F.P.M. v. F.P.M. ( 2016 )

J-A05031-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
F.P.M., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
F.P.M., III AND H.O.M.,
Appellee No. 2529 EDA 2015
Appeal from the Order Entered July 15, 2015
In the Court of Common Pleas of Bucks County
Civil Division at No(s): A06-13-61732-C-35
BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED April 21, 2016
Appellant, F.P.M. (“Paternal Grandfather”), the paternal grandfather of
M.M. (born March of 2009) (“Child”), appeals from the order entered on July
15, 2015, denying his petition for partial custody. Paternal Grandfather
argues the trial court erred in denying his petition for partial custody and
failing to find that partial custody was in the best interest of Child. We
vacate the order and remand for further proceedings.
In its opinion, the trial court has adequately set forth the relevant
factual and procedural history underlying the instant matter, and we adopt it
for purposes of this appeal. See Trial Court Pa.R.A.P. 1925(a) Opinion,
10/19/15, at 1-3.
In custody cases,
*Former Justice specially assigned to the Superior Court.
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our scope is of the broadest type and our standard is abuse of
discretion. We must accept findings of the trial court that are
supported by competent evidence of record, as our role does not
include making independent factual determinations. In addition,
with regard to issues of credibility and weight of the evidence,
we must defer to the presiding trial judge who viewed and
assessed the witnesses first-hand. However, we are not bound
by the trial court’s deductions or inferences from its factual
findings. Ultimately, the test is whether the trial court’s
conclusions are unreasonable as shown by the evidence of
record. We may reject the conclusions of the trial court only if
they involve an error of law, or are unreasonable in light of the
sustainable findings of the trial court.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted).
Additionally,
[t]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
the lives of the parties concerned. Indeed, the knowledge
gained by a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an appellate court
by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa.Super. 2006) (citation omitted).
Section 5328(c)(1) of the Child Custody Act requires a court to
consider the following factors in considering custody complaints filed by
grandparents and great-grandparents:
(i) the amount of personal contact between the child and the
party prior to the filing of the action;
(ii) whether the award interferes with any parent-child
relationship; and
(iii) whether the award is in the best interest of the child.
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23 Pa.C.S. § 5328(c)(1)(i)-(iii). Section 5328(a) provides a non-exhaustive
list of factors that trial courts must consider when making a “best interests
of the child” analysis for a custody determination. See 23 Pa.C.S. §
5328(a)(1)-(16). Specifically, Section 5328(a) 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) 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.
(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.
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(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of the
child.
(11) The proximity of the residences of the parties.
(12) Each party's availability to care for the child or ability to
make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness
and ability of the parties to cooperate with one another. A
party's effort to protect a child from abuse by another party is
not evidence of unwillingness or inability to cooperate with that
party.
(14) The history of drug or alcohol abuse of a party or member
of a party's household.
(15) The mental and physical condition of a party or member of
a party's household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328(a) (bold in original).
In deciding Paternal Grandfather’s petition for partial custody, the trial
court was required to conduct a thorough analysis of the best interests of
Child. “All of the factors listed in section 5328(a) are required to be
considered by the trial court when entering a custody order.” J.R.M. v.
J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (emphasis omitted).
Our review of the record confirms that the trial court did not address
the factors set forth in Section 5328(a). Rather, the trial court primarily
focused on the hostilities between the parties, as well as the fact that,
because Father is a fit parent, it is within Father’s right as a parent to decide
the manner in which Paternal Grandfather may visit Child. However, as this
Court has recently held:
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“[I]n the recent past, grandparents have assumed
increased roles in their grandchildren's lives and our cumulative
experience demonstrates the many potential benefits of strong
inter-generational ties.” Hiller v. Fausey, 588 Pa. 342, 360,
904 A.2d 875, 886 (2006), cert. denied, 549 U.S. 1304, 127
S. Ct. 1876, 167 L. Ed. 2d 363 (2007). Thus:
While acknowledging the general benefits of these
relationships, we cannot conclude that such a benefit
always accrues in cases where grandparents force
their way into grandchildren's lives through the
courts, contrary to the decision of a fit parent. In
contrast, however, we refuse to close our minds
to the possibility that in some instances a court
may overturn even the decision of a fit parent
to exclude a grandparent from a grandchild's
life[.]
Id. at 360, 904 A.2d at 886–87 (internal footnote omitted)
(emphasis added).
Additionally, in the context of custody proceedings,
“[h]ostilities between the [parties] are relevant only insofar as
they constitute a threat to the child or affect the child's welfare.”
Nancy E.M. v. Kenneth D.M., 316 Pa.Super. 351, 462 A.2d
1386, 1388 (1983) [(per curiam)].
K.T. v. L.S., 118 A.3d 1136, 1160-61 (Pa.Super. 2015) (citation omitted)
(emphasis in original).
Based on the aforementioned, we conclude the trial court did not
adequately explain the application of the Section 5328(a) factors to the
specific facts and circumstances of the instant case. Thus, we are
constrained to vacate the trial court’s order, and remand for application of
the Section 5328(a) best interest factors and further proceedings, if
necessary.
Order vacated. Case remanded for further proceedings consistent with
this decision. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2016
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