J-S38032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

F.A.S., IV,                                        IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                       Appellant

              v.

R.C.H., FORMERLY R.C.S.,

                       Appellee                        No. 354 MDA 2015


                   Appeal from the Order entered January 23, 2015,
                   in the Court of Common Pleas of Clinton County,
                         Civil Division, at No(s): 433-2010 CV

BEFORE: WECHT, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED SEPTEMBER 16, 2015

      F.A.S., IV, (“Father”) appeals from the Order granting the Petition for

modification of custody filed by R.C.H., formerly R.C.S. (“Mother”), which

awarded the parties shared legal custody of two of the parties’ female

children, H.R.S. (born in October 2001) and A.J.S. (born in April 2003)

(collectively, “the Children”), awarded Mother primary physical custody and

awarded Father partial physical custody.1 We affirm.

      The trial court set forth the factual background and procedural history

of this case, in relevant part, as follows:



1
  Since the hearings in this matter took place in August and October of 2014,
the Child Custody Act (“Act”), 23 Pa.C.S.A. §§ 5321 to 5340, is applicable.
C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (stating that the Act
applies to custody evidentiary proceedings that commence on or after the
effective date of the Act, January 24, 2011).
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     8. The parties were formerly husband and wife, but were
     divorced [in December 2010].

     9. As part of the parties’ Divorce Decree, entered [in December
     2010, the trial court] adopted the parties’ Post Nuptial
     Agreement, which provided for a 50/50 custody split of the
     minor [C]hildren.

     10. An Order was entered on October 25, 2012[,] which
     provided that the parties have shared custody on a 5 day/5
     day/2 day/2 day schedule.      Specifically, Mother has the
     [C]hildren on Monday and Tuesday, Father has the [C]hildren on
     Wednesday and Thursday, and the weekends alternate.

     11. On January 17, 2013, the [trial court] entered an Order
     which provided that the parties would share custody on a week
     to week basis over the summer months.

     12. Since January 17, 2013, the parties have been following the
     5 day/5 day/2 day/2 day schedule during the school year[,] and
     the week to week schedule during the summer.

Trial Court Opinion, 1/23/15, at 2 (unnumbered).

     On July 3, 2014, Mother filed a Petition for modification of custody,

seeking primary physical custody of the Children. At the hearings held on

Mother’s Petition, Mother and Father testified on behalf of themselves.   In

addition, the trial court examined the Children in chambers, with counsel for




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                          2
both parties present.         Although the parties’ daughter, B.R.S. was

questioned by both counsel, only Father’s counsel questioned H.R.S.

      After the hearing, the trial court found that both Mother and Father

reside in Jersey Shore, Pennsylvania. Additionally, the trial court made the

following findings of fact:

      3. Mother works at Jersey Shore Hospital as an occupational
      therapist. Her work schedule is Monday through Friday from
      8:00 A.M. to somewhere between 1:00 P.M. and 4:30 P.M.;
      however, she also works one Sunday per month.

      4. There was no testimony regarding Father’s             place   of
      employment or his current work schedule.[3]

      5. At the time the [P]etition was filed, the parties were the
      parents of three (3) minor children, [B.R.S.], [H.R.S.], and
      [A.J.S.]. . . .



2
   The trial court noted that, at the time Mother filed her Petition for
modification of custody, the parties’ third daughter, B.R.S. (born in October
1996), was a minor. Trial Court Opinion, 1/23/15, at 1 (unnumbered).
B.R.S. turned eighteen prior to the entry of the custody Order at issue in this
appeal. Thus, the trial court stated that B.R.S. is able to decide for herself
regarding her primary residence. Id. at 6 (unnumbered). The trial court
concluded, however, that B.R.S.’s testimony remains relevant because she
was able to elaborate on the circumstances surrounding the filing of the
Petition, as well as her interactions with her parents and sisters regarding
this matter. Id. at 6-7 (unnumbered). The trial court also noted that the
parties are the parents of an adult son, F.A.S., V (“F.A.S.”), who was
nineteen years old at the time of entry of the custody Order. Id. at 2
(unnumbered).
3
  On cross-examination, Father confirmed that he was still working for
Verizon, as he testified at a previous hearing, and that he leaves for work at
approximately 6:35 a.m., taking A.J.S. to her bus stop, and that he arrives
home at 4:00 p.m. N.T., 10/14/14, at 85. There was no further testimony
concerning Father’s employment.


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     6. All three girls are currently enrolled in the Jersey Shore Area
     School District. [B.R.S.] is in twelfth grade at the Jersey Shore
     High School. [H.R.S.] is in seventh grade at the Jersey Shore
     Middle School. [A.J.S.] is in fifth grade at the Jersey Shore
     Elementary School.

                                    ***

     13. Mother and Father have a notebook that they pass back and
     forth when exchanging custody. The notebook contains notes on
     what is going on with each child, i.e.[,] things that happened
     while the child was in the other party’s custody or upcoming
     events, etc.

                                    ***

     15. Mother testified that she had written something in the
     notebook regarding custody prior to filing with the Court.

     16. The issue of changing the custody schedule was originally
     brought up by [H.R.S.], who testified that she got into an
     argument with her Father[,] and afterward told Mother she
     would prefer if Mother had primary physical custody.

     17. After [H.R.S.] brought up the issue of custody, Mother asked
     [B.R.S.] and [A.J.S.] about it[,] and both girls told Mother that
     they also would prefer [that] Mother have primary physical
     custody.

     18. Mother decided to file for custody after having these
     discussions with her daughters. Mother, as well as the girls,
     testified that neither parent had brought up the issue of custody
     to the [C]hildren; it was all prompted by H.R.S.’s original
     discussion with Mother.

     19. [In July 2014], Mother married [D.H. (“Stepfather”)]. The
     [C]hildren testified that they get along with [Stepfather], but
     that they have overheard him say negative things about
     [Father].

     20. Father is currently in a relationship with his girlfriend, [R.,]
     who lives in the Bellefonte area, but she and Father spend a
     considerable amount of time together. The [C]hildren get along


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     with [R.], but again they have heard her saying negative things
     about [Mother].

     21. [B.R.S.] and [H.R.S.] are very involved in sports. Both girls
     play basketball and softball. Father coaches their softball teams.

     22. During the October 14, 2014 hearing, each of the three girls
     offered testimony to the [trial court] regarding their preferences.

     23. [B.R.S.] testified that her preference would be for Mother to
     have the girls for the majority of time[,] with Father having
     extended, alternating weekends. She stated that she prefers
     more time with Mother because she is more comfortable with her
     [m]other[,] and Mother is easier to talk with.

     24. [B.R.S.] stated that [Father] approached her about the
     custody issue[,] and told her that she was being “selfish[,]” and
     that[,] if Mother were to get primary custody[,] he would lose
     his house[,] and would have to live with his mother. Father was
     crying during this conversation with [B.R.S.].

     25. [B.R.S.] testified that she has discussed the matter of
     custody with her sisters[,] and she believes [H.R.S.] and [A.J.S.]
     would also prefer to reside primarily with Mother; however,
     [H.R.S.] has since changed her mind because she does not like
     conflict.

     26. [B.R.S.] also stated that she believes all three girls should
     have the same custody schedule because they have always been
     together[,] and she noted that since [F.A.S.] began living solely
     with Father[,] they rarely see him.

     27. [H.R.S.] testified that she did initially bring up the idea of
     Mother having primary custody, but she has since changed her
     mind[,] and she would prefer for the custody schedule to remain
     as it is now. She does believe that all three girls should have
     the same custody arrangement, though.

     28. During her testimony, [H.R.S.] testified that she is also more
     comfortable talking to [Mother]. She stated that Father pushes
     her to tell him everything[,] and she is not always comfortable
     talking to him.



                                    -5-
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     29. [H.R.S.] stated that Father discussed the issue of custody
     with her after Mother filed the papers. She stated Father was
     crying as he told her that[,] if Mother gets primary custody[,] he
     would only see the girls four (4) times a month. [H.R.S.]
     testified that this upset her.

     30. [A.J.S.] testified that she would prefer spend more time with
     Mother.

     31. [A.J.S.] stated that[,] during Father’s custodial periods[,] her
     grandmother helps her with homework[,] and she does not like
     that, because if [her] grandmother can’t help her[,] then she has
     to ask [Father] and[,] if he is unable to help[,] then she has to
     ask her sisters[,] and they don’t like to help her.

     32. When at Mother’s [home], Mother helps [A.J.S.] with
     homework. [A.J.S.] stated that she understands her school work
     better when Mother helps with it.

     33. Because [A.J.S.] is more comfortable doing her homework
     with Mother, she testified that she would prefer Mother have
     custody on school days[,] and Father have custody on
     alternating weekends.

     34. [A.J.S.] did state that she talked to [B.R.S.] about custody[,]
     and that [B.R.S.] told her what she would prefer but made sure
     that [A.J.S.] knew she did not have to agree with it.

     35. According to [A.J.S.], at one point[,] Mother explained to all
     three girls what was going on with the court filings[,] and gave
     them a calendar to sit down and decide what custody schedule
     they would prefer. Mother left the girls alone to discuss their
     preferences, and [B.R.S.] marked her preference as Monday
     through Thursday with Mother and alternating weekends, from
     Friday to Sunday, with Father. [A.J.S.] stated that she was in
     agreement with this because it would allow Mother to be the one
     who helps her with homework[,] and she would get weekend
     time with both Mother and Father. [A.J.S.] stated that[,] during
     this discussion, [H.R.S.] indicated that she would prefer the
     schedule remain as it is now.

     36. [A.J.S.] testified that [Father] spends a lot of time with
     [B.R.S.] and [H.R.S.’s] softball teams; therefore, she doesn’t get


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J-S38032-15


     to see him much. She ends up being with either paternal
     grandmother or Father’s girlfriend during those times.

     37. Consistent with [B.R.S.] and [H.R.S.], [A.J.S.] also stated
     that she believes all three girls should have the same custody
     schedule.

     38. Again consistent with her sisters’ testimony, [A.J.S.] stated
     that she is more comfortable talking with [Mother] than she is
     [with Father].

     39. Father also told [A.J.S.] that[,] if Mother were to have more
     custodial time[,] he would be forced to pay her more in child
     support[,] and would[,] therefore[,] lose his home[,] and have
     to live with his mother.

     40. There was an issue regarding summer homework that
     [A.J.S.] was supposed to do in order to prepare her for her next
     school year. Father testified that he did this summer work with
     [A.J.S.], but both [A.J.S.] and [B.R.S.] stated that Father did not
     do the summer work with [A.J.S.]. [A.J.S.] testified that Mother
     would send the papers to Father’s home by way of the notebook
     that the parents exchange[,] but that Father never did them with
     her[;] instead he would let her play educational apps on a
     Kindle.

     41. It is noted that both Mother and Father also testified that
     they believe it is important for the three girls to remain together
     and have the same custody schedule; however, as [B.R.S.] is
     now eighteen (18) years old and able to decide for herself where
     she wants to live, Father does not believe that the other two
     girls should be forced to reside primarily with Mother just
     because [B.R.S.] may decide to do so.

Trial Court Opinion, 1/23/15, at 1-6 (unnumbered) (footnote added).

     In an Order entered on January 23, 2015, the trial court awarded

primary physical custody to Mother, with Father receiving partial physical

custody in accordance with a schedule, and shared legal custody.       Father




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timely filed a Notice of Appeal and a Concise Statement of errors complained

of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

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

      A. Did the trial court err in failing to require [Stepfather] to be
      viewed by the court and subject to cross examination[?]

      B. Did the trial court err in showin[g] bias against [Father] by
      total[ly] ignoring or unreasonably rejecting issues raised by
      evidence of record:

          1. Mother’s continuous hostility toward Father as evidenced
          by her assisting [F.A.S.,] to escape from [Father’s] custody
          during the middle of the night without notifying [Father;]

          2. Mother’s immature and dangerous reaction when she
          became annoyed with [F.A.S.] and threw him out of her
          house, disabled his cell phone, knowing that [F.A.S.] would
          have approximately a ten (10) mile walk through a wooded
          area to [Father’s] residence[;]

          3. [Stepfather’s] bizarre behavior      and   alcohol[-]related
          conduct in front of the Children[?]

      C. Did the trial court err in unreasonably considering [B.R.S.’s]
      desires and testimony[,] as she is not a minor[,] and was not
      subject to the court’s jurisdiction as of October 21, 2014[?]

Father’s Brief at 7.

      In custody cases, our standard of review is as follows:

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

                                     -8-
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      unreasonable as shown by the evidence of record. We may
      reject the conclusions of the trial court only if they involve an
      error of law, or are unreasonable in light of the sustainable
      findings of the trial court.

C.R.F. v. S.E.F., 445 A.3d 441, 443 (Pa. Super. 2012).

      The 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) (citation

omitted).

      With any custody case decided under the Act, the paramount concern

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

5338 of the Act provides that, upon petition, a trial court may modify a

custody order if it serves the best interests of the child.   Id. § 5338.   To

make this determination, Section 5328 of the Act sets forth the following

factors that the trial court must consider:

      (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).


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

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

     (5) The availability of extended family.

     (6) The child’s sibling relationships.

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

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

     (9) Which party is more likely to maintain a loving, stable,
     consistent and nurturing relationship with the child adequate for
     the child’s emotional needs.

     (10) Which party is more likely to attend to the daily physical,
     emotional, developmental, educational and special needs of the
     child.

     (11) The proximity of the residences of the parties.

     (12) Each party’s availability to care for the child or ability to
     make appropriate child-care arrangements.

     (13) The level of conflict between the parties and the willingness
     and ability of the parties to cooperate with one another. A
     party’s effort to protect a child from abuse by another party is
     not evidence of unwillingness or inability to cooperate with that
     party.

     (14) The history of drug or alcohol abuse of a party or member
     of a party’s household.

     (15) The mental and physical condition of a party or member of
     a party’s household.

     (16) Any other relevant factor.


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Id. § 5328.4 “All 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); accord

A.V. v. S.T., 87 A.3d 818, 822 (Pa. Super. 2014).

            Section 5323(d) provides that a trial court “shall delineate
      the reasons for its decision on the record or 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
      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). Section
      5323(d) applies to cases involving custody and relocation.
      A.M.S. v. M.R.C., 70 A.3d 830, 835 (Pa. Super. 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.




4
   Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration
of child abuse and involvement with child protective services). Although the
amendment was in effect at the time of the custody hearings in August and
October of 2014, the trial court did not specifically address it in its Opinion
entered on January 23, 2015. The trial court, however, stated that there
was no testimony of abuse by any party, and that the Children are safe in
both homes. Trial Court Opinion, 1/23/15, at 8 (unnumbered).


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A.V., 87 A.3d at 822-23.5

      In his first issue on appeal, Father claims that the trial court erred in

failing to require that Stepfather be subject to cross-examination. Father’s

Brief at 11. In a related claim raised in Father’s second issue, Father claims

that the trial court erred in disregarding the uncontested testimony that

Stepfather has threatened and intimidated Father, and that Stepfather has

displayed bizarre and alcoholic behavior.     Id.   Father urges that these

matters are particularly relevant to the factors set forth at Section

5328(a)(14), (15), and (16). Father’s Brief at 11-12. According to Father,

subsections (14) and (15) direct the court to consider the history of drug

and alcohol abuse of a member of the party’s household, and the mental and

physical condition of a member of the party’s household. Id. at 11. Father

alleges that Mother has allowed Stepfather’s hostility against him to be very

apparent to the Children.    Id.   Father also asserts that Mother’s cavalier

attitude toward Stepfather’s behavior in front of the Children is disturbing.

Id.




5
  In its Opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court adopted
the reasoning set forth in its Opinion and Order entered on January 23,
2015, which set forth its analysis of the section 5328(a) custody factors. On
March 6, 2015, the trial court filed an Amended Opinion and Order,
correcting a typographical error in the date of the October 14, 2014 custody
hearing.    The trial court noted that Father had not requested the
transcription of either hearing in this matter. Nevertheless, transcripts of
the two days of hearings are part of the certified record, so we are able to
conduct our appellate review.
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     Upon review, we conclude that Father has waived any objection to the

lack of testimony by Stepfather, as he did not object to the absence of

Stepfather’s testimony at the custody hearing. Issues not raised in the trial

court are waived, and cannot be raised for the first time on appeal.

Pa.R.A.P. 302(a); E.D., 33 A.3d at 78.       Additionally, Father could have

presented Stepfather as a hostile witness in his own case.6

     Even if Father had preserved his issue, we would conclude that it lacks

merit.   The record reflects that the trial court considered the hostilities

between the parties, and their significant others, in relation to section

5328(a)(13):

             There exists quite a bit of conflict between the parties in
     this matter. Since their separation, the parties’ primary form of
     communication is through text messages or the use of the
     notebook that the parties exchange back and forth. Both parties
     also testified that they have experienced conflict with the other
     party’s significant other.     [Stepfather] has been known to
     criticize Father; however, the [C]hildren did indicate that he
     does not do so directly in front of them but they have overheard
     his comments. Both parties, as well as the [C]hildren, testified
     that Mother attempts to put a stop to [Stepfather’s] negative
     comments.      Mother has also been on the receiving end of
     negative comments made by Father’s girlfriend, [R.], some of
     which have been made in the presence of the [C]hildren. There
     was no testimony that Father attempts to put a stop to [R.’s]
     behavior.

Trial Court Opinion, 1/23/15, at 13-14 (unnumbered). In relation to Section

5328(a)(14), and (15), the trial court observed that

6
 The record reflects that the parties agreed to the structure of the hearing,
with Mother first addressing the sixteen best interest factors, followed by
Father addressing the factors. N.T., 8/13/14, at 3-4.


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      [t]here was no testimony of drug or alcohol abuse by any party
      or member of the party’s household. There was some discussion
      of the fact that Mother and [Stepfather] go to different clubs
      during the weeks to sign the books; however, there was no
      indication that they spend significant amounts of time drinking in
      these clubs or that they are alcoholics. They merely go around
      and sign the books in attempts to win some money.

                                    ***

            … Father and [R.] have no mental or physical conditions.
      There was no indication that [Stepfather] suffers from any
      mental or physical condition. However, Mother testified that she
      is currently prescribed 10 mg. of Celexa for anxiety, a condition
      that began right after [A.J.S.] was born. Mother stated that this
      condition is treated through her family physician; she does not
      see a psychiatrist. She does not believe that her anxiety affects
      her ability to care for her [C]hildren.

Trial Court Opinion, 1/23/15, at 14-15.       The trial court’s findings are

supported by evidence presented at the custody hearings.

      At the hearings, Mother denied that she or Stepfather have ever had

drug or alcohol issues.   N.T., 8/13/14, at 38.    Mother admitted that she

takes Celexa daily as prescribed by her family physician for her anxiety. Id.

at 39.   Mother stated that her medication controls her condition, and that

the Children are not affected.    Id.   The parties thoroughly explored an

incident involving Stepfather dancing on a table at a wedding, in front of the

Children, after he had been drinking.    N.T., 10/14/14, at 98-99.     Mother

admitted that the Children were present at the time, and denied that

Stepfather was drunk. Id. According to Mother, Stepfather was behaving

like the “class clown,” and that he does not need alcohol to behave in that



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manner. Id. After a careful review of the record, we would not disturb the

trial court’s findings regarding Stepfather. C.R.F., 45 A.3d at 443.

       In his second issue, Father claims that the trial court was biased

against him because it ignored, or unreasonably rejected, almost every issue

that Father raised. Father’s Brief at 12. Father bases his claim of bias on

the trial court’s rejection of the claims as to Stepfather.    Id. at 11-12.

Father also directs our attention to evidence regarding the dispute between

Mother and their son, F.A.S. Id.

       Our review discloses that at the custody hearing, Mother explained

that the incident had occurred in August 2011, when F.A.S. was seventeen

years old, and that the trial court had addressed the incident in a prior

custody order. N.T., 8/13/14, at 45-49. Mother testified that she has since

worked through her difficulties with F.A.S., and that they speak on the

telephone or send text messages to each other. Id. at 107. Father did not

present evidence disputing Mother’s testimony. The trial court opted not to

afford any weight to the incidents that occurred during the time when the

parties were struggling with F.A.S.    Again, after a careful review of the

record, we do not disturb the trial court’s findings. See C.R.F., 45 A.3d at

443.

       In his third issue, Father claims that the trial court improperly

considered the testimony of the parties’ oldest daughter, B.R.S.       Father’s

Brief at 12. Because Father presents this claim for the first time on appeal,


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having failed to object to B.R.S.’s testimony at the custody hearing, the

claim is waived. See Pa.R.A.P. 302(a); E.D., 33 A.3d at 78.

      Had Father preserved the issue, we, nevertheless, would have found

that it lacks merit.   It was appropriate for the trial court to consider the

testimony of B.R.S., particularly pursuant to section 5328(a)(5), as part of

the extended family of the Children, and section 5328(a)(6), as a sibling of

the   Children.   B.R.S.’s   testimony   was   also   relevant   under   section

5328(a)(16), “[a]ny other relevant factor.”

      In relation to section 5328(a)(5), (6), and (16), the trial court stated

the following:

             Mother testified that she has sisters in the area[,] and that
      she gets along well with them. Her mother also resides in this
      area. There was no testimony as to how close the [C]hildren are
      to Mother’s family members. As for Father, his parents and
      siblings reside in the area. Again, there was no testimony as to
      how close the [Children] are to their aunts and uncles on
      Father’s side, but they do see their paternal grandmother very
      often.
                                      ***

            The three girls seem to be very close to one another and
      there was testimony that this has been the case since the time
      of the parties’ divorce. All three girls seem very in tune with
      each other’s desires and characteristics. All three girls stated
      that they would prefer to have the same custody schedule so
      that they can remain together. With specific focus on the two
      minor [C]hildren, [H.R.S.] and [A.J.S.], it is clearly in their best
      interest to remain together as they have never been separated.
      This seems most important with respect to [A.J.S.], who is
      young and looks up to her older siblings. All three girls testified
      that they are not very close to their older brother, [F.A.S.], as
      he lives primarily with Father[,] and he is not around much
      because he works alot [sic].


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                                       ***


         . . . The only other relevant factor that this [c]ourt believes
        should be considered is the attempts of Father to sway the
        [Children’s]   preferences     with  regard    to    the    custody
        arrangements. Father testified that he spoke to each of the girls
        regarding the custody matter multiple times after becoming
        aware that Mother filed the Petition to Modify. He stated that he
        cried in front of the girls[,] and that he did, in fact, tell them
        that[,] if Mother is to gain primary custody[,] he would lose his
        home and have to live with his mother. The [c]ourt is convinced
        that this was an attempt by Father to manipulate the [C]hildren
        into changing their minds regarding their preferences.           As
        discussed, the [c]ourt believes that this tactic did, in fact, have
        an impact on [H.R.S.’s] preference.

Trial Court Opinion, 1/23/15, at 14-15. Ultimately, the trial court concluded

that,

        [b]ased upon the consideration of the above factors, the [trial
        court] is of the opinion that it would be in the best interests of
        the [C]hildren to live primarily with Mother. Mother is clearly the
        more nurturing caregiver of the two parties. Both [H.R.S.] and
        [A.J.S.] testified that they are more comfortable with Mother.
        Mother puts more emphasis on [A.J.S.’s] school work and her
        special needs when it comes to her education. While the [trial
        court] acknowledges that [H.R.S.] stated a preference for the
        custody schedule to remain the same, the [trial court] believes
        that it is in the best interests of both girls to remain on the same
        custody schedule[,] and notes that all parties testified that
        [H.R.S.] originally exhibited a preference for Mother having
        primary custody[,] but has since changed her mind. The [trial
        court] believes that the [C]hildren will benefit from a schedule
        where Mother has custody on the majority of school days[.]

Trial Court Opinion, 1/23/15, at 15 (unnumbered).         Thus, the trial court’s

determination did not rest upon the testimony of B.R.S., alone, but on the




                                       - 17 -
J-S38032-15


testimony of H.R.S. and A.J.S. in relation to B.R.S.’s testimony as their

sibling.

      Having found no error or abuse of discretion, we affirm the Order of

the trial court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2015




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