D.C.P. v. A.A.P. ( 2019 )

J-A30043-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
D.C.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
v. :
:
A.A.P. :
:
Appellee : No. 1110 WDA 2018
Appeal from the Order Dated July 5, 2018
in the Court of Common Pleas of Westmoreland County
Civil Division at No(s): 1956 of 2016-D
BEFORE: SHOGAN, J., KUNSELMAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 20, 2019
D.C.P. (Mother) appeals from the order dated July 5, 2018, which
maintained a prior order granting shared legal and physical custody of A.A.P.,
born March 2006, and E.A.P., born December 2010, (collectively, Children) to
Mother and Children’s biological father, A.A.P. (Father). After review, we
affirm.
We provide the following background. On October 31, 2016, Mother
filed a complaint in divorce against Father, and on August 24, 2017, Mother
filed a complaint seeking shared custody of Children. Following a custody
conciliation conference, the trial court issued a temporary order on November
6, 2017, which provided, in relevant part, shared legal and physical custody
to Mother and Father, with a 50/50 physical custody arrangement.
* Retired Senior Judge assigned to the Superior Court.
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Thereafter, Mother filed a request for pretrial conference, seeking to
modify the November 6, 2017 order. Specifically, Mother sought to change
the physical custody arrangement so that she would have primary physical
custody of Children, with Father having partial physical custody on the
majority of weekends and for extended periods during the summer. Further,
citing Children’s special educational and developmental needs, Mother sought
to change Children’s school from a private school, St. Sebastian School, to a
public school, Bethlehem-Center School District, believing their needs could
be better addressed there.
On June 26, 2018, Mother and Father appeared with their respective
counsel for a custody trial. The trial court heard testimony from three
witnesses: Mother, Father, and Mother’s boyfriend, David Gilpin. In addition,
the court conducted an in camera examination of Children.
Mother is and always has been a stay-at-home parent to Children.
Father has a bachelor’s degree in accounting and has been steadily employed
as a revenue agent with the state Department of Revenue. His daily schedule
is from 8:00 a.m. to 4:00 or 4:30 p.m. and his employment does not require
travel. When money was tight during the marriage, Father also worked on
weekends at a local restaurant for about 1½ years to provide additional
income for the family. At the time of trial, Mother was living with Gilpin, a
school teacher, and they had no plans to marry. Since Mother and Father’s
separation in October 2016, Children have resided with Mother and Father in
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a 50/50 physical custody arrangement. Both Mother and Father are actively
involved in Children’s lives and supported by extended family and Gilpin.
When A.A.P. was two years old, he was diagnosed with autism. Due to
her stay-at-home status, Mother was the primary parent to attend in-home
and outpatient therapy sessions while Father was at work. Father attended
all doctors’ appointments, including taking time off from work to do so.
Outside of working hours, Mother and Father shared equally these therapy
and medical responsibilities. A.A.P. attended St. Sebastian School and had an
individualized educational plan (IEP) there. Prior to trial, Father agreed to
Mother’s request to change A.A.P. to Bethlehem-Center School District,
anticipating he would start there that fall.
Because E.A.P. was born prematurely, he received various therapies
until age three. Again, because Mother was not working outside of the home,
she attended most of the therapy sessions, while Father attended some. Since
preschool, E.A.P. has attended St. Sebastian School. While E.A.P. was
diagnosed with oppositional defiant disorder relating to his behavior at home,
he has not had behavior issues at school. He does not have an IEP at school
or otherwise receive special educational services. He performs well at school
and has friends there.
Following the custody trial, the trial court issued an order on July 5,
2018, which provided that the court’s prior order dated November 6, 2017
shall remain in effect; ordered A.A.P. to attend Bethlehem-Center School
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District, E.A.P to continue attending St. Sebastian School, and Mother and
Father to enroll in co-parenting classes; and set forth a holiday and vacation
schedule. On August 3, 2018, Mother filed a notice of appeal, as well as a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). On August 6, 2018, the court filed an order pursuant
to Pa.R.A.P. 1925(a), which directed us to its July 5, 2018 opinion.
Mother raises the following issues for our review.
1. Did the [trial] court err in correctly [sic] considering all factors
when deciding which parent provided total and continued care
to [Children] to aid in their nurturing and emotional
development?
2. Did the trial court err in correctly [sic] considering [Mother]
was not historically and continually the primary caregiver but
equal in accordance with custody factors?
3. Did the [trial] court err by finding [Children] did not wish to
live with [Mother] or did not know where they wanted to live?
Mother’s Brief at 5 (reordered for ease of disposition). We address Mother’s
claims mindful of our well-settled standard of review.
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. This Court 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. We defer to the credibility
determinations of the presiding trial judge, who viewed and
assessed the witnesses first-hand. We, however are not bound
by the trial court’s deductions or inferences from its factual
findings, and ultimately, the test is whether the trial court’s
conclusions are unreasonable as shown by the evidence of record.
We may reject the trial court’s conclusions only if they involve an
error of law, or are unreasonable in light of the sustainable
findings of the trial court.
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P.J.P. v. M.M., 185 A.3d 413, 417 (Pa. Super. 2018) (citations and internal
quotation marks omitted).
“When a trial court orders a form of custody, the best interest of the
child is paramount.” Id., quoting S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.
Super. 2014). Our Supreme Court has explained, “[a]lthough the express
wishes of a child are not controlling in custody decisions, such wishes do
constitute an important factor that must be carefully considered in
determining the child’s best interest.” McMillen v. McMillen, 602 A.2d 845,
847 (Pa. 1992) (citation omitted). Further, “[t]he child’s preference must be
based on good reasons, and the child’s maturity and intelligence must be
considered.” Id. Finally, “[t]he weight to be given a child’s testimony as to
his preference can best be determined by the judge before whom the child
appears.” Id.The factors to be considered by a court when awarding custody are set
forth at 23 Pa.C.S. § 5328(a).
(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.
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(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
After considering the custody factors, the trial court determined it was
in Children’s best interests to maintain its prior order, which, inter alia,
granted shared legal and physical custody to Mother and Father, with a 50/50
physical custody arrangement on an alternating weekly basis with exchanges
taking place on Sundays at 5:00 p.m.
On appeal, Mother argues that the trial court’s grant of shared physical
custody on a 50/50 basis did not give due weight to Mother’s past and present
role as primary caregiver and disregarded Children’s testimony as to their
preferences. Mother’s Brief at 8-17. Specifically, Mother argues that Children
prefer to live with her, and as a stay-at-home parent, she spends more time
with Children compared to Father, who works full-time, and thus, she is
entitled to primary custody. Id.
We address Mother’s claims together as they all relate to her contention
that she should be granted primary custody of Children. With respect to her
claim that she was and is the primary caregiver, the trial court found the
following.
For the most part, Mother has been a “stay-at-home
[parent].” Father has been steadily employed full-time with the
Pennsylvania Department of Revenue, and for approximately [one
and one-half] years, he also worked part-time on weekends at
Pizza Hut in order to earn extra money to help make ends meet.
When [A.A.P.] was born, Mother and Father each took turns
feeding him during the night. Both parents cared for him, bathing
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him and changing his diapers. When [A.A.P.] was [two] years old,
he was diagnosed with autism, and began to receive daily in-home
therapeutic services.
Because [E.A.P.] was born prematurely, he required
therapeutic services for a variety of issues as well. Mother
conscientiously engaged in both of [Children’s] therapy sessions.
Because Father’s participation was limited by his work obligations,
Mother was the parent who primarily participated in these therapy
sessions.
Despite his job demands, Father is involved in many of
[Children’s] activities, attending soccer practices and games,
basketball, Boy Scouts, and doctors’ appointments. He reads to
them, takes them to the park, and takes them to McDonald’s
every Saturday morning for breakfast. Recently, Father and
[A.A.P.] spent a week at Boy Scout [c]amp together.
Frequently, [Children’s] paternal grandmother has lent a
hand in relieving Mother and Father of some of their parental
duties. She has been a constant, loving and reliable presence in
[Children’s] lives.
Because Mother was not employed outside the home, she
cared for [Children] and tended to their daily needs while Father
was employed and taking care of the financial needs of raising a
family. In summation, although Father’s ability to attend to
parenting duties was limited somewhat by his responsibilities as
the household’s sole income earner, both parents contributed
equally, according to their respective availability, to the parenting
duties on behalf of Children.
***
It is well settled that the fact that a party must work for a
living is not sufficient justification for denial of custody.
Witmayer v. Witmayer, 467 A.2d 371 (Pa. Super. 1983). The
employed party must, however, demonstrate that the children will
be adequately cared for during work hours and that his
environment will be characterized by stability and genuine
concern for the [children’s] well-being. …Father’s mother and
aunt have contributed to [Children’s] stable family environment
from the beginning. Because he lives with his mother, Father’s
work schedule does not leave [Children] unsupervised or interfere
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with his ability to raise [Children]. While Mother is fortunate that
she continues to be able to remain unemployed and available at
all times, Father’s employment cannot and will not be a factor
weighed against him by [the trial court].
Trial Court Opinion, 7/5/2018, at 4-5, 9.
With respect to Mother’s claim relating to Children’s preferences,
Children were interviewed individually in camera in the presence of Mother’s
and Father’s attorneys. At the time, A.A.P. and E.A.P. were 12 and 7½ years
old, respectively. The trial court determined the following.
While [A.A.P.] did not express a specific preference to spend
the majority of time with one parent or the other, he revealed the
following. He gets along well with Mother and [Gilpin]. As a result
of Father working a lot, Father does not spend as much time with
[Children] as Mother and [Gilpin] do. When asked, [A.A.P.] said
that he has a lot of conversations with Mother and [Gilpin] about
Father not paying attention to him, but that he does not talk to []
Father about such things.
[A.A.P.] became animated and was more relaxed when
talking about the time he had with [] Father at Boy Scout [c]amp,
and was proud of the five merit badges he earned. He also talked
fondly of his paternal grandmother, how he likes to listen to music
with her, how she does things with him, [] pays attention to him,
and how he generally likes spending time with her.
When asked about the amount of time that he would want
to spend with each of his parents, [E.A.P.] candidly said: “I don’t
know which one to pick. I want to live with both of them.” He
talked about engaging in more activities with Mother and [Gilpin]
than he does with Father. However, he loves Father, Father treats
them well, and he likes going to McDonald’s with Father on
weekends. He also said he likes going to school at [his current,
private school].
Id. at 7-8. Further, the court found that “[a]t times during the interviews in
chambers with [Children, their] responses to questioning suggested that they
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may have discussed some of the current issues with Mother and [Gilpin].” Id.
at 8; see N.T., 6/26/2018, at 9-10, 24-25 (in camera examination). The court
also determined that “Mother continues to demonstrate a considerable
amount of hostility and resentment toward Father.” Trial Court Opinion,
7/5/2018, at 9.
Considering our standard of review and the great deference it affords to
the trial court, we find no error in the court’s conclusions. Our review of the
record reveals the court adequately considered the statutory factors, and set
forth its reasoning, supported by the record, for granting shared legal and
physical custody.
Specifically, the court, presiding over the trial and reviewing all the
testimony and evidence, found Children’s best interests are served by
sustained weekly contact with each of their loving parents. The court
determined that both parents are equally capable of handling parental duties
and maintaining a relationship with Children to support their emotional needs.
It found both parents are nurturing, offer stability and continuity, are engaged
in many activities with Children, and are supported by beneficial relationships
with extended family and Gilpin.
In addition, though A.A.P. did say he wanted to live with Mother, he did
not give a specific reason as to why. N.T., 6/26/2018, at 6 (in camera
examination). As for E.A.P., his responses show he was hesitant to decide
between his parents, changing his answers throughout his testimony by
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alternating between wanting to live with Mother and saying that he didn’t
know “which one to pick.” Id. at 25. The trial court acknowledged that
Children spend more time with Mother due to her stay-at-home status, but
also recognized that Children enjoy spending time with Father. A.A.P. told the
trial judge about his recent trip with Father; the two of them had just spent
an entire week together at an overnight scout camp, and A.A.P. said he had a
good time with Father. Id. at 7-9. E.A.P. told the trial judge that he loves
Father, Father is good to him, he misses Father at times, he likes going to
McDonald’s with Father every Saturday and to Kennywood amusement park
every year, and Father sometimes plays baseball with him in the evenings and
weekends. Id. at 19, 23-24.
Even if the trial court misstated that A.A.P. did not have a preference,
and even though E.A.P. changed his mind, their preferences are but one
factor, as a child’s wishes are not controlling in custody decisions. McMillen,
602 A.2d at 847 (Pa. 1992); see also McCourt v. Meyers, 407 A.2d 875,
880 (Pa. Super. 1979) (observing the “well-recognized tendency among
children … to change their minds and desires from time to time”). The trial
judge was in the best position to determine the weight to give Children’s
testimony as to their preferences. See McMillen, supra. It is clear that the
trial court, in making its determination, took into consideration Mother’s and
Gilpin’s influence on Children in their responses. Less clear is whether
Children were able to express their true feelings to the court. The trial court’s
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determination that Mother and Gilpin appeared to have exerted their influence
over Children’s responses was based on the trial court’s first-hand
observations, which we will not set aside. Even though A.A.P. did say that he
had talked to Father about his “not paying attention,” and the trial court stated
otherwise, A.A.P.’s statement is undermined by the trial court’s finding of
influence.
Thus, it was within the trial court’s discretion to determine that it is in
Children’s best interests to spend equal amounts of time with each parent.
Recognizing how difficult these custodial decisions are for courts when dealing
with two loving and caring parents, we conclude that the trial court did not
abuse its discretion when it analyzed the factors set forth at 23 Pa.C.S.
§ 5328(a) to grant the parties shared legal and physical custody of Children
to serve Children’s best interests. Because we find no abuse of discretion and
conclude that none of Mother’s claims entitles her to relief, we affirm the order
of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2019
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