J-A05031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

F.P.M.,                                        IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellant

                    v.

F.P.M., III AND H.O.M.,

                          Appellee                  No. 2529 EDA 2015


               Appeal from the Order Entered July 15, 2015
              In the Court of Common Pleas of Bucks County
                Civil Division at No(s): A06-13-61732-C-35


BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED April 21, 2016

      Appellant, F.P.M. (“Paternal Grandfather”), the paternal grandfather of

M.M. (born March of 2009) (“Child”), appeals from the order entered on July

15, 2015, denying his petition for partial custody.     Paternal Grandfather

argues the trial court erred in denying his petition for partial custody and

failing to find that partial custody was in the best interest of Child.   We

vacate the order and remand for further proceedings.

      In its opinion, the trial court has adequately set forth the relevant

factual and procedural history underlying the instant matter, and we adopt it

for purposes of this appeal.     See Trial Court Pa.R.A.P. 1925(a) Opinion,

10/19/15, at 1-3.

      In custody cases,




*Former Justice specially assigned to the Superior Court.
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     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.

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

     Additionally,

     [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.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (citation omitted).

     Section 5328(c)(1) of the Child Custody Act requires a court to

consider the following factors in considering custody complaints filed by

grandparents and great-grandparents:

     (i) the amount of personal contact between the child and the
     party prior to the filing of the action;

     (ii) whether the      award    interferes   with   any   parent-child
     relationship; and

     (iii) whether the award is in the best interest of the child.




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23 Pa.C.S. § 5328(c)(1)(i)-(iii). Section 5328(a) provides a non-exhaustive

list of factors that trial courts must consider when making a “best interests

of the child” analysis for a custody determination. See 23 Pa.C.S. §

5328(a)(1)-(16). Specifically, Section 5328(a) 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.

     (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. § 5328(a) (bold in original).

         In deciding Paternal Grandfather’s petition for partial custody, the trial

court was required to conduct a thorough analysis of the best interests of

Child.     “All of the factors listed in section 5328(a) are required to be

considered by the trial court when entering a custody order.”           J.R.M. v.

J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (emphasis omitted).

         Our review of the record confirms that the trial court did not address

the factors set forth in Section 5328(a).       Rather, the trial court primarily

focused on the hostilities between the parties, as well as the fact that,

because Father is a fit parent, it is within Father’s right as a parent to decide

the manner in which Paternal Grandfather may visit Child. However, as this

Court has recently held:

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            “[I]n the recent past, grandparents have assumed
      increased roles in their grandchildren's lives and our cumulative
      experience demonstrates the many potential benefits of strong
      inter-generational ties.” Hiller v. Fausey, 588 Pa. 342, 360,
      904 A.2d 875, 886 (2006), cert. denied, 549 U.S. 1304, 127
      S.Ct. 1876, 167 L.Ed.2d 363 (2007). Thus:
            While acknowledging the general benefits of these
            relationships, we cannot conclude that such a benefit
            always accrues in cases where grandparents force
            their way into grandchildren's lives through the
            courts, contrary to the decision of a fit parent. In
            contrast, however, we refuse to close our minds
            to the possibility that in some instances a court
            may overturn even the decision of a fit parent
            to exclude a grandparent from a grandchild's
            life[.]
      Id. at 360, 904 A.2d at 886–87 (internal footnote omitted)
      (emphasis added).
            Additionally, in the context of custody proceedings,
      “[h]ostilities between the [parties] are relevant only insofar as
      they constitute a threat to the child or affect the child's welfare.”
      Nancy E.M. v. Kenneth D.M., 316 Pa.Super. 351, 462 A.2d
      1386, 1388 (1983) [(per curiam)].

K.T. v. L.S., 118 A.3d 1136, 1160-61 (Pa.Super. 2015) (citation omitted)

(emphasis in original).

      Based on the aforementioned, we conclude the trial court did not

adequately explain the application of the Section 5328(a) factors to the

specific facts and circumstances of the instant case.            Thus, we are

constrained to vacate the trial court’s order, and remand for application of

the Section 5328(a) best interest factors and further proceedings, if

necessary.

      Order vacated. Case remanded for further proceedings consistent with

this decision. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2016




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