J. A21020/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


J.S.                                        :     IN THE SUPERIOR COURT OF
             v.                             :          PENNSYLVANIA
                                            :
R.H. AND J.H.                               :
                                            :
                                            :
APPEAL OF: J.S.                             :
                                            :
                                            :     No. 982 EDA 2016

               Appeal from the Order Entered February 29, 2016
                In the Court of Common Pleas of Lehigh County
                     Civil Division at No(s): 2010-FC-1558

BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                         FILED SEPTEMBER 07, 2016

       Appellant, J.S., (Grandmother) appeals from the February 29, 2016

Order1 entered in the Court of Common Pleas of Lehigh County which denied

Grandmother’s oral Motion for Modification of Legal Custody and reinstated

the September 22, 2015 Order which denied Grandmother’s Petition for

Contempt and Modification. After careful review, we affirm on the basis of

the trial court Opinion.

       The trial court set forth the factual and procedural history as follows:

       [R.H. (Father)] and [J.H. (Mother)] are the biological parents of
       twin boys, J.H. and R.H., born [in] March [of] 2005. On July 2,
       2011, by agreement of the parties, the Honorable William E.
       Ford entered an order awarding [Father] and [Mother] joint legal



1
  The Order is dated February 26, 2016 but a review of the certified record
indicates it was filed February 29, 2016.
J. A21020/16


     custody of the boys. [Father] was awarded primary physical
     custody and [Grandmother] received partial physical custody.

     Under the partial physical custody agreement, the children are
     with [Grandmother] after school from Tuesday through Friday.
     The children then are driven to their father's home at or around
     8:00 p.m. each evening after [Father] returns home from work.

     On September 23, 2014, [Grandmother] filed a Petition for
     Contempt and Modification. In her petition, she alleged [Father]
     violated the July 2, 2011 custody order by failing to turn the
     children over to her on Fridays throughout the summer of 2014
     and for failing to obtain health insurance for the children.
     [Grandmother] further sought modification based on an
     allegation that the children were being abused by [Father].

     On September 8 and 10, 2015, the [c]ourt conducted hearings
     on [Grandmother]’s petition along with a similar petition filed by
     [Mother] which is not the subject of the instant appeal. The
     [c]ourt heard testimony from the parties, a psychologist, and
     [Grandmother]'s husband. The [c]ourt also interviewed the
     minor children individually in camera outside the presence of the
     parties and counsel but with the Court Reporter.

     On September 22, 2015, the [c]ourt entered an order denying
     both contempt and modification petitions which included an
     extensive review of the [c]ourt's findings under the custody
     factors enumerated in 23 Pa.C.S.A. § 5328 and 5329.1. Based
     on those factors, the [c]ourt denied modification and maintained
     the existing custody arrangements. The only addition was that
     the [c]ourt directed the biological parents and [Father]’s
     paramour to enroll and participate in Co-Parenting Education
     classes.

     Appellant filed her Notice of Appeal on October 22, 2015. The
     [c]ourt directed her to file a 1925(b) Statement, which she
     timely filed on November 18, 2015. Upon review of the issues
     complained of on appeal, the [c]ourt felt it was appropriate to
     request that the matter be remanded for purposes of
     interviewing the minor children with counsel present.       The
     matter was remanded on or about January 6, 2016 and the
     [c]ourt re-interviewed the minor children on February 18, 2016.
     On February 29, 2016, the [c]ourt entered an order finding that
     the re-interviews did not yield any different information which


                                   -2-
J. A21020/16


      would necessitate modifying the September 22, 2015 Order.
      Accordingly, the September 22, 2015 Order was reinstated.

Trial Court Opinion, filed 4/22/16, at 3-4.

      Grandmother timely appealed. Both Grandmother and the trial court

complied with Pa.R.A.P. 1925.

      Grandmother raises the following issues on appeal:

   1. Did the trial court err in finding that [Father] is more likely to
      encourage and permit frequent and continuing contact between his
      children and [Grandmother]?

   2. Did the trial court err in finding that [Father] has not committed past
      abuses of his children?

   3. Did the trial court err in not finding that [Grandmother] was more
      qualified to perform parental duties on behalf of the children?

   4. Did the trial court err in failing to find that [Grandmother] would be
      better able to provide for stability and continuity in the children’s
      education, maturity, and judgment?

   5. Did the trial court err in failing to find that [Father] has attempted to
      turn the children against [Grandmother]?

   6. Did the trial court err in failing to determine that [Grandmother] is
      better able to maintain a loving, stable, consistent, and nurturing
      relationship with the children, and to attend to the daily physical,
      emotional, developmental, educational, and special needs of the
      children, than is [Father]?

   7. Did the trial court err in failing to rationally          consider   the
      uncontradicted testimony of Dr. Ronald Esteve?

   8. Did the trial court err in denying [Grandmother]’s request for co-legal
      custody and primary physical custody of her minor grandchildren?

Grandmother’s Brief at 4-5.

      Our standard of review regarding child custody matters is well settled:



                                     -3-
J. A21020/16


      [O]ur 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.

A.D. v. M.A.B., 989 A.2d 32, 35–36 (Pa. Super. 2010) (internal

citations and quotation marks omitted).

      In a child custody case, “the paramount concern is the best interests

of the child.   This standard requires a case-by-case assessment of all the

factors that may legitimately affect the physical, intellectual, moral and

spiritual well-being of the child.” Id. at 36 (internal citations and quotation

marks omitted). When “ordering any form of custody” the trial court must

consider the following sixteen factors:

      (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) (relating to
            consideration of child abuse and involvement with
            protective services).



                                     -4-
J. A21020/16


     (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.


                                     -5-
J. A21020/16



23 Pa.C.S. § 5328(a).

      The Honorable Douglas G. Reichley, who presided at the hearing, has

authored a comprehensive, thorough, and well-reasoned Opinion, citing to

the record, relevant case law, and applicable statutes in addressing

Grandmother’s challenges to the trial court’s February 29, 2016 Order. After

a careful review of the parties’ arguments and the record, we affirm on the

basis of the trial court’s Opinion, which concluded that: (1) the trial court

did not abuse its discretion when it denied Grandmother’s Petition for

Contempt and Modification;     (2)   although it is “unorthodox,” the parental

duties for the children are performed by a “three[-]person structure” and it

is in the best interests of the children to maintain the physical and legal

custody that was in place at the time of the hearing.          See Trial Court

Opinion, filed 4/22/16, at 5-16.

      The parties are instructed to attach a copy of the trial court’s Opinion

to all future filings.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/7/2016




                                      -6-
                                                                APlt ~2 2 20.li
                                                                         Circulated 08/26/2016 08:18 AM



      IN THE COURT OF COMMON PLEAS OF LEIUGH COUNTY, PENNSYLVANIA
                             CIVIL DMSION

    RICHARD HOFFELD,                                  )
                                                      )
                               Plaintiff              )
                                                      )
         vs.                                          )      Case No. 2010-FC-0870
                                                      )
    JANICE HIGHLAND,                                  )
                                                      )
                               Defendant              )


    JUDY SHANNON,                                     )
                                                      )
                       Plaintiff                      )
                                                      )
         vs.                                          )      Case No. 2010-FC-1558
                                                      )               982 EDA2016
    RICHARD HOFFELD, JANICE HIGHLAND,                )
                                                     )
                       Defendants                    )

                                                                                   April 20, 2016

Appearances:
     Mark S. Sigmon, Esq. for Judy Shannon and Janice Highland

        Michael E. Brunnabend, Esq. for Richard Hoffeld

                                                                         Douglas G. Reichley, J.
                                           1925(a) Oginion

        Judy Shannon, Appellant, is appealing from the Order entered September 22, 2015 in the

above-captioned matters ruling on two Petitions for Contempt and Modification, one filed by

Appellee Janice Highland and the other by Appellant, the maternal grandmother.1 Both petitions


I
 The within matter previously went up on appeal to the Superior Court under docket number
3232 EDA 2015. The Court entered a 1925(a) Opinion requesting that the matter be remanded
to afford the Court the opportunity to interview the minor children with counsel for the parties
present because counsel did not previously waive their presence during the initial interviews
with the minor children. The Court conducted the re-interviews on February 18, 2016 in the
                                                                                                 2

2010-FC-0870, 2010-FC-1558
 sought modification of the custody arrangement for Richard Hoffeld and Janice Highland's two

 twin boys, age 10. On September 22, 2015, the Court entered an order denying both petitions.

 Appellant Shannon is the only party appealing from the Court's decision.

                                 Factual and Procedural    History

        Richard Hoffeld and Janice Highland are the biological parents of twin boys, J.H. and

 R.H., born March 4, 2005. On July 2, 2011, by agreement of the parties, the Honorable William

E. Ford entered an order awarding Hoffeld and Highland joint legal custody of the boys. Richard

Hoffeld was awarded primary physical custody and Appellant received partial physical custody.

        Under the partial physical custody agreement, the children are with Appellant after

school from Tuesday through Friday. The children then are driven to their father's home at or

around 8:00 p.m. each evening after Mr. Hoffeld returns home from work.

        On September 23, 2014, Appellant filed a Petition for Contempt and Modification. In her

petition, she alleged Mr. Hoffeld violated the July 2, 2011 custody order by failing to turn the

children over to her on Fridays throughout the summer of 2014 and for failing to obtain health

insurance for the children. Appellant further sought modification based on an allegation that the

children were being abused by Mr. Hoffeld.

       On September 8 and 10, 2015, the Court conducted hearings on Appellant's petition

along with a similar petition filed by Janice Highland which is not the subject of the instant

appeal. The Court heard testimony from the parties, a psychologist, and Appellant's husband.

The Court also interviewed the minor children individually in camera outside the presence of the

parties and counsel but with the Court Reporter.



presence of counsel and entered the order that is partially the subject of the instant appeal on
February 29, 2016.
                                                                                                    3

2010-FC-0870, 2010-FC-1558
.·

             On September 22, 2015, the Court entered an order denying both contempt and

     modification petitions which included an extensive review of the Court's findings under the

     custody factors enumerated in 23 Pa.C.S.A. § 5328 and 5329.1. Based on those factors, the Court

     denied modification and maintained the existing custody arrangements. The only addition was

     that the Court directed the-biological parents and Mr. Hoffeld's paramour to enroll and

     participate in Co-Parenting Education classes.

             Appellant filed her Notice of Appeal on Octa ber 22, 2015. The Court directed her to file

     a 1925(b) Statement, which she timely filed on November 18, 2015. Upon review of the issues

     complained of on appeal, the Court felt it was appropriate to request that the matter be remanded

     for purposes of interviewing the minor children with counsel present. The matter was remanded

     on or about January 6, 2016 and the Court re-interviewed the minor children on February 18,

     2016. On February 29, 2016, the Court entered an order finding that the re-interviews did not

     yield any different information which would necessitate modifying the September 22, 2015

     Order. Accordingly, the September 22, 2015 Order was reinstated.

            Appellant filed the instant Notice of Appeal on March 28, 2016. She filed a Concise

     Statement on April 12, 2016.

            This Opinion follows.




     2010-FC-0870, 2010-FC-1558
                                              Discussion

        In Appellant's l 925(b) Statement, she raises twelve allegations of error, all of which

 allege abuse of discretion with respect to various factors courts are directed to consider in

entering rulings on custody matters. For the reasons set forth herein, all of Appellant's issues are

meritless.

        In reviewing a trial court's determination in a custody case, the standard of review is

abuse of discretion and the scope of review is broad. S. WD. v. S.A.R., 96 A.3d 396, 400 (Pa.

Super. 2014) (citing MP. v. MP., 54 A.3d 950, 953 (Pa. Super. 2012)). The Superior Court is

required to accept the trial court's findings that are supported by the evidence, and it must "defer

to the trial judge regarding credibility and weight of the evidence." Id. While the trial judge's

deductions and inferences from its factual findings are not binding upon the Superior Court, the

Superior Court may only reject the trial court's conclusions if "they involve an error oflaw or

are unreasonable in light of its factual findings." Id.

        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). The General Assembly has directed that in

determining the child's best interest, the trial court must consider the following 16 factors when

"ordering any form of custody." 23 Pa.C.S.A. § 5328(a). These 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.
       (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.



2010-FC-0870, 2010-FC-1558
        (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.A. § 5328(a).

        A seventeenth factor was added to this list in 2014 which requires the trial court to

consider child abuse and any involvement with protective services. 23 Pa.C.S.A. § 5329.1.

       The Court will now address each of Appellant's contentions individually.

 Whether the Court erred in finding that Richard Hoffeld is more likely to encourage and permit
  frequent and continuing contact between his children and Appellant and Defendant Janice
                                            Highland

       Appellant argues the Court erred in concluding that Richard Hoffeld is more likely to

encourage and permit frequent and continuing contact between the children and the other parties.

In the Court's order entered September 22, 2015, the Court observed with respect to this factor:

       [T]here was not any evidence presented that the Respondent had inordinately or
       deliberately interfered in the exercise of partial custody by Petitioners, nor that he
       failed to encourage and allow frequent contact between the children and the
       Petitioners. The children spend four afternoons per week and portions of two
       Sundays per month with the Petitioners. Ms. Highland is still not in a position

                                                                                                   6

2010-FC-0870, 2010-FC-1558
                                                                                                ~'1
        where she can have the children spend any overnights at her own residence. The
        Petitioners allege they were denied custody to allow the children to attend picnics
        or weddings, but Hoffeld countered he was only notified of these occasions at the
        Last minute. There is palpable antagonism between Hoffeld and Highland, but
        there is not any evidence this has spilled over into Hoffeld preventing contact
        between the boys and their mother or grandmother. This factor is weighed in
        favor of Respondent.

(Order, September 22, 2015, at 2.)

        In support of her assertion of this issue, Appellant's Concise Statement cites to various

pages of the transcript from the two-day custody trial in September of 2015. The testimony cited

from the September 8, 2015 hearing was offered by Dr. Ronald Esteve, who testified as an expert

in the field of Clinical Psychology with a specialty in custody cases. Dr. Esteve testified that Mr.

Hoffeld was "openly disparaging" of Ms. Highland when the two of them spoke in private. (N.T.

9/8/15, p. 32.) Dr. Esteve testified he suspected this disparagement continued in front of the

children. (Id.) However, there was not any testimony that Mr. Hoffeld has allowed his personal

feelings toward Ms. Highland or Appellant to impact upon his allowing the children to maintain

contact with them.

       Appellant cites several pages from the transcript of the September 10, 2015 hearing as

well. One excerpt of testimony is particularly relevant to this issue:

       THE COURT: Regardless of whatever Dr. Esteve may have bad in his report, do
       you believe there's value between you and Ms. Highland trying to have some kind
       of a workable relationship so that you are able to communicate for the sake of
       your sons?

       MR. HOFFELD: We do. She will text me and say, I have off this Sunday. Can I
       have the boys? I'll message back, okay. That's pretty much the extent of it.
       There's never any harsh words on her part or on mine. It's just, can I have the
       boys? Okay. And that's it.

       THE COURT: And on the Sundays when she does exercise the partial custody,
       does Ms. Highland drive to your residence? Do you drive the boys down?


                                                                                                    7

2010-FC-0870, 2010-FC-1558
                                                                                                 '~8
        MR. HOFFELD: She picks them up. And that was the originaJ order, that she can
        pick them up, have them for a certain time, and then bring them home.

        THE COURT: So, she does transportation both ways on those Sundays?

        MR. HOFFELD: Yeah because then she's going from our house to church, from
        church to get something to eat, and then bringing them back.

        TI-IE COURT: So, the two of you have not had an occasion to attend something at
        the same time for your children?

       MR. HOFFELD: No.

(N.T. 9/10/15,pp.115-117.)

       This sort of interaction is consistent with the body of testimony the Court received during

the hearings. The parties maintain contact, albeit minimal, among themselves and the children

have frequent contact with each of them. Ms. Highland was called on redirect and testified:

       Q. Now, there was also testimony from Richard about, at the present time, say
       within the last six months, six months to a year, you and he have all kinds of
       communication back and forth; is that true?
       A. No.
       Q. Tell us what the status of that communication between you and Richard is at
       the present time let's say, within the last six months?
       A. It would be me asking him via text message can I get the kids on a Sunday for
       church and not getting a response. Or maybe just getting one letter, hey, response.

(Id p. 135-36.)

       The transcript supports the Court's weighing the factor of encouraging and permitting

frequent contact between the children and their mother in favor of Mr. Hoffeld. While the extent

of the contact between the parties is minimal, there was not any evidence to support a finding

that Mr. Hoffeld sought to prevent contact between the other parties and the children.

Accordingly, the Court's ruling was reasonable and consistent with the evidence.




2010-FC-0870, 2010-FC-1558
I .   •   I




                Whether the Court etred tn failing to permit counsel lo be present for the in camera interviews
                                                    with the minor children

                      This issue is moot. As discussed in Footnote 1, surpa, the Court requested that the case

               be remanded from the original appeal so that the children could be re-interviewed with counsel

               present. That re-interview in the presence of counsel took place on February 18, 2016. This issue

               has therefore been resolved.

                   Whether the Court erred in finding that Mr. HoQeld has not commilled past abuses o{the
                                                           children

                      Dr. Esteve testified the minor children feared their father and have an unrealistic

              description of him. He testified the children were forced to stand for extended periods of time as

              a form of punishment.

                      Mr. Hoffeld testified that he has spanked one of the minor children, R.H., on two

              occasions. (N.T. 9/10/15, p. 80.) He acknowledged he used to make the children stand in comers,

              but more recently the children have been required to read while sitting at the table as a form of

              punishment. (Id. pp. 80-81.) During the in camera interview with the children conducted on

              February 18, 2016 in the presence of counsel, the boys testified about this form of punishment

              and indicated Mr. Hoffeld's paramour has made them read historical books and write book

              reports. (See N.T. 2/18/16d)-. 40.) Upon consideration of all the evidence, the Court found the

              testimony of Mr. Hoffeld more credible. The boys' descriptions of their home lives were

              consistent with Mr. Hoffeld's testimony. In addition, the Court did not find that there was any

              evidence of abuse or patterns thereof. Accordingly, the Court's determination was consistent

              with the evidence.




                                                                                                                  9

              2010-FC-0870, 2010-FC-1558                                                                          LfO
'   .

             Whether the Court erred in not finding that Judy Shannon was more qualified to perform
                                    parental duties on behalf of the children

                The Court determined that this was a neutral factor as among the parties. As the Court

         explained in the custody order:

                [Mr.] Hoffeld is able to perform the normal parental duties of feeding, clothing,
                and providing shelter for the children. Between he and his paramour, the boys are
                assisted with their schoolwork. The boys are picked up and taken to Ms.
                Shannon's home four days per week after school. They see their mother at
                Shannon's home. They do their homework while at their grandmother's and have
                some meals there. As a result, though unorthodox, the parental duties for the
                children are performed by this three person structure.

        (Order, September 22, 2015, at 3.)

                Appellant Shannon argues the Court erred by not finding that she is more qualified to

        perform parental duties on behalf of the children. As the Court observed, the circumstances,

        though unorthodox, work for the parties and for the children. In the in camera interviews with

        the children, they expressed a preference to spend time with both of their parents. This

        arrangement accomplishes that goal. While Appellant feels she would be better able to take care

        of the children, the Court found that upon consideration of the totality of the evidence, it is in the

        boys' best interest to spend a more or less equal amount of time with all three of the parties in

        this case. Accordingly, the Court properly determined this factor was neutral.

             Whether the Court erred in finding the need for stability and continuilJ! in the children 1s
                             education. maturity, and judgment is a neutral factor

               As the Court explained in the September 22, 2015 order, and as set forth above, "the

        arrangement the parties have constructed provides the parity both the parties and the children

        desire." (Id) Ms. Highland shares an apartment with another adult. Consequently, she sees the

        children at the home of her mother, Appellant Shannon. Appellant sought both legal and physical

        custody and for the boys to live with her and her husband. However, this is not what the boys

                                                                                                             10

        2010-FC-0870, 2010-FC-1558                                                                          'fl
want, which is a factor the Court must consider. While both of the boys have Individual

Education Plans, they are performing well under those plans. There was not any evidence to

suggest the boys are experiencing a detrimental impact from the current living arrangement. In

fact, the circumstances currently in place contribute to the boys' stability and continuity in

education, maturity, and judgment because they are able to spend time with both of their parents

and their maternal grandparents in a relatively consistent, routine manner.

   Whether the Court erred in finding the children prefer to live with their father as opposed to
                                              Appellant

        Appellant asserts the Court erred in concluding the boys wish to live with their father.

This issue, as presented by Appellant, is a mischaracterization of the Court's decision. The Court

determined and stated repeatedly in its order that the circumstances in the parties' homes where

the boys share roughly equal time with both parents is a good, healthy arrangement that serves

their best interests. The Court did not find that the children should live exclusively with Mr.

Hoffeld.

        Appellant's Concise Statement cites a number of pages in the transcripts from the

hearings in support of this assertion, but the pages cited do not offer factual support. In some

instances, there is nothing relevant to this topic on any of these pages. For example, Appellant

refers the Court to page 66 of the September 10, 2015 hearing. A careful review of everything on

and around that page indicates there is not any testimony contained therein relating to the issue

for which Appellant cites it. This is true of many of the citations to the record in Appellant's

Concise Statement.




                                                                                                    11

2010-FC-0870, 2010-FC-1558                                                                         4-2-
        The Court conducted two separate in camera interviews with the children, one without

 counsel present and a second with counsel present. During both interviews, the children were

 consistent in their expression that they wished to have equally divided time with both parents.

        When Appellant testified, she was asked by counsel whether she believed the minor

children love her. (Id. p. 27.) She answered in the affirmative and explained that the boys show

that love as follows:

        Oh, I get hugs. And like I said, I don't gel kisses anymore. I get told all the time, I
        love you grandma. They walk in the door, and there's a big hug. I Jove you
        grandma. Or if I pick them up from school, l got one on this side and one on this
        side, and we're walking arm in arm, and we're talking all the time. What do you
        have for homework? What did you do? TWs and that. It's just a big old happy
        thing. We're in the car, we're talking. You know, what happened at school? What
        we did, everything. What are you making for supper grandma?
(Id.)

        This explanation does not constitute an error on the Court's part in concluding the

children prefer to split their time living with their father and going to their grandparents' house.

The evidence of record demonstrated that the current arrangement is preferable for the parties to

foster the children's best interests. While the Court does not doubt Appellant's affection for the

children or her ability to care for them, awarding Appellant custody of the minor children and

reducing their time with their father is not in their best interests.

  Whether the Court erred in finding Mr. Ho(feld has not attempted to turn the children against
                                Judy Shannon and Janice Hoffeld

        According to the testimony the Court received, while Mr. Hoffeld openly acknowledged

his animosity toward Ms. Highland, he does not make negative comments about her to the

children or in their presence. He has not prevented the children from spending time with Ms.

Highland or Ms. Shannon.



                                                                                                   12

2010-FC-0870, 2010-FC-1558                                                                         '-{3
        Appellant cites several pages from the transcripts in support of her assertion, but aside

 from conjecture offered by Dr. Esteve indicating he suspected Mr. Hoffeld is openly dismissive

toward Ms. Highland in front of the boys, the record does not contain any evidence to

substantiate the claim that Mr. Hoffeld attempts to turn the children against Appellant or Ms.

Highland. Rather, the record shows that Mr. Hoffeld, while hostile toward Ms. Highland, does

not communicate that hostility to or in front of the boys. Dr. Esteve opined the boys "seem to be

under some kind of belief that if the father is not successful in this dispute with the mother and

grandmother, then that relationship will fail." (N.T. 9/8/15, at 33.) Notwithstanding whether Dr.

Esteve's opinion is accurate, this does not indicate that Mr. Hoffeld has endeavored to turn the

boys against Ms. Highland or Appellant. Accordingly, this issue is meritless.

Whether the Court erred in determining that the parties' respective abilities to maintain a loving,
  slable. consistent and nurturing relationship with the children and attending to tf1eir daily
   ohysical. emotional. developmental, educational. and special needs were neutral factors
    "




         In addressing the factors of loving and stable environment for the children and which

party is more likely to attend to the children's daily needs, the Court found both factors to be

neutral. As the Court explained:

        Both parents are able to provide a loving and stable environment for the children,
        albeit that Highland has provided such a nurturing atmosphere through her
        mother's care. Ms. Shannon also provides a consistent and caring home for her
        grandsons, and the two children are the beneficiaries of having two households
        who care so much for them.

(Order, September 22, 2015, at 4.)

        Appellant takes issue with the fact that the Court found this factor to be neutral instead of

finding in her favor. However, a review of all of the evidence indicated that the two households




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2010-FC-0870, 2010-FC-1558
                                                                                                   'If
 in which the children live are loving and stable environments for them. While the households are

 different in many respects, neither environment is unstable or inconsistent.

         Regarding the factor of which party is more likely to attend to the children's daily needs,

the Court explained:

        Both Mr. Hoffeld and Ms. Shannon demonstrated the ability and intent to attend
        to the daily needs of the children. It is very clear Ms. Shannon and Ms. Highland
        disagree with the manner in which Mr. Hoffeld is raising the two children
        including Hoffeld's decision not to purchase health insurance, not to be able to
        alter his work schedule to attend parent-teacher conferences, his lack of faith in
        psychological assessments, and the aspects of living conditions in his home.
        While these are all legitimate factors upon which to disagree, individually and
        collectively, they are not disqualifying qualities against Mr. Hoffeld. Ms. Shannon
        has expressed an open interest in providing a different type of environment for the
        children, where she and her husband would provide for the daily needs of the
        children. Ms. Shannon's intent is admirable but it is not enough to transfer
        primary custody to her.

(Id. at 4-5.)

        The record supports this conclusion. The testimony indicated that all parties love the boys

and actively work to tend to their daily needs. Appellant's perspective is that she can provide a

better environment for the boys. However, the evidence reflected that Mr. Hoffeld is capable of

providing a healthy and loving environment for the boys, albeit a different environment than the

one envisioned by Appellant.

Whether the Court erred in failing to find that the uncontradicted testimonv o(Dr. Ronald Esteve
                                    was credible and relevam

        Appellant's issue is a mischaracterization   of the Court's determination. When reviewing

a custody petition, courts are tasked with establishing a workable situation which promotes the

children's best interests. In doing so, courts are required to consider the statutory factors set forth

by the General Assembly. 23 Pa.C.S.A. §§ 5328, 5329.1. The Court received the testimony of

Dr. Esteve and took it into consideration in this case. However, that testimony is one factor

                                                                                                    14

2010-FC-0870, 2010-FC-1558
 among many. As the Court's extensive order entered in this case set forth, there were numerous

 other factors at play. The Court did not find that Dr. Esteve's testimony was irrelevant or non-

 credible. Appellant more accurately takes issue with the weight the Court afforded to Dr.

 Esteve's testimony.

        The Court received testimony from all of the parties, Mr. Hoffeld's paramour, and the

 minor children. Upon consideration of all of the testimony and the evidence submitted in this

 case, the Court determined that the arrangement the parties had at the time of the hearings

 properly advanced the children's best interests. Appellant's disagreement with the Court's

 conclusions does not equate to legal error or abuse of discretion.

     Whether the Court erred in denying Appellant's request for co-legal custody and primary
                             physical custody ofthe minor children

        As set forth in the preceding discussion, the Court determined in this case that the

physical custodial arrangement between the parties worked to achieve the children's best

interests. Mr. Hoffeld and Ms. Shannon both maintain stable, loving homes for the boys, and Mr.

Hoffeld's paramour is a positive influence on the boys. She further acts as a conduit between Mr.

Hoffeld and Ms. Highland. The boys expressed a preference to maintain approximately equal

time with each parent. (See N.T. 2/18/16, pp. 28, 77-78.) There was not any evidence to support

a finding that granting primary physical custody to Ms. Shannon was in the boys' best interest.

        Similarly, Mr. Hoffeld and Ms. Highland share joint legal custody. While the Court

acknowledged Appellant's interest in obtaining legal custodial rights so she can communicate

with the children's school, Mr. Hoffeld and Ms. Highland are actively involved in the children's

lives. To the extent any communication with the school is necessary, the boys' parents can

correspond with the school and would be free to share any information with Appellant they


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201 O-FC-0870, 2010-FC-1558
t-,




      deemed appropriate. However, the Court did not find that that there was any evidentiary support

      in favor of awarding Appellant co-legal custody for that purpose. Accordingly, the Court's

      decision to deny Appellant's requests for primary physical custody and co-legal custody was

      appropriate.

                                                  Conclusion

              As the Court set forth in its Order of September 22, 2015, Mr. Hoffeld and Ms. Highland,

      as the parents of the minor children at issue in this matter, need to improve their level of

      communication with one another. However, having carefully considered all of the testimony and

      evidence, the Court properly determined that the physical and legal custodial circumstances in

      place at the time of the hearing were in the boys' best interests. Appellant's disagreement with

      the Court's findings and the weight afforded to certain factors does not mean that the Court

      abused its discretion or committed an error oflaw. In fact, many of the factors which Appellant

      challenges on appeal were factors the Court deemed to be neutral. The evidence supported the

      Court's findings. As a result, the Court respectfully recommends that its Order of September 22,

      2015 and the companion order entered February 29, 2016 be AFFIRMED.

                                                            By the Court:


                                                                                 j



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      2010-FC-0870, 2010-FC-1558                                                                     41
