Roupe, D. v. Ficarri, A.

Opinion

J-S39001-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

DUSTIN ROUPE : IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellant :

: :

v. :

: :

AMANDA FICARRI : No. 174 WDA 2024

Appeal from the Order Dated January 8, 2024 In the Court of Common Pleas of Beaver County Civil Division at No(s):

No. 10209-23

BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.: FILED: January 8, 2025

Dustin Roupe (“Father”) appeals from the January 8, 2024 order entered

in the Beaver County Court of Common Pleas that awarded him and Amanda

Ficarri (“Mother”) shared legal and physical custody of the parties’ four-year-

old child, L.J.R. (“Child”). Father raises challenges to weight of the evidence

with regards to the trial court’s consideration of the 23 Pa.C.S. § 5328 custody

factors and further argues that the trial court improperly considered Father’s

motivation in pursuing primary physical custody of Child. Upon review, we

affirm.

The Honorable Kim Tesla has authored a thorough and accurate

procedural and factual history in the February 26, 2024 Pa.R.A.P. 1925(a)

Opinion and Order (“Opinion”), which we adopt for purposes of this appeal.

Trial Ct. Op., 2/26/24, at 1-4. By way of background, Father and Mother were

never married but lived together for approximately five years until they

J-S39001-24

separated in May 2022 and agreed to an informal shared custody agreement,

where Child spent equal time with each parent. Mother and Father are both

employed and both have extended family that live nearby. Father has a new

significant other, Amber Falletta, and the two have a child together. Father

and Ms. Falletta have purchased a portion of Father’s parents’ 45-acre

property and intend to build a home there together.

On February 14, 2023, Father filed a custody complaint requesting

primary physical custody of Child and averring that Mother had mental health

issues. On July 14, 2023, the trial court entered a proposed order that

awarded the parties shared legal and physical custody on a “2-2-3 day”

rotating schedule. The proposed order gave preference to Father’s work

schedule.

On August 3, 2023, Father filed exceptions, again averring that Mother

had mental health issues. The court held pre-trial conferences on September

29 and October 6, 2023, but was unable to mediate the conflict between the

parties. While Mother was in agreement with the July 14, 2023 proposed

order, Father wanted to pursue primary physical custody.

The court held hearings on December 15, 2023, and December 19,

2023. The parties entered a stipulation that “Mother’s mental health would

not be an issue at trial, so it would not be necessary for Mother to present

expert testimony on her mental health to the [c]ourt during trial.” Trial Ct.

Op. at 2. Father presented testimony from himself; Ms. Falletta; Wendy

Richards, Father’s mother; and Leroy Richards, Father’s father. Mother

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presented testimony from herself; Dominic Ficarri, III, Mother’s father;

Jeanette Ficarri, Mother’s mother; Traci Rice, Mother’s sister; Cody Rogers,

parents’ mutual friend and babysitter for Child; and Dominic Ficarri, Mother’s

brother.

Relevant to this appeal, the court heard evidence that on July 23, 2023,

Father filed a petition for a reduction of child support payments but, after

hearing evidence, the court increased Father’s support obligation. Father

admitted that, after the child support hearing, he became upset and angry

and confronted Mother outside of the courthouse. As a result of the incident,

the parties agreed to a protection from abuse (“PFA”) order with Mother as

the protected party. The court entered the order without either party making

admissions to the underlying accusations, and by agreement of the parties,

the court subsequently dismissed the PFA action.

On cross examination, Mother’s counsel asked Father why he continued

to pursue primary physical custody. and Father testified that he wanted one

more day of custody because of his belief that he should have custody

whenever Mother was working and needed to use childcare providers. Father

also expressed concerns with Mother’s care of Child relating to Child’s

education and hygiene. Also on cross examination, Father testified that his

plans to build a house were delayed because the court increased his child

support obligation.

On January 2, 2024, after considering each of the Section 5328 custody

factors on the record, the court issued a decision awarding the parties shared

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legal and physical custody of Child on a “2-2-3 day” rotating schedule. The

trial court also made a finding that “a primary incentive of [F]ather for

continuing to pursue a change in the shared custody order is the recent

increase in child support and [F]ather’s desire to lower child support in order

to build a house.” Order, 1/2/24, at 2 (unpaginated).

Father timely appealed. Father and the trial court complied with

Pa.R.A.P. 1925.

Father raises the following issues for our review:

1. Did the honorable trial court err[] and abuse its discretion by issuing an order that focuses on an errant assumption regarding the main motivation of [] Father being a desire to reduce his child support, which is not a custody factor?

2. Did the honorable trial court err[] and abuse its discretion by issuing an order that fails to grant Father primary physical custody and fails to accurately apply 23 Pa.C.S. [§ ]5328, the [17] relevant custody factors, to the facts of this case? Father’s home provides structure, stability, sibling relationships, routines, a better school district, extended family in a rural setting, activities and a wonderful way of life. Mother has no available, secure childcare, leaves for work extremely early in the morning limiting the child’s sleep, lacks stability at present, and lives too far for a shared schedule to be sustainable when school starts.

Father’s Br. at 7.

A.

This Court reviews a custody determination “for an abuse of discretion,

and our scope of review is broad.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.

Super. 2014). This Court will not find an abuse of discretion “merely because

a reviewing court would have reached a different conclusion.” In re K.D.,

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144 A.3d 145, 151 (Pa. Super. 2016). We must accept the findings of the

trial court that the evidence supports. S.W.D., 96 A.3d at 400. Importantly,

“[o]n issues of credibility and weight of the evidence, we defer to the findings

of the trial judge who has had the opportunity to observe the proceedings and

demeanor of the witnesses.” K.T. v. L.S., 118 A.3d 1136, 1159 (Pa. Super.

2015) (citation omitted). We can interfere only where the “custody order is

manifestly unreasonable as shown by the evidence of record.” Saintz v.

Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted). Further, in

a custody case, relief is not warranted unless the party claiming error suffered

prejudice from the mistake. J.C. v. K.C., 179 A.3d 1124, 1129-30 (Pa. Super.

2018).

When reviewing child custody matters, our “paramount concern and the

polestar of our analysis” is the best interests of the child. Saintz, 902 A.2d

at 512 (citation omitted). “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 well-being.” D.K.D. v.

A.L.C., 141 A.3d 566, 572 (Pa. Super. 2016) (citations omitted). “Common

sense dictates that trial courts should strive, all other things being equal, to

assure that a child maintains a healthy relationship with both of his or her

parents, and that the parents work together to raise their child.” S.C.B. v.

J.S.B., 218 A.3d 905, 916 (Pa. Super. 2019).

The trial court “shall determine the best interest of the child by

considering all relevant factors, giving substantial weighted consideration to

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the factors . . . which affect the safety of the child,” including the specific

factors mandated by the Custody Act. 23 Pa.C.S. § 5328(a). The court must

“delineate the reasons for its decision[.]” Id. at § 5323(d). Finally, “[i]n any

action regarding the custody of the child between the parents of the child,

there shall be no presumption that custody should be awarded to a particular

parent” and no “preference based upon gender.” Id. at §§ 5327(a), 5328(b).

In his first issue, Father avers that the trial court abused its discretion

when it improperly considered Father’s motivation in pursuing primary

physical custody of Child. Father’s Br. at 17, 24. Father argues that the trial

court made an “errant” finding that Father pursued primary physical custody

of Child in an effort to reduce his recently increased child support obligation.

Id. Father asserts that this is not a custody factor and, therefore, the court

should not have considered it. Id. at 17. Father’s arguments lack merit.

In presenting his argument, Father fails to acknowledge that Section

5328 compels the trial court to “determine the best interest of the child by

considering all relevant factors[.]” 23 Pa.C.S. § 5328(a) (emphasis added).

The statute provides a non-exhaustive list of the specific factors that the trial

court “shall” consider, including catchall factor 16: “Any other relevant

factor.” Id. at § 5328 (a)(16).

Instantly, the trial court acknowledged that factor 16 allows the court to

consider “any other relevant factor” and found Father’s motivation to save

money to be relevant. Trial Ct. Op. at 20. The trial court opined:

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The Court believes that Father’s motivation in continuing his efforts to obtain primary custody of the minor child is relevant, given that his motivation appears to not concern the actual best interests of the minor child but to his own interest in obtaining a decrease in his child support payments.

Id. The court further explained that it did not base its decision solely on

Father’s motivations but, rather, properly considered all the custody factors in

coming to a decision. The court opined:

In addition, the Court did not base its custody decision solely on its finding that Father had ulterior motives in pursuing child custody litigation. The Court heard two days of testimony in this case. It heard the testimony of both parties, and examined the evidence and exhibits presented at trial. The Court carefully reviewed the § 5328 factors and applied them to the factual circumstances of this case before making its child custody determination. The Court determined that the current child custody arrangement was working for both parties, even though the current order still benefits Father over Mother, since it accommodates his work schedule but not hers. Even if the Court did not consider Father's motivation in continuing to pursue primary custody of the minor child, the Court's analysis and application of the § 5328 factors would not change. Regardless of Father’s motivations behind continuing to pursue primary custody, proper application of the § 5328 factors shows that shared custody is in [Child]’s best interest.

Id.

Father provides no legal authority to support his position that a parent’s

motive in filing a custody petition is not a relevant factor for the court to

consider. Upon review, we conclude the record supports the court’s findings.

Accordingly, we find no abuse of discretion.

In his second issue, Father avers generally that the trial court misapplied

the Section 5328 custody factors. Father’s Br. at 25-26. Essentially, Father

asks this Court to reweigh the evidence, which we cannot do. In accordance

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with our well settled standard of review, we defer to the trial court on issues

of weight and credibility. The Honorable Kim Tesla has authored a

comprehensive, thorough, and well-reasoned Opinion, including discussion of

relevant law, and has engaged in an analysis of each of the Section 5328

custody factors and made specific findings regarding each factor, which the

record supports. Trial Ct. Op. at 8-18. (addressing Father’s second issue on

appeal, considering all the Section 5328 custody factors, and finding that it

was in Child’s best interest to award shared legal and physical custody of Child

to parents). After a thorough review of the parties’ briefs, the applicable law,

and the trial court’s Opinion, we discern no abuse of discretion. We, thus,

adopt the trial court’s analysis as our own and affirm on the basis of the trial

court’s February 26, 2024 Opinion.

In sum, the trial court did not err when it considered Father’s motive in

filing the custody complaint. Moreover, the trial court thoroughly considered

all the Section 5328 custody factors prior to its custody award, and the record

supports the trial court’s findings. Accordingly, we find no abuse of discretion.

All parties are instructed to attach a redacted copy of the trial court’s

February 26, 2024 Opinion to all future filings.

Order affirmed.

Judge Nichols joins the memorandum.

Judge Kunselman did not participate in the consideration or decision of this case.

9

J-S39001-24

DATE: 1/8/2025

Circulated 11 22 AM Circulated 12/20/2024 11:22 1122 AM

,.

• f

THE COURT IN THE OF COMMON

COURT OF COMMON PLEAS OF BEAVER COUNTY COUNTY

PENNSYLVANLA PENNSYLVANIA PENNSYLVANLA CIVIL DIVISION CIVIL DIVISION —-- LAW

DIVISION

DUSTIN ROUPE,

ROUPE,

PLAINTIFF

VS.

NO. NO, NO. 10209-2023

FIC ARRI, FIC ARRI,

AMANDA FICARRI, CUSTODY CUSTODY CUSTODY

DEFENDANT

Pa. R.A.P.1925(a)(2) Pa. R.A.P. 1925(a)(2)

R.A.P. 1925(a)(2) OPINION OPINION AND

AND ORDER

I

TESLA, I

J.

FEBRUARY FEBRs 6

6 2024

2024 2024

INTRODUCTION

Court is an

The matter before the Court an appeal Dustin Roupe appeal by Dustin Roupe (hereinafter, Roupe "Father") of (hereinafter, "Father") (hereinafter, "Father") of the the the

Court's January Court's January 2,

2, 2024,

2024, Custody

Custody Order

Order granting shared custody granting shared custody between custody between Father and Amanda Father and Amanda

Amanda

Ficari (hereinafter, """Mother') Ficarri Ficari Mother") of their minor child, Mother") LJ.R.

child, L.J.R.

LJ.R. On appeal, Father On appeal, On appeal, Father

Father

argues argues that the

the Court did

did not

not properly

properly consider

consider the

the sixteen child custody sixteen child custody factors custody of 23 Pa.

of23

factors of23 Pa C.S.A.

Pa C.9_A

C.9_A

§5328, and $5328, $5328, and that

that the erred by

Court erred

the Court by making making aa

a factual

factual finding

finding that one of

that one of Father's

Father's motivations

motivations in motivations in

in

continuing to continuing pursue primary to pursue of the custody of

primary custody the minor child was minor child to obtain was to obtain aa

a decrease

decrease in decrease in his

in his child

his child

child

support payments, support payments, which had been been increased

increased during the litigation during the litigation of his his matter.

matter. For matter. For the

the reasons

reasons reasons

stated below, the Court finds that Court finds that Father's claims claims are

are without

without merit.

merit.

FACTS AND FACTS AND PROCEDURAL

PROCEDURAL HISTORY

HISTORY

On On February

February 14,

14, 2023,

2023, Father filed aaaComplaint Father filed Complaint for Custody against Custody

for Custody against Mother against Mother requesting Mother requesting

requesting

physical custody

primary physical of the parties' minor child L.J.R.

custody of L.JR. In the Complaint, Complaint, Father Complaint, Father alleged Father alleged that

alleged that

that

was employed

Mother was employed by UPMC Wexford as as aa

a patient care technician. Father patient care Father further further alleged further alleged that

alleged that

that

n ,, s

suffered from

Mother suffered from mental mental health issues

issues that prevented

prevented her from properly caring for properly caring properly caring for the

the minor

minor minor

child. child. Father requested primary physical and child. Father and legal legal custody. The Count

custody. The Court entered aa Count entered a Proposed Order Order

Proposed Order Proposed

July 14, on July 114, 2023,

2023, providing for

for shared physical and legal physical and for the custody for

legal custody the parties, parties, and parties, allowing

and alloswi and alloswi

have primary physical

Father to have during his custody during

physical custody days off days

his days off work.

work.

On August 3, On 3, 2023, Father filed Exceptions to the Proposed Proposed Custody

Custody Order. Custody The Court

Order. The Court

scheduled scheduled a

aa pre-trial on Father's Exceptions.

conference on

pre-trial conference Exceptions. In his Exceptions, In his Exceptions, Father Exceptions, Father again

again alleged again alleged

alleged

that that Mother suffered from Mother suffered mental health from mental issues that health issues that may

may negatively

negatively impact negatively impact her

impact her ability to

to care

ability to ability care for

care for

for

child on

the child on aa % time basis.

% time

The Court held pre-trial conferences on Court held on September and October September 29 and October 6, 6, 2023.

2023. At the pre-

At the pre

trial conferences, the trial conferences, the Court Court attempted

attempted to mediate the

to mediate conflict between the conflict between the

the parties

parties to parties to foster amicable amicable

foster amicable

co-parenting of co-parenting of the

the minor child. Mother

minor child. Mother indicated indicated that the July 14, the July 14, 2023,

2023, Proposed Custody Order Proposed Custody Proposed Custody Order

would not accept

was acceptable to her. However, Father would accept the Proposed Proposed Order,

Order, and indicated

indicated that

that

wished to he wished he further pursue to further pursue the

the custody

custody litigation in his litigation in effort to his effort obtain primary to obtain custody of primary custody primary custody of the

of the

the

minor child. Therefore, minor child. Therefore, after the pre-trial after the conference on pre-trial conference on October 6, 2023, October 6, the Court 2023, the 2023, entered an entered

Court entered an

an

Order scheduling Order trial in scheduling trial in this

this matter

matter to begin in

to begin in December, 2023.

2023

December, 2023 December,

trial in this matter, the Prior to trial the Court was was alerted

alerted that

that there would be aaastipulation stipulation between stipulation between

the the parties parties that

that Mother's

Mother's mental would not health would

mental health not be an an issue at trial,

issue at trial, so

so it would not

it would be necessary not be necessary

necessary

for Mother for Mother to to present

present expert

expert testimony on her

testimony on her mental

mental health

health to

to the

the Court during trial

Court during

during trial

The Court The Court held

held trial

trial and

and heard

heard testimony from both testimony from both parties on December parties on December 15 and December 15 and December

14 I9 0of 2023. I9 of 0of The Court

2023. The Court heard

heard oral argument and

oral argument announced its and announced decision on its decision on January

January 2, January 2, 2024.

2, 2024.

2024.

During trial, During During trial, it

it came

came to the Court's

to the Court's attention that Father attention that Father had had recently

recently filed

filed aaapetition

petition for petition for aaa

reduction of child reduction of support payments child support on July payments on 23, 2023. 1The Court was 23,2023.'

July 23,2023.' was informed informed that

that Father

Father became

became became

On On July On 1 July 23, 2023, Father 23,2023, 23,2023, fled aa Father filed

fled a petition for reduction petition for reduction of of bis

his child support bis child support payments.

support payments. The

payments. The Honorable Honorable Judge Teel Honorable Judge

Judge Tocci

Teel

entered an interim child entered child support support order on August 31, order on 34, 2023.

34, 2023. The Court held aaachild 2023. child support support support hearing on

on September

September 11,

hearing September hearing on II,

II,

2

2

IS A insA

3

f • I

angry at angry at the

the child

child support

support hearing when he learned learned that

that his support

support payments were to

payments were to be increased increased

instead of decreased. instead of decreased. Following decreased. the support Following the support hearing, hearing, Father confronted Mother Father confronted Mother outside outside the

the

on the

courthouse on courthouse public street the public about the street about the support

support payments.

payments. He stated to Mother He stated Mother

Mother "Are

"Are you

you serious? you serious?

can you do this to me?" An How can Order was entered An agreed PFA Order entered following this incident following this incident naming naming naming

Mother Mother as a protected as aa The Order protected party. The Order was entered without either was entered either party party making

making any making admissions

any admissions any

the underlying accusations, to the accusations, however during during the custody on December 15, custody trial on Father admitted 15, Father admitted

angry because of the increase that he became upset and angry increase in child child support, and that

support, and he confronted that he confronted

and made the

Mother and the above above statements to

to her_

her. That her. That PFA Order

Order has since

since been

been dismissed

dismissed by

by by

agreement of agreement of the parties.

parties

the parties

custody trial, during

At the custody during cross-examination cross-examination of

of Father by Counsel for

by Counsel for Mother,

Mother, Counsel

for Mother for Mother asked asked Father

Father what

what his

his objective

objective was

was in

in continuing to pursue

continuing to pursue primary custody primary custody primary of the

custody of

minor child. Father minor Father responded responded that

that he

he wanted

wanted one

one more

more day of custody

day of of the

custody of the minor

minor child,

child, because

because

he believed that he believed he should that he should have custody whenever have custody whenever Mother to use needed to

Mother needed childcare providers use childcare providers when providers when

work. Father also stated that his main she was at work. main concerns concerns with Mother's care care of

of the

the minor

minor child

child

to the child's education and hygiene.

related to hygiene.

trial, no credible At trial, credible evidence evidence was

was introduced

introduced that established that Mother had any established that mental any mental any

ability to parent L.J.R. As indicated, illness that affected her ability Father was questioned indicated, when Father questioned by by by

for Mother, he stated

Counsel for stated that he desired desired aa

a change of one

change of one additional day of custody day of custody the

custody in the

shared order. shared order.

demeanor and testimony of observing the demeanor

After observing of the parties, as well parties, as well as

as considering all the

considering all the

of23

factors of23 of 23 Pa.

PA. C.S.A. §$$ 5328 on PA. C.S.A.

C.S.A. on the record, the Court record, the Court made aa a specific

specific finding of fact

finding of fact that one

one of

of

2023, and issued 2023, and issued aaamodified child child support order on

support order September 12.

on September Judge Tocci's 2. Judge Tocci's September September I2 September 12 order increased I2 order increased

child support payment obligation.

Father's child obligation. Father filed exceptions the child exceptions to the child support order on support order on September September 21, September 21,

21,

2023. Judge Tocci held 2023. 2023. hearing on held aaahearing on Father's exceptions, on November 30, exceptions, and on 2023, the Court issued 30, 2023, an Ode issued an Order

raking the September

dismissing Father's exceptions and making raking September I2I2 order a 12 aa final support order order.

support order

primary incentives for continuing Father's primary continuing to pursue a change pursue aa shared custody change in the shared order was custody order was the

the

recently-ordered recently-ordered increase increase in

in Father's

Father's child support payments child support payments and and Father's

Father's desire to have

desire to have his child

his child

support payments support payments lowered lowered so

so that

that he can afford

he can afford to build aaahouse.

to build house.

tension between the parties, the Despite the tension the Court Court found that it was in in the best interest of

interest of

the the minor child to minor child to maintain the provisions maintain the of the provisions of the shared

shared custody order entered custody order on July entered on 14,

July 14, July 2023,

14, 2023,

2023,

with some minor with some modifications. The minor modifications.

modifications. The Court

Court incorporates

incorporates into this Opinion into this its review Opinion its ofthe

review of the $§ 5328

the 5328

factors factors on the record on the record as

as preserved

preserved by the D.A.R.

by the D.A.R. recording

recording system

system on

on January 2024. The

2, 2024.

January 2, January Court The Court

has has attached attached a aa copy of an

copy of an interim

interim transcript

transcript of

of the Court's discussion the Court's discussion of the §$$ 5328 of the 5328 factors

factors to

to this

this

Opinion. Opinion.

Father Father filed

filed aaaNotice of Appeal Notice of Appeal and Concise Statement and Concise of Matters Statement of Complained on Complained

Matters Complained on Appeal Appeal Appeal

on February 1, I, In his Concise I, 2024. In Concise Statement, Statement, Father raises

raises two

two claims of

of error

error by Court:

by this Court:

(1) Father (I) (I) alleges that

Father alleges that this Court erred this Court erred and

and abused

abused its discretion by

its discretion allegedly failing allegedly by allegedly failing to

failing to

accurately apply C.S.A. §$$ 5328 and apply 23 Pa. C.S.A. its sixteen and its sixteen child

child custody

custody factors to the facts facts

of this of this case.

case.

(2) Father also alleges (2) alleges that this Court Court erred

erred and abused

abused its discretion by concluding by concluding that

concluding that

one of one of Father's

Father's motivations

motivations in

in continuing

continuing to

to pursue

pursue a modification of aa modification of the

the Proposed

Proposed Proposed

Order was his Order was his desire to obtain desire to obtain a

aa reduction

reduction in his child

in his child support

support payments. asserts payments. Father asserts

that this was that this his motivation not his

was not and that motivation and that it

it is

is not

not a

aa custody

custody factor. custody factor

factor

For the reasons For the stated below reasons stated and the below and the reasons discussed by reasons discussed by the

the Court

Court during its review

during its of the

review of $§ 5328

the $ 5328

on the factors on the record record at

at the January 2, 2024, hearing, claims are hearing, Father's claims are without without merit.

the Court

In addition, the Court notes that Father's Notice of of Appeal aa Request Appeal includes a Request for Request for

Transcript. However, Transcript. Transcript. However, Father Father has

has taken none of

taken none of the additional steps required additional steps for the required for the Beaver

Beaver County

County County

Court Reporters Court Reporters to prepare the to prepare the transcript transcript for

for transmission

transmission to

to the Court. As Superior Court.

the Superior of the As of the date of

date of

4

4

1V 7 q

5

•

the the entry of this entry of this Opinion, the the Beaver

Beaver County Count

Court Reporters

County Count Reporters have not received have not received a

aa Transcript

Transcript Transcript

Request Request Form or a Form or aa deposit

deposit payment

payment for the transcript for the transcript in

in accordance with Pa.

accordance with Pa. R.A.P.

R.A.P. 1922,

1922, Rule 1922, Rule

LR4007, R.J.A. LR4007, and Pa. R.J.A.

R.J.A. 4007.

4007. Per Pa. R.A.P.

Per

4007. Per R.A.P. Rule Rule 1921,

1921, it is the

it is the appellant's

appellant's responsibility responsibility to responsibility to

cnsure that ensure cnsure that the record record is complete to

is complete enable comprehensive to enable comprehensive appellate review. This appellate review. This responsibility responsibility responsibility

extends to requesting trial transcripts. R.A.P. Rule 1921.

transcripts. Pa. R.A.P.

R.A.P. 192L. Court entered 192L. The Court entered an an Order

Order on

on

February 13,2024, February 13,2024, 13, Father to directing Father

2024, directing to comply comply with these rules

with these rules in

in order

order to

to have

have a

aa complete

complete record. complete record.

Because Father Because Father has has failed

failed to

to take

take the

the necessary

necessary steps for the

steps for the Court

Court Reporters to transcribe Reporters to transcribe the the

proceedings, proceedings, there is no there is transcript of no transcript of the

the trial held in

trial held in this case at this case at this time.

time. The Count

Court requests

The Count requests that

requests that

Father's appeal be Father's appeal dismissed and be dismissed and costs

costs accessed

accessed to

to him

him as

as the appellant.

appellant.

the appellant.

ANALYSIS

CS.A.

23 Pa. CS.A. $5328

C.S.A. §$5328 provides aaanon-exhaustive list 5328 provides list of of factors for the Court to the Court to consider

awarding child when awarding child custody. That statute, in in relevant part, in states:

part, states:

(a) Factors.--In (a) Factors.--In ordering ordering any form of

any form of custody,

custody, the court shall the court shall determine determine the

the best

best

interest the child

of the

interest of child by considering all by considering all relevant relevant factors,

factors, giving weighted giving weighted

consideration toto those

those factors which affect affect the

the safety of the

safety of the child,

child, including

including the including the

following: following:

() (1) Which party is more likely () to encourage likely to and permit encourage and permit frequent frequent and

continuing contact continuing contact between between the

the child and

child and another

another party.

party.

(2) The (2) The present

present and

and past committed by abuse committed

past abuse by aaaparty or member party or member of of the the

party's party's household, whether there is a continued risk is aa risk harm to the risk of harm the child or child or

an abused an abused party

party and

and which

which party

party cancan better

better provide adequate physical provide adequate physical physical

and supervision

safeguards and child.

supervision of the child.

(2.1) The information (2.1) information set section 5329.1(a)

set forth in section 5329.1(a)

5329.1(a) (relating

(relating to (relating to

consideration of child abuse of child and involvement with protective abuse and protective services)

services). services)

(3) The (3) The parental duties performed parental duties performed by each party by each on behalf

party on of the

behalf of the child.

child.

The need

(4) The (4) for stability need for and continuity stability and continuity in in the education, family child's education,

the child's family life family life

and community and community life.

life.

(5) The availability (5) of extended availability of extended family.

family family

The child's

(6) The child's sibling relationships.

relationships.

(7) The (7) The well-reasoned

well-reasoned preference

preference of

of the

the child, based on

child, based on the

the child's

child's maturity

maturity maturity

judgment

and judgment.

judgment

(8) The attempts (8) attempts of

of a

aa parent to turn the

parent to the child

child against the other

against the other parent, parent, except

except except

n cases in n cases of domestic violence where reasonable safety safety safety measures are

measures are

necessary to protect the child from harm from harm.

harm

(9) Which party (9) party is more likely to maintain aa party a loving, loving, stable, loving, stable, consistent stable, and

consistent and

and

the child

nurturing relationship with the child adequate child's emotional adequate for the child's emotional emotional

needs.

(I0) 0 Which party is

0) Which (I0) is more

more likely more likely to attend

attend to the

the daily

daily physical,

physical, emotional,

emotional, emotional,

and special

developmental, educational and special needs of the child child. child

(I1) the residences of (11) The proximity of the (I1) of the parties.

parties.

(12) Each (12) party's availability Each party's to care availability to care for

for the

the child

child or

or ability

ability ability to make

make make

appropriate child-care appropriate child-care arrangements arrangements arrangements.

(13) The (13) The level of conflict conflict between the parties and the willingness willingness and willingness and ability ability ability

of of the

the parties to cooperate parties to cooperate with one another.

with one another. A

A party's A effort to

party's effort party's to protect protect aa protect a

child from abuse child abuse by another another party is not

party is unwillingness or not evidence of unwillingness unwillingness or

cooperate with that party.

inability to cooperate party.

(4) The (14) (4) The history of

of drug or

or alcohol

alcohol abuse of aaaparty or member party or member of

of aa

a parry's

party's party's

household. household.

(I5) aa party (15) The mental and physical condition of a (I5) or member party or member of

of aa

a party's

party's party's

household household. household

(16) Any (16) Any other

other relevant

relevant factor.

factor.

neutral.--In making aa

(b) Gender neutral.--La neutral.--In a determination determination under

under subsection

subsection subsection (a),

(a), no (a), no party

no party

party

shall receive shall receive preference preference based

based upon gender in

upon gender in any

any award granted under

granted

award granted under this chapter.

this chapter

chapter

Pa.CSA. 23 Pa.

Pa.CSA. $5328(a)-(b).

C.S.A. §$5328(a)-(b).

5328(a)-(b). "All

"AI of the factors "AI of listed in $$§ 5328(a)

factors listed are required 5328(a) are to be required to required be considered considered considered

trial court by the trial court when entering aaacustody order."

order." K.D.

KD,_• KD,_•v. E.D.,

ED,, 2021 PA Super ED,, Super 224,

Super 224, 267

224, 267 A.3d

267 A.3

(2021) (quoting

1215, 1231 (2021)

(2021) (quoting J.R.M.

(quoting VV JE.A., IR.M, v. 2011 Pa. Super.

J.E.A., 2011 Super. 263, Super. 263, 33 A.3d 647,

263, 647, 652

647, 652 (2011))

652 (2011)

(2011)

original)

(emphasis in original)

original).

The Superior Court has Superior Court has noted:

has

reviewing aaacustody order, our In reviewing our scope of the scope is of the broadest type and our type and type our standard

standard is

is

of discretion.

abuse of discretion. We must accept accept findings ofof the court that are the trial court are supported supported by supported by

by

competent evidence competent evidence ofof record, as our record, as our role does not role does not include

include making

making independent making independent

independent

factual determinations. In addition, with regard to issues of credibilitycredibility and credibility and weight

weight weight

of the evidence, we must defer to the presiding trial judge presiding trial judge who viewed viewed and

and assessed

assessed

the witnesses first-hand. However, we are not the not bound by by the trial trial court's

court's deductions

deductions

or inferences from its factual findings. Ultimately, Ultimately, the test is whether the trial court's the trial court's

conclusions are unreasonable as as shown byby the evidence of of record. WeWe maymay reject may reject

reject

the conclusions of the conclusions of the the trial court only

trial court only if

if they involve an

they involve an error of law, error of law, or

law, or are

are are

unreasonable unreasonable in light of in light of the

the sustainable

sustainable findings

findings of

of the

the trial

trial court.

court.

With any child With any child custody custody case,

case, the

the paramount

paramount concern is the concern is the best interests of best interests of the

the child.

child child

This standard requires This standard requires aaa case-by-case case-by-case assessment

assessment ofof all

all the

the factors

factors that may

that may

may

legitimately affect the legitimately affect physical, intellectual, the physical, intellectual, moral spiritual well-being and spiritual

moral and well-being well-being of

of the

the

child. child child

M.IM. M.J.M. v. M.IM. V, ML.G, 2013 V, M.L.G., ML.G, 2013 PA Super 40, 63 63 A.3d

A.34 331, A.34 331, 334

334 334 (2013)

(2013) (quoting (2013) (quoting J.R.M.

LR.M. V. LR.M. V J.E.A., 2011

JE.A., VJE.A., 2011

Super 263, PA Super 263, 33 33 A.3d

A.3d 647, 650

650 (2011)).

647, 650 (2011)). I M.J.M., (2011)). In

I MJ.M., the Superior

MJ.M., Superior Court reviewed the Court reviewed the trial

trial court's

court's court's

obligations its review in its

obligations in of the review of sixteen $§ 5328 the sixteen 5328 factors:

factors:

In JR.M., the trial In JR.M., J.R.M., court issued trial court opinion in an opinion

issued an in conjunction in conjunction with its awarding order awarding

its order awarding

the the mother mother primary custody in primary custody in which it failed which it failed to address each to address section 5328(a)

each section 5328(a) factor.

5328(a) factor

factor

Instead, it Instead, it "based its decision almost it almost exclusively exclusively onon

on' the fact

fact that Child is

that Child is

and the parties' difficulty communicating breastfeeding and communicating with each other"other" and made and made

no mention of no mention of the the preponderance

preponderance of of the section 5328(a)

the section 5328(a) factors.

5328(a) factors.

33 A.3d

JR.M. 33 A.3d at 652.

652. By at 652. failing to

By failing address each to address each section

section 5328(a)

5328(a) 5328(a) factor

factor in

in its

its its

concluded that

opinion, we concluded opinion, "the trial that "the that court failed trial court failed to

to properly

properly consider

consider the

the statutorily

statutorily statutorily

arriving at

mandated factors in arriving at its its custody

custody determination[.]"

determination[.)" determination[.]" Id.Id. We held d. We held that

that the

the

trial court must trial court consider all expressly consider

must expressly all of of the

the section

section 5328(x)

5328(a) factors 5328(a) factors when entering entering entering

aaacustody custody order

order in

in order

order toto comply with the comply with the Custody Act's requirements, Custody Act's requirements, and requirements, and that

that

failure to failure do so to do amounts to

so amounts to an

an error

error ofof law. Id; see law. Id.;

Id; see also M.P.,

MP,,, 54 MP, 54 A.3d

A.3d at 956

at 956

(holding that (holding that the trial court is required to to provide provide reasons for its decision decision prior to

prior to prior

appeal). appeal).

While Custody Act the Custody

While the Act requires requires aaatrial

trial court

court to the reasons articulate the to articulate for its reasons for its decision decision

to the

prior to the filing of of aaa notice of appeal and of appeal and sets

sets forth explicit

explicit factors that the trial factors that trial

must consider

court must court consider when when reaching

reaching itsits decision, 23 Pa.C.S.A.

decision, 23 Pa.C.S.A. §§$$ 5323(d), $$ 5328(a),

5323(d), 5328(a), 5323(d), 5328(a),

Mother argues Mother argues that that the trial court's articulation articulation of its reasons must must bebe detailed

detailed

extensive. She

and extensive. She contends contends that the the trial trial court is required to include references required to references to to the record, the analysis of record, analysis of the the conflicting

conflicting evidence,

evidence, findings as to findings as the credibility to the credibility of the credibility of the

witnesses onon the the particular issues

issues and

and discussion of the the witnesses'

witnesses' respective

respective respective biases.

biases.

Brief at 29.

Appellant's Brief 29, 29,

I

Mother misinterprets the the depth depth of

of the trial court's

court's obligations.

obligations. The Custody obligations. Custody Act Custody Act

requires only requires only that

that the

the trial

trial court

court articulate

articulate thethe reasons reasons for for its

its custody

custody decision custody decision in

open court oror in a

aa written opinion

opinion or

or order

order taking into consideration taking into consideration the enumerated the enumerated

Pa.C.S.A. $$

factors. 23 Pa.C.S.A.

Pa.C.S.A. $$ 5323(d), 5328(a). Contrary §§ 5323(d), Contrary to Mother's argument,argument, there argument, there is

is

no required amount of of detail for the trial court's court's explanation;

explanation; all that is required required required is

is

that the enumerated factors are that are considered considered and that the custody custody decision custody decision is is based based

on those considerations. on considerations. For example, example, exampl e,f rom th

from trial court's thee trial court's Explanation Explanation of Explanation of Decision Decision

in the case atat bar, 5 it is clear clear that while the trial court found found the majority majority of majority of the

the

section 5328(a) factors to balance fairly section fairly equally equally between Mother and Father, Father, the Father, the

court found that Father was more likely trial court likely to promote promote a aa relationship relationship relationship with Mother Mother

than Mother would with Father than Father and Father attention to Child's educational and that Mother's attention educational needs needs was

was aaa point

point ofof grave

grave concern.

concern. The

The trial

trial court

court further concluded that further concluded Father that Father

would better attend to these these needs. Explanation of Decision, these Decision, 8/16/12, 1-9°b Thus, 8/16/12, at 1-9.

1-9° Thus,

Thus,

in its Explanation of of Decision, the trial court did did precisely precisely what it should have done;

done;

have done;

it weighed the entirety of the section 5328(a) 5328(a) factors in making making the making the custody

custody custody

determination and articulated determination articulated its considerations considerations in in a aa manner that informed informed the the

of the

parties of the reasons for the custody custody award.

MJM.• M.J.M. MJM.• ML.G, v.ML.G, A.34 331, 335-36 M.L.G., 2013 PA Super 40, 63 A.3d A.34 335-36 (2013).

335-36 (2013)

(2013)

I. Father' X. I. Father'ssfirst claim Father's claim that that the Court failed

the Court failed to accurately apply to accurately the $$§ 5328 apply the

the 5328 factors

factors is without

is without

the Court

merit because the Court considered considered each

each factor on the record.

record.

first claim,

In his first claim, Father Father alleges Father alleges that the Court Court erred

erred and its discretion and abused its discretion by by failing by to

failing to failing

accurately apply accurately apply 23 C.S.A. §$$ 5328 and 23 Pa. CS.A.

CS.A. its sixteen and its sixteen child

child custody factors to the factual custody factors factual

of this

circumstances of this case. that Mother case. Father maintains that Mother does Mother does not have any available childcare, any available childcare,

childcare,

that that she that she leaves leaves for early in

for work early in the

the morning the morning which

which allegedly

allegedly limits

limits the child's sleep, the minor child's and and

sleep, and sleep,

that she generally that generally lacks lacks stability lacks stability in her life. Father concludes concludes that in his view aa a proper

proper application

application application

of the of sixteen §$$ 5328 the sixteen 5328 factors factors would

would have

have led

led the

the Court

Court to

to award

award him

him primary physical

physical custody

primary physical primary of custody of custody

child.

the minor child.

Father's claims Father's claims are

are contradicted

contradicted by

by the

the record.

record. The Court record. The Court heard

heard two

two days of testimony

days of in

testimony in testimony

on December

this matter on December 15 and 19,2023.

and 19, At the January 2, 2024, hearing 2023. At

19,2023. after Counsel date, after

hearing date, Counsel for for

parties gave closing arguments, both parties arguments, the Court Court went through each of through each of the sixteen sixteen factors on the

the

record. The Court record. The Court carefully carefully reviewed and considered reviewed and considered the evidence evidence and

and exhibits

exhibits presented

presented by presented both

by both by

in making parties in making its decision decision after

after having the

the opportunity observe the parties'

opportunity to observe demeanor and parties' demeanor parties' and

8

8

•C/\\ 1••

999

during the custody

attitudes during custody proceedings.

proceedings. The Court

Court will

will provide

provide aaasummary

summary of summary review

its review of its of

of §$$

review of

5328 factors 5328 factors for for the

the purposes

purposes of

of this

this Opinion,

Opinion, and

and it

it incorporates its review and incorporates its and discussion of the discussion of

of the

the

$$ 5328 factors in this Opinion § as if fully Opinion as forth herein.

fully set forth herein.

Factor Factor (IL Factor ((IL "Which party 1), "Which party is

is more likely

to

more likely

likely

to encourage

to encourage and permit

encourage and permit frequent and continuing frequent and frequent continuing contact continuing contact_

contact

between the between between and another child and

the child party" favors another party",

party" favors Mother.

favors Mother,

Mother,

On On factor

factor ((1) factor 1) of

(1) of $§ 5328,

of 5328, "Which

5328, Which party

Which party is

is more

more likely

likely to encourage

encourage and to encourage and permit

permit frequent and

and

permit frequent and

frequent

continuing contact continuing contact between the child child and

and another

another party",

party", after observing the demeanor observing the observing of the demeanor of demeanor of the

the

parties and parties and hearing hearing testimony

testimony from

from both sides, the

both sides, Court found the Court found that

that Mother

Mother was

was more was more likely

more to

to

likely to likely

allow frequent and continuing encourage and allow contact between the continuing contact the minor minor child

child and

and Father.

Father. The Father. p

p

Court noted that Court that the the Provisional Order from from July

July 2023 was tailor-made tailor-made to fit

fit Father's

Father's work Father's we

and the arrangements

schedule and arrangements that Father requested.

requested. Mother

Mother accepted

accepted the Provisional Order, even Provisional Order,

Order, even

even

it did though it did not take her own own work

work schedule

schedule into account.

account. The Court

into account. Court also also found

found significant found significant

significant

cross-examination by

Father's testimony during cross-examination by Counsel that he would Counsel for Mother that would be be amenable

amenable to amenable te

te

one additional

receiving just one additional day day of

of custody

custody of the minor child.

of the child. This testimony testimony struck testimony struck the Court the Court the Court

as not making much as much sense sense given Father's stated goal of acquiring goal of acquiring primary acquiring custody, and custody,

primary custody, and the

the Court the Court

found Father's testimony found Father's testimony telling of his motivation telling of motivation in to pursue continuing to in continuing pursue

pursue child custody

custody litigation custody litigation

litigation

against Mother. against Mother. Jn addition, Mother. Jn In addition, the

the Court

Court noted that in

noted that in his complaint Father original complaint

his original complaint Father had had claimed

claimed that claimed that

that

Mother Mother had had mental health issues mental health issues which which prevented her from

prevented her adequately caring adequately

from adequately caring for for the

the minor child.

minor chit minor

However, despite this However, despite this claim claim Father

Father only sought one

only sought one additional additional day of physical day of day custody according physical custody physical custody according according

to to his own testimony his own testimony at at trial. The Court

trial. The trial. Court found

found this

this significant

significant because significant because the Court could Court

the Court could not

could see

not see not see

how how Mother, someone who Mother, someone works at who works at aaahospital

hospital and cares for

and cares for patients, could have patients, could such serious such

have such serious

serious

issues that she

mental health issues she could could adequately

adequately care

care for her patients

for her patients but

but not

not for

for her own minor

her own minor child.

minor child

Later in the litigation Father stipulated that Mother's mental health would not be would not an issue

be an issue at

issue at trial,

at ti%l

ti%l

but but the the parties parties went and forth back and

went back about the forth about specific meaning the specific of the meaning of meaning the stipulation's stipulation's wording. stipulation's wording. The wording. The

The

Court made a Court aa finding of of fact that Father raised the issue of of Mother's mental

mental health

health in an effort

in an effort to

to

gain the gain the upper upper hand in the custody custody litigation. The Court never never heard anything

anything concerning anything concerning regarding concerning regarding

regarding

Mother's mental health Mother's mental health or or her

her ability to properly

ability to properly care

care for the minor

for the child during minor child during

during the

the child custody

child custody

custody

litigation. litigation. The litigation. believes that Court believes

The Court that Father's statement that Father's statement that he only wanted he only more day one more

wanted one day of

day of custody

custody custody

this conclusion.

supports this conclusion.

Factor Factor (8), "The Factor (8), (8), attempts "The attempts parent to attempts of aaaparent

parent tum the

to turn

tum child against

the child the other against the other parent, other parent, except

parent, except in cases

except cases of

cases of

violence where

domestic violence domestic where reasonable safety measures reasonable safety measures are are necessary are necessary to necessary to protect

protect the

the child the harm"

harm"

from harm",

child from child

favors Mother favors Mother. favors Mother In its In consideration of

its consideration of factor factor (8), factor "The attempts (8), "The (8), of a

attempts of aa parent to turn parent to turn the

the child against the

against

child against the

other except in cases of other parent, except of domestic domestic violence

violence where

where reasonable

reasonable safety

safety measures safety measures are necessary are necessary

necessary

to to protect protect the child from harm", the the child Court finds the Court finds that

that Father is more

Father is more likely to make likely to likely make attempts

attempts to attempts to turn

turn

the child against the child against Mother.

Mother. The Court

Court was

was troubled by Father's

troubled by Father's testimony testimony that testimony stated that that stated that he

he planned

planned planned

on telling on telling his his three-year-old

three-year-old son about the son about the effect that that his

his child

child support obligations have support obligations support obligations have

have on

on his on his

finances and and how

how it affected him.

it affected him. The

The Court The does not believe Court does believe that that it is appropriate

is appropriate for a

appropriate for aaparent to parent to parent

involve their young involve their young child child in

in adult

adult matters

matters concerning court-ordered child concerning court-ordered child support support payments. support payments. The

payments. The

The

that there

Court finds that there is no legitimate basis no legitimate basis for Father to to tell L.J.R. about

about the

the increase

increase in child

in child

support support payments.

payments. The Court also The Court also notes that Father notes that Father posted on Facebook posted on about how Facebook about he has how he has to

has to

to

"support support aa support second household a second household he shouldn't be responsible_"

he shouldn't responsible." (Defendant's responsible." (Defendant's Ex.

Ex. I).

I). Father's

Father's public

public public

post post about about these these matters concerned the matters concerned Court.

Court

the Court

review of

In its review of this factor factor the Court

Court also

also referenced the PFA action between the action between the parties.

parties. parties.

was automatically dismissed However, that PFA was dismissed without any any admissions to the

admissions to the underlying underlying underlying

allegations allegations in in the

the PFA, so the

PFA, so Court did

the Court not give

did not the PFA

give the PFA any

any weight any weight and

weight not consider did not

and did not consider it in ;e it ;e

making making its custody determination.

its custody determination determination

10

IO

Factor (9), Factor Factor (9), "Which (9), "Which

" Which party is maintain a is more likely to maintain aa loving, loving. stable, loving. stable, consistent stable, and nurturing_ consistent and nurturing

nurturing

with the child

relationship with child adequate adequate for the child's

child's emotional

emotional needs",

needs", favors Mother.

Mther M ther

oo

On factor On factor (9),

factor (9), "Which

(9), "Which party is more likely likely to

to maintain aaaloving,

loving, stable, consistent and stable, consistent and

child adequate

nurturing relationship with the child adequate for the child's child's emotional

emotional needs", the Count needs", the Count

Court found,

found, found,

on the testimony presented, based on presented, that Mother would be more more likely

likely to maintain aaaloving, likely to loving, stable, loving, stable,

stable,

consistent, and consistent, and nurturing relationship with the minor minor child.

child. Court noted child. The Court noted that that there

there was

was

obtained the password to aaababy evidence showing that Father obtained located in Mother's baby monitor located Mother's house house

seeking permission from without seeking from Mother. Without Without Mother's

Mother's knowledge,

knowledge, Father logged into the logged into logged the

the

baby monitor to check baby baby check when Mother was putting the minor child to bed.

check bed. This evidence bed. evidence concerned concerned

the Court the the Court for for several

several reasons.

reasons. reasons_ the evidence First, the evidence that Father Father logged into the baby logged into baby monitor baby monitor in

monitor in

separate private residence Mother's separate residence and and looked through the monitor's camera camera while Mother's

Mother's own

own

was caring mother was caring for the child child to see

see what time

time the child went

went to bed. This tactic

to bed. tactic does

does not

not strike

strike

Court as the Court as aaa good co-parenting strategy.

strategy. was also There was also evidence showing that Father showing that showing Father

Father

about Mother's choice of

complained about of babysitters, below as babysitters, discussed more below as to to factor

factor ((12).

12). The (12). The

Court found Court found itit concerning concerning that after Father directly contacted the directly contacted the babysitter aathird himself, he had a

babysitter himself, third

party party anonymously contact the anonymously contact the babysitter. This evidence, babysitter. This evidence, along along with along with the evidence about the evidence about the

the baby

baby baby

monitor, raises concern monitor, concern to the the Court. the Court. Lastly.

Lastly, the Court Lastly, the Court noted that ititit found itit concerning concerning that the concerning that the

PFA Order PFA Order was was entered

entered soon

soon after

after the

the child

child support

support hearing.

hearing. However, as noted However, as noted above,

above, because above, because

Order was dismissed by agreement that PFA Order agreement of the the parties, Court did parties, the Court did not consider consider the PEA

PFA

the PEA

Order and Order gave itit no and gave no weight in its its custody determination. In conclusion, determination. In of this conclusion, all of this evidence evidence led

led

Court to the Court to find in favor of Mother on in favor on this this factor.

II

11

II

I •• R

Factor Factor Factor ( 12), "Each party's (12) (12) party's availability availability to care for

to care for the

the child

child or

or ability

ability to make appropriate to make appropriate child-care child-cate

appropriate child-cate

arrangements", favors arrangements", arrangements", favorsMother.

favors Mother

Mother

On factor On factor ((12),

factor 12), "Each

(12), " Each party's

"Each to care availability to

party's availability care for for the or ability

child or

the child to make ability to ability make appropriate appropriate appropriate

child-care arrangements", child-care arrangements", the Court noted the Court noted that Mother had that Mother at aa been at

had been a significant significant disadvantage significant disadvantage

disadvantage

end of

to Father following the end compared to of their their relationship.

relationship. After they

they broke they broke up,

up, Mother up, Mother had

had to

to to

move out move of the out of the home home she

she had shared with

had shared with Father.

Father. Within aa very

Within a short period very short of time, period of time, Father

time, Father had

had had

aa new relationship and a and his new significant significant other

other had moved into

into his house to live

house to live with

with him.'

him. him.

Father's choice to Father's choice to start start aa

a new

new family

family and

and Mother

Mother having

having to

to move out of

move out her home

of her home put

put her put at aa

her at a

because she

disadvantage because disadvantage she had had to

to live

live with her

her parents

parents until she could

until she get her

get

could get own housing.

her own housing. At

housing. At

At

first, Mother obtained first, Mother obtained aa a single-bedroom

single-bedroom apartment.

apartment. apartment. Father

Father repeatedly

repeatedly objected to repeatedly objected

objected to that

that apartment

apartment apartment

attempted to and attempted and to have Mother move have Mother move to other apartments to other apartments that

that he

he had selected. Prior

had selected. trial in to trial

Prior to in this

in this

this

matter, matter, Mother Mother purchased

purchased a

aa home

home in

in Hopewell

Hopewell Township.

Township. At Township. At trial,

trial, Mother

Mother presented

presented photographs presented photographs

photographs

of her of her new new home. (Defendant's Ex.

home. (Defendant's

(Defendant's Ex. G).

G). The G). Court found

The Court found that

that Mother's new house

Mother's new house was

was a was aa good

good good

the minor

home for the minor child.

child. The evidence

evidence showed that the house was fully decorated, that fully decorated, fully decorated, that it

it was

was

suitable for childrearing.

clean, and that it was suitable also presented childrearing. Father also evidence at presented evidence at trial trial to show that

to show that

his house was also a fr froo the

aagood home for child. (Plaintiff's the minor child.

child. (Plaintiffs Ex.

(Plaintiffs Ex. 1).

I). Therefore, I). Therefore, both

Therefore, both parties

parties parties

have have good houses houses for

for childrearing.

childrearing childrearing

claims in

Father claims in his Notice of of Appeal that Mother does does not have

have any available childcare any available childcare

for for L.J.R.

L.JR. while she is while she is at

at work.

work. The Court finds

The Court finds that

that Father

Father contributed

contributed to

to Mother's difficulties

difficulties in

Mother's difficulties in

in

acquiring childcare acquiring due to childcare due to his

his intermeddling in her

intermeddling in childcare decisions.

her childcare decisions. Evidence at trial Evidence at trial showed

showed showed

that Father that Father repeatedly repeatedly complained

complained about

about Mother's

Mother's own

own family

family caring for the minor caring for child when minor child when

Mother was Mother was unavailable.

unavailable. Father unavailable. Father testified testified that

that he

he objected to the

objected to the minor

rinor child rinor child staying

staying overnight staying overnight with

overnight with

with

The Court The 2 Count notes Count notes that that Father's

Father's new significant other new significant other had been Mother's had been best friend Mother's best friend prior prior to prior to Father

Father and

and Mother's and Mother'g

Mother'g

up break up.

up

12

12

(C/\s

Mother's Mother's family family members,

members, including

including Mother's

Mother's parents,

parents, because

because he believes

believes that

that it

it is the mother's

is the mother's

responsibility to responsibility to be be with the minor

with the child for

minor child for nighttime nighttime issues

issues like

like wetting the bed.

wetting the wetting bed. Father

Father testified

testified

that it is Mother's it is responsibility to Mother's responsibility to deal with those deal with those issues,

issues, not

not someone else's, including else's,

someone else's, including Mother's including Mother's

Mother's

own family. own family. Mother also asked Mother also asked Father's assist with Father's parents to assist childcare during with childcare her custody during her custody period.

custody period.

period.

However, Father However, attempted to Father attempted to use

use this

this against Mother by

against Mother arguing that by arguing that any

any time when any time LJR.

L.J.R. was

when LJR. was

being watched by being watched by Father's Father's parents Mother's custody during Mother's

parents during should count custody should as Father's count as Father's custody custody time custody time

and and not Mother's. This led not Mother's. led Mother Mother to asking Father's stop asking to stop Father's parents parents for childcare assistance.

for childcare assistance

assistance

n addition, In n addition, Mother established at Mother established at trial that she had that she acquired professional had acquired daycare services daycare

professional daycare services

within five minutes of home in of her home in Hopewell. However, Father's Father's intermeddling

intermeddling in intermeddling in Mother's Mother's

childcare decision childcare decision may may have caused the

have caused the daycare

daycare provider

provider to stop working

to stop working with Mother.

Mother. Father

Father

called called the daycare provider the daycare provider to ask about to ask the provider's about the qualifications and provider's qualifications certifications. Next, and certifications. Next, Next,

Father Father had had aa a third

third party the daycare call the

party call daycare to ask additional to ask additional questions.

questions. Father's interference interference in

in

Mother's daycare decision Mother's daycare decision may may have contributed to

have contributed to the

the daycare

daycare provider

provider not provider offering further offering

not offering further

daycare daycare services services to to Mother.

Mother. (Defendant's

(Defendant's J). When (Defendant's Ex. J). Mother told When Mother Father that told Father that he had

had caused

caused the

the

daycare to stop daycare stop working working with her on Our Family Family Wizard,

Wizard, Mother stated "I

I was told I was over and

told over and over

over

again again you did not you did not consent consent but

but this

this was something II

was something had to

I had as it

do as to do was my

it was time with

my time my with [L.J.R.]

with [L.JR.] as

[L.JR.] as

you do you do what what you you want on II respect that as on your time and I as [L.J.R.'s]

as that your [LJ.R.'s] dad that [LJ.R.'s] time is your time is your

your time your time

but II don't but I don't understand understand why

why my

my time isn't

isn't thought about!" (Id.).

thought about!" (d.). This statement (d.). statement also shows that also shows that

Mother is Mother is willing willing to

to cooperate

cooperate with Father

Father for

for L.J.R.'s

L.JR.'s best L.JR.'s best interests, even if interests, even if he isn't isn't willing

willing to willing to

cooperate cooperate with her.

her her

At trial, At trial, Mother Mother presented

presented evidence of her evidence of efforts to her efforts to acquire aanew acquire a new daycare

daycare provider since

sinee

provider sinee provider

Father's intermeddling caused the original Father's intermeddling daycare provider original daycare to terminate provider to terminate its its relationship

relationship with relationship her

with her.

her

(Defendant's Ex.

Ex. K).

K). Despite these difficulties, difficulties, Mother

Mother established at trial established at trial that she is that she on the

is on the waitlist

waitlist

13

13

16%

for aaanew for daycare provider.

new daycare provider. However, at the However, at time of

the time of trial

trial Father

Father was continuing to

was continuing

continuing to meddle

meddle in

; ;

decisions about

Mother's decisions about childcare.

childcare. Mother presented evidence that Father has presented evidence has continued continued to

to

interfere with her interfere with choice of her choice of childcare

childcare by

by repeatedly questioning her repeatedly questioning decisions on her decisions on childcare childcare

providers. providers providers

All All this conflict led

this conflict led the

tthhe Court to

e Court additional language add additional to add language to to the final custody

the final order directing custody order custody directing

directing

parties to not the parties not interfere with the other other parent's decision regarding regarding preschool,

preschool, daycare, preschool, and

daycare, and daycare,

babysitting services while babysitting services while the minor child the minor child is

is in

in their

their physical custody. The Order custody. The

physical custody. Order directs directs directs the

the nonnon

non

custodial custodial parent to make parent to make any

any inquires concerning the conceming

inquires conceming of the adequacy of

the adequacy custodial parent's the custodial choice of parent's choice parent's of

preschool, preschool, daycare, or babysitter daycare, or babysitter only only through

through their

their legal counsel unless legal counsel agreed to unless agreed to in

in writing.

writing. writing.

As As to

to the

the alleged

alleged lack of stability lack of in

in Mother's

stability in life, the Mother's life, the Court

Court believes

believes that any

any instability

that any instability in

instability in

in

caused by these hardships Mother's life was caused hardships she she had to endure

endure and

and overcome.

endureand overcome.

overcome. By the time

By the By of trial

time of trial

Mother had Mother had regained regained stability

stability in her life.

in her life. Father's

Father's current

current claim that she

claim that she still

still lacks

lacks stability

stability is stability is

without merit without merit based based on

on the

the record.

record. Also,

Also, Mother

Mother presented evidence at presented evidence at trial trial that

that she

she is on aaawaitlist

is on is waitlist

for for a new professional aa new daycare provider.

professional daycare provider. (Defendant's provider. (Defendant's Ex. K).

(Defendant's K). Therefore, Therefore, this Therefore, this factor favors favors

factor favors

Mother. Mother.

Factor((13), Factor Factor "The level 13), "The level of of conflict

conflict between

between the

the parties and the

parties and willingness and ability willingness

the willingness ability of ability of theparties

of the parties

the parties

to Io cooperate cooperate with one another.

cooperate with another....", another. , favors Mother , favors Mother.

Next, on Next, on factor factor ((13), factor (13), "The level

13), "The level of

of conflict

conflict between

between the

the parties and the

parties and the willingness and willingness and willingness

ability of ability of the parties parties to cooperate with one one another...

another... ",

", the Court found that

another....", that Mother Mother was

was more

more

willing to cooperate willing cooperate with with Father than Father

Father was with Mother. on the Based on evidence and the evidence and

testimony presented testimony presented at at trial,

trial, Mother showed that Mother showed that no

no matter

matter what

what Father said or

Father said did to

or did to her, she

she

her, she her,

would would still still cooperate with Father cooperate with Father so

so that

that he could remain in

could remain in the

the minor child's life

minor child's life and

and have

have have

continued contact continued contact with the minor with the minor child.

child. child. Mother

Mother accommodated Father's work accommodated Father's schedule by work schedule

agreeing to the agreeing to the Proposed Proposed Order, even though Order, even though the Order did the Order did not

not accommodate

accommodate her

her own work

own work

schedule. As schedule. schedule. As stated stated above,

above, Mother's messages to Father on on Our Family

Family Wizard show

show that she is

that she is

allow Father to allow

willing to Father to to make his own

own decisions

decisions about

about childcare

childcare while he has custody of L.J.R..

custody of custody L.JR..

L.JR..

in Mother's

However, Father's repeated meddling in Mother's decisions about childcare, childcare, and childcare, and his

his use of

of the

use of the

the

monitor to baby monitor to track the minor minor child's sleeping while he is with Mother, sleeping habits while Mother, show show that

that Father that Father

Father

is Mother the same is not showing Mother respect and same respect and courtesy shows him.

courtesy that Mother shows him. Therefore, Therefore, factor Therefore, factor

factor

(13) favors (13) favors Mother.

Mother.

Factor Factor (I0), Factor "Which party ( 10), "Which is more party is likely to

more likely to attend

attend to

to the physical,

daily physical,

the daily emotional, developmental, physical, emotional,

emotional, developmental.

developmental,

and

educationaland special educational educational special needs of the needs of child", slightly the child", slightly favors favors favors Mother.

Mother Mother

The Court that factor Court found that factor ((10), factor (10), "Which party 10), "Which party is more likely to attend likely to attend to the daily to the daily physical,

daily physical,

physical,

emotional, developmental, emotional, educational and developmental, educational special needs and special of the

needs of child",

child", weighed

the child", weighed slightly weighed slightly in

slightly in

circumstances. While the Court believes Mother's favor based on the circumstances. believes that that both Mother and

both Mother and Father

and Father

Father

are good parents, are good evidence at parents, the evidence shows that at trial shows that Mother Mother is more likely

is more likely to

likely to attend to the

attend to the minor

minor minor

child's needs. child's

Factor Factor (3), Factor (4), (5), and (3)(41(5) (3)(41(5) and (6) weighed and (6) weighed equally in in favor

equally in both Mother of both af

favor af and Father.

Mother and Father,

Father,

The Court found The Court found that that factors

factors (3),

(3), (4),

(4), (5),

(5), and

and (6) and (6) weighed

(6) equally in the equally in

weighed equally the favor of both favor of bot

factor (3),

parties. On factor factor (3), "The parental (3), "The parental duties duties performed

performed by each party

by each on behalf

party on of the

behalf of the child",

child" the child" 6,

Court Court found that both found that both Father and Mother Father and are equally Mother are equally good

good parents

parents to

to the minor child,

the minor so factor child, so child, factor (3)

factor (3)

(3)

does does not not weigh in either weigh in either party's party's favor.

favor. There was ample

There was ample evidence

ample at trial

evidence at that both trial that both Mother And both Mother

Mother and

And

Father spend time Father spend time with with the

the minor child,

child, that

that they child to do activities they take the child activities with with friends

friends and

and and

family, and generally family, and generally that that they do things

they do with the minor things with minor child child that

that a

aa good

good parent good parent would

parent would do

would wt

do with do wt

their child. their child. (Defendant's child. (Defendant's Exs.

Exs. H,

H, L; Plaintiff's

L, Plaintiff's L, Ex. 4)

Plaintiffs Ex.

Ex. 4).

4)

On factor On factor (4), factor "The need

(4), "The stability and need for stability and continuity in the continuity in the child's education, education, family

child's education, life and family life family and

and

community life", the Court community Court determined determined that

that this factor

factor was

was favorable to both parties.

parties. As parties. discussed

As discus

overcome several

above, while Mother had to overcome several difficulties difficulties and disadvantages since she disadvantages since she moved out moved out

she had shared

of the home she shared with Father, Father, at

at this point in time Mother has built aa in time a stable stable life for

life for

herself and L.JR. Mother presented and L.J.R.

L.JR. presented evidence evidence that

that she purchased a house in Hopewell purchased aa Township Hopewell Township Hopewell Township

of the home to

and presented numerous photographs of to the Court. Father's Father's Notice

Notice of

of Appeal

Appeal raises Appeal raises

raises

issues issues with with the the minor child's sleeping minor child's habits. However, sleeping habits.

habits. However, Father's Father's repeated

repeated insistence

insistence that

that Mother

Mother

duty to deal a duty has a a deal with any any nighttime issues

issues of

of the

the minor child

child has prevented

prevented Mother

Mother from asking

from asking

asking

to care

her family to care for the minor child overnight, which which they are fully

they are fully capable

capable of capable of doing.

doing. Again, doing. Again, it

Again, it

has caused

appears that Father has caused the issues that he complains of through complains of continuous interference through his continuous interference

custodial rights

with Mother's custodial rights during the has custody the time that she has of L.J.R.

custody of L.JR. As

L.JR. far as

As far as the

the minor

minor

educational needs, the Court notes child's educational notes that that the minor child

child is not even four

four years old, and

years old, years old, and he

he is

is

not not even in kindergarten even in kindergarten yet at this yet at point in

this point in time.

time. time. Father wants the

Father wants the minor child to attend minor child attend pre-school, pre-school, pre-school,

but the Court does not believe that Court does that this this goal warrants taking goal warrants taking custody custody away Mother.

away from Mother. away

factor (5), On factor factor "The availability (5), "The availability of of extended

extended family", Court found family", the Court found that this this factor

factor also

also

favored both parties. favored both parties. Both parties. Both parties

parties have extended family, have extended including the family, including parties'

the parties' parents,

parents, who

parties' parents, are who are

able to able to help help with with caring

caring for

for the

the minor

minor child.

child. Mother

Mother had

had her

her parents

parents help with supervising help with help supervising

supervising the

the

child while she minor child she was was at

at work, but Father complained complained about their involvement. Mother asked involvement. Mother asked

to help her with childcare Father's parents to as well, childcare as well, but when Father attempted attempted to argue attempted argue that

argue that since

since

his parents his parents were were watching

watching L.J.R.

L.JR. during

during Mother's

Mother's custody time, that custody time, that time should count time should count as

as his

his own his ou

ou

custody time, Mother custody Mother was advised advised to

to not ask Father's parents parents to help with childcare help with childcare during during her during her

time of time of custody.

custody. of Father's custody. Regardless of Father's complaints, complaints, both parties have extended parties have extended family who are family who family are

are

available available to support each to support each parent

parent in

in raising in their minor

raising their child, so minor child, this factor so this factor does

does not

not favor one party

favor one party

party

over the other over other other.

On factor On factor (6), "The

factor "The child's

child's sibling relationships", Court notes relationships", the Court notes that that the minor

minor child

child has

aaastep-sister, step-sister, the the daughter

daughter of

of Father's

Father's significant

significant other,

other, and

and aa

a new

new half-brother, the son half-brother, the son of

of Father

Father

and his and new significant his new significant other.

other. The

The Court

Court finds

finds that

that the

the fact

fact that the minor

that the child has

minor child a new

has aa new brother

brother

does not does not justify taking taking custody away from Mother, because because in the current

current arrangement minor arrangement the minor

of his

child spends half of his time time with Father

Father and

and his

his new brother. Father testified testified that his

his significant

significant significant

other has custody other custody of of her daughter

daughter at

at the same time

time that he has custody of L.J.R., custody of so the minor child L.J.R., so

with his step-sister

spends time with step-sister and his half-brother when Father Father has custody. The Court custody. The custody. Court finds

finds

that that the current arrangement the current arrangement provides provides the

the minor child with

minor child with ample

ample time to see

time to see his step-sister and step-sister

his step-sister and

Thus, this factor does

half-brother. Thus, does not favor either either party, as the

party, as the Court

Court does

does not

not find

find it fair to

to take

take

custody away just because Father has quickly Mother's custody formed a quickly formed aa new family since Mother family since Mother and

parted ways.

Father parted ways ways

Factor(2), Factor Factor 02.D,676, (4), (2.1• (7), ( 11), ((4),

(2 02.D,676, and(1 and(1 14), and ( 15) irrelevant to 5) are irrelevant the facts to the

the facts of

of his

his case

case. case

The Court The considered factors Court considered factors (2), (2.1), (7), (2), (2.1), (1),

(7), ((1),

11), ((14),

14), and (14), and ((15)

and 15) on

(15) the record,

on the record, but

record, but found

found

that that these these factors factors were irrelevant in were irrelevant in this case. The this case. The Court

Court found

found factor

factor (2), factor (2), "The present

(2), "The present and past present and past

past

abuse committed abuse committed by by a

aa party

party or

or member

member of

of the

the party's

party's household,

household,whether there is whether there

household,whether is aaacontinued risk continued risk

child or

of harm to the child or an an abused

abused party and which party can can better provide

provide adequate

adequate physical

physical physical

safeguards and safeguards and supervision supervision of

of the be irrelevant to this case the child", to be case because there are are no

of abuse.

allegations of allegations abuse. As to abuse. As to factor

factor (2. factor 1), The

(2.1), (2.1), "The information

The information set

set forth

fonth in fonth section 5329.1(a)

in section 5329.1(a) (relating 5329.1(a) (relating

(relating

consideration of to consideration of child abuse and and involvement with protective the Court services)", the

protective services)", Court noted noted that

that

after a after aa child support support hearing which concluded concluded in

in an

an increase in Father's child child support payments,

support payments,

payments,

Father was Father upset by was upset by the the increase. On the same increase. On same day day as

as the child support

the child hearing, aaareport support hearing,

hearing, report was

report was filed

filed

against Mother to against Mother to CYS, CYS, which

which the Court found

the Court found suspicious. CYS found suspicious. CYS found that there was that there was no basis for no basis

the complaint. However, the complaint. However, the Court noted the Court on the

noted on record that

the record that itit did

did not consider this

not consider this factor

factor in

in making

making making

18

child custody its child its custody determination.

determination. On factor

factor (7), factor (7), "The

"The well-reasoned

well-reasoned preference of the preference of the child,

child, based child, based

on the on the child's child's maturity

maturity and judgment",

and judgment", the Court judginent", the Court determined determined that

that the

the minor

minor child

child is

is too

too young

young to young

a determination make a a determination as as to

to her custody preference. On factor ((1H), 11), "The proximity of the proximity of proximity the

of the parties", the Court residences of Court found that that there was some travel time involved involved in

in the

the current

current

situation, but that any situation, any travel time did not have aa a substantial effect

effect on

on the best

best interests

interests of

of the

the minor

minor

child. The child. The Court Court found

found factor

factor (14), "The factor "The history of drug history of or alcohol drug or alcohol abuse of

of aa

a party or member

party or party of

member of

aaaparty's household", to be irrelevant to to be to this

this case.

case. Lastly, the

the Court did

did not

not find factor

factor ((15), factor "The

15), "The (15),

of a

mental and physical condition of aa party or or member of

of aa

a party's

party's household", to be relevant in this household", to

case.

In conclusion, In conclusion, the Court

Court found that more of the $$§ 5328 factors of the

the factors favored Mother in this this case.

the Court

However, the Court decided decided to the July

to keep the July 14,

I4, 2023, I4, 2023, Proposed

Proposed Order in place

Order in place with only

only only minor

minor

modifications regarding modifications regarding the the custody

custody exchange location and exchange location and aaaprovision ordering the parties ordering the parties to make parties

inquiries inquiries about about the adequacy of

the adequacy of the other parent's the other parent's childcare arrangements through childcare arrangements through counsel.

through The

counsel. The

Court also Court also noted noted that it

it asked

asked the

the parties whether aa

a week-on-week-off custody custody arrangement custody arrangement would arrangement

acceptable to both parties, but both. be acceptable both parties stated both stated that

that that" this arrangement cause them arrangement would cause them

Court took this

problems. The Court this to imply that the current current custody order was working custody order working for both parties.

working parties

Court found that this The Court this arrangement the best interests of arrangement was in the of the minor child child and

and was the best

best

arrangement for arrangement for the the current

current circumstances

circumstances of

of this

this case.

case.

Based on the Based on discussion above, the discussion above, Father's first claim claim is without merit, as the merit, as reviewed the Court reviewed

each of each sixteen §$$ 5328 factors in open of the sixteen open court on on the

the record at

at the

the January

January January 2,

2, 2024,

2024, hearing and

hearing and hearing

applied them to the factual circumstances properly applied circumstances of case.

of this case.

Father'sssecond claim 2. Father'

Father's claim that the Court Court erred by

by finding Father'ssmotivation finding that Father'

Father's motivation in

in in

child custody litigation Was pursuing child was to obtain was obtain a in child aa decrease in child support spport payments spport payments is

payments is

is

without merit as Without without as that factual finding was not not the sole

sole basis

basis of the Court

Court's

' scustody

Court's decision

decision

custody decision custody

and is supported by the trial record. and

second claim

Father alleges in his second claim that that this Count

Count erred and Court erred and abused its its discretion

discretion by discretion by

by

that one

concluding that one of of Father's motivations

motivations in continuing motivations continuing to pursue a modification pursue aa of the modification of the Proposed Proposed Proposed

obtain a

Order was to obtain aa reduction in his child in his child support payments. asserts that payments. Father asserts that this was not this was not his

not his

his

motivation and motivation and that it is is not aaacustody

custody factor.

case, the

In this case, the Court

Court heard evidence

evidence at trial

trial that Father

Fther F ther

aa filed aa

filed a petition

petition petition for

for reduction

reduction in reduction in

in

on July

child support on July 23, 2023. The The Court

Court learned that

that Father

Father became angry

angry angry at the

the hearing on his

hearing on hearing his

his

child support child support motion motion when

when he

he learned

learned that Court was that the Court was going to increase his going to support support payments

his support payments

payments

Instead of decreasing instead of Instead decreasing them.

them. After

After the

the child

child support

support hearing, Father

Father confronted

confronted Mother

Mother on

on thepublic on the public

the public

street about street the support about the support payments.

payments. An agreed PFA

An agreed PFA Order

Order was

was filed

filed after

after this

this confrontation,

confrontation, confrontation, without

without without

any factual admissions.

either party making any admissions. That That PFA Order expired on agreement expired on agreement by

agreement by the

by the parties.

the parties.

parties.

At the child At At child custody custody trial, Father's testimony that his his objective

objective in continuing

continuing to continuing to pursue

pursue the pursue the child

the chit

chit

custody litigation was to custody to gain one more day gain one day of

of physical custody of the minor custody of child struck minor child struck the Court struck the

the Court

Court

as odd since Father alleged as alleged that he was was seeking primary physical seeking primary

primary custody

physical custody of the

custody of the minor

minor child in

child

minor child in his

in his

his

This led the

pre-trial filings. This the Court Court to consider

consider whether Father had ulterior motives motives in motives in continuing

in continuing

continuing

this matter.

to litigate this

after observing

and after

After hearing this testimony, and demeanor of observing the demeanor of both both parties, the Court

the

parties, the parties, Court

Court

made a finding on aa factual finding that one on the record that one of of Father's motivations

motivations in pursuing

pursuing this pursuing this child

child custody

custody custody

was because of

litigation was of the the recent

recent increase in his child child support

support payments.

payments. Father payments. Father pursued

pursued child pursued chit

chit

custody custody litigation litigation in in an effort to

an effort to decrease his payments decrease his so that payments so that he could pursue he could pursue his

pursue his plan

his of building

of

plan of plan building

building

aa house. a house. While the Court While the Court noted that it noted that it was admirable for was admirable Father to for Father to build

build aaanew

new house

house for house for himself,

for himself

himself

minor child, the minor child, and their their family,

family, the Court

Court did

did not think it was fair to think it to take take physical custody away physical custody physical custody away

away

from Mother under these from these circumstances.

circumstances.

Despite Father's Despite Father's contention, contention, the

the Court

Court properly reviewed each properly reviewed each of of the sixteen §$$ 5328

the sixteen factors 5328 factors

on the record, as on as summarized above.

above. Factor above. Factor ((15)

Factor (15) 0f

15) 0f allows the of $§ 5328 allows the Count Count to consider Court consider "(

consider 16) Any

"(16) "(16) Any

Any

other relevant other relevant factor"

factor" when making its determination determination on

on child

child custody. The Court

custody. The custody. Court believes that that

efforts to obtain

Father's motivation in continuing his efforts obtain primary of the minor custody of

primary custody minor child child is

is

given that his motivation appears to not concem relevant, given concem the actual concern actual best interests of of the minor

minor

own interest in obtaining child but to his own obtaining aaadecrease decrease in child support in his child support payments.

payments payments

In addition, the Court did not base its custody decision solely custody decision on its solely on its finding

finding that Father

Father had

had

in pursuing child

ulterior motives in child custody custody litigation.

litigation. The litigation. The Court heard two days days of testimony

testimony in testimony

this case. It heard this case. heard the testimony of both testimony of both parties, and examined parties, and examined the evidence and the evidence and exhibits exhibits presented

presented presented

trial. at trial. at The Court The Court carefully

carefully reviewed the §$$ 5328 reviewed the 5328 factors factors and

and applied to the

them to

applied them the factual

circumstances of circumstances of this case before this case before making its child making its child custody determination. The Court custody determination. Court determined determined

that the current that the child custody current child arrangement was custody arrangement was working both parties, for both

working for parties, even even though

though the though current

the current

order still order still benefits benefits Father over Mother, Father over Mother, since since it accommodates his it accommodates his work schedule but work schedule but not hers.

hers.

Even if the Court Even Court did did not consider

consider Father's

Father's motivation in Father's in continuing continuing to pursue

pursue primary

primary custody of

custody of custody

chiid,

the minor chiid, the Court's child, the Court's analysis analysis and

and application

application of the §$$ 5328 of the 5328 factors would would not change.

not change

change

of Father's motivations

Regardless of motivations behind behind continuing

continuing to pursue primary custody, proper custody,

primary custody, proper

proper

application application of the §$$ 5328 of the

the 5328 factors shows that factors shows shared custody that shared custody is

is in

in L.J.R.'s

L.J.R.'s best interest. Both best interest. Both parents parents parents

are good are good parents parents with with good homes. Both

good homes.

homes. have extended Both have extended family available for childcare.

family available childcare. Even Even

though more of though the §$$ 5328 factors favor Mother, the of the

the the Court Court finds that

that shared custody

custody of L.J.R. custody of L.JR. is

L.JR. is in

in

the best interests of the of the the child

child in

in this case. Therefore,

Therefore, Father's second second claim

claim on

on appeal

appeal is appeal is without

without

menit. merit. menit.

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CONCLUSION

For the reasons stated in Opinion and in the foregoing Opinion and the reasons stated stated during Court's during the Court's

review of review the $§$ 5328 factors on of the the on the record as as captured

captured by

by the D.A.R. recording system on January system on

recording system January January

2024, the Court 2, 2024, Court humbly humbly asks

asks the Superior Court

Court to affirm

affirm its child

child custody

custody decision, and/or custody decision, to and/or to

appeal due to his failure to have the dismiss Father's appeal the record of of the

the proceedings transcribed.

proceedings transcribed. proceedings

BY THE COURT:

COURT-

ll J

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