J-A20024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.L.M.                                          IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

C.R.C.

                         Appellee                    No. 650 EDA 2014


              Appeal from the Order Entered January 3, 2014
              In the Court of Common Pleas of Bucks County
                Civil Division at No(s): A06-05-62795-C-31


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                          FILED OCTOBER 07, 2014

      Appellant, D.L.M. (Mother), appeals from the January 3, 2014 order

granting C.R.C. (Father) primary physical custody during the school year and



2004. After careful review, we affirm.

      We summarize the relevant factual and procedural history of this case

as follows. Mother filed the initial custody petition in this case on April 18,



entered a stipulated custody order, granting Mother primary physical

custody, and Father partial custody on alternating weekends and every

Monday and Wednesday evening.        Trial Court Order, 2/14/07. In January

2012, Mother, together with N.D.C., and her older son, R.

half-sibling, moved in with Father at his Southhamton, Bucks County
J-A20024-14


apartment due to her inability to maintain stable housing. N.T., 1/13/14, at

5-7.   On November 28, 2012, Mother vacated the apartment with the

children.

       On December 5, 2012, Father filed a petition for contempt against

Mother, wherein he alleged that Mother had not informed him of her

whereabouts and had denied him partial custody of N.D.C.        Petition for

Contempt, 12/5/12, at ¶¶ 4-6.    Further, Father alleged that Mother has a

history of unstable living arrangements, and he requested legal and physical

custody of N.D.C. and Mother to have supervised visitation. Id. at ¶¶ 7, 10.

Also on December 5, 2012, Mother filed a Protection from Abuse (PFA)

petition against Father in the Court of Common Pleas of Montgomery

County, where she resided at the time. N.T., 1/3/14, at 6.

       On January 5, 2013, upon agreement of the parties, without

admission, prejudice, or findings of fact, a PFA order was issued against

Father with respect to Mother and R.M., but not to N.D.C.     Id.   The PFA

order was amended on July 22, 2013, to include that Father may have

contact with Mother related to issues involving N.D.C. Id.

                                                                      empt,

by order dated January 23, 2013, the trial court granted the parties joint




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J-A20024-14


legal custody,1 Father primary physical custody, and Mother partial custody

on alternating weekends and on Tuesday and Thursday evenings. Id. at 6-

7; Trial Court Order, 1/23/13. On January 25, 2013, Mother filed a petition



trial court issued an interim order on April 24, 2013, granting the parties

joint legal custody and shared physical custody on an alternating weekly

basis.2 In addition, the interim order directed the parties to obtain a custody

evaluation through the Court Conciliation and Evaluation Service (CCES), a

private organization that performs custody evaluations in Bucks County.

See Trial Court Order, 4/24/13; N.T., 1/3/14, at 7; Trial Court Opinion,

3/3/14, at 10, n. 4.       By interim order dated May 7, 2013, the trial court

again directed the parties to participate in the CCES process, granted Mother

and Father shared legal and physical custody on an alternating weekly basis,


____________________________________________
1
    The Child Custody Act (Act), 23 Pa.C.S.A. §§ 5321-5340, was applicable

subsequent custody proceedings. See C.R.F. v. S.E.F., 45 A.3d 441, 445
(Pa. Super. 2012) (holding that, if the custody evidentiary proceeding
commences on or after the effective date of the Act, i.e., January 24, 2011,
the provisions of the Act apply). We note that the Act does not provide for

                                See 23 Pa.C.S.A. § 5323(a)(6), (7) (types of

                                      to Section 5323(a)(6).
2
  The Honorable Susan Devlin Scott presided over the custody hearing on
April 24, 2013, and all subsequent custody proceedings, including that which
is the subject of the instant appeal.




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and directed that N.D.C. shall continue to attend Davis Elementary School in

the Centennial School District, wherein Father resides, for the remainder of

the school year. Trial Court Order, 5/7/13.

        On May 24, 2013, Mother filed a petition requesting that the trial court

waive the costs for the CCES process because she is proceeding in forma

pauperis (IFP) in the custody action.3           In the same petition, Mother

requested that the CCES process not include joint sessions between her and

Father. See                                          -2. The trial court held a



the court vacated the April 24, 2013 order requiring that the parties obtain a

CCES evaluation. See Trial Court Order, 7/30/13. This order also scheduled

                                                                            Id.

In addition, at the July 20, 2013 hearing, the trial court directed that the



Elementary School in the Centennial School District] pending a full and



3/3/14, at 11.

        The custody hearing was held on October 16, 2013, and December 16,

2013, wherein Mother was represented by counsel, and Father appeared pro

se. The trial court heard testimony from Father, Mother, R.M., and N.D.C.


____________________________________________
3
    By order dated April 9, 2013, Mother was granted IFP status.



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On January 3, 2014, the trial court delineated its findings and conclusions on

the record in open court. N.T., 1/3/14, at 1-53. By written order the same

date, the court granted the parties joint legal custody, Father primary

physical custody during the school year, and Mother partial custody the first

three weekends out of a four-week cycle.         During the summer, the court

granted Mother primary physical custody and Father partial custody the first

three weekends out of a four-week cycle. In addition, the court set forth a

vacation and holiday custody schedule. On January 31, 2014, Mother filed a

timely notice of appeal.4

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

              1. Did the trial court err and abuse its discretion in
              denying Mother access to mediation and evaluation
              services through [CCES] when Mother validly
              objected to flaws in the CCES system that the trial
              court has established as the exclusive avenue for a
              person of limited means to obtain such services?

              2. Did the trial court err and abuse its discretion
              when it based the January 3, 2014 custody order on
              a series of inferences that are legally erroneous and
              unsupported by the evidence in the record?

                     a.    Did the trial court err and abuse its
                     discretion in determining that [N.D.C.] should
                     be separated for most of the year from his
                                                      cal fourteen-
                     year-old son, with whom [N.D.C.] lived from
                     birth until January 2013? Relatedly, did the
                     trial court err and abuse its discretion in


____________________________________________
4
    Mother and the trial court have complied with Pa.R.A.P. 1925.



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J-A20024-14


                  concluding that [R.M.] poses       a threat of
                  physical harm to [N.D.C.]?

                  b.    Did the trial court err and abuse its
                  discretion in ordering Mother and Father to
                  enroll [N.D.C.] at Centennial School District,
                  the school district in which Father resides, in

                  finding that attending Centennial School
                  District was the schooling arrangement in the
                  best interest of [N.D.C.]? Did the court further
                  err in using its improper school enrollment
                  decision as the basis for making inferences


                  c.    Did the trial court err and abuse its
                  discretion in failing to weigh significant
                  evidence bearing on stability in [N.D.C.] family
                  life, specifically that Mother had primary
                  physical custody of [N.D.C.] from his birth [in]
                  July [], 2004, until an illegal order from the
                  Court of Common Pleas of Bucks County
                  divested her of primary physical custody on
                  January 23, 2013?

                  d. Did the trial court err and abuse its


                  mother and brothers rendered her less capable
                  than Father of ma
                  consistent and nurturing relationship with the



                  e. Did the trial court err in finding that Father
                  did not abuse Mother notwithstanding that
                  another court had previously entered a [PFA]
                  order against Father and in favor of Mother?

                  -7.

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

are as follows.

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            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

            inferences from its factual findings.    Ultimately, the
                                                           sions 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), quoting Ketterer v.

Seifert, 902 A.2d 533, 540 (Pa. Super. 2006).

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

                   -interests standard, decided on a case-by-case basis,



physical, intellectual, moral, and spiritual well-          Saintz v. Rinker,

902 A.2d 509, 512 (Pa. Super. 2006), quoting Arnold v. Arnold, 847 A.2d

674, 677 (Pa. Super. 2004).


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     Relevant to this case are the best interest factors set forth in Section

5328(a) of the Act, which provide 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

                 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

                 and community life.

                          (5) The availability of extended family.



                          (7) The well-reasoned preference of

                 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.


              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
                          ort 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

              household.

                      (15)    The    mental    and      physical
              con
              household.

                      (16) Any other relevant factor.




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23 Pa.C.S.A. § 5328(a). The trial court must consider each of these factors

when entering an order either establishing or modifying custody.       A.V. v.

S.T., 87 A.3d 818, 822 (Pa. Super. 2014).

       In her first issue, Mother argues that the trial court erred and abused

its discretion by denying her the benefit of the CCES process. Specifically,

Mother argues that, in vacating the order requiring the CCES evaluation, the

co
                                                                   5
petition for court-

Brief at 23-

                    -sponsored mediation pr

litigant, the cost is waived pursuant to Pennsylvania Rules of Civil Procedure

240(f) and 1904.5. Id. at 29.

       We begin by noting that mediation is a specifically defined term in the

Rules of Civil Procedure regarding custody cases.

              Rule 1940.2. Definitions

              As used in this Chapter, the following terms shall
              have the following meanings:



____________________________________________
5

violated her procedural due process and equal protection rights under the
Fourteenth Amendment to the Federal Constitution, that argument is waived
                                                       See In re B.C., 36

statement cannot be used to raise a claim for the first time on appe
(citation omitted).



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J-A20024-14



            neutral mediator assists the parties in attempting to
            reach a mutually acceptable agreement on issues
            arising in a custody action. The role of the mediator
            is to assist the parties in identifying the issues,
            reducing misunderstanding, clarifying priorities,
            exploring areas of compromise and finding points of
            agreement. An agreement reached by the parties
            must be based on the voluntary decisions of the
            parties and not the decision of the mediator. The
            agreement may resolve all or only some of the
            disputed issues. Parties are required to mediate in
            good faith, but are not compelled to reach an
            agreement. While mediation is an alternative means
            of conflict resolution, it is not a substitute for the
            benefit of legal advice.



Pa.R.C.P. 1940.2. The Rules also note that parties who are proceeding IFP

                             court-conn                                Id. at

1940.5(a)(1), Note.

      A prior trial court decision in Bucks County described CCES as follows.

            Under CCES, the parties agree to be evaluated by a
            Ph.D. level psychologist for the purpose of
            generating recommendations as to a custody
            arrangement that is in the best interests of the
            children. The CCES process often results in custody
            agreements. If no agreement is reached, the CCES
            evaluator prepares a report that is submitted to the
            court and counsel. As part of the agreement to go to
            CCES, the parties agree that the court may consider
            the report prepared by the psychologist without
            requiring the testimony of the psychologist.

Smith v. McCollum, 77 Pa. D. & C.4th 1, 3 n.1 (Bucks 2005).

      In its Rule 1925(a) opinion, the trial court explained its decision, as

follows.

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              praecipe submitted by her trial counsel, which
              certified that she was providing free legal service to
              Mother and believed Mother was unable to pay the
              costs of litigation. Pa.R.C.P. 240(d). Mother never
              provided a statement of her income. As IFP, Mother

              authorized by Act of Assembly or general rule which
              is payable to any court or Prothonotary or any public
              of
                                -connected mediation services as
              well, so that [IFP] parties without sufficient
              resources may file a petition seeking a waiver or

              1940.5, note [].

Trial Court Opinion, 3/3/14, at 9. However, the trial court stated that the



that is awarded to applicants based on their financial ability to pay for the

evaluation.       Id. at 10. In addition, the trial court explained that the CCES

is not a mediation service. The trial court stated, as follows:

              [CCES] is not a mediation service, but a means to
              have an expert render an opinion on a proper
              custody arrangement.4      The Court has a small
              budget for subsidizing CCES fees. Applicants may
              qualify for a subsidy based on their current income
              level and other applicable factors. The amount of
              the subsidy is awarded on a sliding scale relative to

              __________________________________________
              4
                CCES is a conciliation and evaluation process that
              does not force the parties to come to an agreement.
              If conciliation is not possible, the evaluator notes it
              and the parties proceed to a hearing. CCES is not a
              mediation process that arrives at a final agreement.
              CCES is a private organization that has a yearly
              contract with the court to do custody evaluations.




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J-A20024-14


Id. at 9-

                            bility for a CCES subsidy because [Mother] would not

state her income.       Given this, we vacated the Order that the parties go

                                  Id. at 10.

       We discern no error of law or abuse of discretion by the trial court in

determining that CCES is not a mediation service.        CCES, as described by

                                                                 assist[ing] the

parties in identifying the issues, reducing misunderstanding, clarifying

priorities, exploring areas of compromise and fi

                                                                evaluated by a



the expert evaluator.        Smith, supra.

argument that the trial court erred in vacating its order requiring that the




to use the CCES process. Both parties presented their case directly to [the

                                                          Id. at 11. Therefore,
                                         6




____________________________________________
6

argument as to whether, if the parties had used CCES, the trial court erred
in ordering joint sessions, as this argument is now moot. See
at 38-40.



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      In her second issue, Mother argues the trial court abused its discretion

in its application of the statutory best interest factors. Specifically, Mother

raises five sub-arguments with regard to the custody factors. First, Mother

argues the trial court erred when it separated N.D.C. from his half-sibling,

                                              ther avers the trial court erred in

ordering the parties to enroll N.D.C. at Davis Elementary School. Id. at 47.

Third, Mother claims the trial court failed to consider that Mother had

primary physical custody of N.D.C. from the time of his birth until January

23, 2013.    Id.                                  -issue is that the trial court



siblings. Id. at 54. Fifth, Mother avers the trial court erred in finding that

Father did not abuse her. Id.

be construed that the trial court erred in its credibility and weight of the

evidence determinations, we decline to re-weigh the evidence in this case,

as we are bound by the determinations made by the trial court. See V.B.,

supra at 820 (stating that this Court defers to the trial court with respect to

issues of credibility and weight of the evidence) (citation omitted).

      In this case, the trial court thoroughly considered the Section 5328(a)

factors on the record in open court on January 3, 2014. N.T., 1/3/14, at 9-

30; see also

delineate the reasons for its decision on the record in open court or in a

                                      ore, in its Rule 1925(a) opinion, the trial


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J-A20024-14


court incorporated its analysis of the Section 5328(a) factors, placed on the



asserted errors. See Trial Court Opinion, 3/3/14, at 1-9, 11-12.

     The trial court concluded that the separation of N.D.C. and R.M. was

outweighed by the level of conflict and animosity between the half-siblings.

Trial Court Opinion, 3/3/14, at 4.    The trial court also concluded that any

issue stemming from i

Elementary School was moot. Id.



                                                    e that parent to any extra

          Id. at 2, citing M.J.M. v. M.L.G., 63 A.3d 331, 338 (Pa. Super.

2013) (stating,   our Legislature has rejected the notion that in analyzing

both parents, additional consideration should be given to one because he or

                                              appeal denied, 68 A.3d 909 (Pa.

2013). The trial court also concluded that it onl




       Id.                                                            her, the

trial court noted that none of the incidents alleged by Mother amounted to

physical abuse or threats thereof. Id. at 6-7. The trial court further noted




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                           Id. at 6. The trial court also concluded that it was not



without admission, so [there was no] judicial determination as to whether

                     Id.

       Upon careful review, we discern no abuse of discretion, as the record



2014 opinion of the Honorable Susan Devlin Scott as our own for the
                                                               7
purpos                                                             See Trial Court

Opinion, 3/3/14, at 1-9, 11.          The parties are directed to attach redacted
                                                                          8



       Based on the foregoing, we conclude al



2014 order is affirmed.

       Order affirmed.




____________________________________________
7




statement, which Mother did not include in her brief on appeal.          See Trial
Court Opinion, 3/3/14, at 9-11, 11-12.
8
 The copies shall include the redacted names of Mother, Father, N.D.C., and
R.M.



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J-A20024-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014




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