J-A04002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.C.L. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : G.S.L. : No. 2733 EDA 2018
Appeal from the Order Entered August 21, 2018 In the Court of Common Pleas of Philadelphia County Family Court at No(s): No. 0C1213057
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED MARCH 22, 2019
C.C.L. (Mother) appeals from the order, entered in the Court of Common
Pleas of Philadelphia County, granting Mother and G.S.L. (Father) shared legal
custody and shared physical custody of P.R.L. (Child) (DOB-1/5/12). After
our review, we affirm based on the September 25, 2018 opinion authored by
the Honorable Ourania Papademetriou, which incorporated the court’s earlier
memorandum of August 21, 2018.
C.C.L. and G.S.L. were married in 2010, and they divorced in 2016. In
October 2015, the parties executed a post-nuptial agreement, which was
incorporated into the divorce decree. That agreement provided for shared
legal and equally shared physical custody of Child. Thereafter, on November
*Retired Senior Judge assigned to the Superior Court. J-A04002-19
23, 2016, the parties entered into a detailed temporary custody order.1
Subsequently, Mother and Father each filed custody complaints. The court
held a two-day custody hearing on August 8-9, 2018 and issued findings of
fact and conclusions of law related to the custody factors set forth in 23
Pa.C.S.A. § 5328(a). See Memorandum, 8/21/18. On August 21, 2018, the
court entered a final custody order, providing, inter alia, that the parties
continue equally shared physical custody and shared legal custody of Child.
Mother appealed. Both Mother and the trial court have complied with
Pa.R.A.P. 1925. Mother raises six issues for our review:
1. Did the trial court err in failing to create a full and complete record in order to fully address Child’s best interests?
2. Did the trial court err in failing to address and give appropriate weight to the testimony of Father and Father’s girlfriend [L.K.]2 evidencing contempt and disrespect for Mother?
3. Did the trial court err in failing to address and give appropriate weight to the testimony and evidence presented of Father’s inability and refusal to co-parent with Mother?
4. Did the trial court err by failing to consider Child’s emotional wellbeing?
5. Did the trial court err in failing to consider the impact of the new custody schedule on Child’s relationship with her only sibling? ____________________________________________
1That order, filed on November 29, 2016, provided for shared legal custody and a schedule of equally shared physical custody for the two weeks beginning November 28, 2016.
2 Subsequent to the hearing in this case, Father and L.K. ended their relationship. See Appellee’s Brief, at 7 n.1.
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6. Did the trial court err in failing to place restrictions on Father’s travel?
Appellant’s Brief, at 16-17.
The primary concern in any custody case is the best interests of the
child. “The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s physical,
intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902 A.2d 509,
512 (Pa. Super. 2006), citing Arnold v. Arnold, 847 A.2d 674, 677 (Pa.
Super. 2004). Child custody actions are governed by the Child Custody Act
(“Act”), 23 Pa.C.S.A. §§ 5321–5340. Trial courts are required to consider
“[a]ll of the factors listed in section 5328(a) . . . when entering a custody
order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in
original).3
____________________________________________
3 (a) Factors.--In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
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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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Our scope and standard of review of child custody orders are well
settled:
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.
C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted).
First, we note that in four of her claims, issues 2, 3, 4 and 5, Mother is
essentially asking this Court to reweigh the evidence. These arguments
challenge the trial court’s credibility determinations, and would require this
Court to reassess and reweigh the evidence in Mother’s favor. It is well
established that we cannot disturb the trial court’s credibility determinations
or reweigh the evidence. See E.D. v. M.P., 33 A.3d 73, 76 (Pa. Super. 2011)
(stating, “with regard to issues of credibility and weight of the evidence, this
Court must defer to the trial judge who presided over the proceedings and
thus viewed the witnesses first hand”); see also Robinson v. Robinson, 645
A.2d 836, 838 (Pa. 1994) (stating that on issues of credibility and weight of
evidence with regard to custody orders, “appellate courts must defer to the
findings of the trial judge who has had the opportunity to observe the
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proceedings and the demeanor of the witnesses.”). A review of the record
reveals that the trial court’s findings of fact and conclusions of law are
thoroughly supported by the ample evidence and testimony of record. See
C.R.F., 45 A.3d at 443 (stating this Court cannot reweigh evidence supporting
trial court’s determinations as long as there is evidence to support
conclusions).
Mother argues that she was “restricted” in presenting her case because
the court placed time constraints on the parties and spent the larger portion
of her brief on that issue. However, the court allowed two days for the
hearing, both parties presented multiple witnesses, and Mother presented 60
exhibits. Moreover, at the hearing, Mother did not seek additional time.
Further, contrary to her current position, at the time of the hearing Mother
agreed that it was not necessary for Child to be interviewed by the court. We
disagree with Mother’s characterizations; the court neither restricted the
parties nor failed to create a complete record. The trial court recognized the
conflict between the parties and took notice of the fact that their post-nuptial
agreement indicated that they both understood they needed to work together
for Child’s best interest.
In her final issue, Mother objects to the fact that the trial court did not
restrict Father’s travel. Again, Mother is simply not satisfied with the decision
the trial court made. The court specifically determined that it did not consider
Father a flight risk, given his extensive ties to Philadelphia and that both
Mother and Father testified that they believed travel to be beneficial to Child.
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Further, the trial court comprehensively addressed the issue of travel in her
Rule 1925(a) opinion, at pages 12-13, and we find no abuse of discretion.
After our review, we conclude the record fully supports the court’s
determination. Therefore, we conclude that the trial court did not abuse its
discretion and we defer to its custody decision. C.R.F., supra. We affirm the
custody order on the basis of the trial court’s opinion, and we direct the parties
to attach copies of the court’s opinion and memorandum in the event of further
proceedings.
Order affirmed. Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/22/19
-7- Received 10/10/2018 3:28:13 Preaupetirit Cilart/EattCr1:EMPIM
Filed 10/10/2018 3:28:13 PM Superior Court2%s4raigicj
IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA FAMILY COURT DIVISION
ca ca
: Docket No. 0C1213057 C.C.L., Plaintiff/Appellant
v. Superior Court of Pennsylvania
G.L., EDA 2018 : Docket No. Defendant/Appellee
OPINION by Papademetriou, J. September2S2018 21, 2018, in this custody matter This is an appeal from the order entered on August who was born on January 5, 2012. The regarding the parties' daughter, P.L., (Child") on August 8 and 9, 2018. On August 21, court conducted a two-day evidentiary hearing all claims. The court considered the testimony 2018, the court issued an order resolving and other witnesses. The court evaluated of Appellant ("`Mother"), Appellee ("Father"), reviewed and considered the documents the credibility and demeanor of all witnesses, § evaluated all the factors in 23 Pa.C.S. admitted into evidence by each party, and Mother legal custody and shared physical custody. 5328(a). The court awarded shared statement of errors complained of on appeal on filed a notice of appeal and a concise 2018 should stated herein, the order of August 21, September 19, 2018. For the reasons
be affirmed,
1 A. Custody Factors. the Opinion, filed August 21, 2018, in making As explained in its Memorandum considered the shared physical custody, the court award of shared legal custody and § 5328(a), giving weighted consideration to those which factors set forth at 23 Pa.C.S. as follows: clarity, the factors were considered affect Child's safety. Reordered for of the parties the parties and the willingness and ability (13) The level of conflict between another with one another. A party's effort to protect a child from abuse by to cooperate or inability to cooperate with that party. party is not evidence of unwillingness is high level of conflict between the parties. The Court determines that there a
often express engage in email exchanges which They do not communicate well and at various times has instructed Mother to only disrespect for one another. Father Mother not to his legal counsel and has instructed communicate with him through with whom [LK.), to whom he is pre -engaged and communicate at all with his girlfriend, the timeliness of the shares a residence. There have been frequent conflicts over he over the whereabouts There have been frequent conflicts provision of travel information. over Child's she in the other parent's custody. There have been conflicts of Child while is daily basis with the non- in sleepovers and Child's communicating on a participation in that parent's company. custodial parent and other persons they have been able the high level of conflict between the parties, Notwithstanding her school and medical together in Child's best interest, such as choice of to work between the parties has The Court determines that the likelihood of conflict treatment. addressed and its order of August 21, 2018, in which the Court has been reduced by travel, areas of conflict between the parties, including international resolved the primary
2 with the non-custodial parent, and scheduling of Child's extracurricular communication
activities. 2015 postnuptial agreement of October 13, As recognized by the parties in their and cooperate possess the ability to communicate ("PNA"), they each "agree that they of promoting [Child's] best interests." PNA at II 12.7. The avenue with each other in Family Wizard, between the parties has now been limited to use of Our communication situation. To the extent that the ability to cooperate has with the exception of an emergency
the Court expects that the level of conflict between diminished in the past several years, to the schedules will greatly lessen as they and Child acclimate themselves the parties order. and provisions of the August 21st and continuing contact to encourage and permit frequent (1) Which party is more likely party, between the child and another to communicate with the party. Both parties permit Child neither than Mother. parent, although Father has been somewhat more restrictive non -custodial they each "realize that it is by the parties in their postnuptial agreement, As recognized towards both healthy development that she feel good about and loving critical for [Child's] goal." PNA at both parents play a major role in the achievement of this parents, and that
¶j 12.15. child. duties performed by each party on behalf of the (3) The parental Child has been in their have performed all parental duties while Both parties
respective custody. in the child's education, family life and community stability and continuity (4) The need for
life.
3 that he, Center City Philadelphia neighborhood Father remains living in the same to attend the school the family was intact. Child continues Mother, and Child lived in when apartment building. several blocks from Father's current residence in a large located a home in the East Oak Lane section of Philadelphia in Mother has recently purchased of each girl. reside when Mother has custody which she, Child, and Child's half-sister in the new community, and the home is conducive to Child have forged ties Mother arid size and ample outdoor space. enhanced family life given its large
(5) The availability of extended family. live in the Fishtown extended family lives in India. The parents of [L.K.] Father's established a relationship with Child. section of Philadelphia and have live in various State, and she has siblings who Mother's parents live in New York family. and Child often visit Mother's states with their children. Mother
(6) The child's sibling relationships. years old, eight has a half-sister, Mother's daughter, who is currently 14 Child live together when Mother older than Child. They have a close relationship and years at the same time. has custody of both of them the child, based on the child's maturity and -reasoned preference of (7) The well judgment. regarding Child's was not interviewed, and the Court makes no determination Child
preference. in cases of to turn the child against the other parent, except (8) The attempts of a parent to protect the child where reasonable safety measures are necessary domestic violence from harm. neither parent should by the parties in their postnuptial agreement, As recognized in any way denigrate the other anything in front of or to [Child] that would "say or do 4 prohibition has been eroded in the past parent." PNA at 1112.14. To the extent that this to this the parties will conform their behavior several years, the Court expects that the August acclimate themselves to the provisions of fundamental tenet as they and Child
2151 order. and nurturing (9) Which party is more likely to maintain a loving, stable, consistent emotional needs. with the child adequate for the child's relationship recognized by the parties in their postnuptial This factor favors neither party. As of love and perceives both parents as sources agreement, they each "agree that [Child] extent that relationships." PNA at 11 12.6. To the security and wishes to continue both in the past several years, the Court expects that this sense of agreement has diminished as they and appreciation of Child's emotional needs the parties will develop a greater 21st order. schedules and provisions of the August Child acclimate themselves to the
developmental, (10) Which party is more likely to attend to the daily physical, emotional, child. educational and special needs of the party has attended to Child's daily This factor favors neither party. Each Child has been educational and special needs while physical, emotional, developmental,
in each party's respective custody.
of the parties. (11) The proximity of the residences driving distance apart. live approximately 25 to 40 minutes The parties currently child-care availability to care for the child or ability to make appropriate (12) Each party's arrangements. to make appropriate party is available to care for Child and has the ability Each is self-employed in the real estate business and Mother child-care arrangements. Father
is a self-employed interior designer. of a party's household. abuse of a party or member (14) The history of drug or alcohol
5 in -patient rehabilitation Mother has a history of alcohol abuse. She attended an
She testified that she has maintained sobriety facility in February 2017 for three weeks. of shared physical custody supports the since leaving the facility. Father's proposal abuse does not interfere with her current ability conclusion that Mother's history of alcohol
to perform her parental duties. of a party or member of a party's household. (15) The mental and physical condition has a mental or physical condition Neither party or member of a party's household
that is other than normal. by a party or member of the party's household, (2) The present and past abuse committed party to the child or an abused party and which whether there is a continued risk of harm of the child. can better provide adequate physical safeguards and supervision
Not applicable. 5329.1(a) (relating to consideration of child (2.1) The information set forth in section services). abuse and involvement with protective
Not applicable.
(16) Any other relevant factor. to Father seeks to travel to India with Child International and domestic travel. traveling mother is elderly and precluded from spend time with her family there. Father's his custodial frequently travels domestically during due to infirmity. In addition, Father of the travelling with Child. The August 21, 2018 order addresses the obligation periods not consider travel itinerary information to the other party. The Court does party to provide he has to Philadelphia. Father a flight risk given the extensive ties Since the summer of 2018, Father's Composition of Father's household. with L, K,]. Child has a positive relationship household has included ELK].
6 of on Appeal. B. Appellant's Statement of Errors Complained omitted], the trial court had an 1. Pursuant to well established case law [citations a record. The Court erred by failing to compile obligation to create a full and complete the record. by acting affirmatively in a manner to limit full and complete record and, in fact, to reduce her on the trial, requiring Mother The Court did so by setting time constraints certain cross-examinations, denying her use of witnesses, directing her to shorten her the child. documentary evidence, and failing to interview or give weight to the testimony of Father 2. The Court erred by failing to consider showed both individuals' contempt for and [L.K.] (Father's girlfriend) which unequivocally and lack of respect for Mother. or the 3. The Court erred by failing to consider giving weight to the testimony inability and refusal to co -parent with evidence presented which identified Father's Mother. weight to the testimony that child is 4. The Court erred by failing to give between the parents' two incredibly experiencing emotional trauma as she is transferred on speaking inappropriately to the child different households and as Father insists about Mother and speaking to the child including, but not limited to, speaking derogatively other adult issues. about the child about the litigation and that this custody schedule Court erred by failing to consider the impact 5. The as with her sister. The new custody schedule, would have on the Child's relationship (28) from fourteen (14) days per twenty eight written, would reduce their time together eight (28) day period. day period down to four (4) days per twenty
6. The Court erred by failing to place restrictions on Father's travel as the evidence reliable failed to provide travel information or a and testimony showed Father consistently benefit from during previous travels, the child will not method of communication to Mother be harmed suffer from that travel, and the child will regular weekend travel and, in fact, school. in an intensive Spanish immersion by missing school as she is enrolled schedule and by not identifying when the summer 7. The Court erred in its Order begin. school year schedules were to child as Court erred in finding that the transitions were problematic for the 8. The than a statement presented at trial in this regard other no testimony or evidence were made by Father counsel on closing.
C. Discussion. complete erred by failing to compile a full and Mother's complaint that the court 1. is without merit. The by acting affirmatively in a manner to limit the record record and,
7 case by Administrative Judge Margaret Murphy to a protracted matter was assigned as order directed order dated January 24, 2018. Judge Murphy's by the undersigned judge to the two-day protracted hearing. At no time prior for a that the case be scheduled 8, 2018, did Mother move for additional time. hearing on August commencement of the of time and court resources has waived any challenge to the amount Mother, therefore, (Pa.Super. v. Velazquez 830 A.2d 1267. 1270 See Bednarek allotted to this matter. court results in to a procedure employed by the trial 2003) (holding that acquiescence Murphy, the on appeal). As directed by Judge to that procedure waiver of any challenge to present their cases. the parties two full days within which court provided the day of the hearing, counsel for Mother informed first At the beginning of the Mother's include Mother, Mother's former husband, would court that the witnesses she thereafter, counsel for Mother advised that and Child. Shortly daughter E., a nanny, counsel for At the end of the first day of testimony, the nanny. had chosen not to call and that, "We have no did not care if the court talks to Child she Mother told the court second day of with [Child]." At the beginning of the not meeting problem with the court be called. Further, that is was not necessary for Child to stated trial, counsel for Mother of talking to the not want to put Child through the experience did Mother testified that she Child and that the court did not err in not interviewing it is clear that court. On this basis, lower court are be interviewed. Issues not raised in the Child to Mother did not seek for v. time on appeal. Pa.R.A.P. 302; Willoughby raised for the first waived and cannot be In the interest of J.Y., 754 A.2d 5 (Pa.Super, 2004); 654, 659 Willoughby, 862 A.2d 1993). Weir v. Weir, 631 A.2d 650 (Pa.Super. (Pa.Super. 2000);
8 conciseness which of this allegation of error lacks the 'necessary The remainder Pa.R.A.P.1925(b) statement must be The would enable the court to address its merits. identify that the trial court judge may be able to and ''coherent" such sufficiently "concise A.2d 206, 210 (Pa.Super. Jiricko v. Geico his. Co., 947 on appeal. the issues to be raised too vague. where a Rule 1925(b) Statement is court may find waiver 2008). The reviewing which 2013). Mother has not identified instances 345, 350 (Pa.Super. In re A.B., 63 A,3d witnesses, court required Mother to reduce her allegation that the support her vague certain documentary or denied her use of her cross-examinations, directed her to shorten
evidence. or give weight to the court erred by failing to consider that 2. Mother's complaint showed both girlfriend) which unequivocally and [LK.) (Father's the testimony of Father the record. for Mother is not supported by for and lack of respect individuals' contempt that Father between the parties and cited the high level of conflict The court recognized legal communicate with him through his only instructed Mother to at various times has court heard to communicate at all with L.K.. The Mother not counsel and has instructed opinions of regarding their shared negative and L.K.'s testimony and considered Father's to the it considered appropriate pursuant weight this testimony the Mother, and afforded the trial court cannot dictate the amount of weight factors. "The parties statutory custody best interest concern of the trial court is the Rather, the paramount places on evidence. A.V. v. 52, 645 A.2d 836, 838 (Pa. 1994); Pa. v. Robinson, 538 of the child." Robinson 623 (Pa.Super. S.M. v. J.M., 811 A.2d 621, 2014); 820 (Pa.Super. S.T., 87 A.3d 818,
2002). order, Exhibit "M-59," Mother's proposed custody includes Further, the record have partial physical custody of Child, for Father to shared legal which provided for Wednesdays, and for a vacation and weekends and alternating custody on alternating order anticipates both parties. Mother's proposed to be shared by holiday schedule and Child despite communication between the parties contact and substantial, ongoing sole for Mother." Short of granting Mother for and lack of respect the purported "contempt Mother herself, award that was not propounded by custody, an legal and sole physical and L.K. is feelings harbored by Father negative to shield Child from the court's ability custody arrangements. Mother's primary/partial of either shared or limited by the realities court Memorandum Opinion wherein the by the court in its concerns were addressed that neither parent in their postnuptial agreement parties recognized observed that the in any in front of or to [Child] that would anything should 'say or do Agreement at ¶ 12.14. other parent." Postnuptial weight to by failing to consider giving that the court erred 3. Mother's complaint to inability and refusal which identified Father' the evidence presented the testimony or level of the court recognized the high Again, with Mother is without merit, co -parent of the conflicts over the timeliness the frequent parties and cited conflict between the is in the other parent's of Child while she information, the whereabouts provision of travel a daily basis and Child's communicating on custody, Child's participation in sleepovers, to in that parent's company. The weight persons non -custodial parent and other the the with and refusal" to co-parent is within "inability evidence of Father's be afforded to the the trial court dictate the amount of weight cannot court. "The parties discretion of the the best interest concern of the trial court is Rather, the paramount places on evidence.
10 A.V. V. A.2d 836, 838 (Pa. 1994); Pa. 52, 645 v. Robinson, 538 (Pa.Super. Robinson A.2d 621, 623 of the child." v. J.M., 811 2014); S.M. 87 A 3d 818, 820 (Pa.Super. S.T., to the testimony 2002). to give weight erred by failing that the court 4. Mother's complaint transferred between the parents' "as she is emotional trauma to experiencing inappropriately that Child is insists on speaking households and as Father two incredibly different Mother and speaking about speaking derogatively but not limited to, The August 21, the child including, issues" is without merit. litigation and other adult any to the child about the with Child regarding party shall communicate directed that"[n]either See Order, 2018 order between the parties." are in dispute Child or topics which the court in litigation involving further addressed by were Mother's concerns in their Communication. 8121/18, at 4, that the parties recognized the court observed Opinion wherein in front of or to its Memorandum or do anything should "say neither parent that Agreement at ¶ postnuptial agreement Postnuptial denigrate the other parent." in any way [Child] that would Exhibit 12.14. proposed custody order, Mother's noted, the record includes partial As previously Child, for Father to have custody of for shared legal and for a which provided Wednesdays, "M-59," alternating weekends and on alternating proposed order physical custody by both parties. Mother's schedule to be shared parties and vacation and holiday between the and communication ongoing contact speaking substantial, to Child, including, anticipates speaking inappropriately despite Father's purported litigation and other adult Child, the Child about and speaking to was about Mother custody, an award that derogatively sole physical Mother sole legal and of granting issues. Short of Child from the trauma the court's ability to shield herself, or not propounded by Mother realities of either shared is limited by the separate households Child's emotional living in two court addressed Further, the custody arrangements. identified doctor and that primary/partial with an sessions that she attend counselling 8/21/18, at 10, needs by directing See Order, doctor's recommendatons. shall follow that the parties the for Child. consider the impact of Counseling in failing to that the court erred The 5. Mother's complaint is without merit. with her half-sister relationship schedule upon Child's counsel for Mother and new custody jointly by created "1," a document which Court Exhibit of the parties' cases, record includes the conclusion the bar of the court after half-sister. Father at Child and her counsel for have with both of time that Mother would contained in the periods of the information addressed to the accuracy the objection for Mother raised no upon this exhibit for Counsel reliance challenge the court's not 659 Exhibit "1." Mother may 862 A.2d 654, Court v. Willoughby, 302; Willoughby. 631 on appeal. Pa.R,A.P. 2000); Weir v. Weir, first time 754 A.2d 5 (Pa.Super. Interest of J.Y., 2004); In the (Pa.Super. 1993). in its 650 (Pa.Super. with her half-sister A.2d relationship Child's sibling this the court considered the weight placed upon Further, to Mother's challenge is factors. v. Robinson, of the statutory appeal. See Robinson application relief on no basis for and, as such, it provides 87 A.3d 818, 820 (Pa.Super. factor, (Pa. 1994); A.V. v. S.T., 836, 838 645 A.2d 538 Pa, 52, 2002). A.2d 621; 623 (Pa.Super. travel v. J.M., 811 restrictions upon Father's 2014): S.M. to place that the court failed all complaint that Child "shall attend 6. Mother's directs August 21, 2018 order is without merit. The with Child
12 with the established by the school" schedule activities pursuant to the may agree, and classes such other times as the parties 2018 and of a trip in November; "shall seek exclusion further provides that Father The order 8/21/18, at 1, School Year. November, See Order, two-week trip to India in to take the of Child's school" for Child Order, the agreement in this regard." See direction "shall follow the school's Father 2018 and that
8/21/18, at 2. Travel. "party traveling the order provides that the travel, other periods of Regarding all telephone number and address party with the Child shall provide the other no overnight with (including flight numbers) itinerary be staying, as well as a travel will See Order, 8/21/18, where the Child scheduled travel.' advance of any (24) hours in less than twenty-four believed travel to be beneficial. testified that they Both Mother and Father either party's at 2, Travel. greater restrictions upon not placing not abuse its discretion in The court did period. during that party's custodial with Child "when the summer ability to travel by not identifying erred complaint that the court 7. Mother's no relief. The "school year" warrants schedules were to begin" school year the last schedule and begins on the day after summer schedule first day of school. The that begins with the to be implicit in its directing considers these time frames The court by the day of school. to the schedule established pursuant all classes and activities Child 'shall attend Year. 8/21/18, at 1, School were Order, school...". See erred in finding that transitions complaint that the court 8. Mother's time" transitioning that Child had a "tough Mother testified is without merit. of error. problematic no support for this contention The record lends back and forth.
13 D. Conclusion. basis upon which to conclude complained of on appeal provide no Mother's errors legal custody and shared in making its award of shared discretion that the court abused its or misstate/lack support in the record contentions either physical custody. Mother's Two on the evidence it received and considered. the court placed challenge the weight of Error No. 4 inconsistent, items 4 and 8. Allegation internally of Mother's issues are to being transferred testimony regarding Child's emotional reaction alleges failure to credit 8 argues that there was no evidence of Error No. while Allegation between households, The court applied the proper standard in problematic for Child. that transitions were See A.D. continuing to share her life with each parent. interests in assessing Child's best case, the (Pa.Super. 2010) ("With any child custody 32, 35-36 v. M.A.B., 989 A.2d a case -by - of the child. This standard requires the best interests paramount concern is may legitimately affect the physical, intellectual, all the factors that case assessment of well-being of the child."). moral and spiritual
2018 should be affirmed. The order of August 21,
BY THE COURT:
)10eCkt Adeil,V7V,(1( tou, Ourania Papademe
COPIES SENT PURSUANT TO Pa.R.C.P.236(b)
SEP 2 5 2018 OF PA FIRST JUDICIAL DISTRICT USER1.0.: 14 Circulated 03/11/2019 01:57 PM
IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA FAMILY COURT DIVISION
C, : . " : Docket No. 0C1213057 Plaintiff/Appellee In Custody
V.
S,L'.::.:.: %,
Defendant/Appellant
MEMORANDUM OPINION
The Court conducted a two-day evidentiary hearing concerning the custody issues
relating to the parties minor daughter (born January . , 2012), on August 8 and 9, 2018.
On August 21, 2018, the Court issued an order resolving all claims, The Court considered
the testimony of Mother, Father, and other witnesses. The Court evaluated the credibility
and demeanor of all witnesses, reviewed and considered the documents admitted into
evidence by each party, and evaluated all the factors in 23 Pa.C.S, § 5328(a).
The Court awarded shared legal custody. Legal custody is the right to make major
decisions on behalf of the child, including, but not limited to, medical, religious and
educational decisions. 23 Pa.C.S. § 5322. Shared legal custody is the right of more than
one individual to legal custody of the child. 23 Pa.C.S. § 5322,
The concept of shared legal custody does not contain the principle of giving one
950, 953 (Pa.Super. parent final authority in the event of a dispute. M.P. v. M.P., 54 A.3d on other 2013) (quoting Hill v. Hill, 619 A.2d 1086, 1089 (Pa.Super. 1993) (disapproved 2018)). grounds in P.J,P, v, M.M., 185 A.3d 413, 419 n.3 (Pa.Super.
1 Prior case law1 set forth a four factor analysis regarding shared legal custody.
However, the enactment of Section 5328(a) rendered the Wiseman v, Wall, 718 A.2d 844
(Pa.Super. 1998) analysis obsolete. P.J.P. v. M,M., 185 A.3d 413, 420 (Pa.Super. 2018).
The four factors are assimilated into Section 5328(a), and poor cooperation need not be
dispositive. Id.
The Court awarded shared physical custody. Shared physical custody is the right
of more than one individual to assume physical custody of the child, each having
significant periods of physical custodial time with the child. 23 Pa.C.S. § 5322.
In making its award of shared legal custody and shared physical custody, the Court
has considered the factors set forth at 23 Pa.C.S. § 5328(a), giving weighted
consideration to those which affect Child's safety. Section 5323(d) requires the trial court
to set forth its mandatory assessment of the sixteen factors prior to the deadline by which
a litigant must file a notice of appeal. C B, v. J.B., 65 A.3d 950, 955 (Pa.Super. 2013).
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).
Reordered for clarity, the factors are considered as follows:
(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.
The Court determines that there is a high level of conflict between the parties.
They do not communicate well and engage in email exchanges which often express
disrespect for one another. Father at various times has instructed Mother to only
Wiseman v. Wall, 718 A.2d 844, 848 (Pa.Super. 1998). 2 communicate with him through his legal counsel and has instructed Mother not to
communicate at all with his girlfriend, L. K : , to whom he is pre -engaged and
with whom he shares a residence. There have been frequent conflicts over the timeliness
of the provision of travel information. There have been frequent conflicts over the
whereabouts of Child while she is in the other parent's custody. There have been conflicts
over Child's participation in sleepovers and Child's communicating on a daily basis with
the non -custodial parent and other persons in that parent's company.
Notwithstanding the high level of conflict between the parties, they have been able
to work together in Child's best interest, such as choice of her school and medical
treatment. The Court determines that the likelihood of conflict between the parties has
been reduced by its order of August 21, 2018, in which the Court has addressed and
resolved the primary areas of conflict between the parties, including international travel,
communication with the non -custodial parent, and scheduling of Child's extracurricular
activities.
As recognized by the parties in their postnuptial agreement of October 13, 2015
("PNA"), they each "agree that they possess the ability to communicate and cooperate
with each other in promoting [Child's] best interests." PNA at ¶ 12.7. The avenue of
communication between the parties has now been limited to use of Our Family Wizard,
with the exception of an emergency situation. To the extent that the ability to cooperate has
diminished In the past several years, the Court expects that the level of conflict between
the parties will greatly lessen as they and Child acclimate themselves to the schedules
and provisions of the August 21st order.
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
3 This factor favors neither party. Both parties permit Child to communicate with the
non -custodial parent, although Father has been somewhat more restrictive than Mother.
As recognized by the parties in their postnuptial agreement, they each "realize that it is
critical for [Child's] healthy development that she feel good about and loving towards both
parents, and that both parents play a major role in the achievement of this goal." PNA at
¶ 12.15.
(3) The parental duties performed by each party on behalf of the child.
Both parties have performed all parental duties while Child has been in their
respective custody.
(4) The need for stability and continuity in the child's education, family life and community
Father remains living in the same Center City Philadelphia neighborhood that he,
Mother, and Child lived in when the family was intact. Child continues to attend the school
located several blocks from Father's current residence in a large apartment building.
Mother has recently purchased a home in the East Oak Lane section of Philadelphia in
which she, Child, and Child's half-sister reside when Mother has custody of each girl.
Mother and Child have forged ties in the new community, and the home Is conducive to
enhanced family life given its large size and ample outdoor space.
Father's extended family lives in India. The parents of L . K live in the
Fishtown section of Philadelphia and have established a relationship with Child.
Mother's parents live in New York State, and she has siblings who live in various family. states with their children. Mother and Child often visit Mother's
4 (6) The child's sibling relationships.
Child has a half-sister, Mother's daughter, who is currently 14 years old, eight
years older than Child. They have a close relationship and live together when Mother
has custody of both of them at the same time.
(7) The well -reasoned preference of the child, based on the child's maturity and judgment.
Child was not interviewed, and the Court makes no determination regarding Child's
preference.
(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.
As recognized by the parties in their postnuptial agreement, neither parent should
"say or do anything in front of or to [Child] that would in any way denigrate the other
parent." PNA at ¶ 12.14. To the extent that this prohibition has been eroded in the past
several years, the Court expects that the parties will conform their behavior to this
fundamental tenet as they and Child acclimate themselves to the provisions of the August
21° order.
(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.
This factor favors neither party. As recognized by the parties in their postnuptial
agreement, they each "agree that [Child) perceives both parents as sources of love and that security and wishes to continue both relationships," PNA at ¶ 12.6. To the extent expects that this sense of agreement has diminished in the past several years, the Court
the parties will develop a greater appreciation of Child's emotional needs as they and
Child acclimate themselves to the schedules and provisions of the August 21° order.
5 (10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child. This factor favors neither party. Each party has attended to Child's daily
physical, emotional, developmental, educational and special needs while Child has been
The parties currently live approximately 25 to 40 minutes driving distance apart.
(12) Each party's availability to care for the child or ability to make appropriate child-care arrangements. Each party is available to care for Child and has the ability to make appropriate
child-care arrangements. Father is self-employed in the real estate business and Mother
is a self-employed interior designer.
(14) The history of drug or alcohol abuse of a party or member of a party's household. Mother has a history of alcohol abuse. She attended an in -patient rehabilitation
facility in February 2017 for three weeks. She testified that she has maintained sobriety
since leaving the facility. Father's proposal of shared physical custody supports the
conclusion that Mother's history of alcohol abuse does not interfere with her current ability
to perform her parental duties. a party's household. (15) The mental and physical condition of a party or member of
Neither party or member of a party's household has a mental or physical condition
that is other than normal.
(2) The present and past abuse committed by a party or member of the party's household, abused party and which party whether there is a continued risk of harm to the child or an of the child. can better provide adequate physical safeguards and supervision
Not applicable. to consideration of child (2.1) The information set forth in section 5329.1(a) (relating abuse and involvement with protective services). 6 Not applicable.
(18) Any other relevant factor.
International and domestic travel. Father seeks to travel to India with Child to
spend time with her family there. Father's mother is elderly and precluded from traveling
due to infirmity. In addition, Father frequently travels domestically during his custodial
periods with Child. The August 21, 2018 order addresses the obligation of the travelling
party to provide travel itinerary Information to the other party. The Court does not consider
Father a flight risk given the extensive ties he has to Philadelphia.
Composition of Father's household. Since the summer of 2018, Father's
household has included Ki . .. Child has a positive relationship with Ms.
The Court's order of August 21, 2018, vacated the Temporary Agreed Order of
December 23, 2016. Fathers petition for special relief filed October 12, 2017, seeking
to void the custody agreement was denied as there was insufficient evidence to support
a legal conclusion that Father entered into the agreement under duress or that the
agreement was the result of coercion.
e Our nia Papademetri
COPIES SENT PURSUANT TO Pain?. 236(b)
AUG 2 1 2018 7 FIRS1 JUJICItn 4ISTRICT OF PA USER I