J.D.D. v. M.D. ( 2016 )

J-A04042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.D.D., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
M.D.,
Appellant No. 1022 WDA 2015
Appeal from the Order Entered January 5, 2015
In the Court of Common Pleas of Butler County
Civil Division at No(s): F.C. NO. 12-90161-C
J.D.D., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
M.D.,
Appellant No. 1165 WDA 2015
Appeal from the Order Entered June 29, 2015
In the Court of Common Pleas of Butler County
Civil Division at No(s): F.C. NO. 12-90161-C
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.
MEMORANDUM BY SHOGAN, J.: FILED MAY 2, 2016
M.D. (“Mother”) appeals from the custody orders entered by the trial
court on January 5, 2015, and June 29, 2015. We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
J-A04042-16
The parties hereto, [M.D. (“Mother”)] and [J.D.D.
(“Father”)] are the natural parents of one child, [(“Child”) (Born
in 2010)]. Mother and Father were married on June 10, 2010
and separated on August 30, 2013. The divorce matter between
the parties is still pending. Child is the only child of issue to the
marriage. Mother also has four other children, [E.G.] (Age 17),
[H.G.1] (Age 15), [H.G.2] (Age 13) and [A.G.] (Age 13), as a
result of her previous relationship with [K.G.].
A complaint for custody was filed by Father on September
13, 2013, averring that he is better able to provide a stable,
structured, loving and caring environment for Child. Father also
expressed concerns of leaving Child alone with Mother’s oldest
son, [E.G.], due to his history of sexual abuse towards his sister,
[H.G.2].1 Through an Order of Court dated November 18, 2013,
the parties were ordered to undergo custody evaluations. . . .
1
An investigation was conducted by Armstrong
County’s Children and Youth Services which resulted
in a conclusion that the case was “substantiated.”
Numerous Petitions for Contempt and Special Relief have
been presented to the court in the custody matter, as well as the
parties’ divorce matter. There is also a history of cross-PFAs
between the parties, which have all since been dismissed. Over
the past year, the parties have engaged in constant litigation
and have rarely been able to cooperate. The issues of
contention have included discussing adult custody issues around
Child, allegations of sexual abuse and how to deal with Child’s
behavioral issues. Most recently, allegations of sexual abuse,
which allege that [H.G.2] was sexually molesting Child, were
made and presented to the Court.
A Custody Trial was scheduled for August 25 and 26, 2014.
After the presentation of a Motion to Continue to allow Butler
County Children and Youth Services (“CYS”) to conduct their
investigation [of the allegation of abuse by H.G.2 against Child],
an Order of Court was issued on August 25, 2014 granting said
Motion. The same Order of Court also directed Mother’s custody
time to take place two times per week for two hours, either
supervised or in a public setting. Mother was not permitted any
overnights with Child. Lastly, the same Order prohibited
Mother’s oldest son, [E.G.], from being around Child at any time,
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for any reason. The five day custody trial was held on October
27, 28, and 29, 2014, and November 24 & 25, 2014.1
Amended Memorandum Opinion and Order of Court, 6/29/15, at 1-2.
Following trial, an order of court dated January 2, 2015 and entered
January 5, 2015, was issued granting Mother and Father shared legal
custody. Father was awarded primary physical custody with Mother having
visitation. On January 15, 2015, Father filed a petition for special relief,
which resulted in change of exchange times for Mother’s custodial weekends.
Mother filed a motion for reconsideration that was dated January 16, 2015,
and was entered on the docket on February 4, 2015.
Mother filed a notice of appeal and a Pa.R.A.P. 1925(b) statement on
February 4, 2015. On the same day, the trial court entered an order
granting Mother’s motion for reconsideration of the January 5, 2015 order,
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1
The trial court opinion also included, inter alia, the following relevant
factor:
A new allegation was made on November 4, 2014 alleging
Child had been sexually abused by [H.G.2]. This report was
made by Child’s [therapist] after Child revealed [H.G.2] had
contact with Child’s “private parts”. There is no evidence as to
whether this was a new act or the report of a prior act. [CYS
intake investigator] testified that CYS currently has an open case
with the family, and is developing a Family Service Plan. [The
investigator] recommended that Child continue with therapy . . .
and Mother, Father, and all the children have a psychosexual
evaluation. Furthermore, she recommended that [Child] and
[H.G.2] have no further contact until this is “worked out”.
Amended Memorandum Opinion and Order of Court, 6/29/15, at 5.
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and scheduling argument thereon for February 19, 2015. Father’s counsel
submitted a proposal for holiday custody on January 28, 2015, and Mother’s
counsel submitted a holiday custody proposal on February 9, 2015.
While no order on the reconsideration motion was entered, an
amended memorandum opinion and order of court was docketed on June 29,
2015. The amended memorandum opinion and order included a holiday
schedule, which adopted Father’s proposal.
By order dated June 30, 2015 and entered July 6, 2015, the trial court
addressed Mother’s motion for reconsideration, stating that it had erred in
attaching an unedited draft of procedural history and findings of fact to the
January 5, 2015 order. The trial court granted Mother’s motion for
reconsideration, in part, to revise the findings of fact that the trial court
agreed were in error. The trial court therein acknowledged four errors to the
findings of fact and these corrections were reflected in the June 29, 2015
amended memorandum opinion and order of court. On July 29, 2015,
Mother filed an appeal from the June 29, 2015 order2 and opinion. Mother
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2
Mother acknowledged in her notice of appeal at 1165 WDA 2015, from the
June 29, 2015 order, that the appeal at 1022 WDA 2015, from the order
entered January 5, 2015, was then pending. Mother indicated that the
motion for reconsideration filed at 1022 WDA 2015 was never ruled on and
therefore the order entered January 5, 2015 became final on June 4, 2015.
Mother asserted that out of an abundance of caution and the fact that the
June 29, 2015 order addressed holidays for the first time, she filed the
notice of appeal at 1165 WDA 2015. Notice of appeal, 1165 WDA 2015,
7/29/15, at 1.
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also filed a Pa.R.A.P. 1925(b) statement on the same date. The trial court
issued opinions pursuant to Pa.R.A.P. 1925(a) in both appeals. Upon
application by Mother, this Court consolidated the two appeals by order filed
August 12, 2015. Order, 8/12/15.
Mother presents the following issues for our review:
I. Whether the trial court’s Memorandum Opinions and
Orders of Court dated January 2, 2015 and June 29, 2015 are
replete with erroneous statements of fact; with the result that
there is not competent evidence to support the legal conclusions
of the trial court, such that the Honorable Trial Court abused its
discretion and erred as a matter of law in its review and
evaluation of the evidence presented and the application of the
custody factors to such evidence.
II. Whether the Honorable Trial Court erred and abused its
discretion in limiting Mother’s custody of the Child to only every
other weekend where Mother was the Child’s primary physical
custodian from the parties’ separation in August 2013 until
Father presented his Petition containing allegations on August
21, 2014 four days prior to the date the custody trial was to
commence, and the Trial Court’s stated purpose of safety could
be met with a far less restrictive arrangement, as Mother has
custody of her older children on a week-on, week-off basis.
III. Whether the Trial Court abused its discretion, erred as
a matter of law, and violated Mother’s due process where it
limited Mother’s custody time to every other weekend when it
made no finding that additional contact with Mother alone gives
rise to a reasonable suspicion that the Child has been abused by
Mother or is in imminent danger of abuse by Mother.
IV. Whether the Trial Court abused its discretion, erred as
a matter of law, and violated Mother’s due process where it
eliminated all contact between siblings where it made no finding
that contact between the Child and Mother’s two younger sons
gives rise to a reasonable suspicion that the Child has been
abused by those other children or is in imminent danger of abuse
if only Mother and her two younger sons are present.
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V. Whether the Trial Court abused its discretion, erred as
a matter of law, and violated Mother’s due process where it
eliminated all contact between siblings, where it made no inquiry
into the availability of safe contact between the Child and her
siblings.
VI. Whether the decision of the Honorable Trial Court to
limit Mother’s custody time with the Child to every other
weekend and to prohibit contact between the Child and her two
siblings against whom no allegations were made was not in the
Child’s best interest.
VII. Whether the Trial Court abused its discretion, erred
as a matter of law, and violated Mother’s due process where it
eliminated all contact between Child and her half-siblings, E.G.
and [H.G.2], where it made no inquiry into the availability of
safe contact between the Child and those two siblings.
VIII. Whether the Trial Court erred and abused its
discretion when it correctly ruled that the parties are capable of
sufficient communication to share legal custody but then ruled
that their conflict prohibits shared physical custody.
IX. Whether the Trial Court abused its discretion and
erred as a matter of law, when it ordered each party to sign a
release for the therapist for each of the parties including the
Child, to allow each therapist to communicate with the others as
this is a violation of the fundamental right to privacy and the
patient- therapist privilege.
X. Whether the Honorable Trial Court erred and abused its
discretion in adopting wholesale the holiday schedule proffered
by Father where the schedule proposed by Mother was
specifically tailored so that Mother’s holiday time with Child
would not overlap with the holidays when Mother has custody of
her children from a prior relationship, while the schedule
proposed by Father effectively eliminates Mother’s opportunity to
exercise holiday custody if custody of her children from a prior
relationship coincides with the holiday granted her in the Trial
Court’s Order.
Mother’s Brief at 18-21.
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Initially, we observe that because the custody hearings in this matter
were held in October and November of 2014, the Child Custody Act is
applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (holding
when custody evidentiary proceeding commences on or after the effective
date of the Act, January 24, 2011, the provisions of the Act apply).
In custody cases, 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 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.
R.L.P. v. R.F.M., 110 A.3d 201, 207–208 (Pa. Super. 2015) (quoting
C.R.F., 45 A.3d at 443).
We have stated:
[T]he discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special nature
of the proceeding and the lasting impact the result will have on
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)).
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In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we
stated the following regarding an abuse of discretion standard.
Although 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.
Id. at 18–19 (quotation and citations omitted).
In her first issue, Mother asserts that the trial court’s memorandum
opinions and orders entered January 5, 2015 and June 29, 2015, are replete
with erroneous statements of fact. Mother’s Brief at 33. As a result, Mother
argues, there is not competent evidence supporting the legal conclusions of
the trial court. Id. Thus, she maintains the trial court abused its discretion
and erred as a matter of law in its review and evaluation of the evidence
presented and the application of the custody factors to such evidence. Id.In her brief, Mother reproduces language from her motion for
reconsideration in which she specifies nine alleged factual errors made by
the trial court. Id. at 34-35. Mother acknowledges that in its order dated
June 30, 2015, the trial court stated that the “‘Procedural History and
Findings of Fact’ attached to this Court’s Order dated January 2, 2015, was
an unedited draft that, upon review, should not have been attached to the
Order.” Id. at 35. Despite the trial court’s correction of four specific
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findings, Mother argues that the trial court made multiple errors that
evidence a bias against Mother. Id. at 36, 41.
We first note that despite claiming in her brief that nine specific errors
were made by the trial court, Mother makes the following vague claim
regarding these errors in her Pa.R.A.P. 1925(b) statement:
1. The Honorable Trial Court’s Amended Memorandum
Opinion and Order of Court dated June 29, 2015 is replete with
erroneous statements of fact and thus, there is not competent
evidence to support the legal conclusions of the trial court.
2. In light of the number of factual errors set forth in the
Amended Memorandum Opinion and Order of Court dated June
29, 2015, it is clear the Honorable Trial Court abused its
discretion, erred as a matter of law, and did not afford Mother
due process in its review and evaluation of the evidence
presented and the application of the custody factors to such
evidence.
Concise Statement of Errors Complained of on Appeal, 7/29/15, at 2.3
“An appellant’s failure to include an issue in his Rule 1925(b)
statement waives that issue for purposes of appellate review.” Lineberger
v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006). Moreover, this Court has
stated the following regarding vague or overly broad statements:
When a court has to guess what issues an appellant is appealing,
that is not enough for meaningful review. When an appellant
fails adequately to identify in a concise manner the issues sought
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3
We note that Mother included the identical language in her Pa.R.A.P.
1925(b) statement filed in her appeal at 1022 WDA 2015, with the exception
of reference made to the memorandum opinion and order of court entered
January 5, 2015. Concise Statement of Errors complained of on Appeal,
7/6/15, at 2.
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to be pursued on appeal, the trial court is impeded in its
preparation of a legal analysis which is pertinent to those issues.
In other words, a Concise Statement which is too vague to allow
the court to identify the issues raised on appeal is the functional
equivalent of no Concise Statement at all. While
[Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998)]
and its progeny have generally involved situations where an
appellant completely fails to mention an issue in his Concise
Statement, for the reasons set forth above we conclude that
Lord should also apply to Concise Statements which are so
vague as to prevent the court from identifying the issue to be
raised on appeal.
Id.Indeed, in its Pa.R.A.P. 1925(a) opinion, the trial court expressed its
inability to fully address Mother’s claim due to her failure to set forth in her
Pa.R.A.P. 1925(b) statement the specific “factual errors” she was alleging.
Trial Court Opinion, 9/17/15, at 2. Because Mother’s vague Pa.R.A.P.
1925(b) statement has hampered appellate review, we find her first issue
waived.
Moreover, we note the trial court’s explanation regarding its correction
of the findings of fact:
The Memorandum Opinion and Order of Court is not
“replete with erroneous statements of fact.” The “Procedural
History of Findings of Fact” attached to the Court’s January 2,
2015 Memorandum Opinion was an unedited preliminary draft
that, upon review, should not have been the final copy attached
to the Order. However, upon review of the thirteen and a half
pages, the Court found four “errors,” most of which were clerical.
. . . The Court did not base any decision on the above factual
“errors,” but notes that they were clerical errors only, and that
the Court’s legal analysis and decision were based upon the
Court’s personal recollection of the facts which was consistent
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with the record. None of the four “errors” were considered or
given any weight in the Court’s decision.
Trial Court Opinion, 9/17/15, at 1-2.
Thus, the trial court reviewed its Findings for errors, and subsequently
identified and corrected those errors as reflected in its June 29, 2015
amended memorandum opinion and order of court. Additionally, the trial
court explained that its legal analysis and decision were based upon the trial
court’s personal recollection of the facts that were consistent with the
record. Accordingly, we discern no abuse of discretion by the trial court.
Mother is entitled to no relief on this claim.
In issues II through VII, Mother asserts various challenges to the
custodial arrangement created by the trial court. Mother’s Brief at 41-48.
Mother summarized her argument on these issues as follows:
The Trial Court erred and abused its discretion in limiting
the Mother’s custody time to two days out of every fourteen,
with twelve days intervening. One of the Trial Court’s rationale’s
for so restricting Mother’s custody time was to ensure the Child’s
safety due to concerns regarding her interactions with her older
siblings, Mother’s children from a prior relationship. Any safety
concerns of the Trial Court could have been assuaged with a far
less restrictive regime, where Mother has custody of her older
children on a week-on, week-off basis and the failure to
implement a less restrictive custody schedule infringes on
Mother’s fundamental interest in the care and welfare of her
child. The Trial Court has also contradicted its own statement
that it did not intend to restrict custody time, but rather to “give
each family member as much time with the child, in a safe
environment, as possible.”
The Trial Court erred by limiting Mother’s custody time to
every other weekend, where there was no finding that Mother
was a risk to the Child, and by limiting or eliminating sibling
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contact. The Trial Court failed to explore other options in this
exceptionally “hard” case, electing instead to allow the unity of
the family to suffer.
Mother’s Brief at 30-31. Additionally, Mother specifically argues in her
second issue that the trial court erred and abused its discretion in limiting
Mother’s custody of Child to only every other weekend where Mother was
Child’s primary physical custodian from the time the parties separated in
August 2013 until August 21, 2014, when Father presented his petition.
Mother’s Brief at 41.
With any custody case decided under the Act, the paramount concern
is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338.
Section 5338 of the Act provides that upon petition, a trial court may modify
a custody order if it serves the best interests of the child. 23 Pa.C.S.
§ 5338(a). The best interest factors that the trial court must consider are
set forth at 23 Pa.C.S. § 5328. E.D. v. M.P., 33 A.3d 73, 80–81 n.2 (Pa.
Super. 2011).
Section 5328(a) of the Act provides as follows:
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
party.
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(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.
(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
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another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S. § 5328.4
In A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court explained:
“All of the factors listed in section 5328(a) are required to be
considered by the trial court when entering a custody order.”
J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis
in original). . . . The record must be clear on appeal that the
trial court considered all the factors. Id.Section 5323(d) provides that a trial court “shall delineate
the reasons for its decision on the record or 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). Section 5323(d) applies
to cases involving custody and relocation. A.M.S. v. M.R.C., 70
A.3d 830, 835 (Pa. Super. 2013).
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4
Effective January 1, 2014, the statute was amended to include an
additional factor at 23 Pa.C.S. § 5328(a)(2.1), providing for consideration of
child abuse and involvement with child protective services. Although
applicable at the time of the custody hearings in this matter, there was no
evidence that would have required the trial court’s consideration of this
factor as there was no claim regarding parental abuse.
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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., 87 A.3d at 822–823.
In the present appeal, the trial court thoroughly discussed the sixteen
custody best-interest factors in its opinion and order. Amended
Memorandum Opinion and Order of Court, 6/29/15, at 16-29. We decline to
duplicate that lengthy recitation here. A review of the record reflects that
the trial court’s analysis and conclusions regarding those factors are
supported by the evidence of record. Thus, based on those determinations,
we conclude that the trial court did not err or abuse its discretion in crafting
the present custody arrangement and did so with Child’s best interest in
mind.
Indeed, the trial court’s studied consideration of this matter is
reflected in the following statement it made to the parties:
I’m going to be very honest with [you] in that because of the
Court’s Findings of Facts in this case, from a practical standpoint,
this is one of the hardest orders to draft. We have so many
children. We have children that are not under this Court’s
jurisdiction. And we have at least two children who have direct
evidence, at least as my Findings go, where we have either
sexual abuse or attempt at sexual abuse or concerns of sexual
abuse at the very least. I mean -- so, I’m going to be honest
with you: You are not going to get an Order that addresses it
all. I just can’t. I mean, I went back for weeks and weeks,
looking at: How do I let the children have time with the siblings
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who are not involved with the two sexual issues, and how -- you
know, how does Mom’s extended family get time with the – I
mean, it is just nearly impossible to think of all the potential
scenarios that could exist. And I have two parents who are
going to need to be micromanaged. There is no question.
Neither one of them are capable of taking a big picture and
applying it appropriately and in the best interest of the children
without micromanaging. So -- with a case that is very difficult to
micromanage. So, I don’t doubt that you’re going to walk away
with some questions . . . . You are going to walk away going,
What do we do here? And I feel the same frustration that you
do, and I’m sure it’s difficult in discussing it with your clients. I
just want you to understand my mindset and where I’m coming
from.
My primary consideration will be to do as much as is
humanly possible, what is [Child’s] best interest, balancing the
interest of safety and emotional security with the interests of her
not feeling like she’s the weird one, out of place, because she
can’t be with some of her – I mean, there is no good answer
here -- I’m just going to be honest – unless, or, in my hope, that
through therapy some of these issues can be addressed. The
Court can’t solve them. I can only try to draft an Order that, as
much as possible, puts [Child’s] best interest with those
balances.
N.T., 2/19/15, at 32-34.
Furthermore, with regard to Mother’s argument that the trial court
erred by failing to afford proper consideration to her role as Child’s primary
caretaker, we note that this Court has reasoned that the Act indicates that
the only factors given weighted consideration are factors that affect the
safety of the child. M.J.M., 63 A.3d at 338. The M.J.M. panel explained:
The language of [the Act] is clear. It explicitly provides
that all relevant factors shall be considered by the trial court,
and the only factors that should be given “weighted
consideration” are factors that “affect the safety of the child[.]”
Id. “When the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the
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pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b); see also
Ario v. Ingram Micro, Inc., 600 Pa. 305, 317, 965 A.2d 1194,
1201 (2009). If the Pennsylvania Legislature intended for extra
consideration be given to one parent because of his or her role
as the primary caretaker, it would have included language to
that effect. Stated another way, the absence of such
language indicates that our Legislature has rejected the
notion that in analyzing both parents, additional
consideration should be given to one because he or she
has been the primary caretaker.
Furthermore, the consideration the primary caretaker
doctrine sought to address (which parent spent more time
providing day-to-day care for a young child) is addressed
implicitly in the enumerated factors. See, e.g., 23 Pa.C.S.A. §§
5328(a)(3) (“The parental duties performed by each party on
behalf of the child.”); (a)(4) (“The need for stability and
continuity in the child’s education, family life and community
life.”). The considerations embraced by the primary caretaker
doctrine have been woven into the statutory factors, such that
they have become part and parcel of the mandatory inquiry.
In short, the Legislature has created a mandatory inquiry
to aid trial courts in determining the best interests of the child in
a custody dispute. In doing so, it articulated the components of
a parent’s obligations and characteristics, and a child’s needs
and welfare, that must be incorporated in the trial court’s
custody decision where the parents are incapable of doing so on
their own. In setting forth these factors, the Legislature has
required the trial court to give additional weight only to factors
that it finds affect the safety of the child. This language is clear,
and we cannot expand it to provide that a trial court must also
give weighted consideration to a party’s role as primary
caretaker. We simply cannot graft the judicially-created primary
caretaker doctrine on to the inquiry that the Legislature has
established, 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.
We hasten to add that this conclusion does not mean that
a trial court cannot consider a parent’s role as the primary
caretaker when engaging in the statutorily-guided inquiry. As
discussed above, a trial court will necessarily consider a parent’s
status as a primary caretaker implicitly as it considers the
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section 5328(a) factors, and to the extent the trial court finds it
necessary to explicitly consider one parent’s role as the primary
caretaker, it is free to do so under subsection (a)(16). 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.”). Our decision here
does not change that.
M.J.M., 63 A.3d at 338–339 (footnote omitted) (emphasis added).
Based on this Court’s discussion of the primary caretaker doctrine in
M.J.M., we find no merit to Mother’s contention regarding the weight the
trial court afforded the fact that Mother was previously Child’s primary
caretaker. We find that the trial court carefully considered all section
5328(a) factors, that the trial court’s conclusions are not unreasonable as
shown by the evidence of record, and we find no error of law on the part of
the trial court. We, therefore, will not disturb the trial court’s determination.
C.R.F., 45 A.3d at 443.
In issue VIII, Mother asserts that the trial court erred and abused its
discretion in ruling that the conflict between the parties prohibited shared
physical custody. Mother’s Brief at 48. Mother seems to be arguing that
this determination is not supported by the trial court’s other findings,
specifically, the trial court’s conclusion that the parties are capable of
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communication sufficient to allow for shared legal custody. Id.5 Mother
argues that since the trial court found that the parties can share legal
custody, there should be no reason their conflict should prevent shared
physical custody. Id. at 52.
In issuing its custody order, the trial court made the following
determination in considering factor 5328(a)(13): 6
The parties are able to communicate at a minimum level, at
best. They constantly point the finger at the other party and fail
to look at themselves for any kind of blame. There is an
extremely high conflict among the parties. Co-parenting
counseling as well as individual counseling would help them get
through their communication issues with regards to Child. The
parties should also keep their communication to the limited
nature of Child and her needs and well-being. At this point in
time, the Court believes the parties are capable of
communicating on a minimal level so that shared legal custody is
possible, however, their conflict prohibits shared physical
custody.
Amended Memorandum Opinion and Order of Court, 6/29/15, at 28.
Additionally, in its Pa.R.A.P. 1925(a) opinion, the trial court provided
the following analysis in response to this issue:
____________________________________________
5
Despite identifying this as the issue, Mother focuses much of her discussion
in this section of her brief on how the change in Mother’s custodial time
would affect Child, and the fact that Mother previously had primary physical
custody of Child. Mother’s Brief at 48-51.
6
This factor requires that the court consider “[t]he 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.” 23
Pa.C.S. § 5328(a)(13).
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The parties are able to communicate, however minimally
due to their hostility toward the other. While the level of
communication may impact sole physical custody, there was no
evidence to support anything but shared legal custody. In
determining whether to award shared legal custody, the trial
court must consider the following factors: whether both parents
are fit, capable of making reasonable child rearing decisions, and
willing and able to provide love and care for their children,
whether both parents evidence a continuing desire for active
involvement in the child’s life, whether the child recognizes both
parents as a source of security and love; and whether a minimal
degree of cooperation between the parents is possible. . . . . An
award of shared legal custody is appropriate where the parties
have not shown an inability to cooperate to a minimal degree or
to isolate their personal conflicts from their role as parents. . . .
The Court considered all of the above enumerated factors and
the parties’ ability to communicate in awarding shared legal
custody.
Due to the serious nature of the alleged abuse, Mother’s
inability or unwillingness to provide reasonable boundaries
between her children so as to maintain a safe environment for
Child, and the Court’s optimism that Mother would seek
counseling, the Court found that it would be in Child’s best
interest for Mother and Father to have shared legal custody.
Prospectively it is important that each parent be able to
participate in and have input in medical, emotional and
educational decisions for Child.
Trial Court Opinion, 9/17/15, at 5-6.
The trial court’s determination is supported by the evidence of record
and is not unreasonable in light of that evidence. The trial court was the
sole judge of the credibility of the parties and the level of hostility exhibited
by the parties towards each other. We decline Mother’s invitation to second-
guess those determinations by the trial court. As we have noted:
[t]he 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
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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.
S.M. v. J.M., 811 A.2d 621, 623 (Pa. Super. 2002). Because the trial
court’s determination on this issue and the overall custody arrangement is
reasonable and focused on the best interests of Child, we cannot agree that
the trial court erred or abused its discretion in making this determination.
Mother’s claim fails.
In her next issue, Mother contends that the trial court abused its
discretion and erred as a matter of law when it ordered each party to sign a
release for their respective therapists so as to allow the therapists to
communicate. Mother’s Brief at 54. Mother argues that such compulsion is
a violation of the fundamental right to privacy and the patient-therapist
privilege. Id.In response to this issue, the trial court provided the following
explanation:
It was the Court’s understanding that counsel for all
parties agreed that the parties and Child would be best served if
the counselors/therapists could communicate for treatment
purposes only. On February 19, 2015, Counsel for Mother
confirmed that Mother was still agreeable to do so. The Court
agrees that the Order of Court dated January 2, 2015, paragraph
seven, should be amended to read “may” rather than “shall.”
Trial Court Opinion, 9/17/15 at 6. Moreover, the amended custody order of
June 29, 2015, does not include a requirement that the parties sign releases
for their respective therapists to allow for sharing of information.
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In her appellate brief, Mother asserts the following:
This issue was raised in light of the Trial Court’s
Memorandum Opinion and Order dated January 2, 2015. In
reviewing the Trial Court’s Amended Memorandum Opinion and
Order entered June 29, 2015, . . ., it appears clear there was no
intention to impose on any party’s privacy rights.
Mother’s Brief at 54.
Thus, there is no longer any requirement that the parties sign releases
as part of the custody order, and Mother is no longer asserting a violation of
her privacy rights. Accordingly, we need not discuss this issue further.
In her final issue, Mother asserts that the trial court erred and abused
its discretion in adopting wholesale the holiday schedule proffered by Father.
Mother’s Brief at 55. Mother maintains that the schedule she proposed was
specifically tailored so that Mother’s holiday time with Child would not
overlap with the holidays when Mother has custody of her other children.
Id. Mother contends that the schedule proposed by Father and adopted by
the trial court effectively eliminates Mother’s opportunity to exercise holiday
custody of Child if custody of her other children coincides with that
designation. Id.The adoption of the holiday custody schedule by the trial court was
made in light of and consideration of the overall custody determination of
the trial court. As noted, the trial court thoroughly and carefully considered
all of the sixteen factors listed under 23 Pa.C.S. § 5328(a)(1)-(16) in
crafting the custody arrangement. The holiday schedule adopted by the trial
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court is consistent with those considerations and the trial court’s focus on
the best interests of Child. We cannot conclude that the trial court’s adopted
holiday schedule is unreasonable.
Furthermore, we note that in her brief, Mother asserts that she does
not have a specific holiday schedule for custody of her other children.
Mother’s Brief at 56 n.34. Therefore, we determine that Mother’s assertion
that she will be effectively precluded from exercising any holiday custody of
Child due to a coincidence of custody of her other children lacks merit.
Accordingly, we cannot conclude that the trial court erred or abused its
discretion in establishing the holiday custody schedule.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/2016
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