J-A04026-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

C.A.S. AND J.A.S. IN THE SUPERIOR COURT OF

PENNSYLVANIA 

v. 

E.R.S. AND L.C.J. 

APPEAL OF: E.R.S. No. 1072 WDA 2015 

Appeal from the Order Dated June 15, 2015 

In the Court of Common Pleas of Jefferson County 

Civil Division at No(s): Number 852 of 2013, C.D. 

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J. 

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 30, 2016 

 E.R.S. (“Father”) appeals from the June 15, 2015 order awarding him 

and C.A.S. and J.A.S. (Paternal “Grandparents”) joint legal custody of R.J.S. 

(“Child”), born in October of 2005. The order also awards Grandparents 

primary physical custody and Father partial physical custody. After review, 

we affirm.1

 Grandparents filed the petition for special relief, which began this 

litigation, in October of 2013. They requested custody of Child, relying on 

the fact that they have been Child’s primary caregivers since he was 20 

months old. Following the completion of psychological evaluations of the 

____________________________________________ 

1

 L.C.J. (“Mother”), who lives in Canada, has had no contact with Child or the 

parties in this case since Child was less than one year old. She is not a 

party to this appeal. 
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parties, a hearing took place on June 5, 2015. At the hearing, both 

Grandparents testified and presented the testimony of Kathryn Hedrick, the 

mother of Father’s girlfriend, and Robert George Ryhal, Grandmother’s 

brother. Father testified on his own behalf and presented the testimony of 

his girlfriend, Farron Remaley. 

 The following facts are gleaned from the trial court’s findings of fact 

regarding the testimony of the various witnesses. Grandmother testified 

that she lives with Grandfather, Child and her youngest son, Brian. She 

further indicated that although she has an LPN certification, she has been a 

stay at home mother. Grandmother also explained that when Child was 

born in Washington State in October 2005, while Father was serving in the 

Navy, she visited the family there. Upon her arrival home, Father informed 

Grandmother that he was filing for a divorce from Mother. Grandmother 

provided financial help and, when Mother attempted suicide and was placed 

in a mental institution, Grandparents returned to Father’s residence from 

February through March 2006 to help Father with childcare duties. 

For Christmas 2006, Grandmother sent plane tickets to Father, and he 

and Child came to Pennsylvania. Father remained for a week, while the 

Child stayed on. Through 2007, Father called Child on a daily basis. Father 

returned to Grandparents’ residence for a week around the Christmas 

holiday in 2007, and returned to Washington State until his discharge from 

the Navy in February 2008. He then resided with Grandparents until he 

moved to Monroeville, Pennsylvania, after procuring a job there. Child 
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visited Father on weekends and moved into Father’s home in September 

2008. However, Child returned to live with Grandparents in October of 2008 

due to Father’s work schedule and his attendance at college to earn a 

degree.2 

 Grandmother further testified about Father’s visits, explaining that 

Father would arrive on Friday nights around 1:00 a.m. and would leave on 

Sunday afternoon. Grandmother also explained about her care of Child, 

including his medical appointments,3 and Father’s lack of financial 

contributions. In the spring of 2009, Grandmother placed Child in DZ Kids 

Day Care so that he would experience interaction with other children. 

Through the summer of 2010, Father visited once or twice a month and 

called several times a week. Via email, Grandmother informed Father of 

Child’s progress in nursery school and about any medical issues. In 2011, 

when Child needed to be registered for kindergarten, Father again 

relinquished the decision-making to Grandmother. From September 2011 to 

June of 2015, Child attended school in the Brookville School District, where 

Grandparents lived. His report cards evidence that Child is a good student 

____________________________________________ 

2

 Also in 2008, Father initiated custody proceedings against Mother. The 

action was dismissed for inactivity in 2011. 

3

 Grandparents introduced into evidence a packet of medical records to show 

that Grandmother handled all medical matters for Child. A letter from 

Father was also introduced, providing that he gave Grandparents “the right 

to decide everything necessary in Child’s life.” Trial Court Opinion (TCO), 

6/16/15, at 3 ¶ s (unpaginated). 
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and is well behaved. Grandmother also discussed Child’s extracurricular 

activities. 

 Additionally, the court formulated the following findings of fact relating 

to Grandmother’s testimony: 

y. Other than the six to eight weeks in 2008, Child has lived 

constantly with Grandparents since September of 2007, when he 

was 21 months old. 

z. [Grandmother] testified that the evaluator[’]s rendition of the 

history of a relationship between her son and her family was not 

accurate. She claims the relationship has always been 

[Grandparents’] supporting [their] son emotionally and 

financially and she disagrees with the constant conflict picture 

[the evaluator] paints. She indicated that throughout much of 

their time, they were in daily contact regarding Child. She 

further stated that she raised none of her children any differently 

than the others and any differences between the children come 

from each child’s own uniqueness. 

. . . 

cc. She further critiqued the evaluation by saying she disagreed 

with the information provided by her son’s girlfriend, Farron, 

specifically saying [Farron] was [not] divorced and saying 

[Farron] had [not] always had legal custody of her own children. 

dd. She placed into evidence a number of e-mails acknowledging 

that for many of the medical issues and athletic issues, she 

never asked for Father's permission but rather just

communicated to him so [F]ather would know what was going 

on. 

ee. She indicated that Father always came to family events and 

is still invited to all family events but the last event he 

participated in was Child's birthday party in October[] 2013. 

ff. She indicated that in her opinion, the substantial change 

came at the beginning of 2013, when Father asked if he could 

take Child on a fieldtrip to Washington, D.C., for a week, which 
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he did. She indicated that shortly after that trip, their 

relationship changed. She added to that saying[,] “To this day, I 

don't know what happened.” She further indicated that Father 

never indicated he wanted to return to primary custody. He only 

indicated that he wanted to see Child more. 

gg. In June of 2013, Father indicated that he was planning on 

taking Child to live with him in the fall. Grandmother indicated 

she responded that was not a good idea to pick up and take him 

from everything he had ever known especially while Father was 

working 3:30 to 11:30. 

hh. In October of 2013 when they heard from the school that 

Father was going to take Child from the school[,] Grandparents 

took legal action to formally obtain custody of Child which was 

the start of this custody case. 

. . . 

mm. Grandmother testified about a December 22, 2014, voice 

message she received from a woman who indicated she was 

trying to meet “[Child’s] Nana” and “Can you help me in locating 

my grandchildren?” The message was from Kathryn Hedrick 

who would testify later in the trial. The purpose in bringing it up 

is Grandmother's state of mind concerning of the level of 

stability of Father's girlfriend. 

nn. On cross examination, Grandmother acknowledged that 

when she had [Child] at her house at first, she did not intend on 

it being a forever thing but indicated that she did not think it was 

good for him to move back and forth every three to four months. 

TCO at 4-5. 

Grandmother further testified that Child “is always alright with going to 

his father’s[,]” but after returning from a visit with Father, he is quiet, wants 

to be hugged, and “on Sunday nights he asks one of his [G]randparents to 

lie in bed with him for a ... little bit.” Id. at 5. Grandmother also submitted 

information from the Department of Education’s website, which indicated 
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that the Brookville School District is better than the Penn Hills School District 

where Child would attend if he lived with Father. 

The next person to testify was Kathryn Hedrick, the mother of Father’s 

girlfriend. Mrs. Hedrick explained that she contacted Grandmother by phone 

because of her concern about her own grandchildren. She also indicated 

that her daughter Farron’s three children, ages 15, 13, and 11, had been in 

her custody throughout most of their lives, essentially from November 2003 

until 2013, with Farron only visiting occasionally. She stated that from 2012 

through October of 2014, when Farron moved in with Father, Farron had 

lived with three different men. Mrs. Hedrick further indicated that a court 

order provides for her to have shared custody of her grandchildren, an order 

that she is trying to have enforced through a contempt petition filed in 

Armstrong County. She also testified about a series of videos that her 

grandson placed on her computer, showing Father and her grandchildren 

duct taping her grandson. The court noted that it “appears from the video 

that the child is laughing during part of the video but it also appears that he 

is gasping in part of the video. It would be an understatement to say the 

[c]ourt finds the entire video to be disturbing.” TCO at 7 ¶ i. 

 Robert George Ryhal, Grandmother’s brother, testified that he is a 

licensed private investigator and retired from the Pennsylvania State Police 

after 25 years of service. Mr. Ryhal explained that he has three sons around 

Father’s age and that they all had a good relationship and often got 

together. He also testified that he thought Father was amiable and had a 
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good relationship with his parents until recently. As an example, he 

described a soccer match that had taken place the year before, at which 

Father and Farron stood off from the rest of the family. After speaking with 

them, he recognized there was obvious tension. 

 Grandfather testified next, discussing his work in environmental 

science for Continental Cooperative Services, a company he has worked for 

since 1993. His job requires him to travel about 30% to 40% of the time. 

Grandfather further explained that he has claimed Child as a dependent for 

federal tax purposes, that he has provided for Child and that Father has 

never contributed. He also testified that he and Father had “a great 

relationship[,]” that “began to deteriorate right after the March 2013 field 

trip to Washington D.C.” Id. at 8 ¶ g. Grandfather also discussed a custody 

exchange near Father’s residence that resulted in his being cited for defiant 

trespass for which he was found not guilty. He also submitted 

documentation that revealed Farron’s conviction for harassment in 2004, 

and also noted that Father and Farron were listed on the landlord/tenant 

docket three times since 2008. 

 Grandfather further testified about his relationship with Child and the 

activities in which they engage, namely baseball, gardening, camping 

overnight and fishing. He also explained that his travel for work occurs 

during the week and that he has flexibility, allowing him to be available to do 

activities with Child. Grandfather also asserted his belief that it would be in 

Child’s best interest to remain with Grandparents. 
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 Father was the next witness to testify. He discussed his nuclear 

propulsion work in the Navy and his current job relating to nuclear 

generators with Curtis-Wright, a position he has held since July of 2008. 

Father testified that his marriage to Mother ended in September 2006 and 

that he received primary legal and physical custody of Child. He indicated 

that Grandparents had primary custody of Child while he was still in 

Washington State and after he moved back to Pennsylvania. He 

acknowledged that “it was nice to not have to make some of the decisions in 

parenting.” Id. at 9 ¶ e. However, he contended that he saw Child every 

other weekend since moving to Pennsylvania. 

 Father also testified “that ‘[h]e made the responsible decision to 

provide stability for his son’ knowing that he could not reliably hold day shift 

and having to work night shift, he decided to leave his minor child with his 

parents so they could care for Child.” Id. at 10 ¶ h. This situation 

continued even after Child started school. Father further explained that he 

attempted discussions with Grandparents about transitioning Child to his 

care in 2011, but that Grandparents “would not listen to him.” Id. at 10 ¶ 

k. He claimed that “he never intended to give up parental rights or custody 

and that all decisions regarding [Child] were made by [Grandparents] 

without consulting him.” Id. at 10 ¶ n. Father also testified about his good 

relationship with Child and the activities they participate in together, i.e., 

fishing, camping and making “s’mores.” Id. at 10 ¶ o. Father 

acknowledged his concerns with the school district where he lives and his 
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plans to move when he is financially able. Father also testified that he has 

no drug, alcohol or mental health issues and that he is able and available to 

care for his son even though he is rarely consulted by Grandparents. 

 The last witness to testify was Farron Remaley. She testified that she 

is a transfusion nurse, working for Transfusion Medicine, although she does 

not have a nursing degree. Rather, she has an associate’s degree as a 

medical assistant. She has lived with Father for three years and has three 

children, ages 15, 13 and 11. The court also listed the following findings of 

fact relating to Farron’s testimony: 

c. She indicated that she is currently going through a divorce 

with her husband, further she states “morally, [she] is not 

married.” 

d. She indicated that she left her children with her mother 

because she had two jobs and school and felt it was a good 

arrangement for her children to live with her mother [but she 

now has safety concerns with the children living with her 

mother]. 

e. She acknowledged the PFA filed against her and she 

acknowledged that she “302’d” her husband but indicated that 

the PFA was retaliation. She acknowledged that she violated and 

took house arrest and also acknowledged that she was “in 

trouble with the law” when she was younger. 

f. In at least one of the events, she acknowledged that she could 

not remember what the punishment was. She discussed the 

video of duct taping her son indicating that her son was laughing 

and it was all in good fun. 

g. She indicated that she will not let her children see their 

grandparents currently because the children are not safe with 

them, indicating the children had to go number one and number 

two outside.[] She further indicated that she believed her 
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mother was “instilling racism” in her children. She finally said, 

“If I ever wanted to do drugs, I would go to her first.” 

h. She describes Father as a kind, patient person with his child, 

stating “they take him to the science center, the zoo” and that 

[Child] can “kick my butt at tennis.” 

i. She indicated that Plaintiff Grandmother did assault her but 

she felt charges would only make a bad situation worse. 

However, she did agree that she had Grandfather cited for 

defiant trespass indicating that she felt her children were at risk 

with him entering their apartment. She acknowledged he was 

found [not] guilty. 

j. She also indicated she violated the custody order but said 

“[m]orally, I am not violating that Order.” 

k. She acknowledged that she had been investigated several 

times by several Children and Youth Departments. 

TCO at 11-12 ¶¶ c-k. 

 The trial court also noted its private interview with Child, expressing its 

intent to take Child’s statements and preferences into account in arriving at 

its custody decision without identifying what Child stated. Following this 

extensive recitation of the testimony, the court stated that: 

1. [Grandparents] have standing to file for legal custody and any 

form of physical custody under 23 Pa.S.C.A. §5324(iii)(c). 

2. Pursuant to 23 Pa.S.C.A. §5327(b), the law provides a 

presumption of custody be awarded to a parent and that the 

presumption may be rebutted by clear and convincing evidence. 

Id. at 13. Then the court discussed the factors listed at 23 Pa.C.S. § 

5328(a)(1) – (16), arriving at the conclusion that Father and Grandparents 

should share joint legal custody of Child, and that Grandparents should 

retain primary physical custody, with Father having partial physical custody. 
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 Specifically, the court discussed its credibility decisions relating to the 

witnesses, noting that Grandparents and their witnesses were credible and 

that almost all of their assertions were “backed up with a document or some 

form of physical evidence.” Id. at 17. However, the court found that Farron 

Remaley was not credible in almost all instances and Father not credible in 

some of his assertions. Additionally, the court stated: 

Further, this [c]ourt specifically finds that Dr. Schachner was not 

credible in finding that a move to Father's residence would not 

be harmful to the child. This [c]ourt believes that considering all 

of the evidence entered it would be, at its best, a harmful move 

to [C]hild, taking a well[-]balanced, well[-]adjusted child and 

placing him primarily in what can at best be described, a chaotic 

environment. At worst, there could be potential abuse and 

violence issues between Farron, her own children and [Child]. 

There also would be the issue of the less suitable school district 

and finally the issue of[C]hild's care when Father is at work. 

The psychological report finds that Father meets the basic level 

of an acceptable parent. Father has done far better than ... 

many people who have come before the [c]ourt, with a full time 

job and no drug or alcohol addictions. However, Father’s 

evidence that he would provide appropriate care to [Child] as 

well as provide him contact with his remaining family members 

is severely lacking. The evidence shows that Father would 

isolate [Child] from [Grandparents] as well as his extended 

family. It further shows that he would tend to allow Farron 

Remaley to be involved in many of [C]hild's care decisions. The 

evidence shows that Farron Remaley has anger and abuse issues 

as well as perception and truth telling issues. 

The [c]ourt finds that Dr. Schachner’s evaluation is not credible 

to the extent it finds Father’s household to be appropriate as the 

primary custodian and that it would cause no harm to the minor 

child. 

Id. at 17-18. 

 Father appealed and now raises four issues for our review: 
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I. THE COURT ABUSED ITS DISCRETION BY FINDING THE 

PRESUMPTION OF CUSTODY IN FAVOR OF THE NATURAL 

PARENT UNDER 23 PA.C.S.A. § 5327(b) WAS REBUTTED BY

CLEAR AND CONVINCING EVIDENCE. 

II THE COURT ABUSED ITS DISCRETION IN FINDING THAT

FATHER'S GIRLFRIEND PRESENTS A RISK OF HARM TO THE 

MINOR CHILD UNDER 23 PA.C.S.A. § 5328 (a)(2). 

III THE COURT ABUSED ITS DISCRETION BY FINDING THAT 

REMOVING THE CHILD FROM PATERNAL GRANDPARENTS' 

CUSTODY WOULD BE DETRIMENTAL TO THE CHILD UNDER 23 

PA.C.S.A. § 5328 (a)(4). 

IV THE COURT ABUSED ITS DISCRETION BY DETERMINING 

THAT FATHER WOULD NOT PROVIDE A STABLE, CONSISTENT,

LOVING, AND NURTURING RELATIONSHIP WITH THE CHILD 

UNDER 23 PA.C.S.A. § 5328 (a)(9). 

Father’s brief at 3. 

When presented with child custody matters, we are guided by the 

following scope and standard of review: 

[O]ur scope is of the broadest type and our standard is abuse of 

discretion. This Court 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, this Court must defer to the trial judge who presided 

over the proceedings and thus viewed 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. 

E.D. v. M.P. 33 A.3d 73, 76 (Pa. Super. 2011) (quoting A.D. v. M.A.B., 989 

A.2d 32, 35-36 (Pa. Super. 2010)). Furthermore, we note that: 
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The 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)). 

A.H. v. C.M., 58 A.3d 823, 825 (Pa. Super. 2012). 

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. Saintz v. Rinker, 902 

A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674, 

677 (Pa. Super. 2004)). Furthermore, we recognize that the Child Custody 

Act (Act), 23 Pa.C.S. §§ 5321-5340, governs all proceedings commenced 

after January 24, 2011. The specific factors that a court must consider are 

listed at 23 Pa.C.S. § 5328(a)(1) – (16). See E.D., 33 A.3d at 79-80 

(holding that “best interests of the child” analysis requires consideration of 

all section 5328(a) factors).4 

____________________________________________ 

4

 Although we are aware that the parties live approximately 80 to 100 miles 

apart, see TCO at 15 (discussing section 5328(a)(11), proximity of the 

parties’ residences), the trial court did not find it necessary to discuss any 

(Footnote Continued Next Page) 
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Father’s first issue relates to his claim that the court erred in 

concluding that Grandparents rebutted the presumption of custody in favor 

of the natural parent by clear and convincing evidence as provided for in 23 

Pa.C.S. § 5327(b). Section 5327(b) provides: 

(b) Between a parent and third party.—In any action 

regarding the custody of the child between a parent of the child 

and a nonparent, there shall be a presumption that custody shall 

be awarded to the parent. The presumption in favor of the 

parent may be rebutted by clear and convincing evidence. 

 In V.B. v. J.E.B., 55 A.3d 1193 (Pa. Super. 2012), this Court 

discussed this principle, noting initially that, 

where the custody dispute is between a biological parent and a 

third party, the burden of proof is not evenly balanced. In such 

instances, the parents have a prima facie right to custody, which 

will be forfeited only if convincing reasons appear that the child’s 

best interest will be served by an award to the third party. 

Thus, even before the proceedings start, the evidentiary scale is 

tipped, and tipped hard, to the biological parents’ side. 

Id. at 1199 (quoting Charles v. Stehlik, 744 A.2d 1255, 1258 (Pa. 2000) 

(internal quotations and brackets omitted)). The V.B. court further 

instructed that: 

What the judge must do, therefore, is first, hear all 

evidence relevant to the child's best interest, and

(Footnote Continued) _______________________ 

specific relocation factors found at 23 Pa.C.S. § 5337(h). Moreover, the 

second, third and fourth issues that Father raises, which relate specifically to 

the custody factors at section 5328(a)(2), (4), and (9), are encompassed, 

directly or implicitly, by certain factors contained in the list of relocation 

factors at section 5337(h). Therefore, we do not believe a remand is 

required in this case, as suggested by this Court’s decision in D.K. v. S.P.K., 

102 A.3d 467 (Pa. Super. 2014). 
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then, decide whether the evidence on behalf of the 

third party is weighty enough to bring the scale up to 

even, and down on the third party’s side. 

McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000) 

(quoting Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512, 513-514 

(Pa. 1980)). In Ellerbe, supra [416 A.2d] at 514, our Supreme 

Court noted that “these principles do not preclude an award of 

custody to the non-parent. Rather they simply instruct the 

hearing judge that the non-parent bears the burden of 

production and the burden of persuasion and that the nonparent's burden is heavy.” Essentially, the Supreme Court 

determined, “where circumstances do not clearly indicate the 

appropriateness of awarding custody to a non-parent, we believe 

the less intrusive and hence the proper course is to award 

custody to the parent or parents. 

V.B., 55 A.3d at 1199. However, 

 [i]n Albright v. Commonwealth. ex rel Fetters, 491 Pa. 

320, 421 A.2d 157, 161 (Pa. 1980), we stressed that the 

biological parent’s prima facie right to custody is not to be 

construed as precluding a custody award to a non-parent, absent 

a demonstration of the parent's dereliction. We again emphasize 

that the standard seeks only to stress the importance of 

parenthood as a factor in determining the best interests of the 

child. However, other factors which have significant impact on 

the well[-]being of the child can justify a finding in favor of the 

non-parent, even though the parent has not been shown to have 

been unfit. 

We see no reason to abandon our Albright holding. As 

noted supra, “the cardinal concern in all custody cases is the

best interest and permanent welfare of the child.” 421 A.2d at 

158. In staying true to that maxim, we have decreed that there 

will be instances where it is proper to award custody to the third 

party even where there has been no showing that the biological 

parent is unfit. While this Commonwealth places great 

importance on biological ties, it does not do so to the extent that 

the biological parent’s right to custody will trump the best 

interests of the child. In all custody matters, our primary 

concern is, and must continue to be, the well-being of the most 

fragile human participant—that of the minor child. 
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Charles, 744 A.2d at 1259. 

 Although the trial court recognized the existence of the presumption, it 

did not directly address it in its decision. However, our review of the court’s 

findings, its discussion of the custody factors, and its credibility 

determinations reveal that it found that Grandparents carried their heavy 

burden of proof that it was in Child’s best interest to remain with 

Grandparents, and that they should have primary physical custody rather 

than Father. Simply stated, the court found that although Father “could 

maintain a loving, stable, consistent and nurturing relationship [with] 

Child[,]” Father’s “relationship with Farron Remaley[,] who has been a 

destructive force not only in this relationship but also with her own children’s 

relationship with their grandparents[,]” weighed heavily in favor of 

Grandparents. TCO at 15 ¶ 9. Thus, the court concluded that 

“Grandparents have provided a tremendously loving, stable, consistent and 

nurturing relationship with Child and Child has done emotionally exceptional 

in their care.” Id. 

 One of the cases relied upon by Father, Jordan v. Jackson, 876 A.2d 

443 (Pa. Super. 2005), concerns a custody situation between a mother and 

the paternal grandparents of a child that they cared for while the mother, 

who had drug issues, was incarcerated. The trial court concluded that upon 

the mother’s release from prison, and noting her rehabilitation, it 

determined that she should be granted primary custody. This Court agreed, 
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indicating that “there [was] a dearth of evidence that [the child’s] interests 

[were] better served in grandparents[’] care, and that was grandparents’ 

burden to prove.” Id. at 452. In his reliance on Jordan, Father quoted the 

following: 

[The grandparents’] care of the child was all that could be 

wished, however, that alone cannot be the determining factor in 

this case. If such were the case, no parent who is out of 

custody, regardless of the reformation and improvement in 

lifestyle or parenting ability, could obtain the return of custody. 

The record supports the trial court’s belief in the mother’s 

redemption and also mandates she be given the opportunity to 

exercise her right as a parent.... 

Jordan, 876 A.2d at 456 (quoting Burnett v. Verstreate, 742 A.2d 700, 

703 (Pa. Super. 1999)). 

 In the case before us, the facts relied on by the trial court do not 

conform to those found in Jordan. Although the mother’s situation in 

Jordan was more dire, she overcame her difficulties and proved to the court 

her ability to provide financially and emotionally for the child. Moreover, the 

grandparents failed to provide evidence that the child’s best interests were 

better served by their having custody. Here, Grandparents not only 

submitted evidence of their ability to provide for Child in his best interests, 

but they also proved that Father’s situation was less than ideal due to his 

relationship with Farron, who would have significant input into caring for 

Child. In light of the credibility determinations formulated by the trial court, 

which are supported by the record, we cannot and will not re-find and/or reweigh the evidence. See C.R.F., III v. S.E.F., 45 A.3d 441, 443 (Pa. 
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Super. 2012) (stating that our standard of review requires that we “accept 

findings of the trial court that are supported by competent evidence of 

record, as our role does not include making independent factual 

determinations”). Taking into consideration the entire record, we conclude 

that the trial court did not abuse its discretion by concluding that 

Grandparents had rebutted the presumption of custody in favor of Father. 

Accordingly, we conclude that Father’s first issue is without merit. See 

McDonel v. Sohn, 762 A.2d 1101 (Pa. Super. 2000) (concluding it is in the 

best interests of child to grant primary physical custody to aunt and uncle as 

against father who abrogated his parental duties for most of child’s life). 

 Father next argues that the trial court abused its discretion by finding 

that Farron Remaley presented a risk of harm to Child pursuant to 23 

Pa.C.S. § 5328(a)(2).5 Interestingly, in connection with this issue, Father’s 

brief contains almost two pages relating to the evidence involving Farron’s 

past, namely, a protection from abuse (PFA) order against her, criminal 

charges, and investigations by Children, Youth and Family (CYF) agencies, 

which we recognize were deemed unfounded. However, Father then claims 

that none of these issues related to the care and/or impact on Child and 

____________________________________________ 

5

 Section 5328(a)(2) requires the court to consider “[t]he 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.” 23 Pa.C.S. § 5328(a)(2). 
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should not have weighed against Father. Father cites Johns v. Cioci, 865 

A.2d 931, 942 (Pa. Super. 2004), for the proposition that “[u]nless it is 

shown that a parent’s conduct has had a harmful effect on the child, that 

conduct should be given little weight in custody determinations.” In the 

Johns case, the trial court drew a negative inference about the mother’s 

failure to maintain a close relationship with extended family as opposed to 

the relationship that the father had with his extended family. This Court 

concluded that such an inference was unreasonable and did not support the 

trial court’s conclusion that the mother’s home was less suitable. 

The comparison between the Johns case and the present matter 

reveals major differences. In addition to Farron’s PFA, the CYF issues and 

the criminal charges, the video of the duct taping of one of her children with 

Child present concerned the trial court. Also, Grandparents’ presentation of 

the testimony of Ms. Hedrick, Farron’s mother, shed light on Farron’s 

actions, particularly emphasizing the number of years Ms. Hedrick cared for 

Farron’s three children (eight of the last eleven) and the custody order she 

was attempting to enforce. In concluding as it did in relation to section 

5328(a)(2), the court did not simply rely on testimony about the PFA and 

CYF investigations without considering other evidence presented by Farron 

herself. Again, we conclude that the trial court did not abuse its discretion 

for voicing its concerns about Farron and how her actions could impact the 
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best interests of Child in that she is a significant member of Father’s 

household. 

In his third issue, Father claims that the court abused its discretion by 

finding that removing Child from Grandparents’ custody and placing him in 

Father’s custody would be detrimental to Child pursuant to 23 Pa.C.S. § 

5328(a)(4).6 In its opinion, the trial court stated that “[t]o remove Child 

from this stable and happy lifestyle [with Grandparents] would be 

detrimental to Child.” TCO at 14, ¶ 4. Moreover, as quoted previously in 

this decision, the court expressed concerns about placing Child in Father’s 

care due to the “chaotic environment[,]” the “potential abuse and violence 

issues between Farron, her own children and [Child,] ... the issue of the less 

suitable school district and finally the issue of [Child’s] care when Father is 

at work.” TCO at 17. 

 Father argues that the trial court erred by relying on the fact that 

Grandparents have been the primary caregivers for many years. He relies 

on M.J.M. v. M.L.G., 63 A.3d 331 (Pa. Super. 2013), which he cites for the 

proposition that “our Legislature has rejected the notion that in analyzing 

both parents, additional consideration should be given to one because he or 

she has been the primary caretaker.” Father’s brief at 29 (quoting M.J.M., 

____________________________________________ 

6

 Section 5328(a)(4) requires the court to consider “[t]he need for stability 

and continuity in the child’s education, family life and community life.” 23 

Pa.C.S. § 5328(a)(4).” 
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63 A.3d at 338). Father also contends that if reunification with Father does 

not occur soon the prognosis for reuniting him with his son “decreases into 

hopelessness on the part of both.” Id. (quoting Burnett, 742 A.2d at 703). 

We note that the M.J.M. case also states that if the Legislature had 

intended that “extra consideration be given to one parent because of his or 

her role as the primary caretaker, it would have included language to that 

effect.” M.J.M., 63 A.3d at 338. Obviously, we recognize that this language 

was not included in the custody factors to be considered by the court; 

however, Father overlooks the prefatory language that begins section 

5328(a). That language directs that “[i]n 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....” 23 Pa.C.S. § 5328(a). That is exactly what the trial 

court did in this case. While the court noted the reasons Father gave 

custody to Grandparents initially and commended him “for holding a steady, 

well[-]paying job[,]” and believed that Father “could maintain a loving, 

stable, consistent and nurturing relationship with Child[,]” the court found 

that Father’s relationship with Farron was “a destructive force” that carried 

over to Farron’s relationships with Child, her own children and those 

children’s grandparents. TCO at 15 ¶ 9. These findings are supported by 

the evidence of record and, accordingly, we are compelled to conclude that 

Father’s third issue is without merit. 
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 In his final issue, Father claims that the court abused its discretion by 

finding that he would not provide a stable, consistent, loving and nurturing 

relationship with Child as set forth in 23 Pa.C.S. § 5328(a)(9).7 Father 

contends that the court’s statements in responding to this factor are 

contradictory, on the one hand stating that Father would provide this type of 

relationship, but also that he would not do so. Father then claims that the 

court’s reasoning solely rested on the court’s belief that Father would 

attempt to isolate Child from Grandparents and extended family. This claim 

is similar to Father’s argument relating to custody factor (4), in which Father 

asserts that no testimony was provided showing that he neglected Child or 

lacked the skills necessary to properly care for Child. Rather, he claims that 

he lacked the opportunity, because of his limited time with Child, to show 

that he could care for Child both physically and emotionally. 

 Again, we must emphasize that the court did not find Father unable to 

properly care for Child, neither concluding that Father lacked the skills nor 

the ability. The thrust of the court’s reasoning centered on the fact of 

Father’s relationship with Farron and its concerns about her impact on Child 

and on Father’s relationship with Child. As stated previously, these facts as 

found by the court are supported by the evidence of record. Accordingly, we 

____________________________________________ 

7

 Section 5328(a)(9) directs the court to consider “[w]hich party is more 

likely to maintain a loving, stable, consistent and nurturing relationship with 

the child adequate for the child’s emotional needs.” 23 Pa.C.S. § 

5328(a)(9). 
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conclude that the trial court did not abuse its discretion by determining that 

Father could not provide the stable, consistent, loving and nurturing 

relationship with Child due to his living arrangement. 

 For the reasons provided above, we affirm the court’s custody order 

awarding joint legal custody of Child to both Grandparents and Father, and 

awarding primary physical custody to Grandparents and partial physical 

custody to Father. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 3/30/2016