J-A33006-14


                                  2015 PA Super 102

W.C.F.                                            IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

M.G.

                            Appellee                  No. 2128 EDA 2014


                  Appeal from the Order Entered June 17, 2014
              In the Court of Common Pleas of Philadelphia County
                       Family Court at No(s): OC1300107


BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

OPINION BY LAZARUS, J.:                               FILED APRIL 29, 2015

        W.C.F.   (“Father”) appeals from the order entered in the Court of

Common Pleas of Philadelphia County granting M.G. (“Mother”) primary

custody of the parties’ two-year old daughter (“Child”), granting the parties

shared legal custody, and granting Father partial custody (six days every

two weeks).      After our review, we vacate and remand. Despite multiple

findings that point to an award of primary custody to Father, the trial court

awarded Mother primary physical custody and Father partial custody. After

our review of the parties’ briefs, the record, and the lower court opinions, we

conclude that the court’s determination that Mother be awarded primary

physical custody is unreasonable in light of its own factual findings which are

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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amply supported in the record.      See S.W.D. v. S.A.R., 96 A.3d 396 (Pa.

Super. 2104) (this Court may reject trial court’s conclusions in child custody

matter only if they involve error of law or are unreasonable in light of factual

findings).

        Mother and Father were married in 2010. Their only child was born in

2012.      Father is Assistant Director of Technology at the Mastery Charter

High School in Germantown.         Mother is a Senior Manager of Technical

Accounting at Comcast.

        Father is a US citizen; he was raised in Florida. Mother is a native of

Malaysia and moved to the United States after meeting Father.           Mother

became a naturalized citizen in October 2012, two weeks before Child was

born. Mother’s parents (Maternal Grandmother and Maternal Grandfather)

relocated to the United States in July 2012, before Child was born, and

moved into Mother and Father’s two-bedroom apartment in Old City

Philadelphia.

        Since Child’s birth, Maternal Grandmother has been the primary

caretaker for the parties’ child. As a result of Father’s belief that Mother’s

family, in particular Maternal Grandmother, was blocking his attempts to

bond with Child, the parties agreed that Maternal Grandparents would move

out of the parties’ apartment and obtain their own residence. As it turned

out, however, Mother and Child left along with Maternal Grandparents on

January 23, 2013.




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         The next day, Father filed a complaint for shared legal and physical

custody of Child.     Mother filed for divorce and sought to confirm her legal

and primary physical custody in that complaint.      Since separation, Mother

has resided with her sister and her parents on the 700 block of South Street

in Philadelphia. Mother’s brother resides there on occasion as well. Father

resides in an apartment in Ardmore, where a separate bedroom is set up for

Child.

         On February 8, 2012, the court entered an interim order preserving

the “status quo.” Notably, Mother created that status when she took Child

out of the marital home and moved in with her parents. The interim order

provided Mother with primary physical custody and Father with partial

physical custody every Monday, Wednesday and Friday from 6:30 p.m. until

8:30 p.m., and on Sunday from 11:00 a.m. to 6:00 p.m.               The court

scheduled a protracted hearing, which included psychological evaluations,

and the court heard testimony on August 9, 2013 and on February 5, 2014.1

         On August 23, 2013, Father filed an amended complaint for custody,

seeking sole legal and primary physical custody of Child with supervised

visitation or partial custody to Mother. Following the custody hearing, the


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1
  The trial court stated: “Testimony was taken on August 9, 2013, then on
February 5, 2014 and February 19, 2014.” Summary Opinion, at 2. No
notes of testimony were included in the record on appeal. See Pa.R.A.P.
1911(d). This Court ultimately obtained the notes of testimony from August
9, 2013 and February 5, 2014.



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trial court, on June 17, 2014, entered the current custody order and filed a

Summary Opinion dated June 18, 2014. The order grants Mother primary

physical custody and grants Father partial physical custody on a repeating

two-week basis, as follows:

      •     Saturday 10:00 a.m. until Sunday 7:00 p.m.

      •     Tuesday 5:00 p.m. to 8:00 p.m.

      •     Thursday 5:00 p.m. to Friday 7:00 p.m.

      •     Tuesday 5:00 p.m. until Wednesday 8:00 p.m.

      •     Thursday 5:00 p.m. until 8:00 p.m.

      Father filed a timely notice of appeal and a concise statement of

matters complained of on appeal on July 16, 2014. The trial court filed a

Pa.R.A.P. 1925(a) opinion on August 20, 2014. Father raises the following

issues for our review:

      1. Did the trial court err in awarding primary [physical] custody to
         Mother despite its determination that it was in the child’s best
         interests to award primary custody to Father?

      2. Did the trial court err in expressly relying on Mother’s primary
         physical custodian status, the interim custody status quo created by
         order without prejudice, in making its determination, especially
         where evidence showed that Mother surreptitiously vacated the
         marital residence with the child when she was only 3 months old
         and that Maternal Grandmother, in fact, was the primary caregiver?

      3. Did the trial court err in concluding that keeping the child in the
         daily care of Maternal Grandmother was “less disruptive” given the
         Court’s own findings and evidence to the contrary?

Appellant’s Brief, at 7.




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     We begin with our scope and standard of review: We review a trial

court’s determination in a custody case for an abuse of discretion, and our

scope of review is broad.     M.P. v. M.P., 54 A.3d 950, 953 (Pa. Super.

2012). Because we cannot make independent factual determinations, we

must accept the findings of the trial court that are supported by the

evidence.   Id. We defer to the trial judge regarding credibility and the

weight of the evidence. Id. The trial judge’s deductions or inferences from

its factual findings, however, do not bind this Court. Id. We may reject the

trial court’s conclusions, but only if they involve an error of law or are

unreasonable in light of its factual findings. Id. See also J.R.M. v. J.E.A.,

33 A.3d 647 (Pa. Super. 2011); Hanson v. Hanson, 878 A.2d 127, 129

(Pa. Super. 2005); Landis v. Landis, 869 A.2d 1003, 1011 (Pa. Super.

2005).

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

child is paramount. J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011).

To determine the child’s best interest, the trial court must consider the

following factors when “ordering any form of custody.”        23 Pa.C.S. §

5328(a). Those factors are:

     (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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     (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.

23 Pa.C.S. § 5328(a).




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      Moreover, on issues of credibility and weight of the evidence, we defer

to the findings of the trial court, which has had the opportunity to observe

the proceedings and demeanor of the witnesses. R.M.G., Jr. v. F.M.G., 986

A.2d 1234, 1237 (Pa. Super. 2009). 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.

Id. The test is whether the evidence of record supports the trial court’s

conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super. 2006).

      At the custody hearing, the court heard testimony from Mother and

Father, as well as Paternal Grandmother.        Robert L. Tanenbaum, Ph.D.,

submitted a court-ordered custody evaluation report; this report was

entered into evidence without Dr. Tanenbaum’s testimony, by agreement of

the parties. Doctor Tanenbaum concluded:

      Information gathered about [Child’s] physical and psychological
      health during the course of this evaluation, are not consistent
      with the ongoing allegations made by her Mother about Father’s
      negative parenting behaviors.            According to [Child’s]
      pediatrician, this child remains in good health and appears to be
      developing normally. According to Dr. Price, who has very
      recently worked behaviorally with these parents and their child
      (including maternal grandmother), there have been no abnormal
      behaviors exhibited by this child in that office setting.

                               ****

      The results of the present custody evaluation are most
      consistent with a phased-in expansion of Father’s custodial time
      with his daughter. There is insufficient support in the data

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      obtained for requiring supervised visitation of the minor child
      when she is with either of her parents at the present time.
      These parents now have the benefit of co-parent counseling,
      which began very recently with Dr. Dana Goode. It is hoped that
      this venue will provide an opportunity for these parents to
      further improve their relationship with one another as [Child’s]
      parents.

Psychological Custody Evaluation, 5/13/14, at 20 (emphasis in original).

Additionally, Dr. Tanenbaum noted in his evaluation the December 19, 2013

findings of Child’s pediatrician, Dr. Sammaritano:

                   There are no findings that child has been abused.

                   This child is growing normally.

                   These parents distrust each other.

                   The maternal grandmother may be interfering with
                    parenting.

Id. at 17.

      Following the hearing and review of the custody evaluation report, the

trial court considered the mandatory statutory factors pursuant to 23 Pa.C.S.

§ 5328.      See M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013)

(holding that while Custody Act requires trial court to articulate reasons for

its decision prior to filing of notice of appeal, there is no required amount of

detail; “all that is required is that the enumerated factors are considered and

that the custody decision is based on those considerations”). After

considering the statutory factors, the court made the following findings:

      A. Mother’s continued allegations of “injuries” Child sustained while in
         Father’s care were, according to the court, “cause for serious
         concern.” Trial Court Summary Opinion, 6/14/14, at 7. The court
         noted that no objective observer has corroborated Mother’s
         allegations about injuries or possible abuse-- “not the child’s

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        pediatrician, Dr. Donna Sammaritano [who saw the child 8 times
        between November 2, 2013 and December 19, 2013];” “not the
        Emergency Room medical staff who examined the child on October
        13, 2013; not the CARE Clinic (Child Abuse, Referral and
        Evaluation) physician, Dr. Joanne Wood, M.D., which clinic
        specialized in medical evaluations of child for possible sexual or
        physical abuse or neglect, and not the custody evaluator, Robert L.
        Tanenbaum, Ph.D., who was retained by the parties to do a
        psychological custody evaluation and, inter alia, observed the
        interaction between both parties and the child.”        Id. at 7-8.
        Therefore, Mother is not likely to encourage or permit frequent and
        continuing contact between Father and Child. Id. at 11. See 23
        Pa.C.S.. § 5328(a)(1).

     B. Mother’s concerns about possible sexual abuse are either insincere
        or delusional. See Summary Opinion, at 10. See 23 Pa.C.S.
        §5328(a)(2).

     C. Mother presents herself as savior and protector of Child, however,
        this “excludes openness to all the other sources of health and
        wellbeing available to the child from other persons, Father most
        particularly.” See Summary Opinion, at 13.

     D. “By way of contrast, Father presented as a normal, concerned
        parent[.]” Id. Father’s testimony was credible. Id. at 14.

     E. While both parties perform parental duties, 23 Pa.C.S.A. §
        5328(a)(3), the evidence is not that clear as to the specifics of
        Mother’s parental care since Maternal Grandmother was the primary
        caregiver even when Mother was home. See Summary Opinion, at
        12. “Father demonstrates a more natural approach to parenting
        and it is likely Child has a wholesome response to same.” Id. The
        court found Mother’s “rigid” parenting and preoccupation with detail
        “obscures a wholesome, rational approach to child-rearing.” Id. at
        14. See 23 Pa.C.S. § 5328(a)(3).

     F. Mother’s continual allegations of abuse, including her taking
        pictures of Child’s genitalia and presenting such at trial, while at the
        same time not raising these concerns at well visits and the lack of
        corroboration from medical personnel, resulted in the court’s finding
        that there was “no credible evidence in the record at all with regard
        to any abuse toward the child by either party.” Id. at 11 (citing
        Notes of Testimony, 1/16/14, at 26).           See 23 Pa.C.S.A. §
        5328(a)(2). Of note is the fact, that Mother found it necessary to

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        take a picture of Child’s vaginal “redness” and present it to the
        court one year later, “but delayed going to the hospital or any other
        medical provider for an entire month, by which time the condition
        had “resolved” and she did not even bring the photo to the
        examiner. Summary Opinion, at 8-11. Mother’s other remarks that
        the child “cries upon hearing Father’s voicemail when Mother plays
        it on speaker phone,” and becomes “restless and clingy the entire
        night” are “simply not credible.” Summary Opinion, at 11.

     G. With respect to stability and continuity in Child’s life, expanding
        Father’s custody time with Child will not disrupt Child’s schedule.
        “It is in the child’s best interests to expand Father’s time with her
        now, rather than later.” Id. 14. See 23 Pa.C.S. § 5328(a)(4).

     H. With respect to availability of extended family, Father has no
        extended family in the area; Mother, on the other hand, lives with
        her parents, her sister and her brother. However, “in this case,
        their  constant    presence   around    the   child  [,particularly
        Grandmother,] can be problematic.” Grandmother’s “actions and
        words have been a detriment to a strengthening bond between
        Father and child.” Summary Opinion, at 14. See 23 Pa.C.S. §
        5328(a)(5).

     I. With respect to attempts of a parent to turn child against the other,
        the court found that “accusations against Father made by Mother
        and her family members” was “a very real concern,” and that it
        “will only become more overt as the child ages and becomes more
        susceptible to influences.” Summary Opinion, at 15. See 23
        Pa.C.S. § 5328(a)(8).

     J. Both parties are available to make child care arrangements. See
        23 Pa.C.S. § 5328(a)(12). As noted above, Child is with Maternal
        Grandmother when Mother works. The court stated that it was
        satisfied Father would be able to find appropriate child care and
        that it “will be beneficial” for the child’s development for Child to be
        “in contact with other children on a regular basis and to be among
        adults other than Mother’s family members[.]” Summary Opinion,
        at 16.

     K. With respect to the level of conflict and cooperation, the court found
        “a good bit of conflict” between the parties, that “a commitment on
        the part of both parents” is required, and that “Mother in particular,
        must adjust to working with Father to achieve the best for their
        child.” Id.

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       L. With respect to the mental and physical condition of a party or
          member of a party’s household, the court noted its concerns “with
          Mother’s psychological mindset with regard to parenting[.]” Id. at
          17. This included Mother’s continued accusations against Father
          “despite the absence of any objective findings to corroborate” the
          accusations. Id. Nonetheless, the court made no adverse
          psychological findings against Mother.

       The court’s order expanded Father’s time with Child, as compared to

the interim order of 13 hours per week. However, as previously noted, the

interim order simply maintained the status quo, which was set by Mother

when she left Father, taking Child with her and maternal grandparents. The

fact that Father’s time with Child has increased relative to that interim order

is not a useful gauge, and it is not necessarily fair or reasonable in these

circumstances. More significantly, it is not clear to this Court that the award

is in Child’s best interests. In its explanation as to why primary custody was

awarded to Mother despite its findings, the trial court stated:

          “[W]hen considering the mandatory factors, the findings of
          fact favor Father more than Mother.       However, since
          Father has not been the primary custodian to date, and his
          complaint for custody did not request primary custody,2 a
          change in primary custody would be disruptive for the
          child, particularly because it would mean placement in
          child care rather than with a family member during the
          week.

Summary Opinion, at 17 (emphasis added).            In its Pa.R.A.P. 1925(a)

Opinion, filed after Father’s appeal, the trial court again acknowledges that it

concluded after review of the statutory factors that the findings favored
____________________________________________


2
  A review of the record indicates that the trial court was mistaken and
father did ask for custody on August 23, 2013 in his Amended Complaint.



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Father more than Mother, and the court explained its justifications once

more. See Pa.R.A.P. 1925(a) Opinion, 8/20/14, at 2-7. We do not find any

of these three justifications valid.

      Initially, we point out that the fact that Father has not been primary

custodian to date is, first, a function of Mother’s unilateral unreasonable

decisions, and second, not a basis for denying him primary custody where all

factors point otherwise.      Further, the “primary caretaker doctrine” was

intended to be an additional consideration that would tip the scales in favor

of the primary caretaker in a situation where the trial court deemed both

parents to be fit to act as a primary custodian. Commonwealth ex rel.

Jordan v. Jordan, 448 A.2d 1113 (Pa. Super. 1982). Such is not the case

here. The court’s findings do not point to the conclusion that both Mother

and Father are equally fit to act as primary custodian. The court expressed

its concerns about Mother’s allegations of abuse by Father, as well as her

“rigid” parenting style, which obscured a “wholesome, rational approached to

child-rearing.”   Summary Opinion, at 14.       The court contrasted Mother’s

parenting style with Father’s, characterizing Father’s as “more natural.” Id.

at 12.    Furthermore, under the Child Custody Act, 23 Pa.C.S. § 5321 et

seq., “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[.]”       See 23 Pa.C.S. § 5328(a)(emphasis

added). In M.J.M., this Court stated:




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       The language of this statute is clear. It explicitly provides that
       all relevant factors shall be considered by the trial court, and the
       only factors that should be given “weighted consideration” are
       factors that “affect the safety of the child[.]” Id. “When the
       words of a statute are clear and free from all ambiguity, the
       letter of it is not to be disregarded under the pretext of pursuing
       its spirit.” 1 Pa.C.S.A. § 1921(b); see also Ario v. Ingram
       Micro, Inc., 600 Pa. 305, 317, 965 A.2d 1194, 1201 (2009). If
       the Pennsylvania Legislature intended [ ] extra consideration be
       given to one parent because of his or her role as the primary
       caretaker, it would have included language to that effect. Stated
       another way, the absence of such language indicates that
       our Legislature has rejected the notion that in analyzing
       both parents, additional consideration should be given to
       one because he or she has been the primary caretaker.

63 A.3d at 338 (emphasis added).

       Changes in custody schedules will invariably disrupt a child’s routine.

The parties, however, can minimize disruption by committing to a spirit of

cooperation.3      Significantly, trial court found that giving Father greater

periods of custody, even during working hours where Child would be in child

care, would benefit Child’s social development. The trial court noted that it

was approximately a fifteen-minute drive from Father’s home in Ardmore to


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3
   This Court has serious concerns about Mother’s repeated, unfounded
allegations of Father’s abuse of Child, raising questions of Mother’s
motivations. Other, more subtle behaviors, on both Mother’s and Maternal
Grandmother’s part, whether intended or not, have the effect of alienation
as well. Father testified that when he tried to feed or change Child, he was
met with resistance and ridicule by Maternal Grandmother. N.T. Hearing,
2/5/14, at 136-39. Father even testified as to Mother’s reluctance to hand
over Child to Father at the police station, where exchanges took place. Id.
at 205. None of this was lost on the trial court, as indicated by its findings
and its admonishment to the parties and attorneys at the August 9, 2013
hearing. See N.T. Hearing, 8/9/13, at 29.



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Mother’s in Philadelphia.   See N.T. Hearing, 8/9/13, at 6.    The Court was

also aware that both Mother and Father hold full time professional positions.

See Custody Evaluation, supra at 7.

      From this we conclude that, geographically and financially, the parties

are in a position to at least share custody equally, if not give father primary

physical custody.   A graduated schedule making progress toward this end

would be in Child’s best interests. We emphasize that Child is young enough

to benefit from improvement in the family dynamic; however, due to the

lack of cooperation cited by the trial court, awarding primary physical

custody to father might be of significant benefit to Child at this time, and

might make mother realize that her lack of cooperation and attempts at

alienation will not be rewarded by this Court. .

      Second, Father did file an amended complaint for primary physical

custody on August 23, 2013. In its Pa.R.A.P. 1925(a) opinion the trial court

acknowledged its error in stating otherwise, which further underscores the

unreasonableness of the trial court’s conclusion.      See 1925(a) Opinion,

8/20/14, at 2.

      And finally, the trial court was satisfied that Father would obtain

appropriate child care, noted that Maternal Grandmother provided child care

when Mother was at work, and concluded that it “will be beneficial for the

child to be in contact with other children on a regular basis and to be among

adults other than Mother’s family members[.]” Id. at 16 (emphasis added).




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The trial court acknowledged this would aid in “the child’s development.”

Id.

      Thus, in determining Child’s best interests, the court’s consideration of

the statutory factors weighed heavily in favor of granting Father primary

custody. J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011) (when trial

court orders form of custody, best interest of child is paramount). Where a

court makes findings consistently in favor of custody in one party, and then

awards custody to the other party, it must provide valid reasoning to

support that decision.   Especially with respect to Mother’s allegations of

abuse, which the court specifically found not credible, we cannot, in good

conscience, sanction this unexplained about-face.       Although the court’s

findings are supported in the record, its conclusions are unreasonable in light

of these findings. See S.W.D. v. S.A.R., 96 A.3d 396 (Pa. Super. 2014).

Because the majority of the statutory best interest factors favor Father, we

conclude that the court’s order was not based on a reasoned consideration of

those factors. Parental alienation was a critical issue here. The court noted

that Father was more likely to promote Child’s relationship with Mother than

Mother would with Father, in fact stating, “Mother is not likely to encourage

or permit frequent and continuing contact between Father and Child.”

Summary Opinion, at 11.      See 23 Pa.C.S. § 5328(a)(1).       Not only was

parental alienation an issue, but the repeated attempts of Mother to allege

abuse that were found not credible by the court, the influence of maternal

grandmother, the refusal of Mother to cooperate with Father, all would

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outweigh retaining primary custody with Mother absent a compelling

rationale evidenced by the trial court.       While prudence dictates that this

Court exercise its authority sparingly in a child custody case, we are not

powerless to rectify a manifestly unreasonable custody order.            V.B. v.

J.E.B., 55 A.3d 1193 (Pa. Super. 2012).

      After careful review and reflection, we conclude that the court’s order

awarding Mother primary physical custody is unreasonable in light of its

factual findings.   M.P., supra.   We, therefore, vacate and remand for an

order consistent with the trial court’s findings and this Court’s decision.

      Vacated and remanded. Jurisdiction relinquished.

      Judge Wecht joins this Opinion.

      Judge Strassburger files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2015




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