J-S28024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    D.L.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                         Appellant             :
                                               :
                                               :
                  v.                           :
                                               :
                                               :
    A.G.                                       :   No. 1830 MDA 2017


                  Appeal from the Order Entered, November 3, 2017,
                   in the Court of Common Pleas of Luzerne County,
                           Civil Division at No(s): 2016-55.


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                                FILED JULY 11, 2018

           In this matter, Father, D.L., appeals the custody decision that awarded

Mother, A.G., primary physical custody and shared legal custody of the parties’

seven-year-old son, De.L.            After careful review, we discern no abuse of

discretion and affirm accordingly.

           We glean from the trial court’s Pa.R.A.P. 1925(a) opinion (“T.C.O.”) the

following procedural and factual disposition:

           The parents lived together with the child for the first year or so of his

life; they separated in 2011 or 2012.1 The child lived primarily with his Mother

for approximately the next 18 months. In June 2013, the parents agreed that

the child would live in New York with his Father and Paternal Grandmother in
____________________________________________


1We do not have the child’s date of birth or accurate history of when the
parties lived together. These facts are not necessary for our review in this
matter.
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Paternal Grandmother’s home. But Mother eventually discovered that Father

was really living in Wayne County, Pennsylvania with his fiancée even though

Father repeatedly told Mother that he was living with the child and Paternal

Grandmother in New York. Thereafter, in the summer of 2015, the child lived

with Mother in Luzerne County.

      In August 2015, Father filed a custody complaint in Wayne County. That

fall, the case was transferred from Wayne to Luzerne. In the interim, a Wayne

County court limited Father’s custody to supervised weekend custody.

Evidently, the Wayne County court learned that Father had been charged with

endangering the welfare of a child (his non-subject son); he eventually

pleaded guilty to simple assault and served about a weeklong prison sentence

plus four years’ probation.

      In May 2016, proceedings commenced in Luzerne County. A master in

Luzerne County kept in place the interim supervised custody order and

appointed a guardian ad litem for the child. Litigation lingered as the court

disposed of preliminary questions of venue and granted various continuances

and interim requests. A final adjudication of Father’s custody complaint

spanned two dates in August and October of 2017.

      After conducting a proper custody analysis pursuant to 23 Pa.C.S.A. §

5328(a), the trial court granted Mother primary physical custody. The court

granted Father partial physical custody every weekend, except the third

weekend of the month, which it granted to Mother.       During the summer

months, the court granted the parties shared physical custody on a week-on-

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week-off basis.   The court ordered them to share and alternate holidays.

Finally, the court ordered the parties to share legal custody. Father presents

this timely appeal.

      He raises the following issues for our review, which we have reordered

for ease of disposition:

         1. Whether the trial court committed an abuse of discretion
         and error of law in failing to consider the close bond between
         the minor child and his half-brothers?

         2. Whether the trial court erred and abused its discretion in
         considering the recommendation of the guardian ad litem in
         her testimony and reports when the GAL's testimony is
         contrary to law that siblings should be raised together and
         not individualized attention?

         3. Whether the trial court erred and abused its discretion in
         finding that the child is in a stable environment and thriving
         when the testimony and evidence was to the contrary?

         4. Whether the trial court erred and abused its discretion in
         finding [] a great amount of hostility exists between the
         parents?

         5. Whether the trial court erred and abused its discretion in
         failing to give Father extra time during the school holidays?

         6. Whether the child custody order appealed from should be
         reversed where the statutory factors in 23 Pa.C.S.A. § 5328
         support the change in custody, and the trial court grossly
         abused its discretion in making findings of fact and
         conclusions of law that are unsupported by the record?

Father’s Brief, at 6-7.

       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

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         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 firsthand. 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).

      When a trial court orders a form of custody, the best interest of the

child is paramount. S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014)

(citation omitted). Section 5338 of the Custody Act (23 Pa.C.S.A. §§ 5321 –

5340) provides that, upon petition, a trial court may modify a custody order

if modification serves the best interests of the child. Section 5328(a) sets

forth the best interest factors that the trial court must consider:

         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.




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       (2.1) The information set forth in section 5329.1(a) (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.

       (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.


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23 Pa.C.S.A. § 5328(a). Trial courts are required to consider all of the factors

listed in Section 5328(a) when entering a custody order. J.R.M. v. J.E.A., 33

A.3d 647, 652 (Pa. Super. 2011).

      Father’s first two issues involve custody factor (6), the child’s sibling

relationships. See 23 Pa.C.S.A. § 5328(a)(6).         For support, he cites our

holding in Johns v. Cioci, 865 A.2d 931 (Pa. Super. 2004) where we said that

absent compelling reasons to the contrary, the policy in Pennsylvania is to

permit siblings, including half-siblings, to be raised together.

      In the past, we have stated it is the policy of this Commonwealth that,

where possible, siblings should be raised together absent “compelling reasons”

to do otherwise. L.F.F. v. P.R.F., 828 A.2d 1148, 1152. (Pa. Super. 2003)

(citing Watters v. Watters, 757 A.2d 966, 969 (Pa. Super. 2000)); see

also Pilon v. Pilon, 492 A.2d 59, 60 (Pa. Super. 1985)(“Absent compelling

reasons to separate siblings, they should be reared in the same household to

permit   the   ‘continuity   and   stability   necessary   for   a   young   child’s

development.’”). “However, this policy is a consideration in, rather than a

determinant of, custody arrangements.” L.F.F., 828 A.2d at 1152-1153

(affirming the trial court’s determination that compelling reasons existed to

maintain the pre-existing separation of the siblings) (emphasis added).

      These cases predate the enactment of the current Child Custody Act.

Their holdings retain persuasive value, but Section 5328(a) does not require

a court to presume siblings should be raised together; this “policy” has been

assimilated into Section 5328(a)(6).       See e.g. P.J.P. v. M.M., 2018 Pa.

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Super. 100, 2018 WL 1979832, (Pa. Super. April 27, 2018) (holding that the

shared custody factors set forth in Wiseman v. Wall, 718 A.2d 844, (Pa.

Super. 1998), assimilated into the custody factors set forth in 23 Pa.C.S.A. §

5328(a)).

      Moreover, while the child is only a few years younger than his half-

siblings, the child has lived primarily with Mother – and apart from the siblings

– throughout his life. If Father was the primary custodian, the child and his

siblings would not attend the same school.       The unfortunate effect of the

custody arrangement ordered by the trial court is that the child could

potentially miss spending time with his siblings; the siblings will be in the

partial custody of their mother when Father exercises his partial custody of

the child. However, they will spend a considerable amount of time together

in the summer when school is out. The trial court did not abuse its discretion

for failing to make this factor dispositive. Because Father misstates the law,

the trial court did not err when it agreed with the GAL’s recommendation and

afforded this factor less weight.

       Next, Father challenges the trial court’s conclusion that the child was

“thriving” while in Mother’s care. The argument appears to contest the court’s

findings as to factor (3), the parental duties performed by each party on behalf

of the child, and factor (4), the need for stability and continuity in the child’s

education, family life and community life. See 23 Pa.C.S.A. § 5328(a)(3);

(a)(4). Father asserts that the court “ignored evidence” from when the parties

lived together when the child was an infant. See Father’s Brief, at 21. The

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trial court found: “Both parties love and care for [the child] and share the

same interest in seeing to it that he has the best of both worlds. In considering

the best interests of the child, [the child] is in a stable environment and

thriving.” See T.C.O., at 8. Moreover, the GAL, who conducted home visits in

each household, also opined that the child was thriving while in Mother’s care.

We recognize that the GAL also testified that the child’s half-siblings are

thriving in Father’s care.

      Father frames the discussion of this issue as a battle of amenities. While

living with Mother, the child must attend daycare, but would not have to if he

lived with Father. Mother rents an apartment. Father owns a home near a

sports complex, pools and parks. See Father’s Brief, at 22. But the parties’

standard of living is not a custody factor. Furthermore, the context for this

discussion really involves the stability of the child, who evidently bounced

between households as a younger child. At the time of the hearing, his living

situation had become more stable.

      The trial court found that Mother had been the primary custodian

throughout the child’s life except for the brief time the child was supposed to

be living in New York. In this role, Mother performed the lion’s share of the

parental duties and had long attended to the child’s emotional and

developmental needs. See 23 Pa.C.S.A. § 5328(a)(3). The court determined

that the child was doing well and saw no reason to disturb this environment

in favor of the comforts that might be more readily available in Father’s home.

It was not an abuse of discretion for the trial court to discount Father’s

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amenities in favor of the consistency the child receives while in Mother’s

primary care.

      Next, Father takes issue with the court’s finding that there is a great

deal of conflict between the parties. See 23 Pa.C.S.A. § 5328(a)(13). Father

argues that Mother is the source of the hostility, and that it was erroneous of

the court to infer otherwise. However, when discussing this factor, the court

merely noted the source of the parties’ conflict is Mother’s apparent distrust

of Father. The court found that the distrust stemmed from the bold lie Father

told Mother about the whereabouts of the child during the time he had primary

custody. We note that the trial court is uniquely suited to adjudicate the level

of conflict of the parties. Here, although the court noted the source of the

conflict, it gave this conflict little weight in the final decision. Nothing in the

record suggests that the court held this conflict against Father. If anything,

the court explained Mother’s distrust was justified by Father’s conduct, but it

did not weigh this factor in favor of either party. The court only cautioned the

parents that as the child grows older, the parents’ level of conflict will lead to

future problems for him. We find the court’s analysis of this factor did not

constitute an abuse of discretion.

      Father’s next contention is that the court’s custody arrangement should

have provided him extended time during the holidays given his limited partial

custody during the school year. The GAL recommended the same, but the

court departed from this recommendation. We note that the court is “under

no obligation to delegate its decision-making authority” to a custody

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evaluator. See M.A.T. v. G.S.T., 989 A.2d 11, 19-20 (Pa. Super. 2010) (en

banc). It goes without saying that holiday times are special experiences for

children and families. In alternating the holidays, the court ensured that the

child will enjoy spending time and creating memories with each parent equally.

By ordering the parties to share custody during the summer months, the court

clearly sought to bolster the child-father relationship when possible.

Evidently, the court also found that awarding one parent more holiday time

would not be fair to the child. We find that the court’s decision to keep equal

the parties’ holiday time was not an abuse of discretion.

      Finally, Father presents a catchall issue – that several of the court’s

custody findings pursuant to § 5328(a) were against the weight of the

evidence. We disagree and discuss below the remainder of the issues Father

specifically contests. Considerable discussion has been dedicated to Father’s

criminal history.   See Father’s Reply Brief, at 4; see also 23 Pa.C.S.A. §

5328(a)(2). Despite a history of past child abuse toward the half-sibling, the

trial court was satisfied by Father’s testimony that he has reformed his

disciplinary tactics, and it concluded that Father does not pose a present threat

to the child or his siblings. It did not appear that the Court even weighed this

factor against Father. The evidence supports this conclusion.

      Father also challenges the court’s finding that Mother is more likely to

encourage and permit frequent and continuing contact, per 23 Pa.C.S.A. §

5328(a)(1). See Father’s Reply Brief, at 1. The trial court noted that Mother

allowed Father to see the child beyond what the prior custody order required.

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Father argues that Mother only offered additional time when she was in a

pinch and needed Father to watch the child. Id. While the court found this

factor favored Mother, it did not appear the court gave it significant weight

either.

      The reality of this case is that the parties reside 45 miles (an hour) away

from one another. Given that the child is now school age, and that the parties

live so far apart, any sort of shared custody arrangement during the school

year is untenable.    In his brief, Father says the court found the factor

concerning the proximity of the residences to be “neutral.”              See §

5328(a)(11); see also Father’s Brief, at 28. That is not quite right. The trial

court only found that transportation between the households is not a problem.

See T.C.O., at 12.

      But if custody were to be shared during the school year, we can infer

that there would be days where the child would have to spend two hours in a

car going back and forth to school; either the custodial parent would have to

spend four hours traveling, or, if the parties shared this burden, then each

would have to spend two hours in the car each school day for the duration of

the school year. Clearly, the court, based on logistics, was forced to pick a

primary custodian.

      In this respect, Factor 11 (the proximity of the parties’ residences)

necessitates that other factors be weighted more heavily than perhaps they

otherwise would have been. Here, a great many of the factors were found to

be neutral.   The court found both parents are likely to provide a loving,

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nurturing home and both are likely able to attend to the child’s daily

developmental needs. See § 5328(a)(9)-(10).         But the court found that

Mother has long been the child’s primary caregiver. And in that role, Mother

has largely been the parent who has performed parental duties.         Keeping

Mother as the primary custodian has the benefit of keeping the child’s life

stable. If the parties lived two streets away from another, perhaps the trial

court’s analysis would have resulted in a different custody arrangement. Each

case is different. We cannot delineate a rule that arbitrarily chooses a certain

mile or minute point – when the distance between the parents’ homes

becomes too great – such that a finding of shared custody must yield to a

finding of primary custody. But in this instance, given the distance between

the parties, the court did not err when awarding Mother primary custody

where most of the other factors were neutral.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/11/2018




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