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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 C.A.S. AND J.A.S. IN THE SUPERIOR COURT OF PENNSYLVANIA v. E.R.S. AND L.C.J. APPEAL OF: E.R.S. No. 1072 WDA 2015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 S HOGAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 30, 2016 E.R.S. (“Father”) appeals from the June 15, 2015 o rder awarding him and C.A.S. and J.A.S. (Paternal “Grandparents”) joi nt legal custody of R.J.S. (“Child”), born in October of 2005. The order also awards Grandparents primary physical custody and Father partial physica l custody. After review, we affirm. 1 Grandparents filed the petition for special relief , which began this litigation, in October of 2013. They requested cus tody of Child, relying on the fact that they have been Child’s primary caregi vers since he was 20 months old. Following the completion of psychologi cal 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.J-A04026-16

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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 Ry hal, Grandmother’s brother. Father testified on his own behalf and pr esented the testimony of his girlfriend, Farron Remaley. The following facts are gleaned from the trial cou rt’s findings of fact regarding the testimony of the various witnesses. Grandmother testified that she lives with Grandfather, Child and her youn gest son, Brian. She further indicated that although she has an LPN cert ification, she has been a stay at home mother. Grandmother also explained th at when Child was born in Washington State in October 2005, while Fat her was serving in the Navy, she visited the family there. Upon her arriv al home, Father informed Grandmother that he was filing for a divorce from M other. Grandmother provided financial help and, when Mother attempted suicide and was placed in a mental institution, Grandparents returned to F ather’s residence from February through March 2006 to help Father with chi ldcare duties. For Christmas 2006, Grandmother sent plane tickets to Father, and he and Child came to Pennsylvania. Father remained fo r a week, while the Child stayed on. Through 2007, Father called Child on a daily basis. Father returned to Grandparents’ residence for a week arou nd the Christmas holiday in 2007, and returned to Washington State u ntil his discharge from the Navy in February 2008. He then resided with Gr andparents until he moved to Monroeville, Pennsylvania, after procuring a job there. ChildJ-A04026-16

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visited Father on weekends and moved into Father’s home in September 2008. However, Child returned to live with Grandpa rents 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 visit s, 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 wi th other children. Through the summer of 2010, Father visited once or twice a month and called several times a week. Via email, Grandmothe r informed Father of Child’s progress in nursery school and about any me dical issues. In 2011, when Child needed to be registered for kindergarten , Father again relinquished the decision-making to Grandmother. F rom September 2011 to June of 2015, Child attended school in the Brookvil le 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 Ch ild. A letter from Father was also introduced, providing that he gave Grandparents “the right to decide everything necessary in Child’s life.” T rial Court Opinion (TCO), 6/16/15, at 3 ¶ s (unpaginated).J-A04026-16

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and is well behaved. Grandmother also discussed Ch ild’s extracurricular activities. Additionally, the court formulated the following f indings 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 200 7, when he was 21 months old. z. [Grandmother] testified that the evaluator[’]s r endition of the history of a relationship between her son and her f amily was not accurate. She claims the relationship has always b een [Grandparents’] supporting [their] son emotionally and financially and she disagrees with the constant con flict picture [the evaluator] paints. She indicated that through out much of their time, they were in daily contact regarding Ch ild. She further stated that she raised none of her children any differently than the others and any differences between the chi ldren 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 girlfrie nd, 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 ac knowledging that for many of the medical issues and athletic is sues, 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 Octob er[] 2013. ff. She indicated that in her opinion, the substant ial 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, whichJ-A04026-16

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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 t hat Father never indicated he wanted to return to primary cust ody. He only indicated that he wanted to see Child more. gg. In June of 2013, Father indicated that he was p lanning on taking Child to live with him in the fall. Grandmo ther indicated she responded that was not a good idea to pick up a nd 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 sch ool that Father was going to take Child from the school[,] G randparents took legal action to formally obtain custody of Chi ld 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 m e in locating my grandchildren?” The message was from Kathryn He drick who would testify later in the trial. The purpose in bringing it up is Grandmother's state of mind concerning of the le vel 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 w ith 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 webs ite, which indicatedJ-A04026-16

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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 contac ted 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, essenti ally 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 furth er indicated that a court order provides for her to have shared custody of he r grandchildren, an order that she is trying to have enforced through a conte mpt petition filed in Armstrong County. She also testified about a serie s 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 un derstatement to say the [c]ourt finds the entire video to be disturbing.” TCO at 7 ¶ i. Robert George Ryhal, Grandmother’s brother, testif ied that he is a licensed private investigator and retired from the Pennsylvania State Police after 25 years of service. Mr. Ryhal explained tha t he has three sons around Father’s age and that they all had a good relations hip and often got together. He also testified that he thought Father was amiable and had aJ-A04026-16

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good relationship with his parents until recently. As an example, he described a soccer match that had taken place the y ear before, at which Father and Farron stood off from the rest of the fa mily. After speaking with them, he recognized there was obvious tension. Grandfather testified next, discussing his work in environmental science for Continental Cooperative Services, a com pany he has worked for since 1993. His job requires him to travel about 3 0% to 40% of the time. Grandfather further explained that he has claimed C hild as a dependent for federal tax purposes, that he has provided for Chil d and that Father has never contributed. He also testified that he and F ather had “a great relationship[,]” that “began to deteriorate right a fter 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 h is being cited for defiant trespass for which he was found not guilty. He als o submitted documentation that revealed Farron’s conviction for harassment in 2004, and also noted that Father and Farron were listed o n the landlord/tenant docket three times since 2008. Grandfather further testified about his relationsh ip with Child and the activities in which they engage, namely baseball, g ardening, camping overnight and fishing. He also explained that his travel for work occurs during the week and that he has flexibility, allowi ng him to be available to do activities with Child. Grandfather also asserted h is belief that it would be in Child’s best interest to remain with Grandparents.J-A04026-16

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Father was the next witness to testify. He discus sed his nuclear propulsion work in the Navy and his current job rel ating to nuclear generators with Curtis-Wright, a position he has he ld 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 whil e he was still in Washington State and after he moved back to Pennsyl vania. 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 respons ible decision to provide stability for his son’ knowing that he coul d 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 trans itioning Child to his care in 2011, but that Grandparents “would not list en to him.” Id. at 10 ¶ k. He claimed that “he never intended to give up p arental 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 par ticipate 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 hisJ-A04026-16

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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 h e 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. S he testified that she is a transfusion nurse, working for Transfusion Med icine, although she does not have a nursing degree. Rather, she has an asso ciate’s degree as a medical assistant. She has lived with Father for t hree years and has three children, ages 15, 13 and 11. The court also liste d the following findings of fact relating to Farron’s testimony: c. She indicated that she is currently going throug h a divorce with her husband, further she states “morally, [she ] is not married.” d. She indicated that she left her children with he r mother because she had two jobs and school and felt it was a good arrangement for her children to live with her mothe r [but she now has safety concerns with the children living wi th her mother]. e. She acknowledged the PFA filed against her and s he acknowledged that she “302’d” her husband but indic ated that the PFA was retaliation. She acknowledged that she violated and took house arrest and also acknowledged that she wa s “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 discusse d the video of duct taping her son indicating that her so n 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 beli eved herJ-A04026-16

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mother was “instilling racism” in her children. Sh e finally said, “If I ever wanted to do drugs, I would go to her fi rst.” h. She describes Father as a kind, patient person w ith his child, stating “they take him to the science center, the z oo” and that [Child] can “kick my butt at tennis.” i. She indicated that Plaintiff Grandmother did ass ault her but she felt charges would only make a bad situation wo rse. However, she did agree that she had Grandfather cit ed for defiant trespass indicating that she felt her child ren were at risk with him entering their apartment. She acknowledge d he was found [not] guilty. j. She also indicated she violated the custody orde r 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 w ith Child, expressing its intent to take Child’s statements and preferences i nto account in arriving at its custody decision without identifying what Child stated. Following this extensive recitation of the testimony, the court st ated that: 1. [Grandparents] have standing to file for legal c ustody and any form of physical custody under 23 Pa.S.C.A. §5324(i ii)(c). 2. Pursuant to 23 Pa.S.C.A. §5327(b), the law provi des a presumption of custody be awarded to a parent and t hat the presumption may be rebutted by clear and convincing evidence. Id. at 13. Then the court discussed the factors liste d 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.J-A04026-16

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Specifically, the court discussed its credibility decisions relating to the witnesses, noting that Grandparents and their witne sses 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 an d Father not credible in some of his assertions. Additionally, the court st ated: Further, this [c]ourt specifically finds that Dr. S chachner was not credible in finding that a move to Father's residen ce would not be harmful to the child. This [c]ourt believes tha t considering all of the evidence entered it would be, at its best, a harmful move to [C]hild, taking a well[-]balanced, well[-]adjust ed child and placing him primarily in what can at best be descri bed, a chaotic environment. At worst, there could be potential ab use and violence issues between Farron, her own children an d [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 th e basic level of an acceptable parent. Father has done far bette r than ... many people who have come before the [c]ourt, with a full time job and no drug or alcohol addictions. However, Fa ther’s evidence that he would provide appropriate care to [Child] as well as provide him contact with his remaining fami ly members is severely lacking. The evidence shows that Fathe r would isolate [Child] from [Grandparents] as well as his extended family. It further shows that he would tend to all ow Farron Remaley to be involved in many of [C]hild's care de cisions. The evidence shows that Farron Remaley has anger and ab use issues as well as perception and truth telling issues. The [c]ourt finds that Dr. Schachner’s evaluation i s not credible to the extent it finds Father’s household to be app ropriate as the primary custodian and that it would cause no harm t o the minor child. Id. at 17-18. Father appealed and now raises four issues for our review:J-A04026-16

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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 THA T 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 g uided by the following scope and standard of review: [O]ur scope is of the broadest type and our standar d is abuse of discretion. This Court must accept findings of the trial court that are supported by competent evidence of record, as o ur role does not include making independent factual determinatio ns. 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 dedu ctions or inferences from its factual findings. Ultimately, the test is whether the trial court's conclusions are unreasona ble as shown by the evidence of record. We may reject the concl usions of the trial court only if they involve an error of law, o r are unreasonable in light of the sustainable findings o f 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:J-A04026-16

- 13 - The discretion that a trial court employs in custod y 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 c ase-by-case basis, considers all factors that legitimately have an eff ect upon the child’s physical, intellectual, moral, and spiritual well-b eing. 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 pro ceedings 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” analysi s requires consideration of all section 5328(a) factors). 4

____________________________________________ 4 Although we are aware that the parties live approx imately 80 to 100 miles apart, see TCO at 15 (discussing section 5328(a)(11), proximi ty of the parties’ residences), the trial court did not find it necessary to discuss any (Footnote Continued Next Page)J-A04026-16

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Father’s first issue relates to his claim that the court erred in concluding that Grandparents rebutted the presumpti on of custody in favor of the natural parent by clear and convincing evide nce 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 evid ence. 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 p arent and a third party, the burden of proof is not evenly bala nced. 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 thi rd party. Thus, even before the proceedings start, the eviden tiary 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 a ll evidence relevant to the child's best interest, and (Footnote Continued) _______________________ specific relocation factors found at 23 Pa.C.S. § 5 337(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 containe d in the list of relocation factors at section 5337(h). Therefore, we do not b elieve 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).J-A04026-16

- 15 - 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 inst ruct the hearing judge that the non-parent bears the burden of production and the burden of persuasion and that th e nonparent's burden is heavy.” Essentially, the Suprem e Court determined, “where circumstances do not clearly ind icate the appropriateness of awarding custody to a non-parent , we believe the less intrusive and hence the proper course is t o 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-pa rent, absent a demonstration of the parent's dereliction. We ag ain emphasize that the standard seeks only to stress the importan ce of parenthood as a factor in determining the best inte rests of the child. However, other factors which have significa nt 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 sho wn 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 decree d that there will be instances where it is proper to award custo dy to the third party even where there has been no showing that the biological parent is unfit. While this Commonwealth places gr eat 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, ou r primary concern is, and must continue to be, the well-being of the most fragile human participant—that of the minor child.J-A04026-16

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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. Howev er, our review of the court’s findings, its discussion of the custody factors, an d its credibility determinations reveal that it found that Grandparen ts carried their heavy burden of proof that it was in Child’s best interes t to remain with Grandparents, and that they should have primary phy sical custody rather than Father. Simply stated, the court found that a lthough Father “could maintain a loving, stable, consistent and nurturing relationship [with] Child[,]” Father’s “relationship with Farron Remale y[,] who has been a destructive force not only in this relationship but also with her own children’s relationship with their grandparents[,]” weighed he avily in favor of Grandparents. TCO at 15 ¶ 9. Thus, the court conc luded that “Grandparents have provided a tremendously loving, stable, consistent and nurturing relationship with Child and Child has don e 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 care d for while the mother, who had drug issues, was incarcerated. The trial c ourt concluded that upon the mother’s release from prison, and noting her re habilitation, it determined that she should be granted primary custo dy. This Court agreed,J-A04026-16

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indicating that “there [was] a dearth of evidence t hat [the child’s] interests [were] better served in grandparents[’] care, and t hat 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 determini ng factor in this case. If such were the case, no parent who is out of custody, regardless of the reformation and improvem ent in lifestyle or parenting ability, could obtain the re turn of custody. The record supports the trial court’s belief in the mother’s redemption and also mandates she be given the oppor tunity 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 p roved to the court her ability to provide financially and emotionally for the child. Moreover, the grandparents failed to provide evidence that the ch ild’s best interests were better served by their having custody. Here, Grand parents not only submitted evidence of their ability to provide for Child in his best interests, but they also proved that Father’s situation was le ss than ideal due to his relationship with Farron, who would have significan t 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 wi ll not re-find and/or reweigh the evidence. See C.R.F., III v. S.E.F. , 45 A.3d 441, 443 (Pa.J-A04026-16

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Super. 2012) (stating that our standard of review r equires that we “accept findings of the trial court that are supported by c ompetent evidence of record, as our role does not include making indepen dent factual determinations”). Taking into consideration the en tire record, we conclude that the trial court did not abuse its discretion b y concluding that Grandparents had rebutted the presumption of custod y 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 c ustody to aunt and uncle as against father who abrogated his parental duties fo r 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 Chi ld pursuant to 23 Pa.C.S. § 5328(a)(2). 5 Interestingly, in connection with this issue, Fat her’s brief contains almost two pages relating to the evi dence involving Farron’s past, namely, a protection from abuse (PFA) order a gainst 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/o r 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 a n abused party and which party can better provide adequate physical safeguar ds and supervision of the child.” 23 Pa.C.S. § 5328(a)(2).J-A04026-16

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should not have weighed against Father. Father cit es Johns v. Cioci , 865 A.2d 931, 942 (Pa. Super. 2004), for the propositio n that “[u]nless it is shown that a parent’s conduct has had a harmful eff ect on the child, that conduct should be given little weight in custody de terminations.” In the Johns case, the trial court drew a negative inference ab out the mother’s failure to maintain a close relationship with exten ded family as opposed to the relationship that the father had with his exten ded family. This Court concluded that such an inference was unreasonable a nd 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, Gra ndparents’ presentation of the testimony of Ms. Hedrick, Farron’s mother, shed light on Farron’s actions, particularly emphasizing the number of yea rs 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 testim ony about the PFA and CYF investigations without considering other eviden ce presented by Farron herself. Again, we conclude that the trial court d id not abuse its discretion for voicing its concerns about Farron and how her a ctions could impact theJ-A04026-16

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best interests of Child in that she is a significan t member of Father’s household. In his third issue, Father claims that the court ab used its discretion by finding that removing Child from Grandparents’ cust ody and placing him in Father’s custody would be detrimental to Child purs uant 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 Grandpar ents] would be detrimental to Child.” TCO at 14, ¶ 4. Moreover, as quoted previously in this decision, the court expressed concerns about p lacing Child in Father’s care due to the “chaotic environment[,]” the “poten tial 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 relyin g on the fact that Grandparents have been the primary caregivers for m any 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 gi ven to one because he or she has been the primary caretaker.” Father’s brie f 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 lif e and community life.” 23 Pa.C.S. § 5328(a)(4).”J-A04026-16

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63 A.3d at 338). Father also contends that if reun ification 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 in cluded language to that effect.” M.J.M. , 63 A.3d at 338. Obviously, we recognize that thi s language was not included in the custody factors to be consi dered by the court; however, Father overlooks the prefatory language th at begins section 5328(a). That language directs that “[i]n ordering any form of custody, the court shall determine the best interest of the chil d by considering all relevant factors, giving weighted consideration to those fac tors 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 “cou ld maintain a loving, stable, consistent and nurturing relationship with Child[,]” the court found that Father’s relationship with Farron was “a destr uctive force” that carried over to Farron’s relationships with Child, her own children and those children’s grandparents. TCO at 15 ¶ 9. These fin dings are supported by the evidence of record and, accordingly, we are com pelled to conclude that Father’s third issue is without merit.J-A04026-16

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In his final issue, Father claims that the court a bused its discretion by finding that he would not provide a stable, consist ent, 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. Fa ther then claims that the court’s reasoning solely rested on the court’s beli ef that Father would attempt to isolate Child from Grandparents and exte nded 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 Ch ild. Rather, he claims that he lacked the opportunity, because of his limited t ime with Child, to show that he could care for Child both physically and em otionally. Again, we must emphasize that the court did not fi nd Father unable to properly care for Child, neither concluding that Fa ther lacked the skills nor the ability. The thrust of the court’s reasoning c entered 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).J-A04026-16

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conclude that the trial court did not abuse its dis cretion by determining that Father could not provide the stable, consistent, lo ving and nurturing relationship with Child due to his living arrangeme nt. For the reasons provided above, we affirm the cour t’s custody order awarding joint legal custody of Child to both Grand parents and Father, and awarding primary physical custody to Grandparents a nd partial physical custody to Father. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/30/2016