J-S01045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 J.A.D.                                  :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 J.M.F.                                  :
                                         :
                    Appellant            :    No. 1597 MDA 2018

               Appeal from the Order Entered August 29, 2018
              In the Court of Common Pleas of Wyoming County
                     Civil Division at No(s): 2018-00141


BEFORE:    PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                       FILED MARCH 05, 2019

      J.M.F. (Father) appeals from the order of the Court of Common Pleas of

Wyoming County (trial court), granting the parties shared legal custody, J.A.D.

(Mother) primary physical custody, and Father partial physical custody with

respect to the female child, A.J.F. (Child), born in December 2016. Father

had sought shared legal custody and equal physical custody of Child. After

careful review, we affirm.

      On February 2, 2018, Mother filed a custody complaint seeking primary

physical and shared legal custody as well as a petition for special relief,

requesting temporary physical custody of Child, then fourteen months old. On

February 12, 2018, the court issued an interim order granting Mother primary

physical custody and Father partial physical custody every Wednesday from

4:15 p.m. to 7:30 p.m. In addition, the interim order granted Father partial


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S01045-19


physical custody on a rotating two-week basis, as follows: Friday at 6:00 p.m.

until Sunday at 9:00 a.m. in week one, and Saturday at 9:00 a.m. until

Sunday at 6:00 p.m. in week two. Further, the order prohibited any paramour

of Mother or Father to have contact with Child.1

                                               I.

       Before we begin, to better understand what follows, it is worthwhile to

set forth the well-settled law regarding custody disputes. The primary concern

in any custody case is the best interests of the child.     “The best-interests

standard, decided on a case-by-case basis, considers all factors that

legitimately have an effect upon the child’s physical, intellectual, moral, and


____________________________________________


1 At the conclusion of the subject proceeding, the trial court explained on the
record in open court as follows.

       There’s a reason that the court puts in orders no paramours or
       other individuals to have contact with the . . . Child. The court’s
       practice is to obtain a criminal background check and a child abuse
       clearance on new paramours that are entered into a child’s life.
       Why does a judge do that? Because generally, and it’s not
       anything that has to do with your clients, but generally on a
       rebound after a break-up, individuals tend to not make the best
       decisions. That way the court intercedes and can determine how
       best to protect the child. So, it’s not about mom[.] [I]t’s not
       about dad. After having done thousands of custody cases, I can
       tell you that you don’t find [N]avy [S]eals on the internet, which
       one individual in court had who turned out to be a sex offender
       and so on. So that’s why the court does that. . . . [T]he court
       doesn’t do this forever, but right now during the vulnerable period
       it’s something that’s the practice of this court. Not to punish you,
       but that is the practice.

N.T., 7/23/18, at 278-280.


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spiritual well[-]being.”   Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super.

2006), citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004).

      Child custody actions are governed by the Child Custody Act, 23 Pa.C.S.

§§ 5321-5340. Trial courts are required to consider “[a]ll of the factors listed

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

A.3d 647, 652 (Pa. Super. 2011) (emphasis in original); see also A.V. v.

S.T., 87 A.3d 818, 823 (Pa. Super. 2014) (providing that trial courts shall set

forth the mandatory assessment of the Section 5328(a) best interest factors

“prior to the deadline by which a litigant must file a notice of appeal”) (citation

omitted). This statutory section 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.


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            (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). Now to the proceedings before the trial court.


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                                                 II.

       Hearings were held before the trial court on the custody complaint on

April 18, 2018,2 and July 23, 2018.3 Mother testified on her own behalf, and

she presented the testimony of Joan Greulick, M.D., Child’s pediatrician since

birth; D.N., Father’s boss at his place of employment; J.D., Child’s maternal

grandmother; P.S., Mother’s boss at her place of employment; D.F., Mother’s

aunt; J.D., Mother’s brother; and G.Z., Father’s former girlfriend.

       Father testified on his own behalf. Father presented the testimony of

Michael Church, Ph.D., a psychologist; Paul and Linda Littleford, husband and

wife who are the former neighbors of Father, Mother, and Child; R.G., Father’s

grandmother; J.F., Child’s paternal grandfather; and K.F., Child’s paternal

step-grandmother and wife of J.F.




____________________________________________


2 The trial court issued an order at the conclusion of the first day of testimony
on April 18, 2018, that directed the parties to abide by the February 12, 2018,
interim custody order, inter alia.

3 The trial court issued an order at the conclusion of the testimonial evidence
on July 23, 2018, directing that “neither party shall subject the child to anyone
besides family members unless a child abuse clearance and criminal
background check has been obtained, presented to the [c]ourt and presented
to opposing counsel, who may file objections upon the same.” Order, 7/23/18.
Further, the court directed that the prior interim order shall remain in full force
and effect pending final determination of the custody matter.




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       By way of background,4 Father and Mother, who never married,

cohabited at the time of Child’s birth and separated in January 2018 when

Child was approximately thirteen months old. TCO, 8/29/18, at 5. Mother

and Child relocated to the home of Child’s maternal grandparents,

“approximately three (3) minutes away” from her former residence. Father

purchased a single-family home on a date unspecified in the record. Id. Two

days before the subject hearing, Mother relocated with Child to her own

apartment, twelve miles from Father’s home. N.T., 4/18/18, at 53, 104; N.T.,

7/23/18, at 168.

       Mother is employed part-time, 30 hours per week, Monday through

Wednesday, from 7:00 a.m. to 5:00 p.m. N.T., 4/18/18, at 56. Father is

employed full-time, Monday through Friday, from 7:30 a.m. to 4:00 p.m.

TCO, 8/29/18, at 6. In addition, Father works overtime, which consists of

being “on-call” for power outages for one week at a time on six-week rotation

schedules. N.T., 4/18/18, at 39, at 48. Father’s boss explained, “[Father]

does not necessarily have to go on the call, but he is being paid to be on

standby and be the person that gets notified in the particular district that

they’re responsible for to be sure that [an employee] can go out and respond.”



____________________________________________


4 In its opinion accompanying the subject order, the trial court set forth its
factual findings in this case which are undisputed. Because the testimonial
evidence supports the court’s findings, we adopt them herein. See Trial Court
Opinion (“TCO”), 8/29/18, at 5-8.


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Id. at 39-40.       Father’s boss testified that his employees are “on-call”

approximately eight weeks out of the year. Id. at 48.

       Mother and Father use the same babysitter for Child when they are at

work, who provides childcare in her home. Id. at 107-108. The babysitter is

located one mile from Mother’s home and the babysitter is located in the same

town in which Father works. N.T., 7/23/18, at 98-99.

       On August 29, 2018, when Child was twenty months old, the trial court

entered an order granting the parties shared legal custody, Mother primary

physical custody, and Father partial physical custody on a rotating two-week

basis. During week one, the court granted Father physical custody of Child

on Tuesday, from 4:15 p.m. until 7:30 p.m., and on Friday, from 6:00 p.m.

until Sunday, at 4:00 p.m. During week two, the court granted Father physical

custody on Tuesday and Wednesday, from 4:15 p.m. until 7:30 p.m.            In

addition, the court granted Father two non-consecutive weeks of physical

custody every year with Child and it set forth a holiday schedule. Further, the

court prohibited any of the parties’ paramours from having contact with Child

without court approval, inter alia.

       In its opinion accompanying the order, the trial court considered all of

the Section 5328(a) factors, except for Section 5328(a)(2.1).5 See Order,


____________________________________________


5 Upon review of the testimonial evidence, Section 5328(a)(2.1) is not
applicable in this case. Therefore, we conclude that the court’s omission is
harmless.


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8/29/18, at 9-15. The court found, and our review of the record confirms,

that Section 5328(a)(2), (6), (7), (14), and (15) are also not applicable. The

court found determinative the following factors, which the court weighted in

favor of Mother: Section 5328(a)(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; Section 5328(a)(10), which party is more

likely to attend to the daily physical, emotional, developmental, educational

and special needs of the child; Section 5328(a)(11), each party’s availability

to care for the child or ability to make appropriate child-care arrangements;

and Section 5328(a)(13), the level of conflict between the parties and the

willingness and ability of the parties to cooperate with one another.

      In making that determination, the trial court found:

      Mother is primarily responsible for getting [Child, then twenty
      months old,] to medical appointments. . . . Mother works only
      three days per week and spends the other four days with the child.
      Mother’s work is flexible so that should something happen with
      [C]hild, she is permitted to leave work. Father works five . . .
      days per week, works overtime and is on-call for week[-]long
      periods, during which time he is responsible for attending to work
      should he be called out.

TCO, 8/29/18, at 13 (citations to record omitted).      In addition, the court

found:

      Mother testified that she always tries to be friendly[,] but Father
      is always defensive with Mother. For example, Mother testified
      that the child’s regular babysitter was going away for over two
      weeks[,] and Mother asked Father if her grandparents could watch
      the child. Father would not agree[,] and Mother had to go through
      her attorney to get him to approve the child’s great-grandparents


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       being able to babysit.[6] On another occasion, the child had a rash
       on her arm[,] and when Mother transferred the child to Father,
       she provided the cream for the rash [to Father]. Father did not
       return the cream. When Mother asked for it, Father responded
       that he would only return the cream if Mother transferred a gun
       that was in Mother’s name over to him. Mother had to purchase
       more cream [for Child’s rash].

TCO, 8/29/18, at 7-8 (citations to record omitted).

       Further, the trial court found Father’s testimony on April 18, 2018, that

he did not have a paramour or girlfriend, untruthful. Id. at 13-15 (citations

to record omitted). The court found that Father began dating G.Z. on March

13, 2018.     G.Z. testified that she became Father’s girlfriend but that her

relationship with Father ended several days after Memorial Day 2018. N.T.,

7/23/18, at 39. Moreover, it found that Father violated the interim custody

orders by permitting G.Z. to be in contact with Child. Specifically, the court

found:

       [G.Z.] has spent time with the minor child. Prior to the first day
       of testimony in this matter, [G.Z.] testified that she had taken the
       child to her niece’s birthday party[;] she would hang out with the
       child at Father’s home[;] [and] she posted pictures of the child on
       Facebook. [G.Z.] further testified that Father told her this
       [c]ourt’s [o]rder prohibited Father from having the child around
       paramours but that she did not do anything about it because it
       was Father’s [c]ourt [o]rder and his decision to have her around
       the child. . . .

TCO, 8/29/18, at 14 (citations to record omitted).


____________________________________________


6 Mother testified that at the time she made this request to Father, Child’s
maternal great-grandparents babysat Child previously when Child’s maternal
grandparents were unavailable. N.T., 4/18/18, at 109.


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        Based on the foregoing factual findings, which the testimonial evidence

supports, we discern no abuse of discretion by the court in weighing Section

5328(a)(9), (10), (11), and (13) in favor of Mother and concluding that they

are determinative in this case. See M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa.

Super. 2013) (stating, “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.”). Father then took the instant appeal.7

                                           III.

                                               A.

        Turning to Father’s contentions on appeal, he claims that the court erred

in its findings regarding Section 5328(a)(1), which party is more likely to




____________________________________________


7   Our standard of review in child custody cases 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.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).


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encourage and permit frequent and continuing contact between the child and

another party. In this regard, the trial court found:

      Mother and Father communicate primarily through text messaging
      and often times, Father does not respond to Mother's text
      messages. (H.T. 4/18/18, p. 202). Mother testified that she
      offered Father extra time with the child around Father's birthday
      but he did not agree. (H.T. 7/23/18, pp. 68-70, 101). Mother
      has unsuccessfully tried to work out a visitation schedule with
      Father. (H.T. 7/23/18, p. 86). Upon review of the entire record,
      the Court finds that Mother is more likely to encourage and permit
      frequent and continuing contact between the child and Father.

TCO, 8/29/18, at 10.

      Father disagrees with the trial court’s statement that he did not respond

to Mother’s text messages, that he did not agree to extra physical custody

time offered by Mother or that Mother tried unsuccessfully to work out a

visitation schedule. Upon review, we agree that the testimony does not clearly

support these findings. While Mother’s mother did testify that Father did not

respond to text messages H.T. 4/18/18, p. 202, the testimony regarding

visitation schedule or offering extra time is confusing and does not clearly

support those findings by the court.          Nevertheless, because Section

5328(a)(1) was expressly stated by the trial court not to be a determinative

factor in arriving at its decision, and the trial court found that Mother is more

likely to encourage and permit frequent and continuing contact between the

Child and Father, we will not disturb the subject custody order.




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                                      B.

      Father next asserts that the trial court improperly weighed Section

5328(a)(3), the parental duties performed by each party. He asserts that the

court found, “There was no testimony to suggest that Father is unable or

unwilling to perform his parental duties when the child is in his custody.”

Father’s brief at 19 (citing TCO, 8/29/18, at 10). However, Father asserts

that the court weighed this factor in favor of Mother insofar as she was Child’s

primary caretaker during her first year of life. The trial court found regarding

this factor:

      Mother testified that when she was residing with Father,
      specifically during 2017, Mother provided the child's basic needs
      such as dressing, bathing, changing diapers, feeding and doing
      laundry. (H.T. 4/18/18, p. 93). Mother was responsible for
      waking with the child in the night, taking her to appointments.
      (H.T. 4/18/18, p. 94). Mother works only three days per week
      and spends the other four days with the child. (H.T. 7/23/18, p.
      11). Mother's work is flexible so that should something happen
      with the child, she is permitted to leave work. (H.T. 7/23/18, pp.
      11-12). Father's set hours are 7:30 a.m. to 4:00 p.m., Monday
      through Friday. (H.T. 4/1 8/18, p.37). In this position, Father is
      on-call for one-week rotations for power outages and the like.
      (H.T. 4/18/18, pp. 38-40, 7/23/18, p. 170). Father also works
      overtime. (I-LT. 4/18/18, p. 43, 7/23/18, p. 170). There was no
      testimony to suggest that Father is unable or unwilling to perform
      his parental duties when the child is in his custody.

TCO, 8/29/18, at 10.

      While Father does not dispute any of those findings, he contends that it

underestimates the care that he provided when he had custody of the Child

when he fed her, bathed her, engaged in activities, dressed her, got her ready

for bed and put in her bed at which time she would fall asleep. (RR 505, Lines


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4-12). Father works five days a week and does not have to work overtime.

The trial court found that the Father was willing and able to perform parental

duties but merely stated that the Mother had been the primary caregiver,

which is well supported by the evidence. We also note that the trial court did

not consider this factor a determinative one in making its decision.

                                          C.

      Next, the Father argues that the trial court made two errors in its Section

5328(a)(10) determination of what was in the best interest of the Child’s

emotional/mental state by relying on Dr. Greulick’s expert opinion concerning

the impact of a shared physical custody. First, he contends that the trial court

improperly allowed Child’s pediatrician to offer an expert opinion because her

experience and education relates to the physical developments and health of

a child and the medical care related to said development, not the child’s

emotional, social and cognitive development as well as behaviors. This leads

to his second argument that the trial court abused its discretion by not

accepting the testimony of an expert psychologist, Michael Church, Ph.D., who

discredited Dr. Greulick’s opinions, theories and erroneous conclusions.

                                          1.

      As to the trial court’s allowing Dr. Greulick to testify as an expert

regarding the effect of shared custody, we stated in McDaniel v. Merck,

Sharp & Dohme, 533 A.2d 436, 440 (Pa. Super. 1987):

      The law regarding the qualification of witnesses as experts is well
      established. It is true that whether a witness has been properly

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      qualified to give expert opinion testimony is vested in the
      discretion of the trial court.     The Pennsylvania standard of
      qualification for an expert witness is a liberal one. If a witness
      has any reasonable pretension to specialized knowledge on the
      subject under investigation he may testify, and the weight to be
      given to his evidence is for the jury. Although the witness must
      demonstrate some special knowledge or skill, there is no
      requirement that a witness acquire that knowledge as a result of
      formal schooling; expertise acquired by experience is expertise
      nonetheless.

McDaniel, supra at 440 (citations and internal quotation marks omitted);

see also James v. Albert Einstein Medical Center, 170 A.3d 1156 (Pa.

Super. 2017).

      When Dr. Greulick was being qualified as an expert, she testified that

she had extensive experience in treating children, including being trained in

child development with one of the world’s leading experts, and that she was

accustomed to making evaluations and making recommendations as to what

was in the best interest for those children who were not living with both their

mother and father.     At the end of the questioning on direct about her

qualifications, Father’s counsel was asked if she wanted to cross-examine Dr.

Greulick on her qualifications and she told the court she had no questions, and

the trial court accepted Dr. Greulick as an expert witness. Because she was

qualified as an expert to give an opinion on shared custody and Father

effectively waived his argument that she was not an expert, this argument

has no merit.




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                                               2.

       As to Father’s argument that the trial court abused its discretion in

accepting Dr. Greulick’s testimony rather than his expert, Dr. Church,

regarding shared custody, Mother’s counsel inquired whether there would be

a developmental impact on Child if the court issued an equally shared physical

custody schedule between Mother and Father,8 and Dr. Greulick responded,

in part, “that is a very difficult question to answer. . . . That’s a very involved

topic, but yes, a child under four [years old], he or she should spend time,

and a lot of time [,] with their natural mother or their assigned mother.” N.T.,

4/18/18, at 26. Mother’s counsel further inquired, assuming that Mother was

Child’s primary caretaker in the past year, what affect would a week on/week

off custody schedule have on Child. Id. at 28-29. Dr. Greulick responded, “it

would confuse [Child’s] emotional status. She’s not old enough to understand

- just as she determined in her subconscious conscious[9] that my mother is

no longer in my life, she reappears seven days later. It’s extremely difficult

at this age. Do you outgrow this? Absolutely, but not at sixteen months.”


____________________________________________


8 Father’s counsel objected to this question, which the trial court overruled.
N.T., 4/18/18, at 27. Further, the court noted a running objection to this line
of questioning by Father’s counsel. Id.

9 Neither the parties’ counsel nor the trial court questioned Dr. Greulick
regarding her use of the term “subconscious conscious.” Father’s expert
psychologist, Michael Church, Ph.D., was asked on direct examination to
explain the term “subconscious conscious,” and he stated, “I have no idea
what [Dr. Greulick] was talking about. . . .” N.T., 7/23/18, at 129.


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Id. at 28. Mother’s counsel inquired as to Dr. Greulick’s opinion regarding the

period of time that Child could be away from Mother without experiencing

confusion, and she responded, in part, “this is extremely impossible to

answer.” Id. at 29.

      Father then presented Dr. Church, whom the court accepted as an

expert in psychology.     Dr. Church countered Dr. Greulick’s opinion and

testified, in part:

      I’ve taught Child and adolescent psychopathology and child
      development many, many times. I've never seen any reference -
      - that would be discriminatory. You know, what a child needs is
      . . . they need to have someone they’re attached to, who they can
      feel secure with and loved. The gender of the parent for a toddler
      is essentially irrelevant. . . .

N.T., 7/23/18, at 128. Dr. Church testified that he is not aware of any harm

Child would suffer if the court granted Father equally shared physical custody.

Id. at 134.

      In evaluating the opinions of Dr. Greulick and Dr. Church regarding

physical custody, the trial court found as follows:

      Dr. Joan Greulick (hereinafter “Dr. Greulick”), the child's
      pediatrician testified that she has treated the minor child since her
      birth. Dr. Greulick testified that other than one visit, Mother and
      sometimes maternal grandmother, attended all of the child’s
      pediatric visits. (H.T. 4/18/18, pp. 16, 20). Dr. Gruelick further
      testified that given the child’s young age, it would be confusing
      for the child to participate in a week on — week off schedule for
      custody. (H.T. 4/18/18, pp. 278). Allan Church (hereinafter “Dr.
      Church”), a psychologist, testified as an expert on behalf of Father
      and he testified that it is advantageous for a child to have both
      parents in his or her life. (H. T. 7/23/18, p. 129). Dr. Church had
      four sessions between April and June of 2018 with Father to assess
      him as a parent. (H.T. 7/23/18, pp. 123, 143). The child only

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       attended one of those sessions. (H. T. 7/23/18, p. 124). Based
       upon these four sessions, to which the child only attended one,
       Dr. Church testified that he saw a very strong bond between
       Father and the child. (H. T. 7/23/18, pp. 125, 155). Father did
       not tell Mother that he was taking the child to meet with Dr.
       Church. (H.T. 7/23/18, p. 151). Dr. Church further testified that
       he did not have enough information in this particular case to
       determine if a fifty-fifty custody schedule would be appropriate.
       (H. T. 7/23/18, p. 161).

TCO, 8/29/18, at 11.

       The trial court accepted Dr. Greulick’s opinion that it was not in the

Child’s best interest to have shared custody arrangement. Because issues of

credibility and weight of the evidence are deferred to the findings of the trial

court and the evidence of record supports the trial court’s conclusions, the

trial court did not error in finding that shared custody would not be in the best

interest of the child.10

                                               D.

       Father also contends that the court abused its discretion to the extent

that it weighed Section 5328(a)(8), the attempts of a parent to turn the child

against the other parent, in favor of Mother. The trial court acknowledged

Mother’s testimony that “she is ‘absolutely’ concerned that Father will try and


____________________________________________


10 Father also contends that Dr. Greulick’s testimony that a child in its early
years should be with the Mother violates 23 Pa. C.S. §5328 (b) which provides
that: “no party shall receive preference based upon gender in any award
granted under this chapter.” While the trial court acknowledged Dr. Greulick’s
testimony, nowhere in the opinion did the court making any determination
that it based its decision that it gave Mother sole physical custody because of
her gender, only that equal physical custody would be confusing to the Child.


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turn the child against her because of how Father has acted since the parties

separated.” TCO, 8/29/18, at 12 (citation to record omitted). Nevertheless,

the court indicates neither that it weighed this factor in Mother’s favor nor

found it determinative. Therefore, we will not disturb the custody order on

this basis.

                                     E.

      Next, Father contends that the court abused its discretion in weighing

Section 5328(a)(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, in favor of Mother. Father contends that the court found

that Father loves Child “and can provide [her] with a loving home.” Father’s

brief at 20 (citing TCO, 8/29/18, at 12). As discussed above, based on the

court’s factual findings that it deemed most relevant in this case, we cannot

conclude that the court’s order granting Mother primary physical custody and

Father partial physical custody is unreasonable.

                                     F.

      Regarding the trial court’s evaluation of the Section 5328(a)(9) factor

that Father is somewhat unwilling and unable to cooperate with Mother for the

Child’s benefit, he argues that in coming to that conclusion, the trial court

improperly found that G.F. was his paramour, that she had contact with Child,

and when asked by the court, he lied about the relationship. He contends that

he did not consider himself to be romantically involved with G.F. because he


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did not have feelings for her that she had for him. When asked by the trial

court if there are any individuals other than family members having contact

with the Child, Father understood that to mean regular contact, and Father,

based on his understanding of the question, believed that it would not include

people that are exposed to the Child because said list would be substantial.

We also note that Father testified that G.F. had purported mental health issues

but still allowed contact with Child. The testimony recounted earlier in this

opinion is sufficient for the trial court to find that Father violated the interim

order that a paramour should not have contact with the Child.

      In conclusion, upon review of the testimonial evidence, the trial court’s

opinion, and Father’s arguments, we conclude that the court carefully and

thoroughly considered Child’s best interests pursuant to the requisite statutory

factors, and we discern no abuse of discretion. Accordingly, we affirm the

order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/05/2019




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