J-A18012-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 N.A.M.                                   :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 M.A.M.                                   :   No. 1860 WDA 2019

            Appeal from the Order Entered November 21, 2019
   In the Court of Common Pleas of Butler County Civil Division at No(s):
                           FC No. 17-90291-C


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

MEMORANDUM BY BENDER, P.J.E.:                      FILED AUGUST 21, 2020

      N.A.M. (“Mother”) appeals from the November 21, 2019 order, which

awarded Mother and M.A.M. (“Father”) shared legal custody of L.M. (“Child”),

and awarded Father primary physical custody of Child, subject to Mother’s

partial physical custody rights in accordance with a schedule delineated in the

order. After careful review, we affirm.

      Mother and Father are the parents of two children: R.M., now a young

adult woman who lives in Pittsburgh, and Child, born in June of 2006. The

parties divorced on March 2, 2018. On July 17, 2018, a consent order was

entered by the trial court, which awarded Mother and Father shared legal

custody of Child, and awarded Father primary physical custody of Child,

subject to Mother’s partial physical custody. See Trial Court Order (“Custody

Order”), 7/17/18, at 1-3. Under the Custody Order, Mother has custody every

other Friday after school until Monday morning and every Wednesday after
J-A18012-20



school until Thursday at 7:00 p.m., plus some additional time in the summer.

Id. at 3. The order also requires Mother and Child to attend joint counseling

and for Mother, Father, and Child to each attend individual counseling. Id. at

5.

      Father filed a petition to modify the Custody Order in January of 2019,

in which he sought to eliminate Child’s Wednesday overnight visits with

Mother. Father avers that he has issues with Child every Wednesday morning,

as Child does not want to go to Mother’s overnight. Trial Court Memorandum

(“TCM”), 11/21/19, at 3. Additionally, Father stated that he was concerned

about disciplinary actions taken by Mother. Id. On June 17, 2019, Mother

filed a counterclaim, seeking to modify the current custody schedule into a

shared custody schedule. Mother wants to add a Thursday overnight each

week essentially creating a 5-2-2-5 custody schedule. Id.

      After a one-day custody trial held on October 15, 2019, the trial court

entered a memorandum, see id., and order of court (“Modified Order”) on

November 21, 2019, maintaining shared legal custody of Child by Mother and

Father, as well as primary physical custody by Father, but modifying Mother’s

partial physical custody rights.    See Modified Order, 11/21/19, at 1-6

(unpaginated).   In accordance with the Modified Order, Mother has partial

physical custody of Child,

      on alternate “weekends” from Thursday after school (or the
      approximately equivalent time if there is no school) until the
      beginning of school on the immediately following Tuesday morning
      (or 10:00 a.m. if there is no school); and … from after school (or
      the approximately equivalent time if there is no school) on every

                                    -2-
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      Tuesday that follows a “weekend” that Mother does not have
      custody of Child … until 7:30 p.m.

Id. at 2 ¶3 (unpaginated). Mother shall have additional physical custody of

Child during the summer and holidays, as delineated in the order. See id. at

2-3 ¶¶4-6 (unpaginated).     In support of its Modified Order, the trial court

produced a detailed analysis of the custody factors set forth in 23 Pa.C.S. §

5328(a). See TCM at 7-16.

      On December 20, 2019, Mother filed a timely notice of appeal, along

with a concise statement of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(a)(2)(i). Mother presents the following issues for our review:

      1. Whether the trial court abused its discretion and committed an
         error of law by denying Mother’s request for an equally shared
         physical custody schedule[?]

      2. Whether the trial court abused its discretion and committed an
         error of law in its application of the custody factors at 23
         Pa.C.S.[] § 5328[?]

      3. Whether the trial court abused its discretion and committed an
         error of law by yielding to … Child’s preference to eliminate the
         Wednesday overnight period with Mother, despite the fact that
         “the court did not perceive Child’s testimony as evidencing
         maturity and good judgment[?]”

      4. Whether the trial court abused its discretion and erred as a
         matter of law in analyzing Factor 9 [of Section 5328(a)] based
         on … Child’s comments during the in camera interview, rather
         than the evidence and testimony presented, particularly in light
         of the trial court’s finding that … Child’s testimony lacked
         maturity and good judgment[?]

Mother’s Brief at 4-5 (unnecessary capitalization omitted).

      We note the relevant scope and standard of review:

      [T]he appellate court is not bound by the deductions or inferences
      made by the trial court from its findings of fact, nor must the

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      reviewing court accept a finding that has no competent evidence
      to support it…. However, this broad scope of review does not vest
      in the reviewing court the duty or the privilege of making its own
      independent determination….           Thus, an appellate court is
      empowered to determine whether the trial court’s incontrovertible
      factual findings support its factual conclusions, but it may not
      interfere with those conclusions unless they are unreasonable in
      view of the trial court’s factual findings[] and[,] thus, represent a
      gross abuse of discretion.

      Moreover, on issues of credibility and weight of the evidence, we
      defer to the findings of the trial court who has had the opportunity
      to observe the proceedings and demeanor of the witnesses.

      The parties cannot dictate the amount of weight the trial court
      places on evidence. Rather, the paramount concern of the trial
      court is the best interest of the child. Appellate interference is
      unwarranted if the trial court’s consideration of the best interest
      of the child was careful and thorough, and we are unable to find
      any abuse of discretion. The test is whether the evidence of
      record supports the trial court’s conclusions.

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (internal citations omitted).

      Section 5328(a) of the Child Custody Act (23 Pa.C.S. §§ 5321-5340)

proscribes the factors which a court must consider when awarding any form

of custody. When deciding a petition to modify custody, a court must conduct

a thorough analysis of the best interest of the child based on the relevant

Section 5328(a) factors. A.V., 87 A.3d at 822 (citing E.D. v. M.P., 33 A.3d

73, 80 (Pa. Super. 2011)).    Section 5323(d) provides that a trial court “shall

delineate the reasons for its decision on the record in open court or in a written

opinion or order.” 23 Pa.C.S. § 5323(d). 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.” A.V., 87


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A.3d at 823 (quoting M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013)).

“A court’s explanation of reasons for its decision, which adequately addresses

the relevant factors, complies with Section 5323(d).” Id.

      Here, Mother argues that the trial court’s Modified Order is “contrary to

the record” and “utterly inconsistent” with its Section 5323(a) factor analysis.

Mother’s Brief at 13. Mother avers that despite finding she is a fit, capable

parent who is equally involved and bonded with Child, the trial court’s custody

determination favored Father. Id. Moreover, Mother argues that despite its

finding that Child lacked maturity and good judgment, the trial court

essentially appeased Child. Id. Mother claims that the trial court abused its

discretion and committed an error of law by failing to consider Child’s best

interest and awarding Father more custody than Mother. Id.

      In light of Mother’s issues, we reproduce the trial court’s analysis of the

Section 5328(a) custody factors:

      (1)   Which party is more likely to encourage and permit frequent
            and continuing contact between the child and another
            party[:]

            Until the current custody suit commenced, Father and
      Mother were always able to agree to what the custody
      arrangement should be via consent orders. It is noteworthy that
      the Custody … Order of July 17, 2018, substantially expanded
      Mother’s partial physical custody rights.

             On the other hand, the fact that Father has filed the instant
      Petition to Modify, seemingly on the basis of Child’s wishes and
      complaints, raises a red flag. His current desire to reduce Mother’s
      physical custody time tends to show that he now minimizes the
      importance of two parents, each playing an active role.




                                      -5-
J-A18012-20


           There is no evidence that either party has failed to comply
     with any court-ordered custody arrangement.

           The discussion about Factor 8, below, bears upon this
     Factor….

     (2)   The present and past abuse committed by a party or a
           member of the party’s household, where 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[:]

           There is a brief history of alleged abuse between Mother and
     [Child]. In the spring of 2017, Father filed Petitions for Protection
     from Abuse against Mother on behalf of himself and [Child].
     Mother denies the allegation of abuse. Both [p]etitions were
     withdrawn before [the] hearing. Simultaneously, the parties
     entered into a consent custody order concerning Child. [Children,
     Youth and Families (“CYF”)] has conducted two investigations,
     each resulting in a report of unfounded.

           The incident which lead [sic] to the filings of the Petitions
     for Protection from Abuse was a fight between Mother and [Child],
     prompted by [Child] telling her “you fuck men.” Then [Child]
     threw a toy at Mother, hitting her in the face, and Mother reacted
     by attempting to spank [Child]. This altercation resulted in [Child]
     lying on her bed with Mother on top of her. Father presented a
     photograph to this [c]ourt depicting a bruise on Child’s leg;
     however, Mother testified that she does not believe that bruise
     was a result of the incident. [Child] has accepted some fault for
     this incident in her testimony and further testified that both
     Mother and Child have apologized to each other.

            Except for this one incident, there has been no other
     allegation of abuse, and this [c]ourt does not believe that [Child]
     is at risk of harm from either Mother or Father.

     (3)   The parental duties performed by each party on behalf of
           the child[:]

           Because Father has had primary custody of [Child] since
     2017, he has performed the bulk of parental duties in the past
     couple of years. Nevertheless, Mother has generally continued
     her practice of scheduling medical and dental appointments and
     transporting Child to them.     Both parties help [Child] with
     homework[—]Mother perhaps too much[].

                                     -6-
J-A18012-20


          There is no reason not to believe that both Father and
     Mother each did their fair share of parenting before the separation.

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

            Any reasonably small change in the current custody
     arrangement will not disrupt continuity and stability … Child now
     experiences. [Child] will continue to be with each parent for
     substantial periods of time. She will still attend school in the
     Lower Burrell School District. She will still have close friends in
     the vicinity of each parent’s home. She will continue to have
     relationships with members of her extended family.

           Just a further note about “stability” is warranted. In her
     testimony, Child informed the [c]ourt that it is difficult for her to
     make the transition into her Mother’s care every Wednesday
     afternoon and then back into the care of her Father each Thursday
     evening. Paraphrasing Child, she complained of “too many
     exchanges.”

     (5)   The availability of extended family[:]

           Maternal Grandmother, maternal uncle, [and] several
     maternal aunts together with their children live in the Sarver area.
     They all commonly engage in birthday celebrations, cookouts, etc.
     [Child] enjoys their company. Mother often drives both [Child]
     and [Child’s] maternal cousins together to school.

           Paternal Grandfather lives in Natrona Heights. He sees
     [Child] at least twice a week, usually at bowling events at the
     bowling alley owned by Father. [Child] and Paternal Grandfather
     have a close relationship. Together with Father, they have gone
     on vacations.

     (6)    The child’s sibling relationships[:]

           The parties’ oldest daughter, R.M., a young adult, does not
     live with either parent, but her relationship with [Child] is quite
     strong.

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

           Child, in her in camera testimony, expressed a general
     desire to spend more time with Father and less with Mother,
     mostly because she does not feel comfortable with Mother.

                                     -7-
J-A18012-20


            Mother and Child have had a somewhat fractured
     relationship during the past couple years. They have been in joint
     therapy with Dr. Gilman for a substantial period of time. [Child]
     also engages in individual therapy with [Dr.] Gilman.

           As described above in the discussion of Factor 2, there was
     a physical altercation between Child and Mother, prompted by
     Child’s telling her that “you fuck men” and throwing a toy, hitting
     Mother in the face with it. There ensued a bit of a wrestling
     contest during which Mother attempted to spank Child. It was a
     very ugly scene. They apologized to each other when their anger
     subsided.

          Child blames Mother more for the divorce than she does
     Father. Child testified that she has been verbally abused and
     emotionally abused by Mother. The [c]ourt concludes that Child’s
     perception is to be “taken with a grain of salt.” The [c]ourt, of
     course and without doubt, believes that arguments between the
     two have not been uncommon.

           Child strongly prefers Father’s methods of disciplining. He
     displays more patience. Mother is more authoritarian than Father,
     and arguments can ensue as a result.

           Two of the underlying issues arise from [Child’s] homework
     and her Girl Scouts activities. Mother sometimes chastises Child
     for not completing her Scout activities. Concerning homework,
     Child’s recent grades in algebra have been poor. Mother often sits
     down with Child and goes over her entire algebra homework
     assignment with her. Child (who is being independently tutored
     in algebra) fiercely resents this, stating that Mother is a parent
     and not a math teacher. She wants Mother to only help her on
     algebra problems that Child finds to be too difficult to do on her
     own.

           Overall, the [c]ourt did not perceive Child’s testimony as
     evidencing maturity and good judgment, except for one specific
     request: Child said the overnight weekly stay at Mother’s house
     from Wednesday afternoon until Thursday afternoon was too
     much for her to handle. Child felt that there were too many
     custody exchanges occurring.

     (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[:]

                                    -8-
J-A18012-20


           During her direct examination, Mother testified about
     certain events that reflect upon this factor. She testified that in
     the not too distant past, Father told her “I alienated R.M. from
     you. It’s the only thing that you have on me.” In his rebuttal
     testimony, Father stated he did not know what parental alienation
     was until much more recently, when he himself entered into
     counseling. The rebuttal testimony was not very convincing.

           Mother also testified about an incident involving [Child]
     becoming ill (a cough and low-grade ever [sic]) on a school night.
     Mother messaged Father using Our Family Wizard [(“OFW”)].
     Father replied, informing Mother that [Child] had already
     contacted him about her condition. In the reply, Father insisted
     that Mother contact him the next morning about whether [Child]
     should attend school. At 8:25 a.m.[,] on the following morning,
     Mother again communicated with Father informing him as follows:

        [Child] woke up with a sore throat and little congestion. She
        had an Advil at 7[:]30 and wanted to go [to] school. She
        felt better and sounded better leaving….

     Father replied to the 8:25 a.m. message at 8:35 a.m.[,] as
     follows:

        I’m well aware as she called me at 7:04 to inform me and
        followed up again at 7:35. She is a wonderful child and is
        immensely communicative about her physical health and
        emotional wellbeing.

     Mother testified during her direct examination that she thought
     that Father’s final message to her was “unnecessary.”

            The [c]ourt draws certain conclusions from this series of
     messages back and forth. First, on the surface of things, Father
     did not trust Mother to make a decision about whether Child
     should miss a day of school because of a cough and low-grade
     fever.1 Second, the mistrust seems to have been inculcated in
     Child….    Third, Mother resented Father’s insistence that he
     participate (via OFW) in the morning decision of whether [Child]
     should attend school that day. Fourth, Father gloated over the
     fact that [Child] had been in contact with him before Mother
     messaged him both times. One can infer that Father is pleased
     by and experiences satisfaction from the somewhat fractured
     relationship of Mother and Child.         This series of events
     constitute[s] a subtle expression of aggression by Father.


                                    -9-
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        1 The evidence clearly establishes that Mother was quite
        capable of making a decision concerning this relatively
        minor matter. See discussion of Factor 10.

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

           Child perceives, at least currently, that Father is more
     capable than Mother and is more likely to provide a loving, stable,
     consistent and nurturing relationship with her adequate for her
     emotional needs. There is good reason for Child to think so:
     Father has continued to address her emotional needs throughout
     the separation and divorce. He has been the one to whom she
     has taken most of her problems.

           The [c]ourt does not mean to imply that Father’s
     performance with regard to Child’s emotional needs has been
     without fault. See discussion of Factor 8 above.

            The [c]ourt does not mean to imply that Mother is incapable
     of doing so. For reasons discussed about Factor 7, she cannot
     fully do so at this time. Their relationship prevents it.

     (10) Which party is likely to attend the daily physical, emotional,
          developmental, educational and specific needs of the
          child[:]

           The word [“]emotional[”] is used in defining this factor. See
     discussion of Factor 9 above.

           Otherwise, each party is quite capable of meeting the daily
     physical, developmental, educational and special needs of Child
     when given the opportunity.

     (11) The proximity of the residences of the parties[:]

          Mother and Father live in the Sarver area (Butler County)
     and in Lower Burrell Township (Westmoreland County),
     respectively, about twelve miles apart.

          At first, Mother wanted [Child] to continue to attend
     Freeport Area Schools, which she had attended before Father




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       relocated.[1] She is now content that [Child] attend school in the
       Burrell School District.

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

             [Child] is 13 years old[] and, therefore, this factor is less
       important. It must be noted that Mother is not employed and is
       not seeking employment currently. She has extended family in
       the area.

              Father’s working hours are somewhat flexible[,] because he
       is self-employed.

       (13) The level of conflict between the parties and the willingness
            and ability of the parties to cooperate with one another[:]

             The evidence clearly establishes that Father’s hostility
       towards Mother is greater than Mother’s for him, if indeed she has
       any. (See discussion of Factor 8, above…).

       (14) History of drug or alcohol abuse of a party or members of a
            party’s household[:]

             There was no evidence offered at trial that indicated that
       either parent has or had a substance abuse problem.

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

             Neither Father nor Mother have any physical health issues.
       [Child] has none either. Everyone is properly in therapy at the
       current time.

       (16) Any other relevant factor[:]

             Mother had limited contact with the children from the time
       of separation until the June 20, 2017 Interim Order was entered.
       The record does not indicate why this occurred.

TCM at 7-16 (citations to record omitted).

____________________________________________


1The trial court entered a consent order on January 9, 2018, “which permitted
Father to relocate to Lower Burrell … from Sarver…, the site of the marital
residence, which has been occupied by Mother ever since the relocation
occurred.” TCM at 2.

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      Following its analysis of the 16 custody factors, the trial court

highlighted the following observations:

      1) Both Father and Mother are quite capable of addressing Child’s
         daily physical, development[al], educational[,] and specific
         needs. The somewhat fractured relationship between Mother
         and Child has resulted in Child’s experiencing anger and
         anxieties.

      2) … Child has recited reasons for her anger, anxieties, and
         discomfort which show that her desire to spend less time with
         Mother is less than a mature, well-reasoned preference.

      3) Mother testified that the joint counseling with Child has been
         helpful. There is no reason to believe that their relationship
         cannot be whole again. Child will grow more mature, and
         Mother hopefully will grow to better understand Child’s
         increasing desire to be independent. Mother can easily take
         steps immediately to minimize the conflicts over homework
         and Girl Scouts.

      4) There is a risk that Father will do what he subtly can “to keep
         [Child] in his camp.” This must be an issue addressed by
         Father in his therapy sessions.

      5) Father and Mother have a history of being able to reasonably
         and civilly communicate with each other about [Child’s] needs.

Id. at 16-17. The trial court emphasized that “[i]f the relationship between

Mother   and   Child   would   normalize,     the   [c]ourt   would   give   serious

consideration to a shared physical custody award[,]” and added that the

evidence “does not warrant a reduction in Mother’s partial physical custody

rights.” Id. at 17.

      For ease of disposition, we address Mother’s first two claims together.

Mother asserts that the trial court’s custody award “openly contradicts its own

findings” and is “manifestly unreasonable in light of the evidence presented.”


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Mother’s Brief at 16. She further avers that the court erred in its application

of the Section 5328 custody factors and that its analysis lacks sufficient

reasoning and competent evidence to support its award of primary physical

custody to Father. Id. at 19-20. In support of her argument, she states that

the trial court’s examination of the custody factors reveals that Mother and

Father are “essentially equal, with three … factors weighing slightly against

Father[,]” id. at 20, and avers that the trial court’s custody determination

ignored evidence and findings which were unfavorable to Father. Id. at 23.

      More specifically, Mother argues that Factors 1, 8, and 13, are

unfavorable to Father, and that none of the factors weigh against her. Id. at

17. She avers that the trial court’s analysis of these three factors constitutes

“findings of numerous attempts by Father to minimize and discourage …

[C]hild’s relationship with Mother, and his efforts to turn … [C]hild against

Mother, coupled with his hostility and aggression toward Mother[.]” Id. at 26.

She concludes that the trial court’s award of custody more favorable to Father

contradicts its findings, “especially where the remaining factors weigh in

Mother’s favor, or at a minimum weighed [sic] evenly between the parents,”

and, thus, constitutes an abuse of discretion. Id.

      To the contrary, Father avers that Factors 4 and 7, are slightly

unfavorable to Mother and that Factor 6 is favorable to Father. Father’s Brief

at 12. In its discussion of Factors 4 and 7, Father alleges that the trial court

found the current custodial arrangement to be stable for Child and that the

small shift in the custody schedule ordered by the court supports its finding

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that the Wednesday overnight was disruptive to Child. Id. at 12-13 (citing

TCM at 11-12 (noting that “Child felt that there were too many custody

exchanges occurring”)).       Moreover, Father notes that the trial court

acknowledged     Mother   and    Child   have   had   a   “somewhat     fractured

relationship[.]” Id. at 13 (quoting TCM at 10). In regards to Factor 6, in

which the trial court determined Child’s relationship with her older sibling to

be strong, Father argues that this factor is in his favor, as Mother has no

current relationship with R.M., and that he is the one who facilitates the

relationship between the siblings. Id.

      Based on our review of the record, we discern that, while taking into

account Child’s best interest, the trial court carefully considered all of the

statutorily mandated factors in arriving at its custody determination, that its

findings are supported by the record, and that it adequately explained the

basis for its decision. See 23 Pa.C.S. § 5323(d); A.V., 87 A.3d at 823. The

trial court’s analysis did not weigh heavily in favor of one party over the other;

thus, it was within the court’s discretion to maintain Father’s award of primary

physical custody, subject to Mother’s partial physical custody.        The court

shifted the schedule, however, to take into account Child’s testimony, which

it found credible, that the Wednesday overnight with Mother was hard on her.

The court eliminated the midweek overnight to minimize the back and forth

for Child, but was also careful to maintain the same number of overnights with

Mother on a monthly basis, as it found the evidence did not warrant a




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reduction in her partial physical custody rights.2 See TCM at 17. It is clear

that the trial court gave careful consideration to all evidence presented.

       Moreover, it is well-settled that,

       [t]he parties cannot dictate the amount of weight the trial court
       places on evidence. Rather, the paramount concern of the trial
       court is the best interest of the child. Appellate interference is
       unwarranted if the trial court’s consideration of the best interest
       of the child was careful and thorough, and we are unable to find
       any abuse of discretion.

S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002) (citing Robinson v.

Robinson, 645 A.2d 836, 838 (Pa. 1994)). The trial court’s findings regarding

the custody factors are supported by the record, and we discern no error of

law or abuse of discretion. Thus, Mother is not entitled to any relief on these

claims.

       Next, we address Mother’s assertion that the trial court erred in its

analysis of Factor 7, and by yielding to Child’s preference regarding the

custody schedule, despite a finding that Child’s testimony lacked maturity and

good judgment. Mother’s Brief at 26-27. Pursuant to Section 5328(a)(7), the

court shall consider “the well-reasoned preference of the child, based on the

child’s maturity and judgment.” 23 Pa.C.S. § 5328(a)(7).

       The weight to be accorded a child’s preference varies with the age,
       maturity and intelligence of that child, together with the reasons
       given for the preference. Moreover, as children grow older, more
       weight must be given to the preference of the child. As this Court
       has recently reaffirmed, where the households of both parents
____________________________________________


2Under the Modified Order, Mother has custody of Child every other Thursday
after school until Tuesday morning and every other Tuesday evening with
Child. See Modified Order at 2 ¶3 (unpaginated).

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       were equally suitable, a child’s preference to live with one parent
       could not but tip the evidentiary scale in favor of that parent.

E.B. v. D.B., 209 A.3d 451, 468 (Pa. Super. 2019) (quoting B.C.S. v. J.A.S.,

994 A.2d 600, 604 (Pa. Super. 2010)).

       Instantly, after noting Child’s desire to spend more time with Father and

less with Mother, her “somewhat fractured relationship” with Mother during

the past couple years, and her preference for Father’s discipline style over

that of Mother’s, the trial court found that Child’s testimony overall did not

evidence maturity and good judgment, “except for one specific request: Child

said the overnight weekly stay at Mother’s house from Wednesday afternoon

until Thursday afternoon was too much for her to handle. Child felt that there

were too many custody exchanges occurring.”           TCM at 11-12 (emphasis

added).     Mother contends, however, that Child’s entire testimony lacks

maturity and good judgment, and that because Child was unable to provide

any specific reasons for eliminating only Wednesday nights with Mother,3 the

trial court abused its discretion in giving weight to Child’s preference as to this

issue. Mother’s Brief at 29, 31.

       Mother is essentially asking us to reject the trial court’s findings and

reweigh its credibility determinations. We cannot do so. Rather,


____________________________________________


3 Mother suggests that Child could not differentiate her dislike for Wednesday
over her dislike for all other custody time with Mother, specifically Sunday
nights. Mother’s Brief at 29. Instead, she avers that Child testified generally
that “going back and forth between homes is difficult, [that] it bothers her
being at her Mother’s home[,] … and it is hard because she goes to school and
does not want to have to take extra things….” Id.

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      [w]e 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.

J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa. Super. 2011).              Having already

determined that the trial court’s findings are supported by the record, we

conclude that Mother is not entitled to any relief on this claim.

      Finally, Mother claims that the trial court erred in basing its analysis of

Factor 9 on Child’s testimony, rather than on her evidence and testimony

presented at the hearing. Mother’s Brief at 31. Mother argues that although

the trial court concluded both parents are capable of maintaining a loving,

stable, consistent, and nurturing relationship with Child, it erred in relying on

Child’s perception. In support of her argument, she refers to the trial court’s

determination that “Child perceives, at least currently, that Father is more

capable than Mother and is more likely to provide … for her emotional needs.”

Id. at 32 (citing TCM at 14).      The court further explained in its analysis:

“There is good reason for Child to think so[.] Father has continued to address

her emotional needs throughout the separation and divorce. He has been the

one to whom she has taken most of her problems.” TCM at 14. Although the

court did note Child’s perception in its analysis, it further stated that it did not

mean to imply that “Father’s performance with regard to Child’s emotional

needs has been without fault[,]” or that “Mother is incapable of doing so.”

TCM at 4. The trial court incorporated its detailed discussions in Factors 7 and

8 to its analysis of Factor 9, and concluded that Mother simply cannot fully

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meet Child’s emotional needs “at this time[,]” as “[t]heir relationship prevents

it.” Id. at 14 (emphasis added).

      Regardless of the trial court’s explanation, Mother asserts she testified

credibly that her relationship with Child does not rise to the “level of drama”

described by Father during his testimony, and coincidentally by Child.

Mother’s Brief at 32. Mother further points to her testimony that she is willing

to continue joint therapy sessions with Dr. Gilman and that doing so would be

in Child’s best interest. Id. She claims that since the entry of the July 17,

2018 Custody Order, “things are going well with … [C]hild, and they have not

experienced any major blowups.” Id. at 33. Mother contends that Child’s

preference to spend less time in Mother’s custody is “superficial, at best[,]”

id., and that the trial court disregarded Mother’s credible testimony in its

analysis. Id. at 34.

      We have already concluded that the trial court has appropriately

considered the factors enumerated in section 5328(a), and that the findings

in connection thereto are supported by the record. Again, Mother is asking us

to reject the trial court’s findings and credibility determinations in favor of the

findings and credibility determinations she proposes, which we cannot do.

See J.R.M., 33 A.3d at 650. Mother’s claim is meritless.

      Accordingly, we affirm the trial court’s November 21, 2019 Modified

Order and the custody schedule delineated therein.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2020




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