J.G.B. v. K.G. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.G.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
K.G. :
:
Appellant : No. 1264 MDA 2020
Appeal from the Order Entered August 25, 2020
in the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-16-07639
BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 09, 2021
Appellant, K.G. (“Mother”), files this appeal from the order entered by
the Lancaster County Court of Common Pleas, awarding J.G.B. (“Father”)
primary physical custody of the parties’ minor son, G.G. (“Child”) and
maintaining the parties’ shared legal custody. After careful review, we affirm.
Mother and Father are the biological parents of Child, who was born in
March 2014. While Father was not initially involved in Child’s life, Father filed
a Complaint for Custody on August 24, 2016. On February 2, 2017, the trial
court awarded the parties shared legal custody and Mother primary physical
custody. Subsequent to the filing of a petition to modify by Mother,
September 6, 2017, the trial court awarded the parties shared physical
custody on an alternating weekly basis and maintained shared legal custody.
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* Former Justice specially assigned to the Superior Court.
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On August 1, 2019, subsequent to Mother’s petition to modify and by
stipulation of the parties, the trial court modified the custody arrangement for
shared physical custody, with Father to exercise physical custody one
weekend per month based on the school calendar, with the option of a second
weekend locally during the school year, and a large portion of the summer.
On February 10, 2020, Father filed a petition for modification sought
primary physical custody of Child, claiming Mother’s household was not safe
due to the presence of Mother’s boyfriend, S.P.1 On August 17, 2020, the trial
court held a hearing at which Mother and Father were each represented by
counsel and testified on their own behalf. Father presented the testimony of
Mother’s former landlord, B.U.; Father’s sister, S.B.; Mother’s brother, R.G.;
and Mother’s grandmother, B.M. Mother presented the testimony of Mother’s
boyfriend, S.P.; and Mother’s friend, D.D.
On August 25, 2020, the trial court entered an order modifying the
custody arrangement to award Father primary physical custody during the
school year, but directing that the parties would maintain shared legal
custody. The trial court granted Mother physical custody one weekend per
month as well as the option of an additional weekend locally during the school
year. Trial Court Opinion (T.C.O.), 8/25/20, at 6-8.
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1 Thereafter, on May 1, 2020, Mother, who moved with Child from Christiana,
Pennsylvania (Lancaster County) to Chester, Pennsylvania (Chester County),
filed a notice of proposed relocation. On May 5, 2020, Father responded with
a counter-affidavit. As Mother agreed the exchange location would remain in
Lewistown, Pennsylvania, the parties stipulated that the disputed issue
remained primary physical custody, not relocation. See Order, 8/25/20, at 1.
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During the summer, the trial court provided that the parties will share
physical custody on a two-week on/two-week off basis commencing the
Sunday after school ends with exchanges Sundays at 5:00 p.m. Id. at 8. As
both parties admitted to having altercations at custodial exchanges in
Lewistown, Pennsylvania, the trial court directed that only Mother, Father, and
Child should exit the vehicles during the exchanges. Id. The trial court also
set forth a holiday schedule. Id. at 8-9.
On September 23, 2020, Mother, through counsel, filed a notice of
appeal, along with 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 a Rule
1925(a) Opinion on October 26, 2020 in which it referenced its prior opinion.
On appeal, Mother raises the following issue for our review:
Whether the trial court abused its discretion by reversing a 6-year
physical custody status quo based primarily on hearsay evidence
and without sufficient evidence that the Child’s best interests were
served by such a reversal?
Mother’s Brief at 9.
In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A.
§§ 5321-5340, our standard of review is as follows:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is whether
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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).
This Court consistently has held:
[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) (quoting Jackson
v. Beck, 858 A.2d 1250, 1254 (Pa.Super. 2004)). In addition,
[a]lthough we are given a broad power of review, we are
constrained by an abuse of discretion standard when evaluating
the court’s order. An abuse of discretion is not merely an error of
judgment, but if the court’s judgment is manifestly unreasonable
as shown by the evidence of record, discretion is abused. An
abuse of discretion is also made out where it appears from a
review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence.
M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa.Super. 2010) (en banc) (citations
omitted).
The paramount concern in any custody case decided under the Act is
the best interests of the child. See 23 Pa.C.S.A. §§ 5323, 5328, 5338.
Section 5328(a) sets forth the best interest factors that the trial court must
consider in awarding custody and provides as follows:
§ 5328. Factors to consider when awarding custody
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(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.
(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.
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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.A. § 5328(a).2
In its Opinion accompanying its Order, the trial court thoroughly
addressed the custody factors pursuant to Section 5328(a) as follows:
1. Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party: The Court finds that both Mother and Father are
likely to permit frequent and continuing contact between the Child
and the other party. Despite the contention that Mother withholds
____________________________________________
2 Further, we have stated that “[a]ll of the factors listed in [S]ection 5328(a)
are required to be considered by the trial court when entering a custody order.
… The record must be clear on appeal that the trial court considered all the
factors.” A.V. v. S.T., 87 A.3d 818, 822-23 (Pa.Super. 2014) (citation
omitted). 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).
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the Child from Father, the Court finds that while Mother can be
difficult, aside from Father’s first Court-ordered weekend in
September, Father was able to exercise his weekends with the
Child. Despite the change in distance, Mother was committed to
keeping the exchange location the same such that Father would
not be required to drive farther to pick up the Child.
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: The Court finds that
both Mother and the Child are at a continued risk of abuse in
Mother’s current household setting. Mother and her boyfriend
have a tumultuous relationship where screaming, fighting, and
emotional abuse is a regular occurrence. Mother testified that
none of the abusive incidences have occurred with the Child
present and that all fighting occurs outside of the presence of the
Child. The Court does not find Mother credible on that issue.
Mother demonstrated by her actions that at various junctions in
the past year that she does not believe herself or the Child to be
safe while she shares a residence with her boyfriend. While they
co-habitated at her residence in Christiana, Mother left her
residence or moved out of her residence in fear for her safety.
Mother had family resources willing to help her, but instead of
relying on them, Mother moved with the Child without Father’s
consent from Christiana to Chester, PA to live in a home that is
controlled by boyfriend and his family and further away from her
familial resources. Since moving to Chester with her boyfriend,
Mother again left the residence for fear for her safety and filed a
PFA against her boyfriend. At the time of the custody hearing,
Mother had resumed living with her boyfriend and attempted to
paint a picture of a healthy home with a family that occasionally
quarrels, but is otherwise wonderful and good for a [c]hild to grow
up in. The Court again does not find Mother credible in this regard.
3. The parental duties performed by each party on behalf
of the child: Both parties perform parental duties for the Child
while he is in his or her household. Mother’s boyfriend does the
majority of the cooking for her household because by her
admission he is the better cook. Neither party supported any
contention that the Child is neglected in either party’s household.
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4. The need for stability and continuity in the child’s
education, family life and community life: The Court finds
that the Child needs stability in his educational, familial, and
community life and finds that Father is the party most likely to be
able to provide this for the Child. Simply put, Mother is not stable
at this time. Mother moved into a situation she admits has been
abusive and the Court does not believe that the threat of abuse
no longer exists. Mother is further away from family resources
and has alienated many of her family resources due to her actions
regarding the child and her boyfriend. Father presented as stable
and surrounded by supportive family resources that will ensure
continued stability for the Child.
5. The availability of extended family: Father has the majority
of his extended family in the Blairsville, PA. Mother has family in
Coatesville and Ephrata. Mother does not have relatives in
Chester, but would likely rely on the family supports of her
boyfriend’s family.
6. The child’s sibling relationships: The Child is an only child.
7. The well-reasoned preference of the child, based on the
child’s maturity and judgment: The Child did not present a
well-reasoned preference due to his young age and maturity level.
The Court is satisfied that, given the evidence presented, it has a
clear picture of what is in the Child’s best interests regarding
primary custody during the school year.
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: The Court finds that neither party has
attempted to turn the party against the other parent. Both Mother
and Father are guilty of subjecting the Child to disorderly custody
exchanges where “adult” participants scream, fight, and threaten
each other in the presence of the young [c]hild. Credible
testimony was presented about the Child’s troubled demeanor
after these tumultuous exchanges. The Court finds that such
conduct is not in the best interests of the Child and must stop.
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: The Court finds that
it is incredibly important for the emotional development of the
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Child to not be surrounded by dysfunction. The Court does not
doubt that Mother is loving and nurturing to the Child, but finds
that her inconsistencies and instability is detrimental to the Child’s
emotional needs. No evidence was presented that the home
Father provides is anything but stable and loving.
10. Which party is more likely to attend to the daily
physical, emotional, developmental, educational, and
special needs of the child: The Child has no specific special
needs though Mother has the Child in counseling to address issues
related to custody. The Court finds that both parties presented as
parents who are willing to attend to the Child’s daily physical,
developmental, and educational needs. The Court has concerns
about emotional trauma that the Child is subjected to in Mother’s
household. Mother stated that she believes that the screaming,
fighting, intimidation, and name calling that goes on in her
household is normal and the Court submits to her that it is not
normal, not healthy, and implores her to address these skewed
views of relationships with her counselor.
The Court notes that Father was not involved in the Child’s
life until he was a toddler. While such an absence is regrettable,
it does not diminish the fact that he has a good relationship with
the Child and is the Child’s most stable option at this time.
11. The proximity of the residences of the parties: Father
lives in Blairsville, PA. The parties lived approximately 4 hours
apart when Mother lived in Christiana. Now that Mother lives in
Chester, the parties reside approximately 5 hours apart. The
parties agree to still meet for exchanges at the Burger King in
Lewistown, PA[,] which is an approximate two-hour drive for
Father.
12. Each party’s availability to care for the child or ability
to make appropriate childcare arrangements: Both parties
are available to care for the Child or make appropriate child-care;
arrangements. Father utilizes family members for assistance with
childcare and Mother utilizes after-school care programs, such as
the YMCA, or her boyfriend to care for the Child.
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 no evidence of unwillingness or inability to
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cooperate with that party: The level of conflict between the
parties is moderate. The Court finds that Mother’s boyfriend is
the aggravating factor to the parties’ lack of cooperation for the
best interests of the Child. The Court finds that Mother’s direct
testimony was lacking in candor as to what she does to contribute
to the dysfunction at custody exchanges. The Court finds that
Mother lacks the necessary self-control to refrain from responding
to “smart comments” during custody exchanges. Father’s family
members and their smart comments only serve to exacerbate the
problem.
14. The history of drug or alcohol abuse of a party or
member of a party’s household: Neither party presented
evidence that either party or a member of their household have a
history of drug or alcohol abuse. Mother’s boyfriend has some
prior drug charges and currently has a medical marijuana card
that was prescribed for his mental health conditions. There was
little credible testimony to support that there are current issues of
drug addiction in Mother’s household.
15. The mental and physical condition of a party or member
of a party’s household: Neither party nor any member of their
household have a physical condition that would hinder their ability
to parent the Child. Mother’s boyfriend is a disabled veteran
diagnosed with and treated for PTSD. Mother’s boyfriend takes
medicine and receives counseling to manage his condition.
Mother has been diagnosed with depression. Mother attends
counseling and takes medication for her depression. Father has
no diagnosed mental health conditions that affect his ability to
parent the Child.
16. Any other relevant factor: The majority of the conflict in
this case centers around Mother living in Chester with her
boyfriend. Father does not approve of the Child residing in
Chester due to his perception of it having higher crime and lower
quality public schools. The Court will refrain from making findings
regarding the quality of public schools because evidence to
support that contention was not properly introduced. The Court
recognizes that Mother’s current residence in Chester is vastly
different from Mother’s prior residence in Christiana, but the Court
does not count that as a negative. The rural/urban distinction
testified to at the hearing was based on conjecture and biases and
not concrete data upon which the Court can rely.
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The issue in this case that the Court finds troubling is Mother’s
choice to subject herself and her son to a toxic home environment.
Every witness with knowledge of Mother and her boyfriend
testified to rampant dysfunction. Mother and boyfriend
themselves admitted to their dysfunction though they used
weaker terminology. Mother testified to having very heated
arguments with her boyfriend which cause her to leave the house.
Mother also acknowledged that she has sent messages to third
parties where Mother states that she is fearful of her boyfriend for
her and her Child’s safety. Most troubling is that Mother indicated
that she believes emotional abuse in a relationship is normal and
that everyone does it. While the Court recognizes that Mother is
free to live as she pleases, such decisions directly impact the best
interests of the Child[,] which is paramount to the Court.
Mother’s stability is a cause for concern. Over the past six
months, Mother has bounced around from living in Christiana,
Coatesville, and Chester, PA. Mother testified that she cannot
afford to rent by herself, which was one of the main reasons she
moved to Chester, PA with her boyfriend. Mother alleges that this
is partially due to the pandemic and her losing her job. Mother
worked for and was laid off from her position as support staff for
a doctor’s office. Mother now works as a receptionist for United
Electrical. Mother has had ample opportunity to remediate the
unstable housing situation with the aid of family, but she has
instead elected to move into a situation where she appears to be
more financially dependent on boyfriend. This decision is
concerning to the Court given the nature of their relationship and
its impact on Mother and the Child.
Opinion, 8/25/20, at 1-5.
Mother does not challenge any of the trial court’s specific determinations
as to the Section 5328(a) factors, but claims the trial court lacked compelling
evidence to disturb the status quo in which Mother had primary physical
custody of Child since his birth. Mother argues that the trial court failed to
consider how maintaining the status quo would have been in Child’s best
interests to promote stability and continuity. Mother therefore contends that,
as Child lived primarily with her and was doing well, the evidence presented
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did not support a need to modify the custody arrangement to award primary
physical custody to Father. Mother’s Brief at 14-17.
As noted above, the trial court is required to consider all of the Section
5328(a) factors in entering a custody order. J.R.M. v. J.E.A., 33 A.3d 647,
652 (Pa.Super. 2011). Although the trial court is required to give “weighted
consideration to those factors which affect the safety of the child” pursuant to
Section 5328(a), the amount of weight a court gives any one factor is almost
entirely discretionary. M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013).
Critically, as we stated in M.J.M.:
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. See A.D. v. M.A.B., 989 A.2d 32, 35-36
(Pa.Super. 2010) (“In reviewing a custody order . . . 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.”).
Id. (emphasis added).
While Mother cites to this Court’s decision in E.B. v. D.B., 209 A.3d 451,
466-67 (Pa.Super. 2019) to argue that a trial court cannot alter the status
quo without compelling evidence, her reliance on this decision is misplaced.
In E.B., this Court found the trial court abused its discretion in modifying the
parties’ custody arrangement in an interim order on a temporary basis without
providing the parties due process. This Court found specifically that:
In some circumstances entering an order without notice on a
temporary basis may be necessary to address a child's best
interest. ... In this case, it was an abuse of the trial court's
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discretion to alter the status quo without notice and an
opportunity to be heard after full preparation, without any
apparent emergency or change in circumstances, without any
explanation as to why it was in Child's best interest, and without
considering the effect of eliminating years of detailed prior orders
in exchange for an order not specifically tailored to the parties'
and Child's needs.
Id. at 465–66. As such, this Court provided that “trial courts should be wary
of upending the status quo prematurely without substantial justification that
the change was warranted by a child’s best interest. . . the ultimate polestar
is a child’s best interest.” Id. at 465–66.
Unlike in E.B., we are not dealing with a temporary custody order; the
trial court reached its decision to modify the parties’ custody arrangement
after a full evidentiary hearing at which both parties had notice and the
opportunity to present evidence as to the Child’s best interests.
Further, and more importantly, we find that the record supports the trial
court’s findings and analysis of the custody factors and determinations as to
Child’s best interests. In reaching its decision to modify the custody
arrangement to award Father primary physical custody of Child, the trial court
found a critical point of concern was Mother’s lack of stability. The trial court
emphasized that when Mother needed to move from her residence for financial
reasons, she rejected the resources of her supportive family and chose to
move farther away from her family into a home controlled by her boyfriend,
with whom she admitted was emotionally abusive. Mother does not
acknowledge that the trial court was troubled by her decision to subject herself
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and Child to a toxic home environment in which her relationship with her
boyfriend is characterized by Mother’s own family as rampant dysfunction.
We interpret Mother’s challenge at its core as a dispute to the trial
court’s findings of fact and determinations regarding credibility and weight of
the evidence, as well as the weight attributed to certain factors. While not
framed as such, Mother, in essence, questions the trial court’s conclusions and
assessments and seeks for this court to re-find facts, re-weigh evidence,
and/or re-assess credibility to her view of the evidence. This we cannot do.
Under the aforementioned standard of review applicable in custody matters,
the trial court’s findings of fact and determinations regarding credibility and
weight of the evidence are not disturbed absent an abuse of discretion. See
C.R.F., 45 A.3d at 443.
After a thorough review of the record, we find no abuse of discretion. As
we determine that the trial court’s findings and determinations are supported
by competent evidence in the record, we will not disturb them.
In addition, Mother claims the trial court’s decision to award Father
primary physical custody was improperly based on hearsay statements from
Father and Maternal Great-Grandmother. Mother argues that the trial court’s
decision must be overturned as she asserts that the trial court gave great
weight to this hearsay evidence, which it allowed over Mother’s objection.
Specifically, Mother highlights the testimony of Father that he “heard
that [Mother’s] boyfriend was abusing Child and Mother, and heard that
[Mother’s boyfriend] was smoking marijuana in front of [Child].” Mother’s
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Brief, at 18. Father further testified to receipt of a call from Mother’s family
in February 2020, when Child was with Father, advising Father to not return
Child as Mother had shown up to her brother’s home in the middle of the night
and “was terrified of [her boyfriend] and how afraid -- she was terrified of the
way [her boyfriend] treated [Child].” Id. at 19. Mother also references the
testimony of Maternal Great-Grandmother that Child told her that Mother’s
boyfriend hit him with a belt. Id. at 21-22.
With respect to issues of admissibility, this Court has held that:
. . . the decision of whether to admit or exclude evidence is within
the sound discretion of the orphans’ court. Commonwealth v.
Johnson, 639 Pa. 196, 160 A.3d 127, 143 n.14 (2017), cert.
denied sub. nom, Johnson v. Pennsylvania, ––– U.S. ––––, 138
S.Ct. 508, 199 L.Ed.2d 393 (2017). A reviewing court will not
disturb these rulings absent an abuse of discretion. Id. Discretion
is abused if, inter alia, the orphans’ court overrides or misapplies
the law. Commonwealth v. Batts, 640 Pa. 401, 163 A.3d 410,
434 n.9 (2017).
In re A.J.R.-H., 647 Pa. 256, 273, 188 A.3d 1157, 1166–67 (2018).
Hearsay is an out-of-court statement offered for the truth of the matter
asserted. Pa.R.E. 801. Hearsay is generally inadmissible unless it is subject
to one of the hearsay exceptions set forth in the rules of evidence. Pa.R.E.
802. However, this Court has also recognized that “. . .where the statement
is being offered to show its effect on a listener, it is not being offered for the
truth of the matter and is non-hearsay.” Schmalz v. Manufacturers &
Traders Tr. Co., 67 A.3d 800, 803 n.3 (Pa.Super. 2013) (citations omitted).
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We agree with the trial court that the evidence raised by Mother to which
she objected was non-hearsay as it was admitted, not for the truth of the
matter asserted, but its effect on the listener. Father testified that he filed a
petition seeking primary physical custody of Child because he had been
informed that Mother’s boyfriend was verbally and physically abusive to Child
and that Mother’s boyfriend used marijuana. N.T. at 9-11.
Father testified that on a particular occasion in February 2020, he did
not return Child to Mother’s custody because Mother’s family members had
warned him not to give Child back for Child’s own safety. N.T. at 16-18.
Father indicated that he took this course of action as Mother’s brother and
mother had told him that Mother had showed up to her brother’s house in the
middle of the night and had indicated that she was was “terrified” of her
boyfriend and the way he treated Child. N.T. at 16-18. Maternal Great-
Grandmother testified that she confronted Mother’s boyfriend after Child had
told her that Mother’s boyfriend had hit him with a belt. N.T. at 137-140.
Nevertheless, even assuming such evidence was in fact hearsay, the
testimony at issue was cumulative of other evidence admitted at trial. Mother
admitted that she had heated arguments with her boyfriend, which her own
counsel described as “world wars” in which Mother’s boyfriend called Mother
derogatory names, but Mother claimed that these arguments never occurred
in front of Child. N.T. at 97-98. Mother admitted that her relationship with
her boyfriend was emotionally abusive, but minimized the conflict as she felt
that “we all do it … [and] all talk mean to each other.” N.T. at 99.
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In addition, Mother stipulated to the admission of a note that she wrote
to her landlord indicating that she was giving thirty days notice that she was
terminating the lease due to “an emergency situation with a boyfriend that
was living” with her. N.T. at 96-97; Plaintiff’s Exhibit 6. In that note, Mother
states that “I can’t believe that I have to leave my home but I have no choice
for our safety” and asks the landlord not to tell anyone about her current
whereabouts. Plaintiff’s Exhibit 6.
In addition, Mother’s brother, R.G., offered uncontested testimony that
when Mother sought refuge at his home after fights with her boyfriend on
several occasions. R.G. testified that each time Mother arrived at his home
distraught and upset, she revealed that she did not feel safe at her boyfriend’s
home. N.T. at 110. R.G. indicated that he contacted Father to warn him as
he did not feel it was safe for Child to be at Mother’s boyfriend’s home and
described Mother’s boyfriend as “toxic.” N.T. at 112-14, 116-18. R.G. became
frustrated and did not speak to Mother for a few months when Mother resumed
her relationship with her boyfriend. N.T. at 112-15. Mother did not object to
any of R.G.’s testimony. In light of the evidence presented, we cannot find
that the admission of the contested statements affected the trial court’s
decision to award Father primary physical custody of Child.
As such, even if the challenged statements constituted hearsay, the trial
court’s decision to admit this testimony was not reversible error. A.J.B. v.
M.P.B., 945 A.2d 744, 751 (Pa.Super. 2008) (“[t]o constitute reversible
error, an evidentiary ruling must be both erroneous and prejudicial to the
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J-S01039-21
complaining party”) (citation omitted). See also Childers v. Power Line
Equip. Rentals, Inc., 681 A.2d 201, 206 (Pa.Super. 1996), appeal denied,
547 Pa. 735, 690 A.2d 236 (1997) (“[Evidentiary] ruling[s] must be shown
not only to have been erroneous but harmful to the part[ies] complaining”)
(citations omitted) (some brackets in original).3
Accordingly, for the foregoing reasons, we affirm the trial court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/09/2021
____________________________________________
3 To the extent Mother challenges the weight attributed to any factor by the
trial court, we likewise find no abuse of discretion. As stated above, the
amount of weight that a trial court gives to any one factor is almost entirely
within its discretion. See M.J.M., 63 A.3d at 339.
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