T.M. v. H.M.

210 A.3d 283
Superior Court of Pennsylvania·Decided April 24, 2019·No. No. 1081 EDA 2018·Published·Cited by 6 cases

Opinion

OPINION BY McLAUGHLIN, J.:

H.M. ("Father") appeals from the March 15, 2018 order awarding primary physical custody of his son J.M. ("Child") to T.M. ("Mother"); partial physical custody to Father; and shared legal custody to both parents. We conclude that the trial court did not abuse its discretion by awarding Mother primary physical custody and denying Father's petition to obtain increased physical custody. Therefore, we affirm.

Mother and Father were married in October 2009 and Child was born in December 2010. By April 2015, Mother filed for divorce. Following a custody conference in May 2015, the parties entered into an agreed interim order which stipulated that they would share legal custody of Child but Mother would have primary physical custody with partial physical custody on *286the weekends and scheduled dinner visits for Father. In July 2015, the parties agreed to enter a final custody order to this effect. However, thereafter the parties grew unsatisfied with the custody schedule and each filed cross-petitions for modification. After a three-day custody trial in August 2016, the trial court entered a final order on September 15, 2016, which increased Father's overnight custody to Wednesday to Sunday on alternative weeks. The court fashioned Father's periods of physical custody to coincide with his bi-weekly work schedule as a doctor at a local hospital.

Father filed yet another petition to modify custody less than two months later in December 2016. Father contended that he had reduced his work schedule in hopes of obtaining more physical custody of Child. Father specifically pointed to the ten-day gap in custody he and Child experienced as detrimental to their relationship. Father also requested telephone contact and dinner visits during his non-custodial weeks. Mother filed an answer, counterclaim, and petition for contempt seeking to reduce Father's physical custody. Meanwhile, Father filed another petition, on April 13, 2017, seeking a full custody evaluation. After considering Father's request at a May 9, 2017 pretrial conference, the trial court ordered a psychological evaluation but declined to require a full custody evaluation.

After multiple continuances, the trial court conducted yet another multi-day custody trial in February 2018. During trial, Dr. Ronald J. Esteve testified regarding the psychological evaluation he completed regarding Child. Dr. Esteve testified about the positive relationship Child enjoys with both his parents but noted that Child had a difficult time talking about his respective parents in the presence of the other parent. He also acknowledged the considerable acrimony between the parties. Although Dr. Esteve opined that a full custody evaluation might provide additional information to the court, he also indicated that a custody evaluation could likely contribute to the tension between the parties. Ultimately, the court decided not to order a full custody evaluation.

Also testifying at trial was Andrea Nation, Child's counselor. Ms. Nation reported that she did not feel focusing on requiring Child to call Father while with Mother was worthwhile because Child had demonstrated a clear aversion to making calls to the noncustodial parent. She explained that while both parties had been generally cooperative, there had been a two month period during which Father did not bring Child to counseling:

[Mother's counsel]: You said father was cooperative. Did he ever stop bringing [Child] to counseling sessions?
[Ms. Nation]: He wouldn't stop bringing [Child]. I just did not get consistent, as consistent requests from him for an appointment as I did from the mom, but I also - since I was only - I didn't see a need for him necessarily to be in here every single week. So, you know, when she had him, she would reach out to me, and when she didn't, he would reach out to me via e-mail, you know, and just, you know, say, how is [Child]? How is he doing? How is counseling? So, there's some exchange for him to call and set up an appointment. That started happening more recently, I would say, in the past couple of months.
[Mother's counsel]: Yeah, didn't he stop bringing [Child] though to counseling in September of 2017?
[Ms. Nation]: There was a break in counseling. There was not a request -- I had sent out an email to both parents because I was making it clear what my *287role, what role I felt comfortable having going forward would be, and that I did not think that the focus should be on [Child] making these phone calls because he didn't really have that interest nor did I see myself able to, at that particular time, work through what was very contested between the two of them. Their relationship lacks trust on both ends, so I didn't see how I could work, facilitate co-parenting strategies with them since they didn't even speak to each other. So I didn't want to get involved with that. So I told them that I was focused on [Child's] expressions, you know, having a place for him where, you know, he felt safe and where he could share and learn how to share his emotions.

N.T., 2/13/18 at 71-72.

Further, in an effort to prove that Father was reluctant to take Child to counseling with Ms. Nation, Mother submitted a letter into evidence, written by Father's counsel, which indicated that Father had concerns about Ms. Nation's supposed faith-based counseling techniques and her alleged reluctance to meet with men one-on-one. The trial court also conducted an interview of Child, in camera , during which Child indicated that he wished to maintain the status quo in terms of physical custody and specifically stated that he did not want any additional overnight visits with Father.

After the trial, the trial court issued an order, dated March 15, 2018, which discussed the statutory factors set forth under 23 Pa.C.S. § 5328(a). Germane to this appeal, the court determined that Mother was slightly more likely to attend to the daily needs of Child due to her flexible work schedule. To this end, the court specifically found that Father likely worked more hours then he indicated. Likewise, the court noted that Mother could depend on her mother, Child's grandmother, for child care assistance, while Father could rely upon his girlfriend. The court also weighed the factor of which party was most encouraging of Child's relationship with the other parent slightly in favor of Mother. The court explained that Mother was more likely than Father to ensure that Child would attend counseling to facilitate his parental relationships. The court deemed counseling particularly important due to the parents' acrimonious relationship.

However, the court did note that both parties were equally capable of maintaining a loving, stable, and nurturing relationship with Child. Further, the court weighed Child's stated preference to have the custodial schedule remain the same only slightly in favor of Mother due to Child's young age and attendant lack of maturity. Ultimately, the trial court altered the parties custody schedule only slightly by ordering partial physical custody for Father on alternative weeks from Thursday until Monday morning.

On April 11, 2018, Father filed the instant timely appeal, along with a Concise Statement of Errors Complained of on Appeal.

Father now raises the following issues for our review:

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T.M. v. H.M., 210 A.3d 283 (Pa. Ct. App. 2019).

210 A.3d 283 (T.M. v. H.M.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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