J-S40045-19



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 E.J.                                       :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                      Appellant             :
                                            :
                                            :
                v.                          :
                                            :
                                            :
 B.W.                                       :   No. 636 WDA 2019

                Appeal from the Order Entered April 8, 2019
    In the Court of Common Pleas of Blair County Civil Division at No(s):
                               2017 GN 513


BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                    FILED SEPTEMBER 13, 2019

        E.J. (Mother) appeals from the order entered by the Court of Common

Pleas of Blair County (trial court) awarding Mother and B.W. (Father) shared

legal and physical custody with respect to their daughter, C.E.J. (Child). Upon

careful review, we affirm.

        The certified record reveals the following factual and procedural history.

Mother and Father began their relationship while at Pennsylvania State

University.    Mother learned she was pregnant with Child in May 2016.

Thereafter, in September 2016, Father left to obtain his Master’s degree in

England. In November 2016, the relationship ended. Child was born January

2017.     Father was present for the birth and then returned to England to

complete his studies. Accordingly, Mother cared for Child at her parents’ home

in Altoona, Pennsylvania.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      On February 16, 2017, Mother filed a complaint for custody. On April

10, 2017, Father filed an answer to Mother’s complaint and a counterclaim for

partial physical custody. In October 2017, Mother and Father agreed to a

temporary consent order providing the parties shared legal custody, Mother

primary physical custody, and Father partial physical custody for three hours

each Saturday at Mother’s residence.       On February 2, 2018, the parties

reached an agreed custody order, expanding Father’s partial physical custody

to eight hours every other Saturday from February 10, 2018, to May 1, 2018,

and, thereafter, every other weekend from Friday at 5:00 p.m. to Sunday at

5:00 p.m. The order also scheduled a review hearing for November 9, 2018.

                                      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

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).

      The Child Custody Act, 23 Pa.C.S, §§ 5321-5340, governs child custody

actions. 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. 23

Pa.C.S. § 5338. Section 5328(a) sets forth the best interest factors that the


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trial court must consider.1 See E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa.

Super. 2011). 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   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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            (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.

          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.

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            (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.

     With respect to the trial court’s analysis of the factors:

     The Custody Act requires only that the trial court articulate the
     reasons for its custody decision in open court or in a written
     opinion or order taking into consideration the enumerated factors.
     23 Pa.C.S.A. §§ 5323(d), 5328(a).             Contrary to Mother’s
     argument, 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).

                                      II.

     On November 9, 2018, and March 15, 2019, the trial court conducted

the custody review hearing. Mother testified and presented the testimony of

Child’s maternal grandfather, as well as Lawanda Barnett, Child’s therapist.

Father testified and presented the testimony of Child’s paternal grandmother.

     On April 9, 2019, the trial court entered its custody order, providing

Mother and Father shared legal custody, as well as shared physical custody




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on a week on/week off basis. On April 24, 2019, Mother timely filed a notice

of appeal.2 On May 7, 2019, the trial court filed its Rule 1925(a) opinion.

                                               III.

       On appeal, Mother argues that the trial court abused its discretion by

ordering a “true shared 50/50” custody schedule because it is not in the best

interests of Child. Mother’s brief at 2. In arriving at that determination, she

contends that the trial court improperly considered the best interest of Father

rather than the best interests of Child. Id. at 7-8. Mother also contends that

the trial court erred in its consideration of best interest factors 3, 9 and 10,

and failed to appropriately consider the 2½ hour driving distance between the

parties. Id. at 7-9. Mother further argues that the court did not consider

Father’s current capabilities but rather focused on his future ability to parent.

Id. at 8-9. Mother questions Father’s ability to provide appropriate care for

Child when she is in his care. Id. at 7-9. Mother similarly focuses on her



____________________________________________


2 Mother did not concurrently file a concise statement of errors complained of
on appeal with the notice of appeal in contravention of Pa.R.A.P. 1925(a)(2)(i)
and (b). The trial court ordered Mother to file her Rule 1925(b) statement
and Mother timely complied. Father asserts no prejudice, nor are we aware
of any, arising from Mother’s failure to file concurrently the concise statement
with the notice of appeal. Therefore, we will not quash or dismiss Mother’s
appeal. See In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009); Cf. J.P. v. S.P.,
991 A.2d 904, 908 (Pa. Super. 2010) (holding that appellant waived all issues
by failing to file a concise statement of errors complained of on appeal when
directed by the trial court).




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historical role as Child’s primary caregiver,3 contending the court ignored

“Mother’s fundamental r[o]le as primary caretaker in this case. . . .”         Id.

Further, Mother asserts that the court ignored that Mother is available around

the clock because she does not work, while Father is unavailable during the

day when he is at work. Id. Moreover, Mother contends that the court ignored

Father’s lack of participation following the parties’ separation, moved Child

into a shared physical custody schedule too quickly, and failed to account for

Child’s eventual enrollment in school. Id. at 10-11.

       In its 29-page opinion, the trial court considered the testimony offered

at the hearing and comprehensively addressed all of the best interest factors

pursuant to Section 5328(a).4 As it relates to Mother’s issues on appeal, the

court made the following findings:


____________________________________________


3 This Court has noted that while the primary caretaker doctrine is no longer
viable, a court may still consider a parent’s role as primary caretaker in its
consideration of the custody factors.

       We hasten to add that this conclusion does not mean that a trial
       court cannot consider a parent’s role as the primary caretaker
       when engaging in the statutorily-guided inquiry. As discussed
       above, a trial court will necessarily consider a parent’s status as a
       primary caretaker implicitly as it considers the [S]ection 5328(a)
       factors, and to the extent the trial court finds it necessary to
       explicitly consider one parent’s role as the primary caretaker, it is
       free to do so under subsection (a)(16).

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

4The court did not specifically address factor 2.1. However, this factor is not
applicable. See N.T., 11/9/18, at 80.


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     [Factor 3] The parental duties performed by each party on
     behalf of the child.

     The evidence has established that Mother has been the primary
     caregiver in all aspects of [Child] since her birth. Having said that,
     there is no doubt that the gradual nature of the custody process
     over the last two plus years contributed to this situation.

     Mother also acknowledged that the parties initially agreed for
     Father to go to school in England. The evidence has also shown
     that Father has performed day[-]to[-]day parenting duties such
     as feeding, clothing, teaching, playing and caring for [Child]
     during his periods of custody. So, while this factor favored Mother
     on its face, we find that Father is capable of performing all
     parenting duties and his desire to father [Child] in all aspects of
     her life to be sincere. A shared custody schedule provides [Child]
     with the opportunities for equal love and support from both
     parents.

                                     ***

     [Factor 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.

     We believe that both Mother and Father have and are capable in
     the future of maintaining a loving, stable, consistent and nurturing
     relationship with [Child] adequate for her emotional needs.
     Further, as mentioned previously, to the extent that [Child] needs
     therapeutic intervention, our Order directs the parents to explore
     and engage in same.

     [Factor 10] Which party is more likely to attend to the
     daily, physical, emotional, developmental, educational and
     special needs of the child.
     We find that each parent has m[]et [Child]’s needs during the time
     when [Child] is with hi[m]/her. While we recognize that Father
     was not present in the United States until [Child] was several
     months old and that Mother was the primary caregiver up to that
     time, we also acknowledge the court record wherein Father’s
     attempts to establish a relationship with [Child] on a regular basis
     were met with resistance. Luckily, [Child] is still very young and
     the parties are already establishing a track record of cooperation
     to maintain healthy bonds for [Child] with both parents.

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       Additionally, the record is devoid of any reason that this would not
       continue under a 50/50 custody schedule. Of course, the parties
       will need to cooperate to an even greater extent when arranging
       for such things as doctor appointments for [Child], as her
       established medical doctor is in the Altoona area.

Trial Court Opinion, 4/9/19, at 24, 26.5

       Moreover, in its Rule 1925(a) opinion, the court further explained its

reasoning as follows:

       It is clear from the record that while Mother had functioned as the
       primary caregiver, Father’s efforts to have an equal role were met
       throughout [Child]’s life with opposition by Mother, requiring the
       [c]ourt’s intervention and this lengthy custody process. Mother’s
       role as primary caretaker was historical and one that she
       advocated and also resisted changing to Father’s detriment.
       Father was capable of performing and had performed all parental
       responsibilities when [Child] was in his care. Finally, the parties
       are similarly situated in almost every single way.6

                                       ***
       Appellant appears to argue that simply because the [c]ourt found
       that each parent is capable of equally providing for [Child], that
       somehow that conclusion meant that Mother should be awarded
       primary custody. This [c]ourt refuses to conclude that when, as
       the record established here, both parents are capable of caring for
       their child and similarly situated in almost every aspect of their
       life[,] that such a situation would not favor an equal schedule for
       [Child] with each parent, absent safety considerations.


____________________________________________


5 The court determined that the remaining factors were either inapplicable or
did not weigh in favor of either party.

6 The trial court also noted “that his doctrine [of tender years] created a
presumption in favor of mother. The tender years presumption that custody
of a young child should be awarded to the mother has been abolished and
there is no maternal right to custody as against the father. Haraschak v
Haraschak, 407 A.2d 886, 889 (Pa.Super. 1979). Trial Court Opinion,
4/9/19, at 20.


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                                       ***

      Finally, with regard to Appellant’s claim that the Order should have
      addressed the [c]hild’s elementary school schedule, this [c]ourt
      cannot predict what developments may influence the analysis of
      the custody factors at some point (possibly four (4) years) from
      now when [Child] is set to begin primary school. Every custody
      order is entered with the knowledge that circumstances may
      change. (For example, the parties may move closer to each
      other).

Trial Court Opinion, 5/7/19, at 5-7.

      Our review of the record supports the trial court’s determination.

Mother testified that she resides in Altoona, Pennsylvania with her parents.

N.T., 11/9/18, at 9.    She acknowledged that when Father returned from

England, he immediately sought shared physical custody.             Id. at 16.

However, she did not agree because Child was “breast-feeding, she wouldn’t

take a bottle, he was a stranger for her . . . .” Id. Mother testified that while

Father sought shared physical custody, she believed that Thursday through

Sunday every other weekend, as well as an additional weekend per month,

was a more appropriate schedule. Id. at 21. Mother calculated this as 11

overnights per month. Id. at 41. Mother proposed the schedule because she

does not work and Father works during the day. Id. at 24-25.

      Mother contended she did not know the type of relationship Father had

with Child, but assumed “he takes over the role as a caretaker to her.” Id. at

25-26. Mother testified that she believed Father could appropriately provide

day-to-day care for Child. Id. at 43. Mother also acknowledged that Mother

and Father have similar living conditions, with the main difference being that

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Father works and she does not, as well as the fact that she spent the first 22

months as Child’s primary caregiver.7 Id. at 50-51, 70-71.

       Father testified that he resides in Camp Hill, Pennsylvania with his

parents. N.T., 3/15/19, at 9. He works in sales and, although his schedule is

flexible, he generally works between eight and nine hours per day. Id. at 10-

11. Father testified that starting in May 2018, he had custody of Child on

alternating weekends. Id. at 23. During their time together, Father reads

with Child, helps Child work on learning the alphabet and numbers, and

spends time with Child’s extended family. Id. at 36-37. During Father’s time

with Child, he provides the care for Child.        Id. at 29-30.   Father further

testified that to the extent that Father had custody of Child while he was

working, Child’s paternal grandmother would watch her. Id. at 34. However,

Father’s schedule would allow him to wake Child up, feed her and return in

time to feed Child dinner and spend quality time with Child before bedtime.

Id. at 36.

       Ultimately, Mother’s challenges go to the trial court’s conclusions and

assessments and ask this Court to re-find facts, re-weigh evidence and/or re-

assess credibility to her view of the evidence. Under the standard of review


____________________________________________


7 Near the end of the hearing on November 9, 2018, upon inquiry from the
court, Mother testified that there was a disagreement regarding religion
between Mother and Father and that Child had not been baptized. N.T.,
11/9/18, at 77. At the start of the second day of the hearing, Mother
acknowledged this testimony was untruthful, as Child was baptized in June
2018, and she did not inform Father. N.T., 3/15/19, at 2-3.

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applicable in custody matters, we are not permitted to disturb the trial court’s

findings of fact and determinations regarding credibility and weight of the

evidence absent an abuse of discretion. See C.R.F., 45 A.3d at 443; see also

E.R., 129 A.3d at 527. As we stated in Ketterer v. Seifert, 902 A.2d 533,

540 (Pa. Super. 2006) (quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa.

Super. 2004)):

      [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.

      Moreover, it is not our function to determine whether the trial court

reached the “right” decision; rather, we must consider whether, “based on the

evidence presented, given [sic] due deference to the trial court’s weight and

credibility determinations, the trial court erred or abused its discretion. . . .”

Hanson v. Hanson, 878 A.2d 127, 129 (Pa. Super. 2005).

      Initially, it is apparent that the trial court focused on crafting a custody

order that served Child’s, rather than either parent’s, best interests. Further,

it was the trial court’s responsibility to make credibility and weight

determinations, and we find that the court did not err or abuse its discretion

in its decision. The trial court adequately and appropriately analyzed the best

interest factors pursuant to Section 5328(a), and, after careful review of the




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record, we determine that the trial court’s findings and determinations are

supported by competent evidence in the record.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2019




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