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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.H.B.                                        IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                   v.

R.D.B.

                         Appellant                 No. 1719 MDA 2014


            Appeal from the Order Entered September 18, 2014
            In the Court of Common Pleas of Lancaster County
                    Civil Division at No(s): CI-10-15204


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                            FILED MARCH 10, 2015

     R.D.B. (“Father”) appeals from the order entered September 19, 2014,

in the Court of Common Pleas of Lancaster County, which denied his petition

to modify the existing custody order, with respect to his minor daughter,

R.C.B., born in November of 2013, and his minor sons, C.D.B., born in

December of 2005, and K.B.B., born in October of 2007 (collectively, “the

Children”). We affirm.


     On December 16, 2010, Father’s wife, E.H.B. (“Mother”), filed a

complaint in custody which resulted in the entry of a custody stipulation as
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an order of court on January 22, 2013.1 Pursuant to the custody stipulation,

the parties were awarded shared legal custody and Mother was awarded

primary physical custody. Father was awarded partial physical custody on

Tuesday and Thursday evenings from after work until 8:00 p.m. during the

school year and until 9:00 p.m. during the summer, as well as on alternating

weekends, from Thursday after work until Monday morning.

       On December 5, 2014, Father filed a petition to modify the January

22, 2013 custody order.         In his petition, Father requested shared physical

custody of the Children. A custody hearing was held on September 4, 2014,

during which the trial court heard the testimony of Father, Father’s friend,

C.H.C., and Mother. The trial court also interviewed each of the Children, in

camera. Following the hearing, on September 19, 2014, the court entered

its order denying Father’s petition to modify. The order also indicated that

the provisions of the January 22, 2013 custody order would remain in effect.

On October 10, 2014, Father timely filed a notice of appeal, along with a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i).

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

       1. Did the [t]rial [c]ourt abuse its discretion when it denied
       [Father’s] request for shared physical custody of the Children
____________________________________________


1
  Testimony from the September 4, 2014 custody hearing indicated that
Mother and Father are, or were, going through a divorce. However, it is not
clear from the record whether a divorce decree has been entered.



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       and granted primary physical custody of the Children to [Mother]
       despite the [c]ourt’s acknowledgement that [Father] is a very
       involved and loving father, that the parties can effectively co-
       parent, that the parties live two blocks from each other, and that
       the [c]ourt concluded that the applicable enumerated factors
       under 23 Pa. C.S.A. § 5328 were resolved equally in favor of
       both [Mother] and [Father]?

       2. Did the [t]rial [c]ourt commit an error of law by favoring one
       parent over another in violation of 23 Pa. C.S.A. § 5327(a) when
       it granted primary physical custody of the Children to [Mother]
       where the [c]ourt acknowledged that [Father] is a good father,
       that the parties can effectively co-parent, and when the [c]ourt
       concluded that the applicable enumerated factors under 23 Pa.
       C.S.A. § 5328 were resolved equally in favor of [Mother] and
       [Father]?

       3. Did the [t]rial [c]ourt commit an error of law and/or abuse its
       discretion by improperly relying upon the prior custody schedule
       as creating a presumption that primary custody of the Children
       should remain with [Mother] when the [t]rial [c]ourt denied
       [Father’s] request for shared physical custody and granted
       primary physical custody of the Children to [Mother], despite the
       [c]ourt’s acknowledgement that [Father] is a very involved and
       loving father, that the parties can effectively co-parent, that the
       parties live two blocks from each other, and that the [c]ourt
       concluded that the applicable enumerated factors under 23 Pa.
       C.S.A. § 5328 were resolved equally in favor of [Mother] and
       [Father]?

Father’s Brief at 10.2

       Our standard of review is well-established:

____________________________________________


2
  In his brief, Father presents his second and third issues together in a single
argument section, in violation of our Rules of Appellate Procedure. See
Pa.R.A.P. 2119(a) (providing that the argument “shall be divided into as
many parts as there are questions to be argued; and shall have at the head
of each part--in distinctive type or in type distinctively displayed--the
particular point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.”).



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      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., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (quoting A.D. v.

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

      We have stated:

      [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)).

      “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 spiritual well[-]being.”   J.M.R. v. J.M., 1

A.3d 902, 911 (Pa. Super. 2010) (citing Saintz v. Rinker, 902 A.2d 509,

512 (Pa. Super. 2006)).

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     Relevant to this custody case is Section 5328(a) of the Child Custody

Act, 23 Pa.C.S.A. §§ 5321-5340, which provides as follows:

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

           (3) The parental duties performed by each party on
           behalf of the child.

           (4) The need for stability and continuity in the child’s
           education, family life and community life.

           (5) The availability of extended family.

           (6) The child’s sibling relationships.

           (7) The well-reasoned preference of the child, based
           on the child’s maturity and judgment.

           (8) The attempts of a parent to turn the child against
           the other parent, except in cases of domestic
           violence where reasonable safety measures are
           necessary to protect the child from harm.




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           (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).

     This Court has stated that, “[a]ll of the factors listed in section

5328(a) are required to be considered by the trial court when entering a

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

(emphasis in original). Further,

     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.A. § 5323(d). Additionally,
     “section 5323(d) requires the trial court to set forth its
     mandatory assessment of the sixteen [Section 5328 custody]
     factors prior to the deadline by which a litigant must file a notice

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     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, 823 (Pa. Super. 2014).

     On appeal, Father raises three interrelated issues, which we address

together.   The crux of Father’s argument is that the trial court abused its

discretion by denying his request for shared physical custody when it

concluded that the Section 5328(a) factors weighed equally in favor of both

Father and Mother. Father’s Brief at 16-22. In addition, Father asserts that

the court relied on an impermissible presumption in favor of Mother in order

to reach its decision. Id. at 20-22. Father directs our attention to Section

5327(a) of the Custody Act, which provides as follows:

     (a) Between parents.--In any action regarding the custody of
     the child between the parents of the child, there shall be no
     presumption that custody should be awarded to a particular
     parent

23 Pa.C.S.A. § 5327(a).

     After a thorough review of the record in this matter, we conclude that

the trial court did not abuse its discretion by denying Father’s petition to

modify custody.    At the conclusion of the September 4, 2014 custody

hearing the trial court thoroughly considered, on the record in open court,


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each of the Section 5328(a) factors.       See N.T., 9/4/2014, at 224-31.       As

noted by Father, the court did not state that any of the factors weighed in

favor of either parent, instead indicating that each factor was either

irrelevant to the proceedings, or that the factor favored both parents

equally. See, e.g., id. at 229 (“I find that both parents are equally likely to

maintain a loving, stable, consistent and nurturing relationship with the

[C]hildren    adequate   for   their   emotional   needs.”).    However,      after

considering each of the factors, the court stated as follows:

             To close, I guess I will be a bit repetitive. I, clearly, have
      not made my decision in this case. As I told you, I will do so
      only upon further reflection on the factors, which I just
      articulated, of which I will determine the appropriate weight to
      give to each factor. As I also indicated, I will consider all other
      relevant provisions of law and everything that has been
      presented to me today.

            I honestly and firmly tell the both of you, and I can’t be
      any clearer, that it is the consistency and stability for your
      children that will be of utmost importance to me with the
      decision that I render. I hope to render a decision in the coming
      days, and I hope that you both [will] be served a copy of it as
      quickly as possibl[e].

Id. at 231.

      Thus, the record does not support Father’s contention that the trial

court resolved the Section 5328(a) factors equally in favor of both parents.

To the contrary, the court indicated explicitly that it had not reached a

decision, and that it would do so only upon “further reflection on the

factors.” Id. Ultimately, the court determined that it would be in the best

interests of the Children to maintain the current custody schedule based

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primarily on the Children’s need for “consistency and stability.” Trial Court

Opinion, 11/7/2014, at 13-14. The court explained in its opinion pursuant to

Pa.R.A.P. 1925(a):

      The [c]ourt’s denial of Father’s request for shared physical
      custody of the [C]hildren was in no way manifestly unreasonable
      or result of partiality, prejudice, bias, or ill will; rather the
      [c]ourt’s decision was based primarily on the need for
      consistency and stability for the [C]hildren. The parties agreed
      upon a schedule of custody less than one year before Father filed
      his request for modification. The [c]ourt found as credible
      Mother’s testimony that the current order should be maintained
      as the [C]hildren are thriving, they have stability and security,
      they have a home base, there are no complaints from the
      [C]hildren, and the [C]hildren are doing well in school and
      succeeding in their activities. Based upon the testimony of the
      parties and the [C]hildren and the weight given to the custody
      factors, the [c]ourt determined that the schedule agreed
      previously upon by the parties was one that provided
      consistency and stability for the [C]hildren and should continue
      to be the schedule followed by the parties. Accordingly, the
      [c]ourt denied Father’s request for shared physical custody of
      the [C]hildren.

Id. (citations to the record omitted).

      The court’s decision is supported by the testimony at the September 4,

2014 custody hearing.     As noted by the court, Mother testified that the

Children were thriving under the current custody schedule. N.T., 9/4/2014,

at 177.   Specifically, Mother stated that the Children were doing well in

school and with regard to their other activities. Id. Mother indicated that

the Children had not complained to her about not seeing Father frequently

enough.   Id.   Mother also opined that “there’s a sense of stability, [and]

security” under the current arrangement, that the Children have a “home


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base,” and that “things are working the way they are today, they don’t need

to be changed.”      Id.    It was reasonable for the court to accept Mother’s

testimony, and to conclude that the Children’s need for stability and

consistency would be promoted by denying Father’s petition to modify.

Additionally, we discern no basis to conclude that the court’s decision is

based on an impermissible presumption in favor of Mother.           Therefore,

Father’s issues on appeal fail.

      Accordingly, because we conclude that the trial court did not abuse its

discretion by denying Father’s petition to modify custody, we affirm the

order of the trial court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2015




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