J-A28037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    R.H.B.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                 v.                            :
                                               :
                                               :
    B.L.C.C.                                   :   No. 1821 EDA 2019

                  Appeal from the Order Entered May 31, 2019
    in the Court of Common Pleas of Montgomery County Domestic Relations
                           at No(s): No. 2010-14041


BEFORE:        PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED FEBRUARY 04, 2020

        Appellant, R.H.B. (“Father”), files this appeal from the order dated and

entered May 31, 2019, in the Montgomery County Court of Common Pleas,

with regard to custody of his child with B.L.C.C. (“Mother”), daughter E.G.C.B.,

born in December 2009 (“Child”). The order maintained shared legal custody

and awarded resumption of shared physical custody on a week-to-week basis

with exchanges on Fridays after school or at 5:00 p.m., as initially set forth in

the Agreed Custody Order of August 1, 2013, and confirmed by Order of

September 22, 2016. After review, we affirm the trial court’s order.

        The trial court summarized the procedural and factual history as follows:

              The case commenced on May 27, 2010, with Father’s
        Complaint for Custody. The [c]ourt entered an Interim Agreed
        Order of Custody on January 3, 2012, which provided that the
        parties with [sic] shared legal custody and Mother had primary
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-A28037-19


     physical custody of [Child].   Father was provided alternate
     weekends from Friday at 6:00 P.M. to Sunday at 6:00 P.M. The
     Order further set forth a summer schedule which granted Father
     alternating weeks beginning Sunday at 6:00 P.M. to the following
     Sunday at 6[:00] P.M.

           On August 1, 2013[,] the parties entered into an Agreed
     Order providing the parties with equal physical custody of the child
     year-round. The custody schedule followed an alternating weekly
     schedule.

           The [c]ourt issued Findings of Fact and an accompanying
     Custody Order on September 22, 2016, pursuant to 23 Pa.C.S.[]
     § 5328, after hearings on February 3, 2016, August 22, 2016, and
     September 6, 2016, an in camera interview of the child on
     February 5, 2016, and after review of the transcripts of the
     proceedings before the Honorable Patricia E. Coonahan from April
     2, 2015.

            Those Findings noted that Father filed three Emergency
     Petitions for Modification of the Agreed Order of January 3, 2012,
     all of which sought sole physical and legal custody of [Child]. Of
     note, this [c]ourt stated that, should Father be granted sole
     physical and legal custody, he would likely completely remove
     Mother as an influence from [Child]’s life. Moreover, Father has
     expressed no interest in maintaining the child’s relationship with
     her step-brothers or Mother’s extended family. On the other
     hand, Mother felt the child’s relationship with Father was
     important and that she would encourage continuing contact
     between Father and [Child]. This [c]ourt’s in camera interview of
     the child in 2016 revealed her desire for the 50/50 schedule to
     remain the same.

           Almost six months later, on February 1, 2017, Father filed
     an Emergency Petition for Special Relief, which simply stated that
     Mother failed to respond to his request that she switch an
     aggregate of thirteen (13) days with him due to his need to seek
     immediate medical attention. That same day, an Order was
     issued directing the parties to co-parenting counseling[,] where
     they resolved the matter.

            Shortly after, however, on February 15, 2017, Mother filed
     a Petition for Contempt, in which she requested a shift in [Child]’s
     school from private to public school. Mother alleged that Father
     has repeatedly failed to transport [Child] to school and that he
     completely refuses to share any information or documentation

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J-A28037-19


     relating to [Child]’s medical, educational or extracurricular
     activities. Mother further alleged that Father has actively resisted
     all of her attempts to cooperate and co-parent, as directed in the
     [c]ourt Orders of February 4, 2016, April 22, 2016, September 22,
     2016 and February 1, 2017.

           Following a Short List proceeding on June 5, 2017, the
     undersigned again directed the parties to co-parenting counseling
     to address the school issue, which was unsuccessful.

           In the August 8, 2017, Agreed Order, following partial
     testimony, the parties agreed that Mother would have primary
     physical custody of [Child] due to Father’s abrupt decision to
     accept a teaching assignment in Poland for the 2017-18 academic
     year. The parties further agreed that [Child] would attend
     McKinley Elementary School in the Abington School District for
     2017-18 academic year. Father was also to provide Mother with
     [Child]’s CHIP card so that she could enroll [Child] under her
     medical insurance, and Mother was to notify Father upon obtaining
     a dentist for [Child]. The parties also agreed to find a mutually
     acceptable therapist for co-parenting counseling.

           On November 29, 2017, Father filed yet another Petition to
     Modify, as he was abruptly returning from Poland on December
     21, 2017, and requested primary physical custody of [Child].

           Following another Short List proceeding, the January 30,
     2018, Interim Order directed the parties to commence family
     therapy “FORTHWITH” to focus on enabling Father to have a
     gradually increased custodial schedule. The Order also provided
     Father with partial physical custody every Wednesday after school
     overnight through Thursday morning, as well as alternate
     weekends from Friday after school overnight through Sunday at
     6[:00 P.M.]

           Rather than focus on resolving their issues, and despite
     being represented by counsel, Father personally filed three
     additional Petitions on February 14, 2018. The first was a Petition
     for Contempt, alleging that Mother has abused alcohol during her
     custodial time, that she has failed to follow through with
     contacting the co-parenting counselor, and that Mother
     purposefully disabled [Child]’s cellphone (given to her by Father
     before leaving for Poland) so as to obstruct their ability to
     communicate. Father claimed that this interference was the main
     reason he returned early from his overseas teaching assignment.


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J-A28037-19


           The second was yet another Emergency Petition to Modify
     Custody, requesting that the August 1, 2013, Agreed Order (which
     provided shared legal and equal physical custody) be reinstated.”
     His Petition, again, alleged Mother that [sic] disabled [Child]’s
     cellphone, and he pointed to specific instances where Mother has
     come in contact with law enforcement (yet notably, Father did not
     provide actual police reports or records otherwise to substantiate
     these allegations).

           Father’s third pleading was a Petition for Special Relief,
     which “demanded” the undersigned recuse himself based on
     perceived disrespect toward Father.

           Following a Short List proceeding, the April 16, 2018,
     Interim Order noted the parties had not yet commenced family
     therapy as directed in the numerous aforementioned Court Orders
     and directed the parties to select a therapist or to submit two
     names to the undersigned for selection.

           Due to the parties’ inability to reach a consensus, the May
     1, 2018, Order was entered in which the [c]ourt appointed Harry
     Carl Amarnick and it was anticipated that at least four (4) joint
     therapy sessions would occur prior [to] the June 2018 Short List.

          A few days later, the May 7, 2018, Order was entered which
     denied Father’s Motion for Recusal.

           Following yet another Short List proceeding, the June 27,
     2018, Interim Order noted the parties had still not yet commenced
     family therapy and directed the parties to agree upon a
     replacement therapist for Harry Carl Amarnick; however, this
     never occurred.

            The Order also specifically directed that a protracted hearing
     would be scheduled only upon the following: (i) the parties’
     attendance of an aggregate of six (6) months’ of co-parenting
     sessions; (ii) Father’s verification that he provided Mother with
     [Child]’s dental and CHOP medical records; and (iii) the parties’
     utilization of the “Our Family Wizard” program as an exclusive
     means of communication.

           Several months later, on January 18, 2019, Father filed
     another Emergency Petition to Modify, requesting sole legal and
     physical custody of [Child]. He alleged that he attempted to
     attend joint co-parenting sessions but that Mother interfered with
     scheduling future appointments after the second session. Once

                                     -4-
J-A28037-19


       again, Father also pointed to the same law enforcement contact
       Mother and household members have had, yet again still failed to
       provide any documentation of those alleged incidents.

             The January 24, 2019, Order directed the parties to an
       expedited Custody Conciliation Conference, in which the February
       5, 2019, Conciliator’s Report summed up the dynamics of this case
       in a nutshell: “[t]hese parties require more than co-parenting
       counseling. Their joint inability to attempt to work together
       indicates fundamental issues that both parties need to work
       through. Mother believes that she is right. Father believes that
       not only is he right, but that Mother is wrong. This child is caught
       in their web of distrust.”

              On March 4, 2019, Mother failed to appear for a Short List
       proceeding and an Order that day directed the parties to
       participate in one additional co-parenting session with Harry
       Amarnick prior to the protracted [h]earing.

             On April 4, 2019, the undersigned presided over a
       protracted [h]earing on five (5) of Father’s [p]etitions and
       Mother’s Petition for Contempt (related to co-parenting).1 On
       April 10, the undersigned conducted an in[]camera interview of
       [Child].

             After a review of the pleadings and consideration of all the
       testimony and Exhibits presented at the April 4th Hearing, as well
       as the [in camera] interview of [Child], the undersigned entered
       the May 31, 2019, Order which maintained shared legal custody
       and reinstated the alternating weekly physical custody schedule
       per the parties’ Agreed Order of August 1, 2013, and as later
       confirmed by the undersigned in the Court Order of September
       22, 2016.

             Aside from the custodial schedule, the Order also delineated
       the parties’ need for co-parenting and individual therapy, as the
       large majority of the issues brought before this [c]ourt clearly
       stem from this underlying problem: their joint inability to attempt


____________________________________________


1 Mother and Father were present and represented by counsel, and each
testified on their own behalf. In addition, Mother presented the testimony of
S.P., maternal aunt.


                                           -5-
J-A28037-19


     to work together which indicates fundamental issues that both
     parties need to work through.

           In essence, the [c]ourt realized that little to nothing had
     changed since the issuance of its comprehensive September 22,
     2016, Findings of Fact. The parties simply refuse to cooperate
     and co-parent in the best interest of [Child], but rather continue
     to blame each other without seeing how their own refusal to work
     together has detrimentally affected [Child]. In the May 31, 2019,
     Order, the undersigned provided that if the parties desired
     Findings of Fact, either could request so within five (5) days, and
     both parties timely did so. As a result, comprehensive Findings of
     Fact, consisting of twenty-five (25) pages, were issued on July 1,
     2019.

Trial Court Opinion (“T.C.O.”), 7/23/19, at 1-7 (emphasis in original)

(footnotes omitted).

     Father, through counsel, filed a timely notice of appeal on June 21,

2019, along with a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

     On appeal, Father raises the following issues for our review:

     A. Whether the trial court erred in entering a custody order after
     a trial without issuing Findings of Fact?

     B. Whether the trial court erred in entering a custody order after
     a trial without issuing an opinion setting forth a discussion of the
     sixteen factors required by 23 Pa.C.S.[] section 532[8] in the
     custody determination?

     C. Whether the trial court erred in entering an order for shared
     legal and physical custody of the child?

     D. Whether the trial court erred and/or abused its discretion in
     requiring the child to remain in the Abington [S]chool [D]istrict
     despite evidence which favored private school for the child?

     E. Whether the trial court erred and/or abused its discretion in
     ordering that the child remain in [M]other’s home despite


                                    -6-
J-A28037-19


       evidence of drug use, neglect and truancy by household
       members?

       F. Whether the trial court abused its discretion and demonstrated
       a clear bias against [Father] during the [c]ourt proceedings and
       in the Findings of Fact prepared by the trial judge?[2]

Father’s Brief at 2-3.

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

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

       In reviewing a custody order, our scope is of the broadest type
       and our standard is abuse of discretion. We must accept findings
       of the trial court that are supported by competent evidence of
       record, as our role does not include making independent factual
       determinations. In addition, with regard to issues of credibility
       and weight of the evidence, we must defer to the presiding trial
       judge who viewed and assessed the witnesses first-hand.
       However, we are not bound by the trial court’s deductions or
       inferences from its factual findings. Ultimately, the test is whether
       the trial court’s conclusions are unreasonable as shown by the
       evidence of record. We may reject the conclusions of the trial
       court only if they involve an error of law, or are unreasonable in
       light of the sustainable findings of the trial court.

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

also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015) appeal denied, 635

Pa. 754, 129 A.3d 521 (2016).



____________________________________________


2 While Father did not raise his sixth issue related to bias in his Rule 1925
concise statement, to the extent that Father’s issues are interconnected and
the issue of bias was raised therein and in conjunction with his other issues,
we find it preserved and address it below. See Krebs v. United Refining
Co., 893 A.2d 776, 797 (Pa.Super. 2006) (stating that a failure to preserve
issues by raising them both in the concise statement of errors complained of
on appeal and statement of questions involved portion of the brief on appeal
results in a waiver of those issues).

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J-A28037-19



      This Court consistently has held:

      [t]he discretion that a trial court employs in custody matters
      should be accorded the utmost respect, given the special nature
      of the proceeding and the lasting impact the result will have on
      the lives of the parties concerned. Indeed, the knowledge gained
      by a trial court in observing witnesses in a custody proceeding
      cannot adequately be imparted to an appellate court by a printed
      record.

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

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

      [a]lthough 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.

M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa.Super. 2010) (en banc) (citations

omitted).

      The paramount concern in any custody case decided under the Act is

the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338. Section 5323

of the Act provides for the following types of awards:

      (a) Types of       award.—After considering the factors set forth in
      section 5328        (relating to factors to consider when awarding
      custody), the       court may award any of the following types of
      custody if it is   in the best interest of the child:

            (1) Shared physical custody.

            (2) Primary physical custody.

            (3) Partial physical custody.



                                        -8-
J-A28037-19


         (4) Sole physical custody.

         (5) Supervised physical custody.

         (6) Shared legal custody.

         (7) Sole legal custody.

23 Pa.C.S. § 5323(a).

      Section 5328(a) sets forth the best interest factors that the trial court

must consider in awarding custody. See E.D. v. M.P., 33 A.3d 73, 79-80 n.2

(Pa.Super. 2011). Specifically, 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.

                                      -9-
J-A28037-19


           (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).

     Further, with regard to the Custody Act, we have stated as follows:

     . . . “All of the factors listed in [S]ection 5328(a) are required to
     be considered by the trial court when entering a custody order.”

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J-A28037-19


      J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (emphasis
      in original). . . .The record must be clear on appeal that the trial
      court considered all the factors. Id.

      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.[] § 5323(d).        Additionally,
      “[S]ection 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, [620 Pa. 727], 70 A.3d 808 (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. v.
      M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, [620
      Pa. 710], 68 A.3d 909 (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, 822-23 (Pa.Super. 2014).

      In its Findings of Fact, the trial court thoroughly addressed the custody

factors pursuant to Section 5328(a). Findings of Fact, 7/1/19, at 1-24. Of

particular importance to the trial court throughout its analysis of the custody

factors was Father’s attitude towards Mother’s role in Child’s life. Id. By way

of summary and conclusion, as to factor 16, the court stated:

      (16) Another relevant factor.

            The relevant factor that permeates this case above all else
      is the continuing concern by the [c]ourt regarding Father’s
      dismissal of Mother’s role in [Child]’s life. As stated in the 2016
      Findings, “Father fails to see that there can be other approaches
      to parenting issues and that rarely is there a “right way” or a
      “wrong way”.

            Father’s disdain for Mother and Mother’s family, the very
      people in [Child]’s life that also love her, is so palpable as to
      influence [Child] as she begins to pick up on Father’s cues.

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J-A28037-19


           Notably, Father is not close to any of his own family
     members. His negative attitude towards Mother’s family, and
     towards Mother, on a continuous basis lead to the very clear belief
     that Father desires to create a world where only he exists for
     [Child]: no one else is relevant, no one else is as competent to
     care for her, [Child] only needs Father. This worldview is severely
     misplaced and potentially damaging to a child if not reversed.

          This type of behavior leads the [c]ourt to believe that Father
     has embarked on a pattern of conduct that is symptomatic of
     parent alienation.

           Parent alienation involves the “programming” of a child by
     one parent to denigrate the other “targeted” parent.              The
     alienation involves a set of strategies including, but not limited to,
     bad-mouthing the other parent, creating the impression that the
     other parent is dangerous or incompetent and belittling the
     targeted parent.

            Every parent has a fundamental right to have a loving and
     unthreatened relationship with their child (absent neglect or
     abuse). To be denied that right by the other parent, without any
     justification, is itself a form of child abuse. Unfortunately, Father
     is incapable of seeing the impact that his behavior is having on
     [Child]. The damage to a child in this situation can be life-long
     and irreversible if proactive measures are not implemented.

           As indicated in the September 22, 2016, Order and the May
     31, 2019, Order accompanying these Findings, Father is
     encouraged to pursue individual therapy. If he is genuinely intent
     upon improvement, for his child’s benefit, he will do so (and
     provide copies of the 2016 Findings and these Findings to the
     professional).

           The accompanying Order also, once again, strongly
     encourages co-parenting “which is vitally important to the ongoing
     best interest of [Child]”. The ability to work respectfully and
     collaboratively for [Child] going forward is essential.

           A question remains as to whether Father will truly reflect
     upon these Findings, and address the issues that are identified, in
     the best interest of his child.

          In the event the reinstatement of 50/50 custody is not
     successful, in the end, a shift of primary custody back to Mother
     may be necessary (or a more limited or even supervised custodial

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J-A28037-19


      schedule and/or a formal parental alienation program for the
      child).

Id. at 22-24 (emphasis in original).

      Turning to Father’s issues raised on appeal, we address his first two

issues together as they are interrelated and Father combines them in his brief.

Father argues that the trial court failed to address the sixteen custody factors

set forth by 23 Pa.C.S. § 5328(a) in its May 31, 2019, custody order. Father’s

Brief at 3. Father further asserts that the court failed to issue Findings of Fact

until July 1, 2019, the last day either party was able to file a timely appeal.

Id. at 39-41.

      As to these issues, the trial court reasoned as follows:

              Here, Father’s first and second [i]ssues are both entirely
      moot, as the [c]ourt held a protracted [h]earing on April 4, 2019,
      conducted an in camera interview of the minor child on April 10,
      2019, and issued the May 31, 2019, Custody Order which
      delineated what it considered to be the most glaring issue in this
      ongoing custody litigation: the parties’ complete inability to
      communicate and co-parent. The May 31st Order strongly
      encouraged the parties to participate in co-parenting counseling
      as well as individual counseling. As previously stated, little to
      nothing has changed within this family dynamic since the 2016
      litigation other than the need, now more than ever, for the parties
      to learn to work together in [Child]’s best interests.

            The May 31st Order specifically noted that extensive Findings
      of Fact, consisting of thirteen (13) pages, accompanied the prior
      Custody Order of September 22, 2016 (which resulted after a
      three-day protracted Hearing and a previous in-camera interview
      of [Child]). In addition, the Order also provided that either party
      could submit a request for Findings of Fact within five (5) business
      days of the May 31st Order, which both parties timely did.

            As a result, this [c]ourt issued its Findings of Fact on July 1,
      2019. These extensive Findings, at twenty-five (25) pages, fully
      delineated each of the custody factors as the [c]ourt’s rationale
      for maintaining the shared legal and reinstating the shared

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J-A28037-19


      physical custody schedule as set forth in the August 1, 2013,
      Agreed Order (and confirmed by the undersigned in the
      September 22, 2016 Order).

             Notably, interspersed throughout the July 2019 Findings
      (and as previously noted in the May 31st Order) are references to
      the September 22, 2016, Custody Order and Findings of Fact, as
      almost every instant issue was analogous or identical to those
      discussed in 2016; in particular, again, the parties’ complete
      inability to communicate, even via email or the “Our Family
      Wizard” program, which has clearly had an adverse effect on every
      aspect of their approach to custody of the minor child.

             It cannot be overstated that the parties are stuck in an ever-
      revolving [c]ourtroom door over the power dynamics in their
      relationship with [Child]. Although Mother attempts to co-parent
      with Father, her efforts have been repeatedly and completely
      rejected by him as he sees himself as the “superior” or “better”
      parent. In this sense, Father appears directed at the complete
      alienation of [Child] towards Mother, which is evident based on
      his pleadings alone, as well as his substantive testimony
      throughout multiple courtroom proceedings over a three (3) year
      time period.

            In any event, Father’s first and second [i]ssues are entirely
      moot, as the [c]ourt timely issued extensive Findings of Fact,
      consisting of twenty-five (25) pages, which addressed each §
      5328 custody factor and fully delineated its reasoning for
      maintaining an equally shared legal and reinstatement of a shared
      physical custody schedule.

            Accordingly, the within [i]ssue is without merit, is not
      supported by the facts in this matter, is deemed moot, and should,
      therefore, be dismissed.

T.C.O. at 9-11.

      With this, we agree. For the reasons stated by the trial court, Father’s

claims are without merit.

      With the remainder of his issues, which we consider together as they

are interrelated, Father further challenges the trial court’s determinations as

to the Section 5328(a) factors and award of custody. Father’s Brief at 42-48.

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In so arguing, Father highlights concerns as to Mother and her household. Id.

at 42-45. Specifically, Father indicates concern as to members of Mother’s

household, including Mother’s boyfriend, and Mother’s son, Child’s half-

brother, and his girlfriend. Id. at 44-45. Additionally, Father asserts bias on

the part of the trial court in its analysis of the custody factors.3 Id. at 46-53.

Notably, Father concludes,

              The tone of the [c]ourt’s Order, Findings of Fact, and
       Opinion is consistently anti-Father to the extent that the [c]ourt
       has difficulty with crediting Father with the few things even the
       Judge must admit favors [] Father’s request for custody. In
       discounting the chaos at Mother’s home, and failing to incorporate
       testimony that favored Father’s request for full custody, the Judge
       became a participant in this custody case rather than the arbiter.
       The fact that Father is retired, able to provide reliable
       transportation, willing to help [] Child with homework and
       transport and support [] Child in extracurricular activities are all
       discounted by the Judge as factors in Father’s favor. Instead[,]
       the Judge views these facts as evidence of Father’s controlling
       nature. Meanwhile, [] Mother’s many difficulties and chaotic
       household are minimized wherever possible, allowing the Judge to
       feel justified in leaving her with 50% of the custodial time. . . .

Id. at 53-54.

       With regard to the custody factors, we have stated that the trial court

is required to consider all of the Section 5328(a) factors in entering a custody

____________________________________________


3 Father himself states in his brief, “Again, many of the matters complained of
on appeal cross over into, and are intertwined with, others.” Father’s Brief at
42. As such, Father addresses his third, fourth, and fifth issues together. Id.
at 42-46. While arguing bias throughout this discussion, he does, however,
provide a separate discussion of his sixth issue of bias. Id. at 47-53. As we
find this largely a challenge to the trial court’s analysis of the custody factors,
as are his challenges to his third, fourth, and fifth issues, we consider the
remainder of Father’s issues together.

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J-A28037-19



order. J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011). Although the

court is required to give “weighted consideration to those factors which affect

the safety of the child” pursuant to 23 Pa.C.S. § 5328(a), we have

acknowledged that the amount of weight a court gives any one factor is almost

entirely discretionary. M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013).

Critically, as we stated in M.J.M.:

      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. See A.D. v. M.A.B., 989 A.2d 32, 35-36
      (Pa.Super. 2010) (“In reviewing a custody order . . . our role does
      not include making independent factual determinations. . . . In
      addition, with regard to issues of credibility and weight of the
      evidence, we must defer to the presiding trial judge who viewed
      and assessed the witnesses first-hand.”). Our decision here does
      not change that.

Id. (emphasis added). Further, we have also noted that, while the primary

caretaker doctrine is no longer viable, a court may still consider a parent’s role

as primary caretaker in its consideration of the custody factors.

      We hasten to add that this conclusion does not mean that a trial
      court cannot consider a parent’s role as the primary caretaker
      when engaging in the statutorily-guided inquiry. As discussed
      above, a trial court will necessarily consider a parent’s status as a
      primary caretaker implicitly as it considers the [S]ection 5328(a)
      factors, and to the extent the trial court finds it necessary to
      explicitly consider one parent’s role as the primary caretaker, it is
      free to do so under subsection (a)(16).

Id.

      As we construe this issue, we interpret the issue at its core as a dispute

to the trial court’s findings of fact and determinations regarding credibility and

weight of the evidence, as well as the weight attributed to certain factors.

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J-A28037-19



Father, in essence, questions the trial court’s conclusions and assessments

and seeks this court to re-find facts, re-weigh evidence, and/or re-assess

credibility to his view of the evidence.      This we cannot do.      Under the

aforementioned standard of review applicable in custody matters, the trial

court’s findings of fact and determinations regarding credibility and weight of

the evidence are not disturbed absent an abuse of discretion. See C.R.F., 45

A.3d at 443; see also E.R., 129 A.3d at 527. As we stated in King v. King,

889 A.2d 630, 632 (Pa.Super. 2005), “It is not this Court’s function to

determine whether the trial court reached the ‘right’ decision; rather, we must

consider whether, ‘based on the evidence presented, given [sic] due deference

to the trial court’s weight and credibility determinations,’ the trial court erred

or abused its discretion. . . .” (quoting Hanson v. Hanson, 878 A.2d 127,

129 (Pa.Super. 2005)). After a thorough review of the record, we find no

abuse of discretion.

      In the case sub judice, the trial court exhaustively and reasonably

analyzed and addressed each factor under Section 5328(a). See Findings of

Fact, 7/1/19, at 1-24. After careful review of the record, we determine that

the trial court’s findings and determinations regarding the custody factors set

forth in Section 5328(a) are supported by competent evidence in the record,

and we will not disturb them. See C.R.F., 45 A.3d at 443; see also E.R.,

129 A.3d at 527. As such, Father’s claims are without merit.

      Accordingly, for the foregoing reasons we affirm the trial court’s order.

      Order affirmed.

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J-A28037-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/20




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