Bane, A. v. Bane, A. ( 2022 )

J-S11017-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
AMBER BANE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANDREA BANE AND JONATHAN : No. 1042 WDA 2021
JULIAN :
Appeal from the Order Entered August 5, 2021
In the Court of Common Pleas of Greene County Civil Division at No(s):
A.D. No. 120 of 2017
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY OLSON, J.: FILED: April 25, 2022
Appellant, Amber Bane (hereinafter “Maternal Grandmother”), appeals
from the order entered on August 5, 2021, which granted Jonathan Julian
(hereinafter “Father”) primary physical custody of the minor child, J.B.
(hereinafter “Child”), who was born in September 2016. We affirm yet remand
for a limited purpose.
Father and Andrea Bane (hereinafter “Mother”) are the parents of Child.
On February 9, 2017, the trial court entered a custody consent order, which
declared that Father, Mother, and Maternal Grandmother agreed that the
three would share legal custody over Child and that Maternal Grandmother
would have primary physical custody of Child. See Custody Consent Order,
2/9/17, at 1.
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On December 28, 2020, the trial court entered an order declaring that
Maternal Grandmother appeared in front of the court, pro se, and informed
the trial court that Father violated the February 9, 2017 custody consent
order. Specifically, the December 28, 2020 order noted that Maternal
Grandmother claimed:
[Father] had permission of [Maternal Grandmother] to visit
with his son during the Christmas holiday [and] that [Father]
was scheduled to return [Child] to [Maternal Grandmother]
on December 23, 2020. [Child] has not yet been returned,
and [Maternal Grandmother] indicates that [Father] has left
Pennsylvania with [Child] and is now located in the State of
Hawaii.
Trial Court Order, 12/28/20, at 1.
The trial court further declared that, “[a]ssuming [Maternal
Grandmother’s] allegations . . . are true, [Father] would be in violation of the”
February 9, 2017 custody consent order. Id. at 2. The trial court then
scheduled a contempt hearing on the matter for March 19, 2021. See Trial
Court Order, 1/6/21, at 1.1
On March 8, 2021, Father filed a petition for modification of custody and
requested that the trial court grant him primary physical custody over Child.
Father’s Petition for Modification of Custody, 3/8/21, at 1-2. Father also
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1 After Maternal Grandmother obtained counsel, counsel filed a written petition
for contempt against Father. The written petition for contempt requested that
the trial court hold Father in contempt “for violating the February 9, 2017
Custody Consent Agreement by failing to return [Child] to [Maternal
Grandmother] by December 23, 2020.” Maternal Grandmother’s Petition for
Contempt, 3/9/21, at 2.
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requested that the trial court grant him permission to relocate Child to Hawaii,
as “Father is an active duty servicemember in the United States Army and is
currently stationed in Hawaii.” Id. at 1.
On March 19, 2021, the trial court entered a scheduling order which
declared that the previously scheduled, March 19, 2021, hearing on Maternal
Grandmother’s contempt petition was postponed until April 19, 2021. The
scheduling order declared that, at the April 19, 2021 hearing, the trial court
would hear testimony concerning “all outstanding issues” in the case. Trial
Court Order, 3/19/21, at 1.
On April 19, 2021, the trial court held the scheduled hearing. During
the hearing, Father testified that he is 24 years old and married to a woman
named Michelle Julian (hereinafter “Father’s Wife”). N.T. Hearing, 4/19/21,
at 11. As Father testified, he is an active duty member of the United States
Army and currently stationed in Schofield Barracks Army Base, in Hawaii.
Father testified that he rents a home on the military base in Wahiawa, Hawaii;
the home has two-and-a-half bedrooms, one-and-a-half bathrooms, a
fenced-in backyard, and a garage port. Id. at 20. He lives with his wife, his
sister, and Child. Id. at 12.
Father testified that he normally works Monday through Friday and his
workdays consist of the following:
So, I wake up at five a.m. Monday through Friday, every day,
and I get to work at 5:30 to show up for first formation at
6:00. And then at 6:30 we start P.T., . . . which is physical
training where we go basically run, lift weights, whatever we
decided to do for that day. And then we get done around
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7:45-8:00. Depends on the day. Depends on what we are
doing. And I go back home, I usually have breakfast with the
kids and everything, and then I go back to work at 9:30 and
I’m at work till 11:30 and we get released for lunch from
11:30 to [1:00 p.m.] . . . And then I go back to work at
1:00 and [work until] . . . 3:30 to 4:00. . . . Fridays – it’s
called Aloha Fridays, so we get off early every Friday at like
no later than [2:00 p.m.]
Id. at 18-19.
During the day, Child stays at the house with Father’s Wife, who receives
disability payments. Id. at 19-20.
Father testified that Child suffers from oppositional defiant disorder
(“ODD”) and attention-deficit/hyperactivity disorder (“ADHD”) and that Child
“stutters pretty bad.” Id. at 29-31. Father testified that Child is currently
being treated by a speech therapist for his stuttering. Id. at 31.
As Father testified, Child refers to Father’s Wife as “Momma” and
“show[s] love and affection towards her.” Id. at 38. Child calls Father’s sister
“Sissy” and views her as a “big sister.” Id.
Father testified that, in September 2019, Maternal Grandmother
relinquished primary custody of Child to him. Id. at 46. Specifically, Father
testified that, in 2019, he and Maternal Grandmother were living in Georgia
and were engaged in discussions regarding a change in primary custody for
Child. Id. at 48. Father testified that, in September 2019, he and Maternal
Grandmother signed a “custody agreement,” wherein they agreed that Father
would be the primary physical custodian of Child. See id. at 51-52; Father’s
Exhibit “J” at 2. However, the “custody agreement” was not filed in any court.
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Father testified that, after he and Maternal Grandmother signed the
“custody agreement,” Child began staying with him. N.T. Hearing, 4/19/21,
at 54. Further, Father testified that he continuously notified Maternal
Grandmother of where he and Child were living and where the Army was
sending him. Id. at 55. Father testified that he specifically informed Maternal
Grandmother that he and Child were going to move to Hawaii and that
Maternal Grandmother “was okay” with this fact. Id.
As Father testified, in July 2020, he and Father’s Wife were “going
through a rough spot in [their] marriage” and Maternal Grandmother asked
Father if Child could stay with her. Id. at 60. Father agreed and Child stayed
with Maternal Grandmother from July until December. Id. at 59-60.
Father testified that, in December 2020, he had holiday leave from the
Army. He testified that he picked Child up from Maternal Grandmother’s
house, spent time with relatives, and then flew back to Hawaii with Child. Id.
at 62. Father testified that, approximately two days after he was reunited
with Child, he learned that Maternal Grandmother was “not pleased with [him]
not returning [Child] to her” and told Father that “she had no intention on . .
. giving [Child] back” to Father. Id. at 64.
Father testified that Maternal Grandmother wanted him to return Child
to her after Father’s holiday leave was over. Id. at 65. However, Father
testified:
Based off the documents I had and the understanding I had
from legal aid . . . I was under the impression . . . [that] the
original [February 2017 custody consent order] . . . was null
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and void at this point [because of the un-filed, September
2019 “custody agreement” between Father and Maternal
Grandmother].
Id. at 65-66.
Father testified that, if he were awarded primary physical custody of
Child and allowed to live in Hawaii, a “fair” custody arrangement would allow
for Mother and Maternal Grandmother to have partial custody of Child for “a
couple weeks at a time . . . and then also [allow] for . . . some visits for them
to come see us.” Id. at 79. Father testified that he has “no concerns about
[Maternal Grandmother’s] residence or house” and does not believe that
Maternal Grandmother consumes controlled substances. Id. at 101-102.
Maternal Grandmother testified that she initially took custody over Child
because:
both [Mother and Father] were unemployed, didn’t have a
house, a home, nowhere to take [Child], and [Mother] was
moving around a lot and [Father] was with my sister. So,
instead of [Child] being [dragged] around, I got custody of
him, so he had a stable environment.
Id. at 161.
She testified that Child lived with her continuously from the time he was
born until 2019 and, during that time, Father had limited contact with Child.
See id. at 140. As Maternal Grandmother testified, she and Child moved to
Georgia in 2019 and, in July of that year, made contact with Father and
Father’s Wife, as they were also living in Georgia. She testified that Father
visited her in July 2019 and, during this visit:
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I told him if he wanted to be in [Child’s] life, he can’t just
come once a week, once every other week, like – the baby
don’t know you anymore, so you need to come more often.
So, he did. He was coming two, three, sometimes four days
a week, and we would spend time together. We [] actually
all became really close. And if we weren’t at their house,
they were at our house. And so, the boys were still together,
and I was still with [Child], they were with [Child]. It worked
out pretty good for a while.
Id. at 141-142.
Maternal Grandmother testified that she moved back to Pennsylvania in
February 2020; when she moved, Child stayed in Georgia and lived with
Father’s Wife while Father was in basic training. Id. at 142. She testified that
she left Child in Georgia because:
I wasn’t able to take [Child] to [Father’s] graduation from
[basic training]. He wouldn’t have been able to see his dad
as much. So, we left [Child] down there for a little while and
that gave me time to go home, get my house ready instead
of doing it with two toddlers. So, it was like a trial thing –
like a vacation. He was down there. We were seeing what
was going to happen.
Id. at 143.
Maternal Grandmother testified that, when she left Child in the care of
Father’s Wife, she did not intend to abandon her rights under the February
2017 custody consent order. Instead, she viewed the situation as a “trial run”
[t]o see if [Father and Father’s Wife] were able to handle
[Child] or what was going to happen because [Father] was
trying to get [Child] back which as him being his child, I was
okay with it – him trying. But at the time, he wasn’t even
back with [Child] for a year after not seeing him for over two.
So, . . . that’s why we didn’t set a date [for Father to return
Child].
Id. at 182.
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Maternal Grandmother further testified that, in July 2020, Father’s Wife
drove Child from Georgia to Maternal Grandmother, so that Child could stay
with Maternal Grandmother. Id. at 144. She testified that Child was supposed
to live with her, in Pennsylvania, from that point forward.
As Maternal Grandmother testified, she, Father, and Father’s Wife
arranged for Child to spend some visitation time with Father in December
2020. They agreed that Father would return Child to Maternal Grandmother
on December 23, 2020. Id. at 145. Maternal Grandmother testified that, “a
day or two before they were supposed to bring [Child] home,” Father and
Father’s Wife cut off all contact with Maternal Grandmother. Id. at 146. As
a result, Maternal Grandmother contacted the police. Id. at 147. Maternal
Grandmother testified that Father did not permit her to have any contact with
Child until March 2021. Id. at 148-149.
Regarding the un-filed, July 2020 “custody agreement” that Father
testified was signed by both him and Maternal Grandmother – and that
purportedly transferred primary physical custody of Child to Father – Maternal
Grandmother testified that she did not sign the document or initial the pages.
Id. at 154. She further testified that she never relinquished her custodial
rights to Child. Id. at 155.
Mother also testified at the hearing and informed the trial court that she
wished for Maternal Grandmother to retain primary physical custody over
Child. Id. at 217.
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On August 4, 2021, the trial court granted Father primary physical
custody over Child and allowed Father to relocate Child to Hawaii. Maternal
Grandmother filed a timely notice of appeal and raises two issues to this Court:
[1.] Whether the trial court committed an error of law and
abuse of discretion in failing to rule on [Maternal
Grandmother’s] petition for contempt against [Father] after
conducting a full evidentiary hearing[?]
[2.] Whether the trial court committed a gross abuse of
discretion when granting Father primary physical custody
where Father wrongfully removed the minor child from the
jurisdiction of Pennsylvania, failing to follow the custody
consent order, and continuously failed to communicate with
[Maternal Grandmother?]
Maternal Grandmother’s Brief at 5 (some capitalization omitted).
First, Maternal Grandmother claims that the trial court erred when it
“failed to rule on” her petition for contempt against Father. Id. “An order of
contempt is final and appealable when the order contains a present finding of
contempt and imposes sanctions.” In re K.K., 957 A.2d 298, 303 (Pa. Super.
2008). Here, the trial court did not rule on Maternal Grandmother’s petition
for contempt; therefore, we do not have jurisdiction to consider the merits of
any claim of “error.” Nevertheless, we remand this matter to the trial court,
so that the trial court may finally rule upon Maternal Grandmother’s petition
for contempt.
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Next, Maternal Grandmother claims that the trial court abused its
discretion when it granted Father primary physical custody of Child.2
Our standard of review regarding custody decisions 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.
We have stated:
The discretion that a trial court employs in custody matters
should be accorded the utmost respect, given the special
nature of the proceeding and the lasting impact the result
will have on the lives of the parties concerned. Indeed, the
knowledge gained by a trial court in observing witnesses in
a custody proceeding cannot adequately be imparted to an
appellate court by a printed record.
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2 The trial court’s failure to rule on Maternal Grandmother’s separate petition
for contempt does not affect our jurisdiction over her appeal from the trial
court’s final child custody order. The child custody order was entered after a
full evidentiary hearing and was intended by the trial court to constitute a
complete resolution of the custody claims pending between the parties. See
G.B. v. M.M.B., 670 A.2d 714, 720 (Pa. Super. 1996) (“a custody order will
be considered final and appealable only if it is both: 1) entered after the court
has completed its hearings on the merits; and 2) intended by the court to
constitute a complete resolution of the custody claims pending between the
parties”).
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[W]e [have] 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.
With any custody case decided [], the paramount concern is the
best interests of the child. 23 Pa.C.S.A. §§ 5328, 5338.
* * *
Section 5338 of the [Child Custody] 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.A. § 5338. Section 5328(a)
sets forth the sixteen best-interest factors that the trial court must
consider.[3] Trial courts are required to consider all of the factors
listed in section 5328(a) when entering a custody order.
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3 The sixteen factors set forth in Section 5328 are 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:
(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.
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____________________________________________
(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
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).
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Further, we have explained:
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. Additionally, section 5323(d)
requires the trial court to set forth its mandatory
assessment of the sixteen section 5328(a) custody factors
prior to the deadline by which a litigant must file a notice of
appeal.
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).
S.S. v. T.J., 212 A.3d 1026, 1034-1035 (Pa. Super. 2019) (quotation marks
and some citations omitted) (emphasis in original).
On appeal, Maternal Grandmother claims that the trial court abused its
discretion when it granted Father primary physical custody over Child
because: 1) Father violated the February 2017 custody consent order when
he took Child to Hawaii in December 2019; and 2) Child has resided with
Maternal Grandmother “for almost his entire life.” Maternal Grandmother’s
Brief at 11. Maternal Grandmother’s claims challenge the weight of the
evidence in this case. However, as the trial court ably explained, the trial
court did not abuse its discretion when it granted Father primary physical
custody over Child:
As [the trial court] told the parties at [the] hearing, whatever
else is true in this case, [the trial court has] a positive opinion
of [Father, Father’s Wife, Mother, and Maternal
Grandmother] in terms of their intentions. In fact, based on
the testimony of all parties, [the trial court believes] the
parents made a good decision in placing [Child] with
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[Maternal Grandmother] at the time of his birth. As they both
indicated, back then they lacked the resources to care for
[Child]. For her part, [Maternal Grandmother] stepped up
when asked and did the job which the parents felt they could
not. The situation, however, has changed.
While [Father] may have had an improper understanding of
the legalities of the custody situation in relocating to Hawaii
in light of the [custody consent order from February 2017]
and the fact the Georgia order was never filed, presently he
has more than competently assumed the primary parental
role. Further, he now has the additional resource of his wife
. . . to care for [Child].
Under Pennsylvania law, where that is the case, the burden
that the [Maternal Grandmother] faces in overcoming the
right of a parent to custody is a formidable one. It necessarily
requires some showing by [Maternal Grandmother] that
[Father] is somehow inadequate to the task of parenting
[Child] at this point in time. In fact, [Maternal Grandmother]
makes no such case in her presentation. Instead, she
essentially contends her familiarity with [Child] is greater
than [Father’s] based on her longstanding relationship. On
this basis, she seeks to continue to be [Child’s] primary
custodian. She makes no case that [Father] is somehow
inadequate. Those observations aside, we turn to the
custody factors as the format for further discussion.
1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
. . . [B]oth [Father] (presently) and [Maternal Grandmother]
(historically) have been important persons in [Child’s] life.
There has also been some cooperation in the past. In fact,
when [Maternal Grandmother] moved to Georgia, there was
no apparent difficulty in reintroducing [Father and Father’s
Wife] to [Child] once everyone was in the same state.
Similarly, in June 2020, when [Father] and [Father’s Wife]
encountered difficulties, they immediately relied on [Maternal
Grandmother] and voluntarily relocated [Child] to [Maternal
Grandmother] in Pennsylvania. It seems that only the more
recent events of [Maternal Grandmother] keeping [Child] and
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[Father] relocating to Hawaii on his own motion without
notice to [Maternal Grandmother] ended this cooperation.
Viewing the parties, [the trial court is] hopeful the resolution
of this case can lead to more cooperation.
2) The present and past abuse committed by a party or
member of the party’s household, whether there is 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.
Although there was some testimony in the case from
[Father’s Wife] and [the paternal mother-in-law], that
[Maternal Grandmother] in isolated instances was observed
to be “verbally” abusive to [Child] at times and on one
occasion denied him access to the bathroom so that he soiled
himself [after] which she “whaled” on him leaving a welt,
there is no real pattern of abuse established on the part of
anyone. This is not a major factor in the case.
3) The parental duties performed by each party on behalf of
the child.
In terms of parental duties, there is no testimony that
[Maternal Grandmother] did not perform these duties in an
appropriate fashion during [Child’s] residence with her.
Similarly, [Father’s] testimony, the exhibits, and the
testimony of [Father’s Wife] all suggest [Child] is receiving
very appropriate care presently residing with [Father]. This
is not a major issue in the case.
4) The need for stability and continuity in the child’s
education, family life and community life.
This factor greatly favors [Father]. He is the right age and
has the requisite stability to ensure continuity during [Child’s]
minority. He also has a very interested and involved wife as
additional support. . . .
5) The availability of extended family.
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There is no question that since the distance between
Pennsylvania and Honolulu is some thousands of miles,
whatever decision [the trial court makes] will inevitably affect
extended family. However, there is no testimony in the case
that extended family have been particularly involved with
[Child]. On the contrary, it appears that whether [Child] was
with [Father] or [Maternal Grandmother], the individuals
living in the home where [Child] was residing were the only
people who were truly involved in [Child’s] upbringing and
social life – not extended family.
6) The child’s sibling relationships.
This is not a significant factor in the case presently.
7) The well-reasoned preference of the child based on the
child’s maturity and judgment.
This is not a factor in the case presently due to [Child’s]
young age.
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.
This case does not involve a parent turning the child against
another parent. [Such a claim has not been made by any
party in this case.] In fact, there appears to be a positive
relationship between [Child] and everyone involved until
recently.
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.
Presently, [the trial court finds] that this is [Father]. While
the military may require travel and changes of location, both
[Father’s] impressive involvement presently and the fact he
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has his wife as an additional caregiver is a considerable
strength. [Maternal Grandmother] has no similar support
system [and Mother] is only casually involved per her own
testimony and expressed no intention of involving more.
10) Which party is more likely to attend to the daily, physical,
emotional, developmental, education and special needs of
the child.
Again, this factor favors [Father]. While [Maternal
Grandmother] was apparently successful with [Child] while
he was much younger, [Father] is currently in a better
position both to provide and parent going forward.
11) The proximity of the residences of the parties.
This is a powerful factor in the case with respect to the
relocation. Obviously, given the distances it is not possible
to keep everyone involved at the level which they (or [the
trial court]) would like to maintain if they are the party who
does not have primary custody. It is a factor we can only
overcome to the maximum extent possible consistent with
the resources of the parties.
12) Each parent’s ability to care for the child or ability to
make appropriate childcare arrangements.
This is clearly [Father]. [Maternal Grandmother] must act
alone while she has full[-]time employment. [Father] has a
non-working wife who is available to attend to any of [Child’s]
needs at any time he is on duty.
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 the child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
The level [of] conflict in this case is low. The parties
presented their positions in a very moderated fashion and
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neither sought to generate conflict at [the] hearing. Simply
put, they are looking for resolution. Notwithstanding, both
[Father] relocating to Hawaii without notice and [Maternal
Grandmother] keeping [Child] in calendar year 2020 beyond
the understood period suggest there may be more control
issues than appeared at [the] hearing. Yet, both parties
appeared before the [trial] court seemingly willing to comply
with any order [the trial court should] enter.
14) the history of drug or alcohol abuse of a party or member
of a party’s household.
There were allegations of [Maternal Grandmother] drinking
alcohol excessively from several witnesses. [Father] shares
these concerns.
15) The mental and physical condition of a party or member
of a party’s household.
There is nothing in the case to suggest a mental or physical
condition of any of the parties as a significant factor.
Conclusion
In closing, in [the trial court’s] judgment all the parties
involved are legitimately interested in [Child]. It is [the trial
court’s] belief, however, that both the natural preference
which a parent receives over a third party under the law and
[the trial court’s] discussion demonstrate conclusively [that
Father] should be the primary custodian and be able to
exercise sole legal and physical custody going forward.
Trial Court Opinion, 8/4/21, at 9-16 (some capitalization omitted).
Based upon the trial court’s careful analysis in this case, we conclude
that the trial court did not abuse its discretion when it awarded Father primary
physical custody over Child. Maternal Grandmother’s claims that the trial
court failed to properly weigh the fact that Father violated the February 2017
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custody consent order and fact that Child has resided with Maternal
Grandmother “for almost his entire life” fail to amount to an abuse of
discretion, especially in light of the significant evidence presented that Father
and Father’s Wife can financially, physically, and emotionally provide for Child
and that Child’s best interests would be served by Father having primary
physical custody over Child.4 As such, Maternal Grandmother’s claim on
appeal fails.
Order affirmed. Case remanded solely to address Maternal
Grandmother’s petition for contempt. Jurisdiction relinquished.
____________________________________________
4 We further note:
In a custody contest between two biological parents, the burden
of proof is shared equally by the contestants. Yet, where the
custody dispute is between a biological parent and a third party,
the burden of proof is not evenly balanced. In such instances, the
parents have a prima facie right to custody, which will be forfeited
only if convincing reasons appear that the child's best interest will
be served by an award to the third party. Thus, even before the
proceedings start, the evidentiary scale is tipped, and tipped hard,
to the biological parents' side.
What the judge must do, therefore, is first, hear all evidence
relevant to the child's best interest, and then, decide whether the
evidence on behalf of the third party is weighty enough to bring
the scale up to even, and down on the third party's side. These
principles do not preclude an award of custody to the non-parent.
Rather, they simply instruct the hearing judge that the non-parent
bears the burden of production and the burden of persuasion and
that the non-parent's burden is heavy.
Jordan v. Jackson, 876 A.2d 443, 449-450 (Pa. Super. 2005) (quotation
marks, citations, footnotes, and corrections omitted).
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J-S11017-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2022
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