J-S22016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.H.B. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

R.D.B.

Appellant No. 1719 MDA 2014

Appeal from the Order Entered September 18, 2014

In the Court of Common Pleas of Lancaster County

Civil Division at No(s): CI-10-15204

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED MARCH 10, 2015

R.D.B. (“Father”) appeals from the order entered September 19, 2014, 

in the Court of Common Pleas of Lancaster County, which denied his petition 

to modify the existing custody order, with respect to his minor daughter, 

R.C.B., born in November of 2013, and his minor sons, C.D.B., born in 

December of 2005, and K.B.B., born in October of 2007 (collectively, “the 

Children”). We affirm. 

On December 16, 2010, Father’s wife, E.H.B. (“Mother”), filed a 

complaint in custody which resulted in the entry of a custody stipulation as 
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an order of court on January 22, 2013.1 Pursuant to the custody stipulation, 

the parties were awarded shared legal custody and Mother was awarded 

primary physical custody. Father was awarded partial physical custody on 

Tuesday and Thursday evenings from after work until 8:00 p.m. during the 

school year and until 9:00 p.m. during the summer, as well as on alternating 

weekends, from Thursday after work until Monday morning.

On December 5, 2014, Father filed a petition to modify the January

22, 2013 custody order. In his petition, Father requested shared physical 

custody of the Children. A custody hearing was held on September 4, 2014, 

during which the trial court heard the testimony of Father, Father’s friend, 

C.H.C., and Mother. The trial court also interviewed each of the Children, in 

camera. Following the hearing, on September 19, 2014, the court entered 

its order denying Father’s petition to modify. The order also indicated that 

the provisions of the January 22, 2013 custody order would remain in effect. 

On October 10, 2014, Father timely filed a notice of appeal, along with a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(a)(2)(i).

On appeal, Father presents the following issues for our review:

1. Did the [t]rial [c]ourt abuse its discretion when it denied 

[Father’s] request for shared physical custody of the Children 

____________________________________________

1 Testimony from the September 4, 2014 custody hearing indicated that 

Mother and Father are, or were, going through a divorce. However, it is not 

clear from the record whether a divorce decree has been entered. 
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and granted primary physical custody of the Children to [Mother] 

despite the [c]ourt’s acknowledgement that [Father] is a very 

involved and loving father, that the parties can effectively coparent, that the parties live two blocks from each other, and that 

the [c]ourt concluded that the applicable enumerated factors 

under 23 Pa. C.S.A. § 5328 were resolved equally in favor of 

both [Mother] and [Father]?

2. Did the [t]rial [c]ourt commit an error of law by favoring one 

parent over another in violation of 23 Pa. C.S.A. § 5327(a) when 

it granted primary physical custody of the Children to [Mother] 

where the [c]ourt acknowledged that [Father] is a good father, 

that the parties can effectively co-parent, and when the [c]ourt 

concluded that the applicable enumerated factors under 23 Pa. 

C.S.A. § 5328 were resolved equally in favor of [Mother] and 

[Father]?

3. Did the [t]rial [c]ourt commit an error of law and/or abuse its 

discretion by improperly relying upon the prior custody schedule 

as creating a presumption that primary custody of the Children 

should remain with [Mother] when the [t]rial [c]ourt denied 

[Father’s] request for shared physical custody and granted 

primary physical custody of the Children to [Mother], despite the 

[c]ourt’s acknowledgement that [Father] is a very involved and 

loving father, that the parties can effectively co-parent, that the 

parties live two blocks from each other, and that the [c]ourt 

concluded that the applicable enumerated factors under 23 Pa. 

C.S.A. § 5328 were resolved equally in favor of [Mother] and 

[Father]?

Father’s Brief at 10.2

Our standard of review is well-established:

____________________________________________

2

In his brief, Father presents his second and third issues together in a single 

argument section, in violation of our Rules of Appellate Procedure. See

Pa.R.A.P. 2119(a) (providing that the argument “shall be divided into as 

many parts as there are questions to be argued; and shall have at the head 

of each part--in distinctive type or in type distinctively displayed--the 

particular point treated therein, followed by such discussion and citation of 

authorities as are deemed pertinent.”).
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In reviewing a custody order, our scope is of the broadest type 

and our standard is abuse of discretion. We must accept 

findings of the trial court that are supported by competent 

evidence of record, as our role does not include making 

independent factual determinations. In addition, with regard to 

issues of credibility and weight of the evidence, we must defer to 

the presiding trial judge who viewed and assessed the witnesses 

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

deductions or inferences from its factual findings. Ultimately, 

the test is whether the trial court’s conclusions are unreasonable 

as shown by the evidence of record. We may reject the 

conclusions of the trial court only if they involve an error of law, 

or are unreasonable in light of the sustainable findings of the 

trial court.

C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (quoting A.D. v. 

M.A.B., 989 A.2d 32, 35–36 (Pa. Super. 2010)).

We have stated: 

[t]he discretion that a trial court employs in custody matters 

should be accorded the utmost respect, given the special nature 

of the proceeding and the lasting impact the result will have on 

the lives of the parties concerned. Indeed, the knowledge 

gained by a trial court in observing witnesses in a custody 

proceeding cannot adequately be imparted to an appellate court 

by a printed record. 

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting 

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

“The primary concern in any custody case is the best interests of the 

child. The best-interests standard, decided on a case-by-case basis, 

considers all factors that legitimately have an effect upon the child's 

physical, intellectual, moral, and spiritual well[-]being.” J.M.R. v. J.M., 1 

A.3d 902, 911 (Pa. Super. 2010) (citing Saintz v. Rinker, 902 A.2d 509, 

512 (Pa. Super. 2006)).
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Relevant to this custody case is Section 5328(a) of the Child Custody 

Act, 23 Pa.C.S.A. §§ 5321-5340, which provides as follows:

(a) Factors.--In ordering any form of custody, the court shall 

determine the best interest of the child by considering all 

relevant factors, giving weighted consideration to those factors 

which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and 

permit frequent and continuing contact between the 

child and another party. 

(2) The present and past abuse committed by a 

party or member of the party’s household, whether 

there is a continued risk of harm to the child or an 

abused party and which party can better provide 

adequate physical safeguards and supervision of the 

child. 

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

(relating to consideration of child abuse and 

involvement with protective services). 

(3) The parental duties performed by each party on 

behalf of the child. 

(4) The need for stability and continuity in the child’s 

education, family life and community life. 

(5) The availability of extended family. 

(6) The child’s sibling relationships. 

(7) The well-reasoned preference of the child, based 

on the child’s maturity and judgment. 

(8) The attempts of a parent to turn the child against 

the other parent, except in cases of domestic 

violence where reasonable safety measures are 

necessary to protect the child from harm. 
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(9) Which party is more likely to maintain a loving, 

stable, consistent and nurturing relationship with the 

child adequate for the child’s emotional needs. 

(10) Which party is more likely to attend to the daily

physical, emotional, developmental, educational and 

special needs of the child. 

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

(12) Each party’s availability to care for the child or 

ability to make appropriate child-care arrangements. 

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

willingness and ability of the parties to cooperate 

with one another. A party’s effort to protect a child 

from abuse by another party is not evidence of 

unwillingness or inability to cooperate with that 

party. 

(14) The history of drug or alcohol abuse of a party 

or member of a party’s household. 

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

member of a party’s household. 

(16) Any other relevant factor. 

23 Pa.C.S.A. § 5328(a).

This Court has stated that, “[a]ll of the factors listed in section 

5328(a) are required to be considered by the trial court when entering a 

custody order.” J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011)

(emphasis in original). Further,

Section 5323(d) provides that a trial court “shall delineate the 

reasons for its decision on the record in open court or in a 

written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally, 

“section 5323(d) requires the trial court to set forth its 

mandatory assessment of the sixteen [Section 5328 custody] 

factors prior to the deadline by which a litigant must file a notice 
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of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), 

appeal denied, [620 Pa. 727], 70 A.3d 808 (2013). . . . 

In expressing the reasons for its decision, “there is no required 

amount of detail for the trial court’s explanation; all that is 

required is that the enumerated factors are considered and that 

the custody decision is based on those considerations.” M.J.M. 

v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, 

[620 Pa. 710], 68 A.3d 909 (2013). A court’s explanation of 

reasons for its decision, which adequately addresses the relevant 

factors, complies with Section 5323(d). Id.

A.V. v. S.T., 87 A.3d 818, 823 (Pa. Super. 2014).

On appeal, Father raises three interrelated issues, which we address 

together. The crux of Father’s argument is that the trial court abused its 

discretion by denying his request for shared physical custody when it 

concluded that the Section 5328(a) factors weighed equally in favor of both 

Father and Mother. Father’s Brief at 16-22. In addition, Father asserts that 

the court relied on an impermissible presumption in favor of Mother in order 

to reach its decision. Id. at 20-22. Father directs our attention to Section 

5327(a) of the Custody Act, which provides as follows:

(a) Between parents.--In 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

23 Pa.C.S.A. § 5327(a).

After a thorough review of the record in this matter, we conclude that 

the trial court did not abuse its discretion by denying Father’s petition to 

modify custody. At the conclusion of the September 4, 2014 custody 

hearing the trial court thoroughly considered, on the record in open court, 
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each of the Section 5328(a) factors. See N.T., 9/4/2014, at 224-31. As 

noted by Father, the court did not state that any of the factors weighed in 

favor of either parent, instead indicating that each factor was either 

irrelevant to the proceedings, or that the factor favored both parents 

equally. See, e.g., id. at 229 (“I find that both parents are equally likely to 

maintain a loving, stable, consistent and nurturing relationship with the 

[C]hildren adequate for their emotional needs.”). However, after 

considering each of the factors, the court stated as follows:

To close, I guess I will be a bit repetitive. I, clearly, have 

not made my decision in this case. As I told you, I will do so 

only upon further reflection on the factors, which I just 

articulated, of which I will determine the appropriate weight to 

give to each factor. As I also indicated, I will consider all other 

relevant provisions of law and everything that has been 

presented to me today.

I honestly and firmly tell the both of you, and I can’t be 

any clearer, that it is the consistency and stability for your 

children that will be of utmost importance to me with the 

decision that I render. I hope to render a decision in the coming 

days, and I hope that you both [will] be served a copy of it as 

quickly as possibl[e].

Id. at 231.

Thus, the record does not support Father’s contention that the trial 

court resolved the Section 5328(a) factors equally in favor of both parents. 

To the contrary, the court indicated explicitly that it had not reached a 

decision, and that it would do so only upon “further reflection on the 

factors.” Id. Ultimately, the court determined that it would be in the best 

interests of the Children to maintain the current custody schedule based 
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primarily on the Children’s need for “consistency and stability.” Trial Court 

Opinion, 11/7/2014, at 13-14. The court explained in its opinion pursuant to 

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

The [c]ourt’s denial of Father’s request for shared physical 

custody of the [C]hildren was in no way manifestly unreasonable 

or result of partiality, prejudice, bias, or ill will; rather the 

[c]ourt’s decision was based primarily on the need for 

consistency and stability for the [C]hildren. The parties agreed 

upon a schedule of custody less than one year before Father filed 

his request for modification. The [c]ourt found as credible 

Mother’s testimony that the current order should be maintained 

as the [C]hildren are thriving, they have stability and security, 

they have a home base, there are no complaints from the 

[C]hildren, and the [C]hildren are doing well in school and 

succeeding in their activities. Based upon the testimony of the 

parties and the [C]hildren and the weight given to the custody 

factors, the [c]ourt determined that the schedule agreed 

previously upon by the parties was one that provided 

consistency and stability for the [C]hildren and should continue 

to be the schedule followed by the parties. Accordingly, the 

[c]ourt denied Father’s request for shared physical custody of 

the [C]hildren.

Id. (citations to the record omitted).

The court’s decision is supported by the testimony at the September 4, 

2014 custody hearing. As noted by the court, Mother testified that the 

Children were thriving under the current custody schedule. N.T., 9/4/2014, 

at 177. Specifically, Mother stated that the Children were doing well in 

school and with regard to their other activities. Id. Mother indicated that 

the Children had not complained to her about not seeing Father frequently 

enough. Id. Mother also opined that “there’s a sense of stability, [and] 

security” under the current arrangement, that the Children have a “home 
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base,” and that “things are working the way they are today, they don’t need 

to be changed.” Id. It was reasonable for the court to accept Mother’s 

testimony, and to conclude that the Children’s need for stability and 

consistency would be promoted by denying Father’s petition to modify. 

Additionally, we discern no basis to conclude that the court’s decision is 

based on an impermissible presumption in favor of Mother. Therefore, 

Father’s issues on appeal fail.

Accordingly, because we conclude that the trial court did not abuse its 

discretion by denying Father’s petition to modify custody, we affirm the 

order of the trial court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/10/2015