J.J.E. v. K.T.P. ( 2016 )

J-S67001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.J.E. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
K.T.P. No. 1084 MDA 2015
Appeal from the Order entered May 27, 2015,
in the Court of Common Pleas of York County,
Family Court, at No(s): 2014-FC-1455-03
BEFORE: BOWES, PANELLA, and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 05, 2016
J.J.E. (“Father”) appeals from the child custody order granting K.T.P.
(“Mother”) primary physical custody and shared legal custody of the parties’
three children, A.E., J.E., and Z.E. The trial court granted Father periods of
partial physical custody. Upon careful review, we affirm.
The certified record reveals the following facts and procedural history.
A.E. was born during 2007. Her younger brother, J.E., was born during
2009, and her younger sister, Z.E., was born in 2011. On August 7, 2014,
Father filed a complaint in divorce that included a child custody count. He
requested shared legal custody, primary physical custody, or, at minimum,
equally shared physical custody. On October 20, 2014, the trial court
entered an interim order awarding the parties shared legal custody and
equally shared physical custody on an alternating weekly basis. A custody
*Retired Senior Judge assigned to the Superior Court.
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trial occurred on May 11 and 12, 2015. During the trial, Father testified on
his own behalf and presented the testimony of J.E., the children’s paternal
grandmother. Mother testified and presented the testimony of Peter
Thomas, Ph.D., a licensed clinical psychologist, who performed a
psychological evaluation of the family on December 3, 2014. The court
admitted Dr. Thomas’s report into evidence. Mother also presented the
testimony of K.R., the children’s maternal grandmother. The trial court
interviewed the two older children, A.E. and J.E., in camera.
The record evidence reveals that Father and Mother physically
separated in July of 2014, at which time they started exercising equally
shared physical custody of A.E., J.E., and Z.E. on an alternating weekly
basis. Stipulation of Facts at 2, ¶ 11; N.T., 5/11/15, at 132-133. Father
continued to reside in the marital residence located in Red Lion,
Pennsylvania and Mother moved to York, Pennsylvania, a distance of
approximately thirteen miles, or less than twenty minutes from Father.
Stipulation of Facts at 3, ¶ 11; N.T., 5/12/15, at 264-265.
Father is employed at Lockheed Martin, located in Woodlawn,
Maryland, as a computer programmer. Stipulation of Facts at 1, ¶ 8. He
works five days per week from 8:00 a.m. to 4:00 p.m. N.T., 5/11/15, at
128. Mother is a registered nurse, and she is employed at Memorial
Hospital, in the Emergency Department, located in York. Stipulation of Facts
at 1, ¶ 7. Mother testified that she works between twelve to twenty hours
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every week and on alternating weekends from 11:00 a.m. to 11:00 p.m.
N.T., 5/12/15, at 230. Her work schedule is flexible. Id. at 230, 273-275.
At the time of the custody trial, A.E. was seven years old and in
second grade. J.E. was five years old and in kindergarten. Z.E. was four
years old, and she attended preschool when in Mother’s physical custody at
a frequency not specified in the record. The parties stipulated that A.E. and
J.E. are doing well academically. During their in camera interview, A.E. and
J.E. both stated a preference to continue the equally shared custody
arrangement. N.T., 5/11/15, at 11, 20-22.
A.E. suffers from periodic emotional distress. N.T., 5/11/15, at 52;
Psychological Evaluation, 12/3/14, at 30. J.E. has some behavioral problems
in school caused by Attention Deficit Hyperactivity Disorder (“ADHD”), for
which he is prescribed Ritalin. N.T., 5/11/15, at 125; N.T., 5/12/15, at 251.
A.E., J.E., and Z.E. attend therapy at the Center for Creative Art and Play
Therapy in York, due to the effect of the parties’ divorce on them. N.T.,
5/11/15, at 137.
Mother’s expert witness, Dr. Thomas, testified with respect to his
psychological evaluation performed on December 3, 2014. Dr. Thomas did
not recommend an equally shared physical custody arrangement based on
the young ages of the three children, as well as the emotional and/or
behavioral issues of A.E. and J.E. N.T., 5/11/15, at 54. Dr. Thomas
recommended that Mother maintain primary physical custody and Father
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exercise periods of partial physical custody on alternating weekends and two
evenings per week. Id. at 55; Psychological Evaluation, 12/3/15, at 32.
On May 26, 2015, the trial court provided its rationale for the custody
decision on the record and entered a written order on May 27, 2015. The
trial court awarded Mother primary physical custody and granted Father
periods of partial physical custody on the first and fourth weekends of each
month and every Tuesday and Thursday evening from 5:30 p.m. to 7:00
p.m. Further, the trial court awarded the parties shared legal custody.
On June 23, 2015, Father 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). The trial court issued its Rule 1925(a) opinion on July
31, 2015.
On appeal, Father presents the following issues for our review:
I. Whether the trial court erred as a matter of law and/or abused
its discretion in awarding primary physical custody to Mother
based upon the evidence of record?
II. Whether the trial court erred as a matter of law and/or
abused its discretion in awarding primary physical custody to
Mother by failing to consider the facts as they existed at the time
of the hearing?
III. Whether the trial court erred as a matter of law and/or
abused its discretion in awarding primary physical custody to
Mother by simply adopting the expert’s evaluation and
recommendation?
Father’s brief at 4.
The scope and standard of review in custody matters is as follows.
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[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 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.
R.M.G., Jr. v. F.M.G., 2009 PA Super 244, 986 A.2d 1234, 1237
(Pa.Super. 2009) (quoting Bovard v. Baker, 2001 PA Super
126, 775 A.2d 835, 838 (Pa.Super. 2001)). Moreover,
[O]n 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.
R.M.G., Jr., supra at 1237 (internal citations omitted). The test
is whether the evidence of record supports the trial court’s
conclusions. Ketterer v. Seifert, 2006 PA Super 144, 902 A.2d
533, 539 (Pa.Super. 2006).
A.V. v. S.T., 87 A.3d 818, 820 (Pa.Super. 2014).
We have stated:
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
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the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an appellate court
by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa.Super. 2004)).
The primary concern in any custody case is the best interests of the
child. “The best interests standard, decided on a case-by-case basis,
considers all factors which 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).
When awarding any form of custody, § 5328(a) of the Child Custody
Law, 23 Pa.C.S. §§ 5321-5340, provides an enumerated list of factors a trial
court must consider in determining the best interests of a child:
§ 5328. Factors to consider when awarding custody.
(a) Factors. – In ordering any form of custody, the court
shall determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
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(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.
(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.
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(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).1
This Court has stated that, “[a]ll of the factors listed in section
5328(a) are required to be considered by the trial court when entering a
custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011)
(emphasis in original). Further,
Section 5323(d) provides that a trial court “shall delineate the
reasons for its decision on the record in open court or in a
written opinion or order.” 23 Pa.C.S.[] § 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, 70 A.3d 808 (Pa. 2013). . . .
In expressing the reasons for its decision, “there is no required
amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that
the custody decision is based on those considerations.” M.J.M.
v. M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013), appeal denied,
[620 Pa. 710], 68 A.3d 909 (2013). A court’s explanation of
reasons for its decision, which adequately addresses the relevant
factors, complies with Section 5323(d). Id.A.V., 87 A.3d at 822-823. With these standards in mind, we turn to the
merits of this appeal.
1
The Child Custody Law was amended, effective January 1, 2014, to include
the additional factor at 23 Pa.C.S. § 5328(a)(2.1). Instantly, the trial court
neglected to consider this factor; however, since the factor is not relevant in
this case, the omission is harmless.
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As Father’s issues are interrelated, we review them together. Father
asserts that the trial court abused its discretion or committed an error of law
with respect to § 5328(a)(3), (4), (7), (8), (9), (10), (11), (12), and (15).
Father argues that the § 5328(a) factors weigh in favor of maintaining
equally shared physical custody. As such, Father asserts that the trial court
erred by adopting the recommendation of Mother’s expert witness, Dr.
Thomas. For the reasons that follow, we discern no abuse of discretion.
In its Rule 1925(a) opinion, the trial court summarized its rationale for
granting Mother primary physical custody by explaining that § 5328(a)(10),
(12), and (15) “tipped the scale in Mother’s favor.” Trial Court Opinion,
7/31/15, at 4. Accordingly, we address Father’s arguments relative to these
factors collectively at the outset. With respect to § 5328(a)(10), which party
is more likely to attend to the daily physical, emotional, developmental,
educational and special needs of the child, the trial court found that “both
parents, for the most part, can adequately attend to” these needs of A.E.,
J.E., and Z.E. Id. The court continued:
However, there was evidence presented that [A.E.] believed that
somehow she needed to do something about Father’s sadness.
Specifically, Father told Dr. Thomas that sometimes when [A.E.]
cries, he cries too, and then they cry together. Dr. Thomas
indicated that the sharing of sadness and grief is not the kind of
relationship that he hoped for between Father and [A.E.];
instead the relationship should focus on [A.E.]’s needs, not on
Father’s.
Id. (citation to record omitted).
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In addition, the court found § 5328(a)(10) militated in favor of Mother
because she testified that A.E., J.E., and Z.E. sometimes return to her house
not having bathed while in Father’s custody. Further, the court noted
Mother’s testimony that Z.E., then age four, returned to her custody at
times “with red rashes and poop and [toilet] paper in her labia.” Id.
(citations to record omitted).
On appeal, Father acknowledges that he sometimes cried when
comforting A.E. in her emotional distress. Father explained that, “[i]n the
context of the situation, it is noted that Father did not want the divorce to
occur and he was obviously sad about the status of his marriage.” Father’s
brief at 18. However, Father argues that the trial court abused its discretion
by placing “too great an emphasis on this exchange” in considering Father’s
ability under § 5328(a)(10). Id. Upon review, the testimony of Mother and
Dr. Thomas supports the trial court’s findings. As such, we discern no abuse
of discretion. Moreover, we reject Father’s argument, as stated above,
because he “cannot dictate the amount of weight the trial court places on
evidence.” R.M.G., Jr., supra.
With respect to § 5328(a)(12), each party’s availability to care for the
child or make appropriate child-care arrangements, the trial court explained
that it found Mother more available to care for A.E., J.E., and Z.E. than
Father based on their respective work schedules. The court found that the
weekends Mother works “are usually the weekends the children are with
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Father. During the week, Mother can pick off of a list the times that best
suit her and the children’s schedules for that week. Mother tries to choose
times during the week when the children are in school.” Trial Court Opinion,
7/31/15, at 5 (citations to record omitted). The court found as follows
regarding the effect of Father’s work schedule on the daily routine of A.E.,
J.E., and Z.E.:
[Father] leaves for work around 6:30 a.m. to drop the children
off at school and go to work. When picking the children up, he
gets to them by around 5:30 p.m., and then they get home
around 6:00 p.m. Father testified that the children go to bed
around 7:30 or 8:00 p.m., which means he gets about an hour
and a half quality time with them in addition to the time in the
car to and from school.
Id. Importantly, the trial court stated that it “does not question Father’s
ability to make appropriate child-care arrangements.” Id. Nevertheless, it
concluded that, “it was in the best interest of the children to minimize the
amount of day care while maximizing the amount of time the children have
with one or both of their parents.” Id.
Father argues in his brief that the trial court abused its discretion by
penalizing him “for the mere fact that he was employed despite his ability to
make appropriate arrangements for [A.E., J.E., and Z.E.] while he was
working.” Father’s brief at 20. We disagree. The trial court’s findings with
respect to § 5328(a)(12) are supported by the testimony of Father and
Mother. Further, the court’s conclusion that it is in the best interest of A.E.,
J.E., and Z.E. to minimize the amount of day care and maximize the amount
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of time they have with one or both parents is reasonable in light of the
court’s foregoing findings.
With respect to § 5328(a)(15), the mental and physical condition of a
party, the trial court found that “Father has a history of Attention Deficit
Disorder [(“ADD”)] and depression.” Trial Court Opinion, 7/31/15, at 5. The
court continued:
In addition, Dr. Thomas’ evaluation determined that Father has
some behavioral dysfunction as well, one of which is struggling
with impulse control. Father’s issue with impulse control was
also referenced by the testimony of both Mother and Father,
indicating that Father sometimes grabs whatever is in his reach
and throws it when he becomes angry. The other findings of
behavioral dysfunction pertain to acting out feelings in a way
that would be dysfunctional or poor, specifically difficulty in
dealing with people in positions of authority, difficulty with
interpersonal relationships, and at times may violate some social
rules. To his credit, Father is receiving counseling for those
issues. However, some of these findings by Dr. Thomas
regarding Father’s mental health are continuing, or at least
persisted while Father was being seen by Dr. Thomas.
Id. at 5-6 (citations to record omitted).
Father testified that he was diagnosed with ADD nearly two years ago,
for which he is prescribed medication. N.T., 5/11/15, at 125. In addition,
Father has been in counseling since shortly before his diagnosis. Id. With
respect to the court’s finding regarding Father’s problem with impulse
control, Father acknowledged on cross-examination that, in arguments with
Mother, he sometimes kicked or threw inanimate objects. N.T., 5/12/15, at
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178-179. However, Father testified that he never threw any object at
Mother. Id. at 179.
In his report, Dr. Thomas opined that the Father’s psychological
testing results “reflect significant psychological concerns.” Psychological
Evaluation, 12/3/14, at 26. Specifically, Dr. Thomas stated that the testing
he performed on Father “suggests significant difficulty with depression,
difficulty with anxiety and difficulty with acting out behavior and impulse
control. . . .” Id. Further, Dr. Thomas stated:
[Father] will likely be somewhat more comfortable with concrete
moments and problem solving events than he is with emotional
moments and relationship events. [Father] will be somewhat
withdrawn socially. He identified difficulty with reading social
cues. He also stated that he gets frustrated with authority
systems that do not work well.
Id.
Father argues that the trial court abused its discretion in weighing this
factor against him because “Dr. Thomas noted that Mother self-reported that
she has Attention Deficit Disorder,” and that she portrayed symptoms of
depression as well, “but that she has not had any ‘significant mental health
intervention or treatment.’” Father’s brief at 21 (citation omitted). Father
asserts that, in contrast to Mother, he receives mental health treatment.
Moreover, Father argues that Dr. Thomas’s concerns regarding Father’s
mental health “were simply based upon the possibility of something
happening in the future; i.e., whether Father would continue with the
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treatment he was presently doing and if his condition became more
pronounced.” Id. at 22. As such, Father argues that Dr. Thomas’s concerns
in this regard are speculative, and that the court erred to the extent it based
its decision on these concerns.
With respect to Mother’s mental health, Dr. Thomas stated in his
report, that Mother “presents with some limited mental health issues. Her
psychological testing described difficulty with some anxiety related
experiences.” Psychological Evaluation, 12/3/14, at 31. Further, Dr.
Thomas stated as follows:
[Mother] indicates having an Attention Deficit Disorder. She has
not had significant mental health intervention or treatment. . . .
[Mother] presents with an emotional system that is moderately
closed. . . . At times she could wander somewhat in her focus.
There is a degree of intensity to her presentation and she is
intense about her concerns with father. . . . [Mother] will likely
be equally comfortable with concrete moments and problem
solving events as she is with emotional moments and
relationship events. [Mother] self-identifies difficulty with
patience and distractibility.
Id. at 25.
Nevertheless, Dr. Thomas opined in his report that Father “presented
with more dramatic dysfunction.” Id. at 31. He continued:
[Father’s] described dysfunctions were significant. His record
reflected the same type of anxiety events that mother’s record
described. Further, father’s record indicated problems with
impulse control and dealing with authority figures, significant
problems with depression as well as some problems in the area
of thought dysfunction, particularly suspiciousness and mistrust.
Taken together, [Father]’s testing suggests that his
psychological problems are important and substantial.
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Id. On cross-examination, Dr. Thomas further explained his concerns
regarding Father’s mental health as follows:
Q. So if we look at the history of . . . [Father] and his parenting,
we can also say that his mental health conditions are not going
to cause a problem in the future with regard to his parenting. Is
that a fair statement?
A. I would not make that statement. I would agree with . . . the
statement of, in the past are there events that reflect some sort
of mental health dysfunction being acted out on the children,
and that [ ] answer would be no.
....
I would remain concerned about these mental health findings,
and I can’t guarantee that they won’t happen in the future.
Q. What would happen? He’s depressed and A[DD] and has
anxiety.
A. Well, there was more to it. He also had an elevation on the
scale about problems with authority figures. That could lead to
job loss, which I guess had happened in the past. He said poor
impulse control, difficulties with memory and concentration.
There were some elements of concern about acting out
behaviors that could occur.
I think the depression and the anxiety, what could happen,
what would be the worse-case scenario would be that one of
those conditions could sort of engage and become more
pronounced, that would certainly be a problem. In other words,
if he became severely depressed.
Q. But you didn’t find him in that state presently?
A. Right.
Q. This is just something that could happen in the future?
A. Right.
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Q. Or it may not happen in the future?
A. Correct.
N.T., 5/11/15, at 80-82.
Although Dr. Thomas indicated on cross-examination that his concerns
were speculative regarding Father’s mental health deterioration, we cannot
conclude that the trial court abused its discretion with respect to its findings
related to § 5328(a)(10) and the weight it assigned to this factor. The
findings and conclusions set forth by Dr. Thomas in his report, as well as Dr.
Thomas’s testimony, reveal that Father’s psychological dysfunction existed
at the time of Dr. Thomas’s evaluation and was more significant than that of
Mother. We conclude that it was reasonable for the court to consider this in
fashioning its custody order. Therefore, we reject Father’s assertion that the
trial court erred by relying on Dr. Thomas’s opinion in this regard.
Next, we address Father’s remaining challenges to the court’s best-
interest analysis. Father argues that the trial court abused its discretion in
its findings with respect to § 5328(a)(3), the parental duties performed by
each party. Specifically, Father argues that the trial court abused its
discretion to the extent it based its findings on Mother performing most of
the parental duties for A.E., J.E., and Z.E. prior to the parties’ separation.
Father argues that the court should have weighed this factor equally
between the parties because, since their separation in July of 2014, Father
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and Mother have equally performed the parental duties on behalf of A.E.,
J.E., and Z.E.
We reject Father’s argument because the court stated on the record
that it did consider that the parties have been performing parental duties
equally since their separation. See N.T., 5/26/15, at 7-8. In addition, the
court did not indicate whether it found this factor in favor of Mother and
Father, and it did not base its custody decision on this factor. Further, we
reject Father’s argument because he “cannot dictate the amount of weight
the trial court places on evidence.” R.M.G., Jr., supra.
The court found § 5328(a)(4), the need for stability and continuity in
the child’s education, family life, and community life, “very significant” in
determining that a primary physical custody arrangement, subject to partial
custody of the other parent, was in the best interest of A.E., J.E., and Z.E.
See N.T., 5/26/15, at 8. It reasoned,
The children need stability and continuity in their lives – they’re
very young. They have not developed the coping skills
necessary to allow them the best chance to thrive in an equally
shared custody arrangement. Maybe, as they get older, that will
change, but I agree with Dr. Thomas, at this point, these
children need to have a single home. They need to know that it
is their home. They need to know that when they get out of
school, they’re going back to their home.
Id.
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In his psychological evaluation, Dr. Thomas did not recommend an
equally shared physical custody arrangement primarily because of the age of
the children. He explained:
The developmental status of these children is an important factor
to consider. At age three, [Z.E.] remains in a very dependent
stage of life. . . . For [Z.E.], and for [J.E.] too, they are at a
stage of developing a basic sense of trust and security with the
larger world. Their skills for handling transition and change are
more limited than those of older children. . . . [A.E.] is slightly
older. . . . [A.E.] has better skills for handling transitions and
moving back and forth between the two homes. However, her
anxiety process will make those events more difficult.
Psychological Evaluation, 12/3/14, at 30. Dr. Thomas stated in his report
that the second reason he did not recommend an equally shared physical
custody arrangement is “that the children are struggling emotionally.” Id.
at 32. He continued:
Certainly, there are a variety of reasons why their emotional
experience could be upset, primarily the divorce circumstances
. . . . However, the custodial program involving significant
changes in residence may contribute significantly to those
behaviors. The children are not prospering. A program of
evenly shared time is not recommended.
Id.
Father argues that the trial court abused its discretion with respect to
§ 5328(a)(4) because A.E. and J.E. have been doing well in school under the
equally shared physical custody arrangement. Further, he argues that
granting Mother primary physical custody “essentially disrupted any stability
that [A.E., J.E., and Z.E.] enjoyed. . . .” Father’s brief at 13.
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Based on the foregoing recommendation of Dr. Thomas set forth in the
psychological report, as well as the testimony of Dr. Thomas, we conclude
that the trial court did not abuse its discretion with respect to its findings
and the weight it assigned to § 5328(a)(4). Indeed, Dr. Thomas’s
recommendation considered the overall well-being of A.E., J.E., and Z.E.,
and was not limited to the academic performance of A.E. and J.E. Further,
we reject Father’s argument because he “cannot dictate the amount of
weight the trial court places on evidence.” R.M.G., Jr., supra at 1237
(internal citations omitted).
Father also asserts that the trial court abused its discretion under
§ 5328(a)(7), the well-reasoned preferences of the child, based on the
child’s maturity and judgment, because A.E. and J.E. testified in camera with
respect to their preference that the custody arrangement stay the same.
The trial court stated in its Rule 1925(a) opinion that A.E. and J.E. “love both
parents very much.” Trial Court Opinion, 7/31/15, at 8. The court stated
that, “[b]oth children expressed a preference for keeping the custody
arrangement the same. However, given the young age of the children, they
did not have the maturity or the intellectual resources to warrant the [t]rial
[c]ourt giving much weight, if any, to their preferences.” Id. (citations to
record omitted). Based on the totality of the record evidence, we discern no
abuse of discretion by the court in failing to give weight to the custody
preference of A.E., then age seven, and J.E, then age five. Father’s
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argument also fails to the extent he attempts to “dictate the amount of
weight the trial court places on evidence.” R.M.G., Jr., supra.
With respect to § 5328(a)(8), the attempts of a parent to turn the
child against the other parent, Father argues that the trial court erred “in
failing to consider the statements made by Mother to [A.E.] when finding
that neither parent attempted to turn the children against [the] other
[parent].” Father’s brief at 16. Specifically, Father asserts that the court
erred in failing to consider Mother’s statement to A.E., included in Dr.
Thomas’s report, that “‘Mother told [A.E.] that [Father] was getting
dangerous[.]’” Id. (citation omitted).
The certified record confirms Mother’s declaration to A.E. See N.T.,
5/26/15, at 11. Likewise, there is no indication that the trial court
considered the isolated statement in fashioning its custody award.
Nevertheless, in light of the fact that record does not demonstrate a pattern
of behavior by Mother in this regard, we find the trial court did not err in
failing to highlight this incident. See N.T., 5/11/15, at 100.
Regarding § 5328(a)(9), which party is more likely to maintain a
loving, stable, consistent, and nurturing relationship with the child adequate
for the child’s emotional needs, Father argues that the trial court abused its
discretion in finding that he “‘might have a slight edge’ over Mother with
respect to the nurturing factor.” Father’s brief at 17. Rather, Father asserts
that Dr. Thomas’s evaluation and testimony demonstrates “that Father
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clearly is the parent who is more able to provide appropriate nurturing” for
A.E., J.E., and Z.E. Id. at 18. Upon review, the court recognized that both
parents are capable of nurturing the children, and that Father is particularly
able to calm A.E. when she has tantrums. N.T., 5/26/15, at 12. Upon
review of the certified record, we discern no abuse of discretion by the court.
As such, we defer to the court with respect to the weight it assigned to this
factor. See R.M.G., Jr., supra.
Finally, Father argues that the trial court abused its discretion under §
5328(a)(11), the proximity of the residence of the parties, to the extent it
did not weigh this factor in favor of an equally shared physical custody
arrangement since the parties live in close proximity. Based on the totality
of the certified record, we find no basis for relief. Therefore, we likewise
defer to the trial court in the weight it assigned to this factor. See R.M.G.,
Jr., supra.
Based on the foregoing, we disagree with Father that the § 5328(a)
factors militated in favor of maintaining equally shared physical custody.
Furthermore, contrary to Father’s protestations, no basis exists to disturb
the trial court’s acceptance of Dr. Thomas’s recommendations. In its Rule
1925(a) opinion, the court stated that the psychological evaluation by Dr.
Thomas “was un-controverted, and was found by the [t]rial [c]ourt to be
credible and persuasive.” Trial Court Opinion, 7/31/15, at 6. As required by
our restrained standard of review, we defer to the trial court with respect to
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this credibility determination. See R.M.G., Jr., supra. Therefore, Father’s
issues on appeal fail.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2016
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