J-A11015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

                       v.

J.M. AND A.M. AND S.H. F/K/A S.M.,

                            Appellees                        No. 1906 MDA 2016


                Appeal from the Order Entered October 19, 2016
             In the Court of Common Pleas of Susquehanna County
                      Civil Division at No(s): 2016-00141

BEFORE: SHOGAN and MOULTON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                                     FILED JUNE 19, 2017

        D.M. (“Father”) appeals from the order entered on October 19, 2016,

awarding shared legal custody to J.M. (“Paternal Grandfather”) and A.M.

(“Paternal Grandmother”) (collectively, “Paternal Grandparents”), of Father’s

and S.H. f/k/a S.M.’s (“Mother”)1 five-year-old son, C.M. (“Child”).                The

order    also   awarded     primary     physical   custody    of   Child   to   Paternal

Grandparents and partial physical custody to Father, in accordance with a

schedule that gradually increased Father’s periods of physical custody.

Following our careful review, we affirm.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   Mother participated in the proceedings but did not seek partial custody or
visitation.
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       The trial court set forth the factual background and procedural history

of this appeal, which we adopt herein. Trial Court Opinion, 10/19/16, at 1–

3. Significantly, in July of 2012, when Child was approximately nine months

old, Mother attempted to suffocate him in Paternal Grandparents’ residence,

where Father, Mother, and Child had been residing.      Mother pled guilty to

endangering the welfare of a child and was sentenced to probation. She has

had no contact with Child since July of 2012. Id. at 1; N.T., 9/26/16, at 21,

23.

       Father and Child continued to reside with Paternal Grandparents until

April of 2014, when Father took Child to live with Father’s fiancée, M.S.

(“Fiancée”). Trial Court Opinion, 10/19/16, at 3; N.T., 9/26/16, at 18–19,

57. Father and Fiancée have a daughter, T.M. (“Sibling”), born in December

of 2013. Trial Court Opinion, 10/19/16, at 2. Six weeks after Father and

Child moved out of Paternal Grandparents’ residence, Susquehanna Children

and Youth Services (“CYS”) investigated an abuse claim regarding Child’s

treatment in the home of Father and Fiancée. N.T., 9/26/16, at 20. Father

was indicated2 for child abuse through neglect, as Child was diagnosed with

failure to thrive based on a two-pound weight loss since moving from
____________________________________________


2
   “An ‘indicated report’ of child abuse is made by the investigating agency
when it determines that substantial evidence of the alleged abuse exists
based on any of the following: available medical records, the child protective
services investigation, or an admission of abuse by the perpetrator. 23
Pa.C.S. § 6303.” C.S. v. Dep’t of Pub. Welfare, 879 A.2d 1274, 1277 n.4
(Pa. Cmwlth. 2005).



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Paternal Grandparents’ home. At that time, Father agreed to allow Child to

reside with Paternal Grandparents, and no dependency action was filed. Id.

at 60–63; Trial Court Opinion, 10/19/16, at 2.           Although Father did not

participate with CYS services, the case was closed. Sibling has continued to

reside with Father, who is the primary caregiver, and Fiancée, who works to

support the family. N.T., 9/26/16, at 54, 56.

      On February 16, 2016, Father filed a custody complaint against

Paternal Grandparents, with whom Child had been residing. In a March 28,

2016 temporary custody order, the trial court ordered supervised visitation

for Father.   The order provided Father with partial physical custody every

Saturday from noon until 6:00 p.m., “to be supervised by [Paternal

Grandparents] or, at their discretion, to be . . . unsupervised contact if they

believe   that     the    relationship   between    [Child]   and   [F]ather   had

progressed . . . .”      Order, 3/28/16, at 1.     The order also granted Father

reasonable telephone contact with Child between 8:00 a.m. and 8:00 p.m.

Id.   The order provided for “any other periods of partial physical custody

and/or visitation [for Father] that the parties determine is appropriate by

mutual agreement.” Id.

      On September 26, 2016, the trial court held a custody hearing at

which Father, Mother, Fiancée, Paternal Grandparents, B.R., Child’s great-

grandfather      (“Great-Grandfather”), and the       CYS caseworker     testified.

Following the hearing, the trial court entered the appealed order on


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October 19, 2016, awarding shared legal custody to Father and Paternal

Grandparents, primary physical custody to Paternal Grandparents, and

partial physical custody to Father in accordance with a schedule that granted

Father a gradual increase in partial physical custody. The order provided, in

pertinent part, as follows:

            3. During the remainder of the 2016-17 school year,
      Father ([D.M.]) shall have a period of partial custody with [Child]
      every weekend on Saturday or Sunday from 9:00 a.m. until 5:00
      p.m.

            4. Commencing during the summer of 2017, Father shall
      have partial custody of [Child] every other weekend from Friday
      night at 6:00 p.m. until Saturday at 6:00 p.m., and then on the
      alternating weekends on either Saturday or Sunday (as agreed
      upon between the parties) from 11:00 a.m. until 4:00 p.m. This
      period of partial custody shall commence on June 1, 2017.

            5. Upon commencement of the 2017-18 school year,
      Father shall have partial custody of [Child] every other weekend
      from Friday at 6:00 p.m. until Sunday at 6:00 p.m.

             6. Upon commencement of the 2017-18 school year,
      Father shall not receive any alternating weekend Saturday or
      Sunday partial custody, but Father thereafter shall have partial
      custody one night every week (the specific day to be determined
      by the parties between Monday and Thursday) from 5:00 p.m.
      until 7:00 p.m.

            7. Commencing in the summer of 2018, Father shall
      receive two (2) non-consecutive weeks of partial custody of
      [Child] with the parties to agree upon the dates prior to June 1 st
      of each year.

            8. Mother ([S.M. a/k/a S.M.H.]) shall have periods of
      partial custody/visitation as agreed upon between the parties
      and such consent will not be unreasonably withheld.

            9. The parties shall share transportation equally with the
      party receiving custody to provide transportation.

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           10. Father shall have reasonable telephonic contact with
     [Child].

           11. While in the presence of [Child], no party shall make
     or permit any other person to make any remarks or do anything
     which would in any way be construed as derogatory or
     uncomplimentary to the other parties. It shall be the express
     duty of each party to uphold the other party as one whom
     [Child] should love and respect.

           12. Each party shall have the duty to notify the other of
     any event or activity that could reasonably be expected to be of
     a significant concern to the other party or to [Child].

           13. The parties shall communicate with one another
     concerning any parenting issues requiring consultation and
     agreement regarding a proposed modification of the custody
     schedule which may, from time to time, become necessary, and
     shall specifically not use [Child] as a messenger at any time.
     Neither party shall discuss with [Child] any proposed changes to
     this schedule or any other issue requiring consultation and
     agreement prior to discussing the matter and agreement with
     the other party.

           14. Father shall have partial custody on holidays as follows
     and this schedule will supersede the general partial custody
     provisions:

        a. Thanksgiving: From 2:00 p.m. on Thanksgiving Day until
           noon on the following day;

        b. Christmas Day: From 2:00 p.m. on Christmas Day until
           noon on December 26th;

        c. New Year’s Day: From noon on January 1st until noon on
           January 2nd unless January 2 is a school day and then 6:00
           p.m. on January 1st[;]

        d. Easter: [F]rom 11:00 a.m. until 4:00 p.m. on the Saturday
           prior to Easter or on Easter Sunday upon agreement of the
           parties;

        e. Memorial Day, Fourth of July, and Labor Day shall
           alternate between the parties beginning with Memorial Day

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              2017 with Father. These periods of custody shall begin at
              11:00 and end at 6:00 p.m.[;]

         f. Father shall have custody on Father’s Day from 11:00 a.m.
            until 6:00 p.m. regardless of which party has physical
            custody on that day.

            15. Each party shall refrain from the use of any controlled
      substances, alcoholic beverages, spirits or liquors or be under
      the influence of same during those times immediately prior to
      and during the periods of custody times that they have physical
      custody of [Child]

Trial Court Order, 10/19/16, at 1-2.

      On November 18, 2016, Father 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). The trial court did not file a Rule 1925(a) opinion;

instead, it relied upon the opinion it concurrently filed with the October 19,

2016 order.

      At the September 26, 2016 hearing, Father presented the testimony of

Paternal Grandmother as on cross-examination.          N.T., 9/26/16, at 4.

Paternal Grandmother admitted that Father had once requested to take Child

to a birthday party at an unspecified location, but Paternal Grandparents

denied the request. Id. at 6. Paternal Grandmother testified that Child sees

Sibling once a week when Father brings Sibling to their home. Id. at 10-11.

Paternal Grandmother also testified that Father had only begun bringing

Sibling to their home since the entry of the March 2016 interim custody

order; she opined that Child and Sibling “don’t get along very well.” Id. at

13.

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     Paternal Grandmother also testified on her own behalf. N.T., 9/26/16,

at 18–47. Paternal Grandfather is retired; Paternal Grandmother does not

work outside of the home.     Id. at 33.    She stated that she resides with

Paternal Grandfather, T.M., another son who is twenty-four years old, and

Child. Id. at 18. Paternal Grandparents recently purchased a new home,

but they had not yet moved into it.        Id. at 19.   Paternal Grandmother

planned that Great Grandfather also would reside with them. Id. As noted,

Paternal Grandmother testified that Mother had not seen Child since he was

nine months old, following the child-abuse incident. Id. at 22. As part of

Mother’s criminal probationary sentence, Mother was permitted to have

supervised visits with Child; Paternal Grandmother testified Mother never

attempted to visit.   Id. at 24.   Mother testified, conversely, that Paternal

Grandparents never permitted her to visit. Id. at 163, 167. Mother moved

to Georgia for approximately three years before returning to reside in

Pennsylvania. Id. at 23–24, 163. At the time of the hearing, Child attended

pre-kindergarten.     Id. at 24.     Paternal Grandmother is the primary

caregiver. Id.

     After the entry of the March 2016 temporary custody order, Father

initially had a five-minute telephone conversation with Child every day; by

the time of the hearing, Father had not called in nearly two months. N.T.,

9/26/16, at 25–26. Father told Paternal Grandparents he has no telephone

service at his home. Id. at 28. Also after entry of the March 2016 order,


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Father had visits with Child, but not every week. Id. at 29. Although the

order permitted Father to have a six-hour visit, most visits were between

four and five hours.   Id. at 29–30.   On most visits, Father merely sat in

Paternal Grandparents’ home watching television with Child or talked to

other adults in the home. Id. at 30–31. On a few occasions, Father took

Child to a nearby park. Id. Paternal Grandmother testified that there is a

parent-child bond between Paternal Grandparents and Child, and Child refers

to them as “Mommy” and “Pop-Pop.” Id. at 31–32. Paternal Grandmother

revealed that Father abused other people’s pain medications and smoked

marijuana when he resided in her home.              Id. at 36–38.    Paternal

Grandmother also testified that Father’s physician sent him to a psychiatrist

because the physician believed that Father is bipolar and that Father was

taking Xanax. Id. at 38–39.

      Father then presented his own testimony on direct examination. N.T.,

9/26/16, at 48.   Father stated that Paternal Grandparents had disparaged

him on social media and had publicly started a “GoFundMe” account seeking

funds for the custody litigation.   Id. at 48–49.    Father testified that the

birthday party that Paternal Grandparents had refused to allow Child to

attend with Father was held after the entry of the March 2016 order. Id. at

53. Father has a disability resulting from a birth defect in his back, as well

as a back injury. Id. at 54-55. He does not work and has applied for social




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security disability. Id. at 54. Father takes a prescription muscle relaxer for

muscle spasms. Id. at 55.

      Father testified that Fiancée works as a certified nursing assistant at a

senior nursing rehabilitation facility.   Sibling has never been out of the

couple’s custody. N.T., 9/26/16, at 57–58. Father testified that CYS bullied

him into agreeing to Child’s physical custody with Paternal Grandparents.

Id. at 59–64. Father never attended any parenting classes. Id. at 61. He

explained that his cellular telephone service is unreliable in the area where

he lives and that he does not have a land-line telephone.       Id. at 64–65.

Father denied not calling Child for almost two months; rather, he asserted

that he had attempted to call Child but could not achieve a cellular

connection.   Id. at 65.     Father also denied receiving a mental illness

diagnosis or taking any type of medication, including Xanax, for a mental

health condition. Id. at 69–70. Father stated that he was not bipolar but

admitted to suffering from anxiety. Id. at 68–69. Father testified that he

does not abuse any illegal substances. Id. at 68.

      Father had been serving as Sibling’s primary caregiver because he was

home during the day, while Fiancée worked at night. Id. at 70–71. At the

time of the custody hearing, Fiancée had a new work schedule from 5:00

a.m. to 2:00 p.m. Id. at 70. Father testified that his back injury did not

interfere with his ability to provide childcare for Sibling.    Id. at 71–72.

Father explained that when he visits Child, they watch television, play


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soccer, and occasionally go to a nearby park.      Id. at 71–72, 82.    Father

testified that he loves Child and would never hurt him. Id. at 73.

      On cross-examination, Father also admitted that he has a seven-year-

old daughter, L.M., who resides with her mother in Honesdale, Pennsylvania.

N.T., 9/26/16, at 79. Father has no contact with L.M. because her mother

will not allow it. Id. Father opined that Mother should not have any partial

physical custody of Child in light of the child-abuse incident and because she

has not made any attempt to contact Child.          Id. at 81–82.      Fiancée

confirmed that she resides with Father and Sibling.      Id. at 94–95.     She

agreed that Sibling has never been removed from their custody and that

Father has served as Sibling’s primary caregiver due to Fiancée’s work

schedule. Id. at 96.

      Paternal Grandparents presented the testimony of Kimberly Harshaw,

Child’s CYS caseworker.       N.T., 9/26/16, at 131–132.        Ms. Harshaw

investigated and facilitated the removal of Child from the home of Father

and Fiancée in May of 2014 because Child appeared to be malnourished and

was diagnosed with failure to thrive. Id. at 133. Both Fiancée and Father

were indicated for child abuse regarding Child’s failure to thrive in 2014. Id.

at 141. Ms. Harshaw testified that despite Child’s removal, Sibling was not

removed from the home because “there was no concern about her weight

gain.” Id. at 135. Ms. Harshaw testified that she advised Father that it was

in Child’s best interest to address Child’s state of health, and Father agreed.


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Id. at 137. Ms. Harshaw stated that Child’s physician, who had consistently

examined Child since birth, was concerned that Child had regressed socially,

had lost interest in toilet training, and had lost two pounds during the six

weeks that he had been in Father’s and Fiancée’s care. Id. at 138. Child,

then two and one-half years old, appeared frightened, was skittish, and had

some hair loss. Id. at 139. Father signed a safety plan that Child would

return to Paternal Grandparents’ home.        Id. at 142.   CYS concluded that

Child was safe in Paternal Grandparents’ home and that he was progressing.

Id. at 143.

     Great Grandfather testified that during Father’s visits with Child,

Father plays with Child, they watch television, and Father interacts with his

brother, T.M.     N.T., 9/26/16, at 147–151.         Great Grandfather never

observed Father or Paternal Grandparents act inappropriately with Child.

Id. at 152–153.

     Finally, Mother, who appeared pro se, testified on her own behalf. She

favored an award of primary physical custody to Father and Fiancée because

she believed it was in Child’s best interests.     N.T., 9/26/16, at 164–167.

Mother testified that she was not seeking any contact with Child. Id. at 167.

Mother also stated that she has a one-and-one-half-year-old daughter who

resides with her. Id. at 167, 174.

     On appeal, Father raises two issues, as follows:

     [1.] Did the Trial Court err as a matter of law and commit a
     gross abuse of discretion by drawing unreasonable inferences

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       and arriving at unreasonable conclusions that cannot be
       supported from the evidence presented and by awarding the
       paternal grandparents primary physical custody of the minor
       child when it was not established by clear and convincing
       evidence that an award of primary physical custody to the
       paternal grandparents is in the best interests of the minor child
       [Child]?

       [2.] Did the Trial Court commit a gross abuse of discretion and
       err as a matter of law by awarding the paternal grandparents
       primary physical custody of the minor child when there were no
       compelling reasons of record to support separating the child out
       of the same household from his half[-]sibling who is in the
       primary physical custody of the Appellant [Father]?

Father’s Brief at 3.3

       We will review Father’s issues together, as they are interrelated.

Father contends that the trial court made numerous factual findings that

necessarily support the conclusion that the court should have awarded

primary physical custody to him instead of Paternal Grandparents. He posits

that these factual findings show that Paternal Grandparents did not prove it

is in Child’s best interest to be in their primary physical custody. Father’s

Brief at 12.    In particular, Father asserts that Paternal Grandparents have

____________________________________________


3
   Although Father stated his issues somewhat differently in his Pa.R.A.P.
1925 (b) statement, we find that he has sufficiently preserved them for our
review. Father has waived any issues which were not raised in both his
second concise statement and his statement of questions involved portion of
his appeal. Thus, we will review his issues as framed in his statement of
questions involved portion of his brief. See Krebs v. United Refining
Company of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (holding
that an appellant waives issues that are not raised in both his concise
statement of errors complained of on appeal and the Statement of Questions
Involved in his brief on appeal).



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disparaged him and have engaged in a course of conduct that has prevented

Child from having a “father-son” relationship with him. Father further avers

that Paternal Grandparents have prevented Child from forming a bond with

Sibling. Id. at 13. Father directs us to the trial court determinations that

Child has had little or no opportunity to form a meaningful bond with Sibling

and that Father is a “capable and competent” parent. Id. In light of those

findings, Father urges that Paternal Grandparents failed to prove by clear

and convincing evidence that separating Child from Sibling is in Child’s best

interests, and that there is no compelling reason to maintain Child in

Paternal Grandparents’ home. Father’s Brief at 4, 12–14.

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

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

            We review the trial court’s custody order for an abuse of
     discretion. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super.
     2014). We defer to the trial court’s factual findings that are
     supported by the record and its credibility determinations. Id.
     However, we are not bound by the trial court’s deductions or
     inferences, nor are we constrained to adopt a finding that cannot
     be sustained with competent evidence. A.V. v. S.T., 87 A.3d
     818, 820 (Pa. Super. 2014). In sum, this Court will accept the
     trial court’s conclusion unless it is tantamount to legal error or
     unreasonable in light of the factual findings. S.W.D., supra at
     400.

            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 which legitimately have
     an effect upon the child’s physical, intellectual, moral, and
     spiritual well-being.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa.
     Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa.
     Super. 2004)).


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M.G. v. L.D., 155 A.3d 1083, 1091 (Pa. Super. 2017).

      We have stated:

      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) (quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

      In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we

observed the following regarding an abuse-of-discretion standard.

      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.

Id. at 18–19 (quotation and citations omitted).

      Section 5338 of the Act provides that, upon petition, a trial court may

modify a custody order if it serves the best interests of the child. 23 Pa.C.S.

§ 5338.    Section 5328(a) sets forth the best interest factors that the trial

court must consider.     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




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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.

          (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.

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           (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. § 5328.

     Further, we have explained as follows:

     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.” 23 Pa.C.S.A. § 5323(d). 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.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013),
     appeal denied, 70 A.3d 808 (Pa. 2013). . . .

     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.” M.J.M.

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      v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied,
      68 A.3d 909 (Pa. 2013). A court’s explanation of reasons for its
      decision, which adequately addresses the relevant factors,
      complies with Section 5323(d). Id.

A.V. v. S.T., 87 A.3d 818, 822–823 (Pa. Super. 2014).

      In the opinion accompanying its order, the trial court addressed the

statutory analysis under Section 5327(b), regarding the presumption in

primary physical custody determinations between a parent of a child and a

third party, as here, as well as the factors controlling custody and best

interests under Section 5328(a).     We adopt the trial court’s discussion

herein. Trial Court Opinion, 10/19/16, at 4–18.

      Moreover, while lengthy, we reproduce the trial court’s on-the-record

discussion with the parties’ counsel herein. The exchange explains Father’s

challenges to the trial court’s application of the Section 5327 presumption in

favor of a natural parent, and the Section 5328(a) factors and his other

allegations of abuse of discretion by the trial court in failing to award

primary physical custody of Child to him. At the conclusion of the evidence

at the custody hearing, on the record, the following exchange occurred

among Father’s counsel, Paternal Grandparents’ counsel, and the trial court:

      THE COURT: It’s your petition, [Father’s Counsel], do you wish
      to be heard?

      [FATHER’S COUNSEL]: I do, Your Honor. The major problem
      that we have here is, I think the evidence establishes that you
      have parents [sic] here who, unfortunately, like to drive the bus
      and—who unfortunately are not willing to facilitate and promote
      a meaningful relationship between the—the natural father and
      [Child]. It’s a situation where, I think, that there is a lot of


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     hostility between the parties, unfortunately, as shown by the fact
     that there is a derogatory Facebook post which was testified [to]
     without any objection that—basically the substance of it from
     [Father] was that there was no hope for [Father]. So they sort
     of, I would suggest to you, based on the fact that they’ve
     blocked him[,] all his family’s blocked him from Facebook—
     they’ve sort of written off [Father]. I think that it’s difficult. At
     one point, you heard [Father] say that his parents make him
     uneasy, you know, and that’s unfortunate. It’s an unfortunate
     situation to be in.           They call themselves—[Paternal
     Grandmother] called herself the parental figure and, I think,
     views herself based upon the evidence that was present, as the
     mother of this child.

     THE COURT: So what do you want the [c]ourt to do?

     [FATHER’S COUNSEL]: I want this [c]ourt, because—based upon
     those concerns, that’s why I highlighted those concerns—I think
     that the only way that—this father’s going to be able to be a
     father, and I believe that there is no compelling evidence—clear
     and convincing evidence that there—that he shouldn’t be allowed
     to, and there’s no compelling evidence to state that these two
     siblings should live apart under different roofs, I think that at the
     very least to ensure that he can be a father because—the—the
     natural parents—the paternal grandparents here, [Father’s] been
     signing [sic] by them and pursuing—He can’t even get a 2-hour
     visitation unsupervised to go to a birthday party, which speaks
     volumes to me, Your Honor, after custody proceedings had been
     initiated. They are not making any effort to promote and get
     this to a place, they have no desire—no desire. The evidence
     establishes they have no desire to get them to a place where
     they can be—

     THE COURT: So they’ve done everything wrong?

     [FATHER’S COUNSEL]: I’m not saying they did everything
     wrong.

     THE COURT: Even if I accepted they aren’t going to cooperate,
     what do you want this [c]ourt to do? Do you want me pull this
     child out of a stable household and plug him into one where he’s
     never lived before?




                                    - 18 -
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     [FATHER’S COUNSEL]: I think that that’s what the law requires,
     but—

     THE COURT: No—No. The law requires continuity, the law
     requires stability, the law requires me to consider the best
     interest of the child.

     [FATHER’S COUNSEL]: [W]ell, I–

     THE COURT: Why in the world would I do this just overnight,
     especially since 2 years ago when this was done, you end up
     with Children & Youth involved and your child is your client was
     indicated for failure to thrive?

     [FATHER’S COUNSEL]: Because they have not met their burden.
     It’s their burden and I would say, Your Honor, that 6 weeks of
     time, the kid didn’t lose weight, the kid didn’t gain weight in that
     time frame that they were concerned about. Kids are different.

     THE COURT: I would agree with you. The evidence of the
     lacking—of the failure to thrive is pretty sparse, but for whatever
     reason, your client didn’t challenge the indicated report, so he
     was indicated.

     [FATHER’S COUNSEL]: Well, Your Honor—

     THE COURT: Six weeks. He couldn’t manage to get through 6
     weeks without having Children & Youth at his doorstep and
     taking the child away, again. So why in the world would I take
     this child out of a stable and good household and immediately
     put him into your client’s household?

     [FATHER’S COUNSEL]: [Because] there’s no other way. There’s
     no other way to let him be the father.

     THE COURT: So I roll the dice on this? I don’t try to transition in
     any way?

     [FATHER’S COUNSEL]: I would say, and this is what I’ve been
     saying generally, and you have very good discretion—you
     exercise very good discretion. So what I’m saying to you is
     generally what the problems are and I would ask you to address
     them. And a big problem—


                                    - 19 -
J-A11015-17


     THE COURT: Well, I would expect a reasonable position from
     your client in terms of how he wants to transition his son from
     the current household into his household, [because] everything
     you’ve said is right. The law presumes that he should be the
     father, the law presumes that he should have custody or
     [Mother], for that matter, but she’s indicating she doesn’t wish
     to. But the question also becomes, that you have to also
     consider the fact this child really has never been outside the
     grandparent’s [sic] home, and how do you transition from a
     supervised 6-hour a week situation to where he eventually gets
     his son back? So how do we transition to that point? I don't
     think it’s just pulling a child out of a home and sticking him into
     the other home.

     [FATHER’S COUNSEL]: I would say that you give him—give
     him— because the evidence that he’s taking care of his own child
     that he’s got in the household—

     THE COURT: He has, and the [c]ourt would note for the record
     that little girl has been here in the [c]ourtroom, she’s very
     beautiful. For almost 30 minutes, she was actually inside the
     courtroom, didn’t make a peep, and was very well-behaved.

     [FATHER’S COUNSEL]: All right.     So I would say that you give
     him—

     THE COURT: So he clearly can care for a child.

     [FATHER’S COUNSEL]: Right.

     THE COURT: I’m not worried about his caretaking [because]
     obviously that child is thriving.

     [FATHER’S COUNSEL]: I will give you—I would say—

     THE COURT: The problem is, is that this little boy has a home
     that he knows, and how do you transition from that home to his
     father’s home?

     [FATHER’S COUNSEL]: I would give him substantial—I would
     give my client substantial overnight visitation and I would—

     THE COURT: Overnight right out of the gate?


                                   - 20 -
J-A11015-17


     [FATHER’S COUNSEL]: I would.

     THE COURT: He goes from supervised to overnight?

     [FATHER’S COUNSEL]: There’s no—I would suggest that there’s
     no reason—There’s no evidence presented that he shouldn’t be
     allowed—

     THE COURT: Well, how about common sense? Does the [c]ourt
     just—to common sense?

     [FATHER’S COUNSEL]: Judge, there’s people that—just get
     overnight visitation. I mean, he’s not incapable of handling a
     child overnight. There’s nothing to suggest that—He handles his
     own child overnight.

     THE COURT: That’s true—

     [FATHER’S COUNSEL]:—so—

     THE COURT:—I’m not worried about his parenting skills, my
     concern becomes the child. It has nothing to do with his
     parenting skills, it’s the child.

     [FATHER’S COUNSEL]: Well, what evidence of this record is
     there to say that he wouldn’t be—

     THE COURT: [W]ell, the last time he had the child, Children &
     Youth got involved and had to take the child out of the home.
     That’s the evidence.

     [FATHER’S COUNSEL]: That was 2 years ago—more than 2 years
     ago.

     THE COURT: It was 2 years ago, but the child regressed in that
     situation.  Why wouldn’t you want this child to be slowly
     introduced back into his household, get accustomed to it, and
     then be able to make the switch?

     [FATHER’S COUNSEL]: Because there’s not—I mean, why—why
     did I have—in another case if I had grandparents who have done
     absolutely everything right and have stepped up to the plate for
     years, and then they come into [c]ourt and—


                                  - 21 -
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     THE COURT: And the other case you may be referring to, where
     the [c]ourt did that, is a situation where the child began doing
     every other weekend and then did every other week and then it
     got to the point where it was thriving in the mother’s household.

     [FATHER’S COUNSEL]: I would suggest—

     THE COURT: So yes, if there was a track record here of your
     client and this child having a good relationship and having
     overnights and everything going well, then you have a stronger
     argument.

     [FATHER’S COUNSEL]: That’s exactly right.

     THE COURT: He hasn’t had an overnight in—2 years.

     [FATHER’S COUNSEL]: But why? Why is that? Why is—

     THE COURT: Why? Because Children & Youth got involved and
     that was—he lost custody of his child. That’s what happened.

     [FATHER’S COUNSEL]: This [c]ourt order that you—that Your
     Honor answered when we were here in the springtime, allowed
     them per their discretion to encourage and promote
     unsupervised—

     THE COURT: Well, I’m not saying I’m not going to give them that
     discretion this time, but why shouldn’t the [c]ourt structure
     something where this is done slowly as opposed to abruptly?

     [FATHER’S COUNSEL]: I’m not gonna say that you’re gonna—

     THE COURT: I would agree with you. There’s virtually nothing
     on this record to suggest that his contact should continue to be
     supervised.

     [FATHER’S COUNSEL]: Right.         But I would say that—The
     problem is, though, and I’m trying to work back to it—The
     problem is that if you don’t give him substantial visitation,
     there’s not ever gonna be—There’s not gonna be like that other
     case which was kind of voluntary. There’s not gonna be a
     progression towards transfer. In that case—




                                  - 22 -
J-A11015-17


     THE COURT: Well I can certainly do unsupervised for a period of
     months and then one overnight for a period of months, then
     every other weekend for a period of months, and then eventually
     at some point, have you back here for a review.

     [FATHER’S COUNSEL]: I mean, I would ask that the [c]ourt just
     decide that there’s gonna be a transfer right now, but if you’re
     gonna do that, but I would suggest that he be able to have
     overnight visits. There’s nothing on the record to suggest that
     he shouldn’t be able to, given the fact that he’s got—

     THE COURT: I don’t want to turn this child’s world upside down.

     [FATHER’S COUNSEL]: I understand, but—at some point in time,
     the people who are involved with this custody case are not
     promoting a situation for the child to be in a successful
     transition.

     THE COURT: Listen, these people don’t communicate period.
     Your client doesn’t communicate with them and they don’t
     communicate with him. I think it’s abysmal on both sides. I
     can’t imagine having a child that I’m not communicating with,
     even if they weren’t the communicator, I would be
     communicating. If they weren’t answering the phone, I would
     drive over and talk to them, so I don’t—And I don’t get how you
     don’t know where your child lives. I don’t get how he doesn’t
     give me his specific address.         I don’t get the lack of
     communication, but quite frankly, we wouldn’t be sitting here if
     the parties communicated, so I see this every time in these
     custody proceedings, and the only thing they’re doing is assuring
     that this child is going to suffer. But that’s as much on your
     client as it is on [Paternal Grandparents’ counsel’s] client. They
     both have an obligation to communicate with each other.

     [FATHER’S COUNSEL]: I agree with you, but—but the problem is
     is that you look at what has occurred and—a 2-hour visitation
     that he asked for to go to the birthday party, which there would
     have been people around for—they weren’t even given that. So
     what—what do we do to make sure—

     THE COURT: We set up an order where they don’t have as much
     discretion.




                                   - 23 -
J-A11015-17


     [FATHER’S COUNSEL]: I would say it certainly should be more
     time, and I would say certainly the evidence suggests that that’s
     warranted, given the fact that—I would suggest that the
     evidence suggests that what’s been presented, you can draw a
     reasonable inference that the child is craving his father’s
     attention and is fighting over it, the attention with other sibling.
     I think that’s basically what’s been said and testified to. So
     given the opportunity for the kid to see his sibling, I, which the
     law encourages or promotes—

     THE COURT: The law does require that.

     [FATHER’S COUNSEL]:— on every single level.

     THE COURT: It’s a very strong public policy.

     [FATHER’S COUNSEL]: Right, and—and—and fundamentally, I
     understand the court’s decision—or—or desire to ensure that this
     is a smooth transition for the child, that he’s not yanked from
     one household to the other, so I would suggest—that’s why I’m
     suggesting that you give him liberal visitation right out of the
     gate, but the child—

     THE COURT: Now you’re suggesting something [different] from
     what you initially suggested.

     [FATHER’S COUNSEL]: Right. But the child is still maintaining a
     home unit. It’s not like—

     THE COURT: So now you’re suggesting to transition slowly?

     [FATHER’S COUNSEL]: But I’m saying give liberal overnight
     visitation. That’s what I’m suggesting.

     THE COURT: Right out of the gate?

     [FATHER’S COUNSEL]: Right out of the gate.

     THE COURT: Okay. [PATERNAL GRANDPARENTS’ COUNSEL]?

     [PATERNAL GRANDPARENTS’ COUNSEL]: Your Honor, as you’ve
     indicated, any transition is going to need to be very slow.

     THE COURT: Well, what is your client’s [sic] position?

                                    - 24 -
J-A11015-17


     [PATERNAL GRANDPARENTS’          COUNSEL]:     They   would   like
     primary custody obviously.

     THE COURT: Okay, and—how are we going to go beyond
     supervised custody because there’s really nothing on this record
     to suggest it has to be supervised?

     [PATERNAL GRANDPARENTS’ COUNSEL]: [W]ell, there’s a lack—
     there’s a disconnect between [Father] and the relationship with
     [Child].

     THE COURT: I disagree.

     [PATERNAL GRANDPARENTS’ COUNSEL]: My client testified that
     there’s—there’s just this hi, how are you? Let’s go watch T.V.

     THE COURT: That’s not true, because the great grandfather
     testified he’s out there playing soccer with him, playing tag—

     [PATERNAL GRANDPARENTS’ COUNSEL]: For a few minutes at a
     time.

     THE COURT: Okay.

     [PATERNAL GRANDPARENTS’ COUNSEL]: He has 6 hours every
     weekend.

     THE COURT: So—

     [PATERNAL GRANDPARENTS’ COUNSEL]: He doesn’t exercise the
     full 6 hours.

     THE COURT: Even if there’s a disconnect, there’s no threat of
     him hurting this child.     He has a 3-year old daughter.
     Apparently he’s the primary caregiver to this little girl who’s
     been running around the court, who is very healthy, and no one
     has taken that child away from him, so why can’t he care for a
     4-year old child—almost 5?

     [PATERNAL GRANDPARENTS’ COUNSEL]: I don’t believe, Your
     Honor, that my clients indicated this on the record, however, I
     don’t believe it’s [Father] they have a problem with as far as any
     physical threat to the child.


                                   - 25 -
J-A11015-17


     THE COURT: Okay. Then who do they have a problem with?

     [PATERNAL GRANDPARENTS’ COUNSEL]: [Fiancée].

     THE COURT: Based on what evidence?

     [PATERNAL GRANDPARENTS’ COUNSEL]: The Children & Youth
     involvement—and the regression.

     THE COURT: Where he lost—

     [PATERNAL GRANDPARENTS’ COUNSEL]: The regression, the
     emotional regression.

     THE COURT: Could it be that he was just taken out of their
     household and not given a chance to adapt to a new
     environment and that’s why he regressed?

     [PATERNAL GRANDPARENTS’ COUNSEL]: It’s possible, but that’s
     not what Children & Youth, nor the doctor indicated, so—

     THE COURT: Well, quite frankly, the Children & Youth evidence is
     pretty sparse, if that—if that. There’s a thousand reasons why
     that child could have been in that situation. You have a child
     here who they have had custody of for 3 years, who looks very
     healthy, very happy, well-adjusted. Why your clients will not
     communicate with her is very difficult to comprehend, quite
     frankly. And why they don’t allow her to come to the house is
     almost impossible to understand because she is the mother of
     one of their grandchildren. People don’t like in-laws, people
     don’t like that, and you’ve got to get over it, swallow your pride,
     and do what’s best for the kids.          Your clients have not
     demonstrated that they’re doing that. They stepped up to the
     plate for [Child], but they certainly haven’t done what’s in
     [Sibling’s] best interest by welcoming this woman into their
     home and trying to get into a situation where they can be active
     grandparents for that child, as well. And why should I trust
     them to do the right thing down the road and work this father
     into a situation where he starts to do what the law wants him to
     do? That’s being a father. He can’t be a father when they’re
     babysitting him constantly.




                                   - 26 -
J-A11015-17


     [PATERNAL GRANDPARENTS’ COUNSEL]: That’s true, Your
     Honor, but they also can’t force him to want more time, and
     when he has asked—

     THE COURT: He called and asked for a birthday unsupervised
     and they wouldn’t let him. What would the harm have been to
     allow him to take the child to a birthday party? He watches his
     3-year old every day.

     [PATERNAL GRANDPARENTS’ COUNSEL]: Well, I believe the
     testimony was that he didn’t indicate where they were going or
     anything like that.

     THE COURT: Again, they’re micro-managing everything about
     the relationship. He’s the father.

     [PATERNAL GRANDPARENTS’ COUNSEL]: He hasn’t acted like the
     father.

     THE COURT: They don’t know where [Sibling] goes every
     moment of every day, yet somehow she’s fine.

     [PATERNAL GRANDPARENTS’ COUNSEL]: She hasn’t resided in
     their household for 5 years.

     THE COURT: So if [sic] called and says hey, I got a birthday
     party, can I take the kid to a birthday party? What do they have
     to know the itinerary for? It boggles—It boggles my mind.

     [PATERNAL GRANDPARENTS’ COUNSEL]: I understand, Your
     Honor.

     THE COURT: It’s a birthday party for a couple hours. It boggles
     my mind that he wants me to yank this kid out of the
     environment where he’s stable and loving and doing—thriving
     and doing well and just throw him into his house, it boggles my
     mind likewise that they’re not trying to figure out a way to get
     this child to their father.

     [PATERNAL GRANDPARENTS’ COUNSEL]: And it boggles my
     mind that [Father] doesn’t spend the amount allowed under the
     order with his son. Six hours every week, that’s not a lot of
     time, yet he doesn’t exercise it all.


                                  - 27 -
J-A11015-17


     THE COURT: Well—it’s probably—It’s not a lot of time, but it’s
     also an uncomfortable environment to have to go and sit there
     while you’re under a microscope and being micro-managed by
     your parents. I’m not saying—

     [PATERNAL GRANDPARENTS’ COUNSEL]: He has no prob—

     THE COURT: [Father] has done everything perfect here.

     [PATERNAL GRANDPARENTS’ COUNSEL]: He has no problem
     eating in their house, he has no problem going through their
     cupboards and eating in their house. [Paternal Grandmother]
     testified that he does that. I mean—He talks to his brother, he
     talks to his grandfather.

     THE COURT: So your clients want primary physical custody, but
     where do I go beyond there?

     [PATERNAL GRANDPARENTS’ COUNSEL]: Beyond there, Your
     Honor—

     THE COURT: Is it your client’s [sic] position that it still has to be
     supervised?

     [PATERNAL GRANDPARENTS’ COUNSEL]: As far as for [Father],
     they have no issued [sic] with having unsupervised visitation.
     However, they are concerned about [Fiancée].

     THE COURT: Why? There is a child that she cares for that’s 3
     years old, who’s running around here—she’s out there laughing
     right now, as a matter of fact.

     [PATERNAL GRANDPARENTS’ COUNSEL]: The testimony was,
     Your Honor, when [Fiancée] was on the phone that [Child] was
     shaking. That was undisputed, no one—no one rebutted that.

     [THE COURT]: Okay, well—At some point in time he’s gonna
     have to have a relationship with this person. This is—

     [PATERNAL GRANDPARENTS’ COUNSEL]: Correct, and perhaps
     the place to start—

     THE COURT: It’s the mother—


                                    - 28 -
J-A11015-17


      [PATERNAL      GRANDPARENTS’         COUNSEL]:—would      have
      supervised—perhaps the place to start with that would be— have
      any contact with her be supervised, so that—

      THE COURT: By [Father]?

      [PATERNAL GRANDPARENTS’ COUNSEL]: They would suggest
      somebody else, somebody other than [Father].

      THE COURT: Okay.

      [PATERNAL GRANDPARENTS’ COUNSEL]: Because they’re in the
      same household, but—as far as the partial custody, it needs—it
      needs to increase so that [Father] does have a relationship with
      his son and so that [Child] has a relationship with his sister, and
      with his father, and with [Fiancée], because she’s in the
      household, but it needs to start slowly—like you’ve indicated.

      THE COURT: [Mother], I know you’ve made your position clear.
      Do you have anything you wish to add?

      [MOTHER]:No.

N.T., 9/26/16, at 181–200.

      In his brief, Father argues that the trial court appears to have made

one set of findings in its consideration of the custody/best interest factors,

which seemed to weigh in favor of awarding primary physical to Father, but

then the court arrived at a contrary result by awarding primary physical

custody to Paternal Grandparents.      Father’s Brief at 12–15.    Father has

carefully selected portions of the trial court opinion to demonstrate that the

trial court did not appropriately weigh the best interest factors, especially

Child’s need to be raised along with Sibling. Id. at 16–17.

      The exchange between the trial court and the counsel demonstrates

that the trial court’s primary concern was for the best interest of Child. The

                                    - 29 -
J-A11015-17


court sought counsel’s input on how it could allow for a gradual transition of

Child into Father’s primary physical custody at his home.

       This Court has stated:

       The parties cannot dictate the amount of weight the trial court
       places on evidence. Rather, the paramount concern of the trial
       court is the best interest of the child. Appellate interference is
       unwarranted if the trial court’s consideration of the best interest
       of the child was careful and thorough, and we are unable to find
       any abuse of discretion.

S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (quoting Robinson v.

Robinson, 645 A.2d 836, 838 (Pa. 1994)).

       Since the adoption of the Act, we have also explained that courts must

consider each of the custody/best interest 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),

(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.”).4

       After our careful review of the entire record and the relevant law, we

find that the trial court’s conclusions are not unreasonable in light of the

sustainable findings of the trial court, which are supported by the evidence

in the record. C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012). The

____________________________________________


4
  The one exception is that trial courts must give weighted consideration to
those factors which affect the safety of the child. 23 Pa.C.S. § 5328(a).



                                          - 30 -
J-A11015-17


record supports the trial court’s determination that Child is doing well in

Paternal Grandparents’ primary physical, with supervised, partial custody in

Father, and that Child will benefit from the stability of remaining primarily

with Paternal Grandparents during the school year, yet slowly transitioning

to Father’s primary physical custody. Accordingly, we affirm the order of the

trial court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/19/2017




                                   - 31 -
