Gross, E. v. Gross, R. ( 2022 )

J-S27017-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EDWARD GROSS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RUTH R. GROSS : No. 1043 EDA 2022
Appeal from the Order Entered April 20, 2022
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): 0C1900271
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 12, 2022
Appellant Edward Gross (Father) appeals from the order granting him
partial physical custody and granting Ruth Gross (Mother) primary physical
custody of their minor child E.G., born in 2018 (the Child) following a remand
from this Court. Father argues that the trial court abused its discretion in
awarding Mother primary physical custody instead of awarding both parties
shared physical custody. Father also contends that the trial court erred by
failing to hold Mother in contempt of the interim custody orders. We affirm.
A previous panel of this Court summarized the factual and procedural
history of this matter as follows:
The parties married in July 2016, the Child was born in 2018, and
the parties separated in January 2019. Thereafter, the parties
filed respective custody complaints. Custody litigation spanned
approximately 18 months, resulting in two interim orders, before
the custody hearing began in August 2020.[fn1]
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[fn1]The COVID-19 pandemic contributed to the protracted
litigation.
Those interim orders awarded primary physical custody to Mother,
and partial physical custody to Father. Each party originally
requested sole physical custody, but Father eventually changed
his request to shared custody. [Additionally, on April 29, 2019,
Father filed a petition for contempt of the interim custody orders.]
During the pendency of the litigation, Father began employment
as a high school teacher. Mother worked from the home as a
private tutor. Mother lives with the Maternal Grandparents in a
two-bedroom apartment in the Center City area of Philadelphia.
Father lives approximately 30-45 minutes away in Villanova,
where he resides with his fiancée and her two daughters (ages 5
and 7).
Litigation culminated with a final custody hearing, held remotely,
over the course of several dates: August 27, 2020; October 29,
2020; February 9-10, 2021; and February 17, 2021. On March
12, 2021, the trial court issued its custody award and delineated
its Section 5328(a) findings. By and large, the court determined
that the custody factors favored neither parent [and that one
custody factor favored Father]. Nevertheless, the court awarded
Mother primary physical during the months Father’s school was in
session; Father’s partial physical custody was limited to the 2nd,
3rd, and 4th weekend of each month (Friday afternoon to Monday
morning). Father also received the 5th weekend of the month,
when applicable, as well as those federal holidays where his school
was not in session. During the summer months, however, the
court ordered physical custody to be shared, on a week-off-week-
on basis. [Additionally, the custody order states that once the
Child begins kindergarten, Father’s partial physical custody on the
weekends shall end on Sunday afternoon instead of Monday
morning. The trial court’s custody order granted the parties
shared legal custody of the Child. Further, in a separate order
also dated March 12, 2021, the trial court denied Father’s petition
for contempt.]
Gross v. Gross, 722 EDA 2021, 2021 WL 6110239, at *1 (Pa. Super. filed
Dec. 27, 2021) (unpublished mem.) (formatting altered).
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On appeal, a prior panel of this Court concluded that “the trial court
failed to provide sufficient explanation why a primary/partial award during the
non-summer months was in the Child’s best interests[,]” and that it failed to
provide “sufficient explanation concerning the weight of the evidence[.]” Id.
at *4, *7. Therefore, this Court vacated the trial court’s order and remanded
the matter to the trial court, explaining:
[This Court] presume[s that] the trial court, having presided over
five days of hearings, is confident that its award is still in the
Child’s best interests. If so, the trial court shall issue
supplemental findings to justify its original custody
scheme. Alternatively, the court may reconsider its award
and fashion a new order. In either event, no new hearing is
necessary. Either party may appeal thereafter.
Id. at *7 (emphases added).
On remand, the trial court issued supplemental findings concluding that
that three custody factors1 favored Mother and reinstated the custody
schedule set forth in its March 12, 2021 order. Trial Ct. Order, 2/22/22, at 1-
2.
Father simultaneously filed a timely motion for reconsideration and a
notice of appeal. In his motion for reconsideration, Father argued that the
trial court erred in modifying its analysis of the custody factors and reinstating
the previous custody schedule instead of fashioning a new custody schedule
based on its original weighing of the factors. Father also claimed that the trial
court erred by failing to hold Mother in contempt. On March 15, 2022, the
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1 Specifically, 23 Pa.C.S. § 5328(a)(3), (10), and (12).
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trial court granted Father’s motion for reconsideration and vacated its
February 22, 2022 order. Father subsequently filed a praecipe to discontinue
that appeal.
The trial court heard argument on April 11, 2022,2 but did not hear
additional evidence. On April 20, 2022, the trial court issued supplemental
findings of fact and conclusions of law. The trial court restated its conclusions
from its February 22, 2022 order that three custody factors favored Mother.
Trial Ct. Order, 4/20/22, at 1-3. Additionally, the trial court concluded that
two more custody factors3 favored Mother. Id. at 1-2. The trial court
reinstated the custody schedule set forth in its March 12, 2021 order. Id. at
3.
Father contemporaneously filed a timely notice of appeal and a Pa.R.A.P.
1925(a)(2)(i) statement of errors complained of on appeal. The trial court
filed its Rule 1925(a) opinion addressing Father’s issues.
Father raises the following issues for our review, which we reorder and
restate as follows:
1. Whether the trial court erred by failing to find Mother in contempt
of the previous custody orders.
2. Whether the trial court erred on remand by concluding that five
custody factors favored Mother and reinstating the custody
____________________________________________
2 The trial court states in its opinion that it heard argument from the parties
on April 11, 2022, but a transcript of those proceedings does not appear in
the certified record. The absence of that transcript does not impair our
appellate review.
3 Specifically, 23 Pa.C.S. § 5328(a)(4) and (11).
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schedule from its March 12, 2021 order instead of fashioning a
new custody schedule to conform with the trial court’s original
findings of fact.
3. Whether the trial court erred by reinstating the custody schedule
from its March 12, 2021 order rather than granting Mother and
Father shared physical custody of the Child year-round.
4. Whether the trial court erred by granting Father’s motion for
reconsideration of the February 22, 2022 order and forcing the
discontinuance of Father’s appeal of same only to update its
findings of facts to be more in line with the trial court’s original
March 12, 2021 order.
5. Whether the trial court erred by granting Mother primary physical
custody and Father limited partial physical custody of the Child
during the school year rather than effectuating a custody schedule
which provided the parties share physical custody equally year-
round as they do in the summer months under the order.
6. Whether the trial court erred by reducing Father’s partial physical
custody once the Child begins school by taking away his Sunday
overnight on his custodial weekends during the school year.
7. Whether the trial court erred when it crafted Father’s partial
physical custody schedule, which results in Father spending one
eleven-day period each month away from the Child during the
school year.
Father’s Brief at 4-6.
Contempt
In his first issue, Father argues that the trial court erred by failing to
hold Mother in contempt. Father’s Brief at 51. Specifically, Father refers to
the trial court’s March 12, 2021 custody order which stated that on several
occasions, Mother failed to make the Child available for telephone calls as
required by the interim custody order. Id. Further, Father also notes that
the trial court found that on Yom Kippur of 2020, Mother delayed the custody
exchange with Father because the Child was sleeping. Id. Father concludes
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that the trial court should have held Mother in contempt for violating the
interim custody orders.
Both Mother and the trial court note that Father did not appeal the trial
court’s March 12, 2021 order denying his petition for contempt. See Mother’s
Brief at 30; Trial Ct. Op., 5/18/22, at 17-18.
Before we address the merits of Father’s contempt argument, we must
first address whether we have jurisdiction to review his claim. It is well
established that “the question of subject matter jurisdiction may be raised at
any time, by any party, or by the court sua sponte.” B.L. v. T.B., 152 A.3d
1014, 1016 (Pa. Super. 2016) (citation omitted and formatting altered).
“Whether a court has subject matter jurisdiction is a question of law, for which
our standard of review is de novo and our scope of review plenary.” Id.(citation and footnote omitted).
Our Supreme Court has explained that generally, “[t]aking one appeal
from separate judgments is not acceptable practice and is discouraged. It has
been held that a single appeal is incapable of bringing on for review more than
one final order . . . .” Gen. Elec. Credit Corp. v. Aetna Cas. & Sur. Co.,
263 A.2d 448, 452 (Pa. 1970).
Further, the Note to Rule of Appellate Procedure 341 states:
A party needs to file only a single notice of appeal to secure review
of prior non-final orders that are made final by the entry of a final
order. Where, however, one or more orders resolves issues
arising on more than one docket or relating to more than one
judgment, separate notices of appeal must be filed.
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Pa.R.A.P. 341, Note.
Here, Father’s notice of appeal stated that he was appealing from the
trial court’s April 20, 2022 order reinstating its March 12, 2021 custody order.
However, Father did not file a notice of appeal from the trial court’s March 12,
2021 order denying his petition for contempt. Therefore, while we decline to
quash Father’s appeal, we conclude that this Court lacks jurisdiction to
consider his contempt claim because Father did not file a notice of appeal from
that order. See Gen. Elec. Credit Corp., 263 A.2d at 452; Pa.R.A.P. 341.
Compliance with this Court’s Remand Order
In his next two issues, Father argues that the trial court erred in
amending its conclusions about the Section 5328(a) custody factors following
remand from this Court. Father’s Brief at 22-24. Specifically, Father claims
that “[i]nstead of issuing an analysis that explained the trial court’s original
determination of the factors, the trial court chose to change five factors from
neutral to Mother’s favor to conform [to] the original custody determination.”
Id. at 24. Father contends that the trial court should have “fashion[ed] an
order for shared physical custody, which would have been consistent with the
trial court’s original findings[.]” Id.
This Court has held that “[w]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is waived.”
In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (citations omitted); see
also Pa.R.A.P. 2119(a) (providing that the argument section of appellate brief
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shall contain discussion of issues raised therein and citation to pertinent legal
authorities). Here, Father does not cite any legal authority to support his
claim that the trial court failed to comply with this Court’s mandate on remand
by amending its original findings, therefore, these issues are waived. See
W.H., 25 A.3d at 339 n.3; Pa.R.A.P. 2119(a).
Motion for Reconsideration
Next, Father argues that the trial court erred by granting his motion for
reconsideration and modifying its supplemental findings of fact to find two
additional custody factors in favor of Mother. Father’s Brief at 20-22.
Specifically, Father notes that after the trial court entered its February 22,
2022 order, he filed both a motion for reconsideration and a notice of appeal.
Id. at 20-21. Father argues that because the trial court did not grant him the
relief he requested, its grant of reconsideration unnecessarily delayed
proceedings because it forced the discontinuance of his prior appeal and
required him to file a second notice of appeal in this matter. Id. at 21-22.
Following our review, we conclude that Father has failed to adequately
develop his claim for appellate review with citations to relevant authorities.
In support of his claims, Father presents only bald assertions that the trial
court abused its discretion and unduly delayed these proceedings by granting
his motion for reconsideration. For these reasons, we conclude that Father
has waived this claim for appellate review. See W.H., 25 A.3d at 339 n.3;
Pa.R.A.P. 2119(a).
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Custody Determination
Father’s remaining issues relate to the trial court’s custody
arrangement, which awarded Mother primary physical custody and gave
Father partial physical custody during the school year. Father’s Brief at 24-
51. First, Father claims that the trial court erred by concluding that five
custody factors favored Mother. Id. at 24-39. Second, Father argues that
the trial court erred by ordering that Father’s custodial time from Sunday
evening to Monday morning would end when the Child begins attending
school. Id. at 39-44. Third, Father argues that the trial court erred in
fashioning a custody schedule that resulted in a ten or eleven-day period per
month where the Child does not have any physical contact with Father. Id.
at 44-51.
Custody Factors
Father argues that the trial court abused its discretion in its analysis of
the 23 Pa.C.S. § 5328(a) custody factors and challenges the weight that the
court placed on certain factors.4 Father’s Brief at 24-39. Father contends that
the trial court abused its discretion by impermissibly concluding that the third,
fourth, tenth, eleventh, and twelfth custody factors favor Mother. Id. at 30-
39. Specifically, Father argues that the trial court erred in concluding that
several custody factors favor Mother because Mother works from home while
Father works outside the home. Id. at 35-36, 39 (citing, inter alia, Gerber
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4 For ease of analysis, we will not discuss custody factors from Section 5328
that Father does not contest on appeal.
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v. Gerber, 487 A.2d 413, 416 (Pa. Super. 1985); Johnson v. Lewis, 870
A.2d 368, 374 (Pa. Super. 2005)). Father additionally claims that there is no
support in the record for the trial court’s conclusions regarding the third, tenth,
and eleventh custody factors. Id. at 30-31, 32-33.
Father also argues that the trial court erred in weighing the thirteenth
custody factor, the level of conflict between the parties. Id. at 26-30. Father
claims that the trial court failed to consider the testimony demonstrating that
Mother and maternal grandparents are hostile towards Father and that shared
physical custody is necessary to counteract the Child’s exposure to these
“negative feelings towards Father[.]” Id. at 30. Lastly, Father argues that
the trial court should have awarded shared physical custody because, despite
the animosity between the parties, “only a minimal degree of cooperation
between the parents is required for a shared custody arrangement.” Id. at
26 (citing Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998)).
Our standard and scope of review of custody orders are as follows:
The 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.
On issues of credibility and weight of the evidence, we defer to
the findings of the trial court who has had the opportunity to
observe the proceedings and demeanor of the witnesses.
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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.
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citations omitted and some
formatting altered). “The test is whether the evidence of record supports the
trial court’s conclusions” and whether the conclusions are grounded in a
comprehensive evaluation of the best interest of the child. Id. (citation
omitted).
Section 5328(a) provides, in relevant part, as follows:
(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:
* * *
(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.
* * *
(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
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another party is not evidence of unwillingness or inability to
cooperate with that party. . . .
23 Pa.C.S. § 5328(a). Moreover, “[t]he 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). “[S]ection 5323(d) requires the trial court to set forth its
mandatory assessment of the sixteen factors [from Section 5328(a)] 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).
Further, this Court has explained
In expressing the reasons for its decision, there is no required
amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that
the custody decision is based on those considerations. A court’s
explanation of reasons for its decision, which adequately
addresses the relevant factors, complies with Section 5323(d).
A.V., 87 A.3d 823 (citations omitted and formatting altered).
“It is within the trial court’s purview as the finder of fact to determine
which factors are most salient and critical in each particular case.” E.B. v.
D.B., 209 A.3d 451, 468 (Pa. Super. 2019) (citation omitted).
In support of his instant claims, Father relies on several cases that pre-
date the enactment of Section 5328(a). In Gerber, this Court stated that “a
parent’s work schedule may not deprive that parent of custody if suitable
arrangements are made for the child’s care in his or her absence.” Gerber,
487 A.2d at 416 (citations omitted). In Johnson, the mother argued that the
trial court erred in awarding shared physical custody on a weekly rotating
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basis because the father may be required to work nights in the future.
Johnson, 870 A.2d at 374. The mother claimed that the trial court “should
have made provision[s] for [the] mother to have physical custody during the
periods when [the] father works the night shift.” Id. (footnote omitted). In
affirming the custody arrangement on appeal, this Court explained that
shifting custody to the mother while the father was at work would be “overly
disruptive, unpredictable, and confusing” for the child and that “[m]aintaining
the stable consistency of weekly shifts in physical custody, even if [the] father
should have to alter his work schedule,” was reasonably in [the child’s] best
interest. Id. at 375 (footnote omitted).
In Wiseman, this Court discussed four factors that a trial court must
consider before awarding the parents shared physical custody. Wiseman,
718 A.2d at 848. However, this Court subsequently held that the 2010
enactment of Section 5328(a) rendered prior decisions of this Court, such as
Wiseman, obsolete. See P.J.P. v. M.M., 185 A.3d 413, 419-20 (Pa. Super.
2018); see also M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013)
(stating that this Court “simply cannot graft the judicially-created primary
caretaker doctrine on to the inquiry that the legislature has established [in
Section 5328(a)], and so we conclude that the primary caretaker doctrine,
insofar as it required positive emphasis on the primary caretaker’s status, is
no longer viable”). However, the P.J.P. Court acknowledged that decisions of
this Court that predate Section 5328 may retain persuasive value to the extent
that they do not contradict the plain language of the statute. P.J.P., 185 A.3d
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at 420 (noting that the four Wiseman factors “are assimilated into Section
5328(a)”).
More recently, this Court considered a parent’s argument that the trial
court had “penalized” him for working outside the home in making its custody
determination. Ahrens v. Ahrens, 631 MDA 2021, 2022 WL 390678, at *8
(Pa. Super. filed Feb. 9, 2022) (unpublished mem.).5 This Court rejected the
father’s arguments, reasoning that the father was asking this Court to reweigh
the trial court’s factual findings, which this Court may not do. Id. The Ahrens
Court concluded:
Contrary to [the f]ather’s assertion, the trial court did not
“penalize” [the f]ather because he works away from the home.
Rather, the trial court credited [the f]ather’s testimony that while
he works away from the home on occasion, he is able to make
childcare arrangements. The trial court simply found that
regarding this factor, [the m]other’s ability to care for the children
outweighed [the f]ather’s ability because [the m]other remained
at home full-time and had four adult siblings and other family
members who could assist her in providing childcare.
Id. at *10. The Ahrens Court did not discuss the continued validity of
decisions such as Gerber and Johnson following the enactment of Section
5328.
Here, the trial court first addressed Section 5328(a)(3), concerning
parental duties performed by each party on behalf of the Child, as follows:
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5 See Pa.R.A.P. 126(b) (providing that unpublished memorandum decisions
of the Superior Court filed after May 1, 2019, may be cited for their persuasive
value).
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This factor favors Mother. Mother does not work outside the
home, she lives with her parents, and she performs all parental
duties when [the] Child is in her care. Father works outside the
home full-time as a high school teacher during the school year.
While he is at work, Father does not personally perform parental
duties. While Father is able to make appropriate childcare
arrangements for [the] Child while Father is at work, the court
determines that it is in the best interest of [the] Child, who had
his third birthday two weeks prior to the entry of the March 12,
2021 order, to be in the care of his Mother rather than that of a
third-party.
* * *
The fact that one parent is available to spend more waking hours
with a child than is the other parent may properly be considered
by the court in making its award of physical custody. See
[Johnson, 870 A.2d at 375] (stating that case law holds that
“changes in custody can be uselessly disruptive when the parent
to whom custody is newly granted [here Father] will spend waking
time with the child equal to or less than that spent by the fit parent
who previously had custody [here Mother]”). See also [Ahrens,
2022 WL 390678 at *10] (responding to a father’s assertion that
the trial court “penalized” him because he works away from the
home, “the trial court credited Father’s testimony that while he
works away from the home on occasion, he is able to make
childcare arrangements. The trial court simply found that
regarding this factor, Mother’s ability to care for the children
outweighed Father’s ability because Mother remained at home
full-time and had four adult siblings and other family members
who could assist her in providing childcare.”). Here, Father has
not been deprived of custody.
* * *
As is appropriate, the court here considered Father’s work
schedule in rendering a custody award granting him partial
physical custody during the non-summer months and shared
physical custody in the summer.
Trial Ct. Op. at 5, 12-13 (some citations omitted and some formatting altered).
Based on our review of the record, we conclude that there is evidence
in the record to support the trial court’s conclusions. Father and Mother both
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testified that they each perform parental duties. See R.R. at 76a, 162a-64a,
294a-96a, 392a-93a, 406a.6 Maternal Grandparents testified that Mother
performs parental duties for the Child while he is in their home. See id. at
556a, 572a. Paternal Grandmother and Father’s fiancée testified that Father
cares for the Child during his custodial time. See id. at 484a, 535a, 538a.
Further, as noted previously, both Gerber and Johnson were decided
before the General Assembly enacted Section 5328. See P.J.P., 185 A.3d at
419-20. However, as this Court explained in Ahrens, the trial court may
weigh custody factors as favoring the parent who works from home without
“penalizing” the other parent who works outside the home. See Ahrens,
2022 WL 390678, at *10. This includes circumstances where the working
parent can make appropriate childcare arrangements. See id. Insofar as
Father is challenging the trial court’s credibility determinations and the weight
it assigned to the evidence, this Court defers to those determinations. See
A.V., 87 A.3d at 820. Therefore, we conclude that the trial court did not abuse
its discretion in finding that the third custody factor favors Mother.
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6 We may cite to the parties’ reproduced record for the parties’ convenience.
Additionally, the notes of testimony from the February 9, 10, and 17, 2021
hearings do not appear in the certified record, but Father included them in his
reproduced record. Mother does not object to the accuracy of the reproduced
record and cites to it in her brief. Accordingly, we will consider these
documents in our review of this matter. See C.L. v. M.P., 255 A.3d 514, 519
n.3 (Pa. Super. 2021) (en banc) (noting that “[w]hile the notes of testimony
from this hearing are not included as part of the certified record, they are
included as part of the reproduced record. As their veracity is not in dispute,
we rely on the copy contained within the Reproduced Record” (citation
omitted)).
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The trial court next addressed Section 5328(a)(4), concerning the need
for stability and continuity in the Child’s education, family life and community
life, as follows:
This factor favors Mother. [The] Child has been in Mother’s
primary physical custody since the parties’ separation. As a three-
year old, [the] Child is entirely dependent upon his parents to
provide stability and continuity in his family life, it is in [the]
Child’s best interest for him to have the stability provided by his
being with Mother during the days that Father is unavailable to be
with [the] Child due to Father’s work schedule. It is in [the] Child’s
best interest for him to have the stability provided by remaining
in Mother’s care during the entire days that Father works. It would
not be in [the] Child’s best interest to be with Mother just during
the time that Father works and then to be with Father for the
remainder of that day and overnight until the next morning. As
the parties’ residences are approximately a 30 to 45 minute drive
apart, shuttling [the] Child back and forth on a daily basis would
be antithetical to his need for stability in his daily life. See
[Johnson, 870 A.2d at 375] (stating that case law holds that
“changes in custody can be uselessly disruptive when the parent
to whom custody is newly granted [here Father] will spend waking
time with the child equal to or less than that spent by the fit parent
who previously had custody [here Mother]”).
Trial Ct. Op. at 5-6 (some citations omitted).
Father argues that the trial court erred in the weight it assigned to the
evidence in determining that this factor favors Mother. As a party, Father
cannot dictate the weight the trial court gives to the evidence. See A.V., 87
A.3d at 820 (stating that the parties cannot dictate the weight the trial court
places on the evidence; the paramount concern is the child’s best interests).
Therefore, we discern no abuse of discretion with respect to the trial court’s
conclusion that the fourth custody factor favors Mother.
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The trial court next addressed Section 5328(a)(10), concerning which
party is more likely to attend to the daily physical, emotional, developmental,
educational, and special needs of the Child, as follows:
This factor favors Mother. Since Mother has more time to spend
with [the] Child on a daily basis, it is she who is more likely to
attend to [the] Child’s daily physical, emotional, developmental,
educational and special needs.
Trial Ct. Op. at 6 (citation omitted).
As stated above, our review of the record indicates there is evidence to
support the trial court’s conclusions regarding Mother attending to the Child’s
daily needs. See R.R. at 392a-93a, 406a, 556a, 572a. Further, Maternal
Grandmother testified she babysits the Child while Mother is working as a
tutor. See id. at 556a. To the extent that Father challenges the weight that
the trial court assigned to the evidence regarding this factor, Father is not
entitled to relief on this claim. See A.V., 87 A.3d at 820.
The trial court next addressed Section 5328(a)(11), concerning the
proximity of the residences of the parties, as follows:
Mother and [the] Child reside with Mother’s parents in their Center
City Philadelphia home. Father lives in Villanova. Their residences
are approximately a 30 to 45 minute drive apart. The distance
between the residences, combined with Father’s daily work
schedule, would cause shared physical custody during the school-
year to be contrary to the best interest of [the] Child. Daily
transfer of [the] Child from Mother to Father in the afternoon and
from Father to Mother the following morning would cause undue
disruption for [the] Child.
Trial Ct. Op. at 6 (citing Trial Ct. Order, 4/20/22, at 2).
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Father argues that the trial court erred in concluding that parties would
be unable to provide transportation for the Child. However, the trial court did
not state that the parties were unable to provide transportation for custody
exchanges. Instead, the trial court found that constant custody exchanges
would be unduly disruptive for the Child. See id. As for Father’s arguments
regarding which parent can better care for the Child, we discern no abuse of
discretion in the trial court’s conclusions for the reasons stated above
regarding the third and fourth custody factors.
The trial court next addressed Section 5328(a)(12), concerning each
party’s availability to care for the child or ability to make appropriate child-
care arrangements, as follows:
This factor favors Mother. Mother does not work outside the home
and she lives with her parents. Father works outside the home
full-time as a high school teacher during the school year. While he
is at work, Father does not personally perform parental duties.
While Father is able to make appropriate child-care arrangements
for [the] Child while Father is at work, the court determines that
it is in the best interest of [the] Child, who had his third birthday
two weeks prior to the entry of the March 12, 2021 order, to be in
the care of his mother rather than that of a third-party. See
[Ahrens, 2022 WL 390678 at *10] (responding to a father’s
assertion that the trial court “penalized” him because he works
away from the home, the trial court credited [the f]ather’s
testimony that while he works away from the home on occasion,
he is able to make childcare arrangements. The trial court simply
found that regarding this factor, [the m]other’s ability to care for
the children outweighed [the f]ather’s ability because [the
m]other remained at home full-time and had four adult siblings
and other family members who could assist her in providing
childcare.”).
Father[] cites [Gerber, 487 A.2d at 416] for the proposition that
“the fact that a parent must work is not a factor that may be used
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to deprive the parent of custody where adequate arrangements
are made for the child’s care in the parent’s house, and that a
parent’s work schedule may not deprive that parent of custody if
suitable arrangements are made for the child’s care in his or her
absence. This argument ignores the obligation of the trial court
to render a custody decision in the best interest of the child.
Father has not been deprived of custody. As is appropriate, the
court here considered Father’s work schedule in rendering a
custody award granting him partial physical custody during the
non-summer months and shared physical custody in the summer.
Trial Ct. Op. at 6-7 (some citations omitted).
As previously stated, we agree with the trial court that it may weigh
custody factors as favoring the parent who works from home without
“penalizing” the other parent who works outside the home. See Ahrens,
2022 WL 390678, at *10. To the extent that Father challenges the weight the
trial court assigned to the evidence regarding this factor, Father is not entitled
to relief on this claim because the trial court’s determination is properly within
its discretion and is supported by the record. See A.V., 87 A.3d at 820.
Therefore, we conclude that the trial court did not abuse its discretion in
concluding that the twelfth custody factor favors Mother.
The trial court next addressed Section 5328(a)(13), concerning the level
of conflict between the parties and the willingness and ability of the parties to
cooperate with one another, as follows:
There is currently a high level of conflict between the parties.
Neither party displays much willingness to cooperate with the
other. Their willingness to cooperate is hampered by mutual
distrust and animosity. Mother has employed social media on the
internet to label Father as an abuser. In her testimony, Mother
stated that she hates Father, and she characterized him as a
pathological liar and a bad influence on [the] Child.
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At times, Mother has not made [the] Child available for telephone
calls per the current court order. At times, Father is verbally
hostile towards Mother at custody exchanges. On the occasion of
Yom Kippur 2020, Mother delayed Father’s custodial time by more
than one hour because [the] Child was taking his afternoon nap.
Father called [the] police in response. These instances of failure
to cooperate serve to perpetuate the cycle in which the parties
display mutual disregard for each other.
The court expects that the conflict between the parties will
diminish with the institution of this final order. As they and [the]
Child become accustomed to the schedule established herein and
as they engage in co-parenting counseling, the framework for
enhanced cooperation is established and the opportunity for
development of a productive co-parenting relationship is
facilitated. Each party’s adherence to the terms of the order may
serve to lessen the mistrust and tension that currently exists
between them.
Trial Ct. Order, 3/12/21 at 7-8.
Father challenges the trial court’s weighing of the evidence regarding
this factor. As stated above, Father is not entitled to relief on his weight claim.
See A.V., 87 A.3d at 820. Further, to the extent Father relies on Wiseman
to conclude that the trial court erred in declining to award shared physical
custody, his reliance is misplaced. See P.J.P., 185 A.3d at 419-20 (explaining
that Section 5328(a) has superseded Wiseman). Therefore, Father is not
entitled to relief.
Custody Schedule
Father challenges the section of trial court’s order stating that “once the
Child enters kindergarten, Father will lose his Sunday overnights” so that the
Child will have “proper rest and continuity of his routine during the school
week.” Id. at 39-44 (citations omitted). In support, Father contends that the
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trial court improperly “relied on a presumption that children of school age
should be with the primary custodian on school nights.” Id. at 44 (citing
B.C.S. v J.A.S., 994 A.2d 600 (Pa. Super. 2010)).
Father also argues that the trial court erred in fashioning a custody
schedule that resulted in a ten or eleven-day period per month where the Child
does not have any physical contact with Father. Id. at 44-51. Father
contends that it is in the Child’s best interests to have “regular and continuing
contact with both parents” especially because the Child is four years old. Id.
at 50.
In B.C.S., the trial court awarded the mother primary physical custody,
explaining that “the courts in York County have often provided that primary
majority custody situations are best suited for children of school age.” B.C.S.,
994 A.2d at 605 (citation and quotation marks omitted). On appeal, this Court
expressly disapproved of “the trial court’s reliance on York County Practice
that primary majority custody situations are best suited for children of school
age[]” because the law requires a “fact-specific, case-by-case analysis of
all factors affecting the child’s best interest in custody proceedings, any
presumption of primary physical custody for school-age children is completely
unfounded.” Id. (citation and quotation marks omitted, emphasis in original).
Here, the trial court explained that Father’s claims regarding the custody
schedule “constitute . . . impermissible attempt[s] to dictate the amount of
weight the trial court placed on the evidence.” Trial Ct. Op. at 14; see also
id. at 15. The trial court further explained that it
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considered it to be in [the Child’s] best interest to spend the night
before attending school to be with the parent who has custody
during the entire school week. While each party may be equally
likely to attend to [the Child’s] daily educational needs when [the
Child] is in that parent’s custody, the court directed that [the
Child] be at one home on most evenings before attending school
the following day to best ensure that [the Child] has proper rest
and continuity of his routine during the school week.
Id. at 14-15.
To the extent Father challenges the weight of the evidence or the trial
court’s consideration of the custody factors, he is not entitled to relief because
the trial court’s decision is within its discretion and is supported by the record.
See A.V., 87 A.3d at 820; see also E.B., 209 A.3d at 468 (stating that “[i]t
is within the trial court’s purview as the finder of fact to determine which
factors are most salient and critical in each particular case”).
Further, although Father argues that the trial court relied on a
presumption that school-age children should be with the parent with primary
physical custody, that argument is belied by the record. As noted previously,
the trial court concluded that it was in the Child’s best interest to be with
Mother during the school year, as she is “the parent who has custody during
the entire school week.” Trial Ct. Op. at 14. The trial court did not refer to
any regular practice of awarding primary custody to one parent for school age
children when making its custody determination.7 Cf. B.C.S., 994 A.2d at 605
____________________________________________
7 B.C.S. predates the enactment of Section 5328. Insofar as the B.C.S.
Court’s holding that trial courts cannot rely on local practice, and instead must
engage in a fact-specific, case-by-case analysis of the best interests of the
child is consistent with Section 5328, it remains persuasive authority. See
P.J.P., 185 A.3d at 419-20.
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(disapproving of the York County practice regarding primary physical custody
for school-aged children). For these reasons, Father is not entitled to relief.
After review, we find no abuse of discretion or error of law in the trial
court’s custody order. Accordingly, we affirm the trial court’s April 20, 2022
order.
Order affirmed.
Judge Sullivan joins the memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2022
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