-15


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

           Both Mother and Father are capable of attending to all of
           [Child’s] daily needs.

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

           The parties live approximately thirteen miles, or twenty
           minutes, apart.

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

           Both parties are available to care for [Child]. The child care
           arrangement currently in place, [Child’s] daycare at … in …
           is working well.

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

           While Father testified that the level of conflict between the
           parties was “quite high,” and Mother agreed there was
           tension between them, we do not find that this negatively
           affects their ability to cooperate with one another with
           regard to [Child’s] well-being.

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

           There is no evidence of drug or alcohol abuse by either
           party in this matter.

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

           Both Mother and Father are healthy physically and
           mentally. This factor favors neither party.

     (16) Any other relevant factor.

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             Mother and [Child] now live with Mother’s boyfriend…. Mr.
             … will himself soon be a father when Mother gives birth to
             their child in August. Mother testified that Mr. … and
             [Child] get along very well, and do many activities
             together. N.T., 3/24/15, at pp. 83-84.

Trial Court Opinion, 9/20/14, at 3-7.

      After consideration of all of the relevant factors, the trial court

concluded that it was in Child’s best interest for Mother to retain primary

physical custody and Father to retain partial physical custody, rather than

the primary physical custody or the shared physical custody Father later

requested.

      Issues of credibility and weight to be given to the evidence are left to

the discretion of the trial court “who viewed and assessed the witnesses first

hand.” After a review of the record and the evidence presented, we find that

there is competent evidence in the record that supports the trial court’s

findings with regard to the section 5328(a) factors. See A.V., 87 A.3d at

821-822. Thus, since the trial court’s conclusions are not unreasonable with

regard to the award of primary physical custody of Child to Mother, we

affirm the portion of the trial court’s order that awards Mother primary

physical custody.

      However, as to Mother’s request to the trial court to modify the

parties’ custody schedule by awarding Mother more time and providing

Father periods of partial custody of Child every other week instead of every

week, we find the trial court’s conclusions unreasonable. Child is currently

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four years old and will be only starting kindergarten in August 2016.

Therefore, Father should be provided additional physical custody of Child.

Further, the issue should be re-examined closer to the start date of school in

2016.

        Accordingly, we affirm the trial court’s order in part. We vacate the

trial court’s order in part, and remand the case with instructions for the trial

court to award Father additional partial physical custody time immediately

and to direct that the issue of Father’s partial physical custody should re-

examined prior to the start of school in 2016.

        Order affirmed in part and vacated in part. Case remanded to the trial

court to award Father additional partial custody of Child consistent with the

instructions in this Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/29/2015




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