M.W. & A.W. v. D.S.G. v. A.M.W. ( 2015 )

J-A03008-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.W. & A.W. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
D.S.G.
Appellant
v.
A.M.W.
No. 1306 MDA 2014
Appeal from the Order Entered July 2, 2014
In the Court of Common Pleas of Schuylkill County
Civil Division at No(s): S-2737-2011
BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED MAY 05, 2015
Appellant, D.S.G. (Father) appeals from the July 2, 2014 order
granting primary physical custody of his son, J.G.1, to M.W. (Maternal
Grandfather), and A.W. (Maternal Grandmother, collectively, Maternal
Grandparents), and partial physical custody to Father. Upon careful review,
we affirm.
We summarize the relevant factual and procedural history as follows.
Father and A.M.W. (Mother) are the natural parents of J.G. Father and
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
J.G. was born in February 2008.
J-A03008-15
Mother never married. Pursuant to a stipulated order, dated October 29,
2010, Mother exercised primary physical custody, Father exercised partial
physical custody every weekend, and Father and Mother shared legal
custody. Petition for Grandparent Primary Custody, 12/30/11, at Exhibit 1
“Custody Stipulation.”
On December 30, 2011, Maternal Grandparents filed a “petition for
grandparent primary custody” and a petition for emergency relief, wherein
they sought primary physical custody and shared legal custody of J.G. Id.
at ¶ 15. Maternal Grandparents alleged that J.G. resided in their home with
Mother from his birth until June 2009, when Mother and J.G. began residing
in Father’s home. Id. at ¶¶ 7-8. In addition, Maternal Grandparents alleged
that J.G. and Mother resided with them from March 2010 until October 29,
2011, when Mother and J.G. went to live with Mother’s new boyfriend, B.C.
Id. at ¶ 9. Maternal Grandparents alleged that Mother placed J.G. in their
temporary care on December 25, 2011, due to the arrest of B.C. Id. at ¶
10. Maternal Grandparents alleged that J.G. is at risk in Mother’s custody
because Mother and B.C. have serious drinking problems, and that B.C. has
a history of assaultive behavior and drug use. Id. at ¶ 13. On January 17,
2012, Maternal Grandparents filed an “amendment to petition for
grandparent primary custody” wherein they alleged that Father also suffers
from alcohol abuse and has a history of assaulting Mother. Amendment to
Petition, 1/17/12, at ¶ 14.
-2-
J-A03008-15
On January 17, 2012, Father filed preliminary objections wherein he
contended that Maternal Grandparents lacked standing to pursue custody of
J.G. On January 23, 2012, Father filed amended preliminary objections. A
hearing on Father’s preliminary objections and Maternal Grandparents’
emergency petition commenced before a custody hearing officer on January
31, 2012, during which Maternal Grandfather, Maternal Grandmother, and
Father testified. The hearing was continued to February 15, 2012, during
which Mother testified.2, 3
By interim order dated March 5, 2012, the trial court overruled
Father’s preliminary objections. In addition, the trial court denied Maternal
Grandparents’ petition for emergency relief. With respect to a temporary
____________________________________________
2
The trial court stated that the hearing was again “continued in progress
until February 21, 2012.” Trial Court Order, 3/5/12, at 3. We observe that
the February 21, 2012 hearing transcript was not made a part of the
certified record. “It is the obligation of the appellant to make sure that the
record forwarded to an appellate court contains those documents necessary
to allow a complete and judicious assessment of the issues raised on
appeal.” Hrinkevich v. Hrinkevich, 676 A.2d 237, 240 (Pa. Super. 1996)
(citation omitted); accord Kessler v. Broder, 851 A.2d 944, 950 (Pa.
Super. 2004), appeal denied, 868 A.2d 1201 (Pa. 2005). However, in this
case, we conclude that the February 21, 2012 hearing transcript is not
necessary for our review of Father’s first issue on appeal. Therefore, we
need not take any action with respect to Father’s failure to provide the
complete transcripts from the hearing on his preliminary objections. See
Pa.R.A.P. 1911(d).
3
At the time of the hearing on Father’s preliminary objections and Maternal
Grandparents’ petition for emergency relief, Maternal Grandparents were
exercising primary physical custody, but not shared legal custody, pursuant
to a temporary order dated January 27, 2012, as a result of a second
emergency petition filed by Maternal Grandparents on January 26, 2012.
-3-
J-A03008-15
custody order, the trial court granted Father and Mother shared legal
custody, and granted physical custody as follows.
Mother shall have from Monday at 8:00 p.m. to
Friday at 5:00 p.m., [p]rovided, however, that
Mother’s shared physical custody shall be suspended
if Mother begins either to cohabitate with [B.C.], or
allows [B.C.] to be in the presence of the child, in
which case the child shall return to the home of
[M]aternal Grandparents for Mother’s shared
custodial time.
Father shall have alternating weekends from Friday
at 5:00 p.m. until Monday at 8:00 p.m.
Maternal Grandparents shall have intervening
weekends from Friday at 5:00 p.m. until Monday at
8:00 p.m.
Trial Court Order, 3/5/12, at 12.
On September 20, 2012, Maternal Grandparents filed a petition for
contempt against Mother wherein they alleged that Mother violated the
March 5, 2012 interim order by cohabiting with B.C. and allowing J.G. to be
in B.C.’s presence. Petition for Contempt, 9/20/12, at ¶¶ 7, 9. The petition
further averred that Mother is pregnant with B.C.’s child. Id. at ¶ 8. On
November 1, 2012, following a hearing, the trial court entered an interim
order which found Mother in contempt and suspended her physical custody.
The trial court directed that J.G. be returned to the home of Maternal
Grandparents, and that Mother shall have supervised custody at the home of
Maternal Grandparents on intervening weekends from Friday at 5:00 p.m.
-4-
J-A03008-15
until Monday at 8:00 p.m. Trial Court Order, 11/1/12, at 3.4 With respect
to Father, the court directed that he shall continue to exercise physical
custody pursuant to the March 5, 2012 interim order. Id.
The custody trial occurred on June 24, 25, and 26, 2014, at which time
J.G. was six years old. At the commencement of the trial, Maternal
Grandparents had exercised primary physical custody for nearly 20 months
pursuant to the November 1, 2012 interim order. During that time, J.G. had
completed kindergarten at St. Jerome’s Elementary School where he
received the highest mark in all areas of measurement. Trial Court Opinion,
7/2/14, at 6. The trial court also noted that in July 2013, J.G. developed
Kawasaki Disease, a chronic disease, for which the Maternal Grandparents
have provided proper treatment. Id.; N.T., 6/24/14, at 211-212.
Maternal Grandparents presented the testimony of Joseph Sheris,
Ph.D., the court-appointed custody evaluator, and Maternal Grandmother.
Father testified on his own behalf and presented the testimony of L.S.G.
(Paternal Grandmother); A.G. (Paternal Grandfather); and Father’s brothers,
A.G., Jr., and I.G. Mother testified on her own behalf and presented the
testimony of B.C., her boyfriend; K.Y., a friend of Mother and B.C.; and J.B.,
the aunt of B.C. In its opinion accompanying the subject order, the trial
____________________________________________
4
The trial court’s November 1, 2012 order does not contain pagination. For
ease of review we have assigned each page a corresponding page number.
-5-
J-A03008-15
court set forth its factual findings, which we adopt herein. Trial Court
Opinion, 7/2/14, at 4-13.
By order dated and entered on July 2, 2014, the trial court granted
shared legal custody to Maternal Grandparents, Father, and Mother. The
court granted primary physical custody to Maternal Grandparents and partial
physical custody to Father and Mother as follows.
3. Partial physical custody of the said Minor Child is
AWARDED to his Father [ ], and his Mother [ ], every
other weekend beginning July 11, 2014, from 5:00
P.M. until Monday at 8:00 P.M. to be divided as
follows:
3a. Mother shall have the Child from Friday at
5:00 P.M. until Sunday at noon.
3b. Father shall have the Child on alternating
weekends beginning July 11, 2014, from
Sunday at noon until Monday at 8:00 P.M.
Trial Court Order, 7/2/14, at 2. On July 31, 2014, Father filed a notice of
appeal.5 Mother did not file a notice of appeal, but she did file an appellee
brief wherein she argued in support of Father’s issues on appeal. On August
____________________________________________
5
Father failed to file a concise statement of errors complained of on appeal
concurrently with the notice of appeal pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a)(2) and (b). By order dated August 19, 2014,
this Court directed Father to file a concise statement by August 29, 2014,
and Father timely complied. Because Father timely complied with this
Court’s order and no party claims prejudice as a result of Father’s procedural
error, we decline to find his issues waived on appeal. See In re K.T.E.L.,
983 A.2d 745, 748 (Pa. Super. 2009); cf. J.P. v. S.P., 991 A.2d 904, 908
(Pa. Super. 2010) (holding appellant waived all issues by failing to timely
comply with the trial court’s direct order to file a concise statement).
-6-
J-A03008-15
6, 2014, the trial court directed that its March 5, 2012 interim order and July
2, 2014 order and opinion serve as its Rule 1925(a) opinion for purposes of
this appeal.
On appeal, Father presents the following issues for our review.
A. Whether the [t]rial [c]ourt committed an error of
law by dismissing [Father]’s Preliminary Objections
objecting to the standing of [Maternal
Grandparents], filed January 17, 2012, and amended
January 23, 2012[?]
B. Whether the [t]rial [c]ourt committed an error of
law or abuse of discretion by awarding primary
physical custody to [Maternal Grandparents] by not
properly applying the legal standard of proof[?]
C. Whether the [t]rial [c]ourt committed an error of
law or abuse of discretion when weighing the
custody factors set forth in 23 Pa.C.S.A. § 5328[?]
Father’s Brief at 2.
The scope and standard of review in custody matters is as follows.
[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.
-7-
J-A03008-15
R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.
Super. 2009) (quoting Bovard v. Baker, 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, 902 A.2d 533, 539 (Pa. Super. 2006).
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (parallel citations
omitted).
Further, we have stated the following must be applied in analyzing a
custody claim.
The discretion that a trial court employs in custody
matters should be accorded the utmost respect,
given the special nature of the proceeding and the
lasting impact the result will have on the lives of the
parties concerned. Indeed, the knowledge gained by
a trial court in observing witnesses in a custody
proceeding cannot adequately be imparted to an
appellate court by a printed record.
Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006), quoting
Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004).
-8-
J-A03008-15
“[T]he paramount concern in a child custody case is the best interests
of the child[.]” K.B. II v. C.B.F., 833 A.2d 767, 770 (Pa. Super. 2003),
appeal dismissed as improvidently granted 885 A.2d 983 (Pa. 2005). “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 wellbeing.” 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 Act6 (the Act), became effective on January 24,
2011. Because the proceedings in the instant case occurred after the
effective date of the Act, the Act is applicable. See C.R.F. v. S.E.F., 45
A.3d 441, 445 (Pa. Super. 2012) (concluding that “where the evidentiary
proceeding commences on or after the effective date of the Act, the
provisions of the Act apply even if the request or petition was filed prior to
the effective date[]”).
In his first issue, Father argues the trial court committed an error of
law in overruling his preliminary objections and finding that Maternal
Grandparents had standing pursuant to 23 Pa.C.S.A. § 5324(3)(iii)(C).
Father’s Brief at 5.
____________________________________________
6
23 Pa.C.S.A. §§ 5321-5340.
-9-
J-A03008-15
“[T]he question of standing is whether the litigant is entitled to have
the court decide the merits of the dispute or of particular issues.” Silfies v.
Webster, 713 A.2d 639, 642 (Pa. Super. 1998). “Where a statute
delineates the class of members who can assert a claim under the statute,
standing is governed by the language of the statute itself. Threshold issues
of standing are questions of law; thus, our standard of review is de novo and
our scope of review is plenary.” Bricklayers of W. Pa. Combined Funds,
Inc. v. Scott’s Dev. Co., 41 A.3d 16, 22 (Pa. Super. 2012) (en banc),
reversed on other grounds, 90 A.3d 682 (Pa. 2014).
Additionally, our Supreme Court has explained as follows.
“The object of all interpretation and construction of
statutes is to ascertain and effectuate the intention
of the General Assembly. Every statute shall be
construed, if possible, to give effect to all its
provisions.” 1 Pa.C.S. § 1921(a). The plain
language of the statute is generally the best
indicator of legislative intent, Commonwealth v.
McCoy, 962 A.2d 1160, 1166 (Pa. 2009), and the
words of a statute “shall be construed according to
rules of grammar and according to their common
and approved usage ….” 1 Pa.C.S. § 1903(a). We
generally look beyond the plain language of the
statute only where the words are unclear or
ambiguous, or the plain meaning would lead to “a
result that is absurd, impossible of execution or
unreasonable.” 1 Pa.C.S. § 1922; see also
Commonwealth v. Diodoro, 970 A.2d 1100, 1106
(Pa. 2009).
Commonwealth v. Garzone, 34 A.3d 67, 75 (Pa. 2012) (parallel citations
omitted).
- 10 -
J-A03008-15
Maternal Grandparents sought standing pursuant to the following
provision of the Act.
§ 5324. Standing for any form of physical
custody or legal custody
The following individuals may file an action under
this chapter for any form of physical custody or legal
custody:
…
(3) A grandparent of the child who is not
in loco parentis to the child:
(i) whose relationship with the child
began either with the consent of a parent
of the child or under a court order;
(ii) who assumes or is willing to
assume responsibility for the child; and
(iii) when one of the following
conditions is met:
…
(C) The child has for a period of
at least 12 consecutive months,
resided with the grandparent,
excluding brief temporary absences
of the child from the home, and is
removed from the home by the
parents, in which case the action
must be filed within six months
after the removal of the child from
the home.
23 Pa.C.S.A. § 5324(3)(iii)(C).
- 11 -
J-A03008-15
In analyzing said statute, the trial court made the following
conclusions based on the testimony during the hearing on Father’s
preliminary objections.
The maternal grandparents are not in loco parentis
with the child. The relationship of the child with the
maternal grandparents began with Mother’s consent.
Maternal grandparents have assumed and are willing
to assume responsibility for the child. The child
resided in the home of the maternal grandparents for
a majority of his life and specifically for the twelve
months from October 29, 2010, until October 29,
2011. Maternal grandparents brought this action on
December 30, 2011, which is within six months of
the removal of the child by Mother. Maternal
grandparents have pleaded and have proven
sufficient contact with the subject child to give them
standing pursuant to 23 Pa.C.S.[A. §] 5324.
Trial Court Order, 3/5/12, at 11. The record evidence supports the trial
court’s findings.
Nevertheless, Father argues the court’s reasoning is flawed for the
following reason.
During said twelve month period [from October 29,
2010 to October 29, 2011], there is no dispute
that Mother and Child resided in Grandparents’
home, thereby making the issue whether time that
both Mother and Child spent residing in
Grandparents’ home should properly be considered
when addressing the twelve month period set forth
in the statute.
Father’s Brief at 7 (emphasis in original). We are not persuaded by Father’s
argument.
- 12 -
J-A03008-15
The text of Section 5324(3)(iii)(C) reveals no explicit intent by the
General Assembly to discount from the requisite 12-month time period any
time that a parent of the child resides, along with the child, in the home of a
grandparent who is not in loco parentis to the child. Further, the plain
meaning of the provision does not lead to an absurd or unreasonable result.
See generally 1 Pa.C.S.A. § 1922. Indeed, it is not unreasonable for the
General Assembly to provide such a grandparent with the opportunity to
seek any form of physical or legal custody. In fact, as Father’s own
argument illustrates, the General Assembly’s changes to the Act relaxed the
requirements for a grandparent to seek physical and legal custody.
In support of his argument, Father relies on Gradwell v. Strausser,
610 A.2d 999 (Pa. Super. 1992), a case decided prior to the current Act, 7
____________________________________________
7
Inexplicably, the portion of the predecessor act held inapplicable in
Gradwell was Section 5313(a) and provided as follows.
(a) Partial custody and visitation.--If an
unmarried child has resided with his grandparents or
great-grandparents for a period of 12 months or
more and is subsequently removed from the home
by his parents, the grandparents or great-
grandparents may petition the court for an order
granting them reasonable partial custody or
visitation rights, or both, to the child. The court
shall grant the petition if it finds that visitation rights
would be in the best interest of the child and would
not interfere with the parent-child relationship.
(Footnote Continued Next Page)
- 13 -
J-A03008-15
where the paternal grandfather resided with his adolescent granddaughter
and her parents for almost two years and sought physical and legal custody.
Contrary to the circumstance of the instant matter, the paternal grandfather
_______________________
(Footnote Continued)
23 Pa.C.S. § 5313 (repealed 2011). However, the applicable portion of the
statute, which the Court did not address, was subsection (b) which stated as
follows.
(b) Physical and legal custody.--A grandparent
has standing to bring a petition for physical and legal
custody of a grandchild. If it is in the best interest of
the child not to be in the custody of either parent
and if it is in the best interest of the child to be in
the custody of the grandparent, the court may award
physical and legal custody to the grandparent. This
subsection applies to a grandparent:
(1) who has genuine care and concern for the
child;
(2) whose relationship with the child began
with the consent of a parent of the child or
pursuant to an order of court; and
(3) who for 12 months has assumed the role
and responsibilities of the child’s parent,
providing for the physical, emotional and social
needs of the child, or who assumes the
responsibility for a child who has been
determined to be a dependent child pursuant
to 42 Pa.C.S. Ch. 63 (relating to juvenile
matters) or who assumes or deems it
necessary to assume responsibility for a child
who is substantially at risk due to parental
abuse, neglect, drug or alcohol abuse or
mental illness. The court may issue a
temporary order pursuant to this section.
23 Pa.C.S.A. § 5313(b).
- 14 -
J-A03008-15
in Gradwell argued on appeal that he acquired in loco parentis status8 by
meeting the statutory time period of residing with his granddaughter under
Section 5313.9 The Gradwell Court concluded that the paternal grandfather
conflated the determination of standing based on in loco parentis status with
that of standing pursuant to Section 5313. As such, we affirmed the order
dismissing the paternal grandfather’s custody complaint because he did not
stand in loco parentis to his granddaughter.10 In the instant matter,
Maternal Grandparents correctly brought their claim under Section
5324(3)(iii)(C), and satisfied the necessary requirements of standing. As
such, Father’s first issue fails.
In the alternative, assuming Maternal Grandparents had standing to
seek primary physical custody, Father argues in his second and third issues
____________________________________________
8
We have explained, “[t]he phrase ‘in loco parentis’ refers to a person who
puts himself in the situation of assuming the obligations incident to the
parental relationship without going through the formality of a legal adoption.
The status of ‘in loco parentis’ embodies two ideas: first, the assumption of a
parental status, and second, the discharge of parental duties.” Gradwell v.
Strausser, 610 A.2d 999, 1003 (Pa. Super. 1992) (citation omitted).
9
As noted, paternal grandfather did not explicitly seek standing under
Section 5313.
10
Father appears to rely on dicta in Gradwell regarding the trial court’s
finding that the paternal grandfather had not met the requisite time period
under Section 5313. Thus, if the paternal grandfather proceeded in the
future under Section 5313, we stated that the proceedings “would prove
fruitless.” Id. at 1005. Notably, we did not discuss the reason for the trial
court’s finding that the paternal grandfather had not met the statutory time
period. In the instant case, we will not disturb the trial court’s determination
based on unexplained dicta in Gradwell.
- 15 -
J-A03008-15
that the court committed an error of law and abused its discretion in the
weight it placed on the evidence in light of Maternal Grandparents’
heightened burden of proof. We disagree.
It is well established that natural parents have a rebuttable
presumption against third parties in custody disputes, and the Act provides,
in relevant part, as follows.
§ 5327. Presumption in cases concerning
primary physical custody.
…
(b) Between a parent and third party.--In any
action regarding the custody of the child between a
parent of the child and a nonparent, there shall be a
presumption that custody shall be awarded to the
parent. The presumption in favor of the parent may
be rebutted by clear and convincing evidence.
23 Pa.C.S.A. § 5327(b). “Clear and convincing evidence means testimony
that is so clear, direct, weighty, and convincing so as to enable the trier of
fact to come to a clear conviction, without hesitation, of the truth of the
precise facts in issue.” V.B. v. J.E.B., 55 A.3d 1193, 1199 (Pa. Super.
2012) (citation omitted).
Regarding this presumption, we have concluded as follows.
[O]ur Supreme Court [has] noted that “these
principles do not preclude an award of custody to a
non-parent. Rather they simply instruct the [trial]
judge that the non-parent bears the burden of
production and the burden of persuasion and that
the non-parent’s burden is heavy.”
Id., quoting Ellerbe v. Hooks, 416 A.2d 512, 514 (Pa. 1980).
- 16 -
J-A03008-15
What the [trial] judge must do, therefore, is
first, hear all evidence relevant to the child’s best
interest, and then, decide whether the evidence on
behalf of the third party is weighty enough to bring
the scale up to even, and down on the third party’s
side.
Id., citing McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000),
appeal denied, 782 A.2d 547 (Pa. 2001), quoting Ellerbe, supra at 513-514
(Pa. 1980). Accordingly, we recognize that when a grandparent is involved
in a custody dispute with a parent, the grandparent is a third party and
bears this heightened burden. Id. at 1198-1199, citing Charles v. Stehlik,
744 A.2d 1255, 1258 (Pa. 2000), cert. denied, Stehlik v. Charles, 530 U.S.
1243 (2000).
When awarding any form of custody, the Act 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
- 17 -
J-A03008-15
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.
- 18 -
J-A03008-15
(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.A. § 5328(a).11
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).
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.A. § 5323(d). Additionally, “section 5323(d)
requires the trial court to set forth its mandatory
assessment of the sixteen [Section 5328 custody]
factors prior to the deadline by which a litigant must
file a notice of appeal.” C.B. v. J.B., 65 A.3d 946,
955 (Pa. Super. 2013), appeal denied, 70 A.3d 808
(Pa. 2013)….
____________________________________________
11
The Act was amended, effective January 1, 2014, to include the additional
factor at 23 Pa.C.S.A. § 5328(a)(2.1).
- 19 -
J-A03008-15
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, , 68 A.3d 909 (Pa. 2013). A
court’s explanation of reasons for its decision, which
adequately addresses the relevant factors, complies
with Section 5323(d). Id.
A.V., supra at 822-823.
Instantly, in its opinion accompanying the subject order, the trial court
applied the statutory presumption against Maternal Grandparents, and in
light of the Section 5328(a) custody factors, it concluded that the
presumption was rebutted by clear and convincing evidence. Trial Court
Opinion, 7/2/14, at 15-20. For purposes of this disposition, we summarize
the findings of the court with respect to the most relevant custody factors in
this case, all of which the court weighed in favor of Maternal Grandparents.
With respect to Section 5328(a)(2), concerning which party can
provide adequate physical safeguards and supervision of the child, the trial
court found that “Father’s parent[ing] skills are deficient at this time.” Id.
at 16. The trial court’s finding is supported by the testimony of Dr. Sheris,
the court-appointed custody evaluator.
I found [Father’s] parenting skills were somewhat
limited. He had limited parenting insights. He didn’t
seem to have much information related to child
development. There was little indication in his
responses, little elaboration in his responses that
would indicate any anticipation of issues with
- 20 -
J-A03008-15
parenting or problem solving in his parenting
approaches.
N.T., 6/24/14, at 18.
With respect to Section 5328(a)(3), the parental duties performed by
each party on behalf of the child, the court found that, “[w]hile there was a
short period of time that Mother and J.G. resided with Father, his only other
involvement was limited to weekend partial custody periods. It appears that
Father is capable of properly caring for J.G. during weekend custody periods,
but his personality structure and level of maturity at this time limit his ability
to be named as primary physical custodian.” Trial Court Opinion, 7/2/14, at
16-17. The testimony of Dr. Sheris likewise supports the trial court’s
findings.
With respect to Section 5328(a)(4), the need for stability and
continuity in the child’s education, family life and community life, the trial
court found that neither parent can provide for these needs of J.G. at this
time, but that Maternal Grandparents can provide for J.G.’s needs. Trial
Court Opinion, 7/2/14, at 17. The testimony of the parties supports this
finding.
With respect to Section 5328(a)(5), the availability of extended family,
the court found that Father does have extended family available to assist
him in caring for J.G., but “their availability is limited due to their work hours
and living arrangements.” Trial Court Opinion, 7/2/14, at 17. This finding is
supported by the testimony of the paternal grandparents that they are the
- 21 -
J-A03008-15
owners of a pizza shop where they work multiple hours per week. N.T.,
6/24/14, at 137-138, 158.
With respect to Sections 5328(a)(9) and (10), which party is more
likely to maintain a loving, stable, consistent and nurturing relationship with
the child adequate for the child’s emotional needs, and, 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 Maternal
Grandparents are more likely than Father to meet these needs of J.G.. The
testimony of Maternal Grandmother and Dr. Sheris supports this finding.
With respect to Section 5328(a)(12), each party’s availability to care
for the child or ability to make appropriate child-care arrangements, the
court found that, “Father is available for part of the weekend when he has
custody, but when he and his parents are all working at the pizza restaurant,
J.G. is brought to the restaurant and plays in the alley behind it during those
work hours. Also, Father does not demonstrate parenting skills that would
suggest he is an appropriate primary physical custod[ian].” Trial Court
Opinion, 7/2/14, at 18-19. Father’s testimony supports this finding in that
he works at the pizza shop owned by his parents every week on Wednesday
and Friday, from 10:30 a.m. to 4:00 p.m., on Thursday, from 4:00 p.m. to
approximately 9:30 p.m., when the shop closes, and on Saturday, from
10:30 a.m. to 4:00 p.m. N.T., 6/24/14, at 158; N.T., 6/25/14, at 305.
Father testified that, on his custodial weekends, J.G. stays at the pizza shop
- 22 -
J-A03008-15
with him. N.T., 6/25/14, at 306. In addition, he testified that J.G. “might
play out in the back [of the pizza shop] which is a parking lot.” Id.
Finally, with respect to Section 5328(a)(14), the history of drug or
alcohol abuse, the trial court found that Father denied current substance
abuse, but acknowledged that it was a problem for him in the past. The
court found that, “Father continues to go drinking on the weekends he does
not have partial custody of [J.G.] While this is appropriate for partial
custody, it is not appropriate for a primary physical custodian, especially in
light of the fact that Father’s support system, his parents, must work at the
pizza restaurant on weekends.” Trial Court Opinion, 7/2/14, at 19. Father’s
testimony supports this finding.
Based upon our careful review of the parties’ briefs, the certified
record, the notes of testimony, the applicable law, and the trial court
opinion, we discern no abuse of discretion or error of law by the trial court in
concluding that the statutory presumption in favor of Father was rebutted by
clear and convincing evidence by Maternal Grandparents. We defer to the
trial court’s determinations regarding credibility and weight of the evidence.
See A.V., supra. We conclude that the trial court’s consideration of J.G.’s
best interests was careful and thorough, and the record evidence supports
the trial court’s custody decision. Therefore, Father’s final issues on appeal
do not warrant relief.
- 23 -
J-A03008-15
Based on the foregoing, we conclude the trial court did not abuse its
discretion nor commit an error of law when it entered the underlying custody
order. Accordingly, the trial court’s July 2, 2014 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2015
- 24 -