N.H.M. v. P.O.T.

947 A.2d 1268, 2008 Pa. Super. 90, 2008 Pa. Super. LEXIS 643
CourtSuperior Court of Pennsylvania
DecidedApril 30, 2008
StatusPublished
Cited by17 cases

This text of 947 A.2d 1268 (N.H.M. v. P.O.T.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
N.H.M. v. P.O.T., 947 A.2d 1268, 2008 Pa. Super. 90, 2008 Pa. Super. LEXIS 643 (Pa. Ct. App. 2008).

Opinion

OPINION BY

STEVENS, J.:

¶ 1 N.H.M. (“Mother”) appeals from the August 23, 2007 order of the Court of Common Pleas of Dauphin County awarding primary physical custody of the parties’ minor children, G.M.T., a male, and H.M.T., a female, (collectively “the children”) to P.O.T. (“Father”). We affirm.

¶ 2 The relevant facts and procedural history, as gleaned from the record, are as follows: Mother and Father are the natural parents of G.M.T. (D.O.B. 2/11/1996) and H.M.T. (D.O.B. 1/2/1997). Mother and Father lived in California with the children until January 10, 2000, at which time Mother and the children relocated to the home of Mother’s parents in Clinton County, Pennsylvania. By order dated Decem[1271]*1271ber 11, 2000, Mother was awarded primary physical and legal custody of the children. To date, Father continues to reside in Hayward, California and lives with his mother. Over the years, the children have spent Christmas vacation as well as summer vacation with Father in California. In June of 2004, Mother moved with the children to the home of her paramour, S.R., and his son, C.R., who is six months older than G.M.T. S.R.’s home is located in Dauphin County, Pennsylvania.

¶3 In August of 2006, while visiting Father in California, G.M.T. informed Father that, on approximately thirty occasions over the past two years, beginning when he was eight years old, he had been sexually assaulted by C.R. Thereafter, Father filed a petition in Alameda County, California for temporary emergency custody of the children. Father’s petition was dismissed, and the court directed that Father return the children to Pennsylvania. In the interim, on August 24, 2006, Mother filed a petition for contempt against Father in Clinton County, Pennsylvania, in which she alleged that Father failed to return the children from summer visitation. Mother’s petition was likewise dismissed by the trial court because the children had resided for more than six months in Dauphin County, Pennsylvania. As a result, by order dated September 6, 2006, the Clinton County trial court transferred the instant custody action to Dauphin County.

¶ 4 Father returned the children to Mother per the Alameda County court order. On December 18, 2006, Father filed a petition for modification of custody in Dauphin County, Pennsylvania, in which he requested primary physical custody of the children.1 Thereafter, three custody conciliation conferences occurred in Dauphin County, one in January, February, and May of 2007. Father personally attended the first two conferences, and he participated by telephone at the third conciliation conference. By temporary custody order dated February 26, 2007, Mother and Father were granted shared legal custody, and Father was given partial physical custody. Thereafter, Father filed a “petition for special relief ex parte,” in which he again requested primary physical custody of the children.

¶ 5 A custody hearing followed on June 25, 2007. Upon agreement between Mother’s counsel and Father, the trial court interviewed the children separately without counsel present and without a court reporter. By order entered on August 23, 2007, the trial court awarded Father primary physical custody of the children. In addition, the order granted Mother visitation as follows: (1) one-half of the Christmas holiday; (2) a continuous two-week period during the summer; (3) the entire Easter vacation; (4) liberal visitation should she visit California; and (5) any other visitation agreed to by the parties. Further, the custody order directed that, when visiting Mother, the children “shall not be left unsupervised with [C.R.],” nor share a bedroom with C.R.

¶ 6 Mother filed a timely notice of appeal on September 6, 2007. On September 12, 2007, the trial court ordered Mother to file a concise statement of matters complained of on appeal within fourteen days, pursuant to Pa.R.A.P.1925(b), and Mother timely complied.

[1272]*1272¶ 7 On appeal, Mother raises the following issues:

1. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT AWARDING PRIMARY PHYSICAL CUSTODY OF BOTH CHILDREN TO FATHER WAS IN THEIR BEST INTERESTS, CONSIDERING THE PARTIES’ HISTORICAL INVOLVEMENT IN THE CHILDREN’S LIVES, THEIR PARENTING HISTORIES, AND THEIR RESPECTIVE LIVING ARRANGEMENTS.
2. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT AWARDING FATHER PRIMARY PHYSICAL CUSTODY OF THE CHILDREN WAS IN THE CHILDREN’S BEST INTEREST AFTER CONDUCTING AN OFF-THE-RECORD INTERVIEW WITH THE CHILDREN. FURTHER, THE COURT APPEARS TO HAVE BASED ITS [SIC] DECISION TO TRANSFER FULL CUSTODY FROM MOTHER TO FATHER ENTIRELY ON THAT INTERVIEW.
3. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT AWARDING FATHER PRIMARY PHYSICAL CUSTODY OF THE CHILDREN WAS IN THE CHILDREN’S BEST INTEREST BY GIVING UNDUE WEIGHT TO THE CHILDREN’S ALLEGED PREFERENCE TO LIVE WITH THEIR FATHER.
4. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT AWARDING FATHER PRIMARY PHYSICAL CUSTODY OF THE CHILDREN WITHOUT FIRST ORDERING A CUSTODY EVALUATION WAS IN THE CHILDREN’S BEST INTEREST.
5.WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT REALISTIC VISITATION ARRANGEMENTS EXIST WHICH WILL FOSTER THE ONGOING RELATIONSHIP BETWEEN MOTHER AND HER SON AND DAUGHTER.

Mother’s brief at 5.

¶8 We conduct our review according to the following standard:

Our paramount concern and the polestar of our analysis in this case, and a legion of prior custody cases is the best interests of the child. The best interests standard, decided on a case-by-case basis, considers all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual wellbeing. On appeal, our scope of review is broad in that we are not bound by deductions and inferences drawn by the trial court from the facts found, nor are we required to accept findings which are wholly without support in the record. On the other hand, our broad scope of review does not authorize us to nullify the fact-finding function of the trial court in order to substitute our judgment for that of the trial court. Rather, we are bound by findings supported in the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.
Further, on the issues of credibility and weight of the evidence, we defer to the findings [of] the trial judge. Additionally, appellate interference is allowed only where it is found that the custody order is manifestly unreasonable as shown by the evidence of record.

Saintz v. Rinker, 902 A.2d 509, 512 (Pa.Super.2006) (quotation omitted). Moreover, [1273]*1273“[i]n a custody .action, the particular circumstances of the case must be considered. Each case is to be decided on its own individual facts.” E.A.L. v. L.J.W., 443 Pa.Super. 573, 662 A.2d 1109, 1118 (1995) (citation omitted). Unless the trial court’s ruling represents a gross abuse of discretion, an appellate court will not interfere with its order awarding custody. See id.

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Cite This Page — Counsel Stack

Bluebook (online)
947 A.2d 1268, 2008 Pa. Super. 90, 2008 Pa. Super. LEXIS 643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nhm-v-pot-pasuperct-2008.