J-A07006-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 A.A.K., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. C.M., Appellant No. 1328 WDA 2015

Appeal from the Order entered August 7, 2015, in the Court of Common Pleas of Blair County, Orphans’ Court, at No(s): 2010 GN 1513 BEFORE: BOWES, MUNDY, and JENKINS, JJ. MEMORANDUM BY BOWES, J.: FILED MAY 16, 2016 C.M. (“Father”) appeals from the August 7, 2015 ch ild custody order, which granted the petition filed by A.A.K. (“Mother ”) for modification of the existing custody order concerning their then five-y ear-old daughter, R.M.

We affirm. We summarize the relevant factual and procedural hi story as follows. R.M. was born in November of 2009. During the firs t six months of her life,

R.M. resided with Mother and Father in Mother’s Bla ir County home. N.T., 8/6/15, at 17, 25. Mother initiated the underlying custody matter pro se in April of 2010; however, Father continued to reside with Mother “off and on” until early 2011. Id . Father moved to Berwick, in Columbia County, in October of 2011, which is a driving distance of two and one-half hours from

Mother’s home. Id . at 19, 74.J-A07006-16

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Father resides with L.M. (“Stepmother”), whom he ma rried on June 25, 2014, her son, A., who was three years old at t he time of the subject proceedings, and their infant daughter, K.M., who w as approximately six

months old. Id

. at 74-75, 109. Mother resides with her son, J.W., who was ten years old at the time of the subject proceeding s, and who is not Father’s

child. Id . at 2. R.M. has a close bond with J.W. The sibli ngs attend the same school and enjoy riding the school bus togethe r. By consent order dated August 17, 2011, the trial c ourt granted the parties shared legal and physical custody on a rota ting schedule, wherein Father received sixteen consecutive days and Mother seven consecutive days. In July of 2012, Mother filed a pro se petition for modification wherein she requested 

### increased physical custody with R.M. By order dated March 6, 2013, the trial court granted Mother custody eve ry other weekend from Friday until Tuesday, and on the alternating weeks, from Sunday until Tuesday

. In addition, upon agreement, the order directed a s tatus conference in three months to review the custody ma tter. The status conference occurred on July 1, 2013, dur ing which the parties requested an evidentiary hearing “to determ ine in whose home and at which school their daughter will attend.” Order , 7/1/13, at 1. Following another status conference, the court granted the pa rties shared physical custody on an alternating weekly basis. Further, t he order directed that aJ-A07006-16

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hearing be scheduled for May of 2015, prior to R.M. ’s enrollment in kindergarten in the 2015-2016 school year. The subject proceedings occurred on August 6, 2015. The court received testimony from Mother, Father, and Stepmot her. By order dated August 7, 2015, the trial court granted the parties shared legal custody, Mother “residential custody,” 1 and Father partial physical custody on alternating weekends during the school year. The c ourt authorized Mother to enroll R.M. for kindergarten where she resides i n the Bellwood-Antis School District. During the summer months, the cou rt granted Mother and Father shared physical custody in alternating seven -day periods. Father timely filed a notice of appeal and a concise state ment of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) an d (b). The trial court filed its Rule 1925(a) opinion on September 29, 201 5.

Father raises one issue for our review: Whether or not the [t]rial [c]ourt abused its discr etion in awarding Mother primary [physical] custody in this matter as Father has had either primary custody or 50/50 cust ody for the last number of years and there was no evidence to c onclude that the best interest of the child would be best served by having primary [physical] custody with Mother during the s chool year?

Father’s brief at 4. The scope and standard of review in custody matters is as follows.

1 We observe that the Child Custody Act (“Act”), 23 Pa.C.S. §§ 5321-5340, does not use the term “residential custody.” Herei n, we refer to Mother's custody award during the school year as primary phy sical custody. See 23 Pa.C.S. § 5322(a) (defining “primary physical custo dy” as “[t]he right to assume physical custody of the child for the majori ty of time”).J-A07006-16

4 [T]he appellate court is not bound by the deduction s or inferences made by the trial court from its finding s of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. . . . How ever, this broad scope of review does not vest in the rev iewing court the duty or the privilege of making its own independent determination. . . . Thus, an appellat e court is empowered to determine whether the trial court’s incontrovertible factual findings support its factu al conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion. R.M.G., Jr. v. F.M.G. , 2009 PA Super 244, 986 A.2d 1234, 1237 (Pa.Super. 2009) (quoting Bovard v. Baker , 2001 PA Super 126, 775 A.2d 835, 838 (Pa.Super. 2001)). Moreover , [O]n issues of credibility and weight of the eviden ce, we defer to the findings of the trial [court] who has had the opportunity to observe the proceedings and demeanor of the witnesses. The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount co ncern of the trial court is the best interest of the chil d. Appellate interference is unwarranted if the trial court’s consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse o f discretion. R.M.G., Jr., supra at 1237 (internal citations omitted). The test is whether the evidence of record supports the tria l court’s conclusions. Ketterer v. Seifert , 2006 PA Super 144, 902 A.2d 533, 539 (Pa.Super. 2006).

A.V. v. S.T. , 87 A.3d 818, 820 (Pa.Super. 2014).

We have stated: [t]he discretion that a trial court employs in cust ody matters should be accorded the utmost respect, given the sp ecial nature of the proceeding and the lasting impact the result will have on the lives of the parties concerned. Indeed, the kn owledgeJ-A07006-16

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gained by a trial court in observing witnesses in a custody proceeding cannot adequately be imparted to an appe llate 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 eff ect upon the child’s physical, intellectual, moral, and spiritual wellbe ing.” Saintz v. Rinker , 902 A.2d 509, 512 (Pa.Super. 2006), citing Arnold v. Arnold , 847 A.2d 674, 677 (Pa.Super. 2004). When awarding any form of custody, § 5328(a) of the Act provides an

enumerated list of factors a trial court must consi der in determining the best

interests of a child: § 5328. Factors to consider when awarding custody. (a) Factors. – In ordering any form of custody, the court shall determine the best interest of the child by c onsidering 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 a nd another party. (2) The present and past abuse committed by a pa rty or member of the party’s household, whether there is a continued risk of harm to the child or an abused pa rty and which party can better provide adequate physical safeguards and supervision of the child.J-A07006-16

6 (2.1) The information set forth in section 5329.1 (a)(1) and (2) (relating to consideration of child abuse a nd 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, b ased on the child's maturity and judgment. (8) The attempts of a parent to turn the child a gainst the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm. (9) Which party is more likely to maintain a lov ing, stable, consistent and nurturing relationship with the chil d 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 part ies. (12) Each party’s availability to care for the c hild or ability to make appropriate child-care arrangements. (13) The level of conflict between the parties a nd the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from a buse by another party is not evidence of unwillingness or i nability to cooperate with that party. (14) The history of drug or alcohol abuse of a p arty or member of a party’s household.J-A07006-16

7 (15) The mental and physical condition of a part y or member of a party’s household. (16) Any other relevant factor. 23 Pa.C.S. § 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 cour t or in a written opinion or order.” 23 Pa.C.S. § 5323(d). Additionally, “section 5323(d) requires the trial court to set fo rth its mandatory assessment of the sixteen [Section 5328 c ustody] factors prior to the deadline by which a litigant m ust file a notice of appeal.” C.B. v. J.B. , 65 A.3d 946, 955 (Pa.Super. 2013), appeal denied , 70 A.3d 808 (Pa. 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 conside red and that the custody decision is based on those consideratio ns.” 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 expla nation of reasons for its decision, which adequately addresse s the relevant factors, complies with Section 5323(d). Id.

A.V. , 87 A.3d at 822-823. With these standards in mind, we turn to the merits of this appeal. 2

2 We observe that the trial court did not delineate the reasons for its decision on the record in open court or in a written opinion or order prior to the deadline by which Father had to file a notice of ap peal. We caution the court that this omission is in contravention of § 5323(d) . Nevertheless, in this case, we discern no prejudice to Father, nor does h e assert any prejudice. Therefore, we do not vacate the order.J-A07006-16

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Father argues that the evidence of record does not support the trial court’s findings. Specifically, Father maintains t hat the court’s credibility determinations were in error. We disagree. In its Rule 1925(a) opinion, the trial court set fo rth its assessment of the § 5328(a) custody factors. The court made cred ibility determinations in favor of Mother and found § 5328(a)(1), (4), (5), ( 6), (9), (10), and (13) in Mother’s favor. The court found § 5328(a), (3), (1 2), and (15) equal between the parties. Finally, the court found § 53 28(a)(2), (7), and (8)

irrelevant in this case. After considering all of the § 5328(a) factors, the trial court concluded

as follows: The [c]ourt finds both [p]arents are capable of pro viding adequate care to their daughter. The [p]arents had been sharing this responsibility but because the child n ow must begin Kindergarten and the [p]arties reside approximately 2–21⁄2 hours away, their current equal co-parenting needed an ad justment. Based on Mother’s stability, particularly residing in the same location for seven years and her preparation for he r daughter’s commencement of Kindergarten, the [c]ourt believes the child’s best interests are served by primarily residing wit h Mother and going to school at the Bellwood[-]Antis School Dist rict. Further, Mother is more likely to foster a positive and continued relationship between the child and Father. The [c] ourt has concerns that Father would not be as cooperative wi th Mother if the child resided with him. These reasons include Father’s previous conduct toward Mother in not informing her of a canceled pediatrician appointment as well as removi ng Mother from their daughter’s emergency contact list. Because both [p]arents have been significantly invo lved in their daughter’s life and now the [p]arties reside a sign ificant distanceJ-A07006-16

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away, the [c]ourt is convinced residing with Mother represents the best chance for daughter to continue a signific ant relationship with both parents. Trial Court Opinion, 9/29/15, at 12–13. Father levels general challenges to the trial court ’s consideration of each of the enumerated factors. However, our revie w of the certified record confirms that the testimonial evidence supports the court’s findings. To the extent that Father requests that we ignore our stan dard of review, reweigh the evidence, and make a determination in his favor , we must decline. See

M.J.M. v. M.L.G. , 63 A.3d 331, 334 (Pa.Super. 2013) (“We must accep t findings of the trial court that are supported by c ompetent evidence of record. . . . Ultimately, the test is whether the t rial court's conclusions are unreasonable as shown by the evidence of record.”). Having found that the certified record sustains the trial court’s finding s of fact, there is no basis to disturb it. Accordingly, all of Father’s general a ssertions fail. Nevertheless, we address Father’s specific claims relating to the second, tenth, and thirteenth factors respectively. Father initially asserts that the court failed to weigh the second factor re garding, inter alia , whether a parent’s past abuse presents a continued risk of harm to the child. Father contends that the court neglected to consider evide nce that he twice filed protection from abuse (“PFA”) petitions against Mot her and complains that evidence of Mother’s prior abusive conduct militate s in favor of awarding him custody of R.M. No relief is due.J-A07006-16

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First, the certified record belies Father’s assert ion that the trial court ignored the evidence regarding the prior PFA orders against Mother. In its Rule 1925(a) opinion, the Court specifically noted, “Father had a previous [PFA] action against Mother.” Id . at 8. Thus, Father’s claim is factually inaccurate. Moreover, having acknowledged the past aggressions, the court tacitly determined that the PFA orders relating to Mother’s abuse of Father did not evince a threat to R.M. In fact, the trial court concluded that “neither parent pose[d] any threat . . . [to] the c hild. Id . at 8. Indeed, we note that the court determined neither parent engag ed in unsafe behavior and found them capable of adequate supervision even though Father was

arrested for DUI with R.M. in his vehicle at 3:00 a .m. With respect to § 5328(a)(10), which party is more likely to meet the daily needs of the child, including the physical, e motional, developmental, educational, and special needs, the trial court fou nd, “Mother was significantly more informed as to the educational a nd medical needs of [R.M.] and more prepared to meet [R.M.]’s needs.” Trial Court Opinion, 9/29/15 at 10. Father challenges this finding of f act. He stresses that, since obtaining decision-making authority over R.M.’s ped iatric care in October 2014, Mother neglected to exercise it other than to arrange for immunizations that he was prepared to schedule for their daughter. Hence, Father posits that the court erred in finding Mothe r more attentive to R.M.’s

educational and medical needs.J-A07006-16

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Pursuant to an October 20, 2014 order, Mother wield s authority over R.M.’s pediatric care so long as she informs Father about appointments and permits him to attend. The order required Mother t o continue to take R.M. to Geisinger Health System near Father’s Berwick ho me to complete a series of immunizations. Thereafter, Mother was allowed t o transfer the location of R.M’s pediatric care to Blair County. Custody Orde r, 10/20/14, at 1. During the custody trial, Mother explained that she requested this authority “[b]ecause when I entered [R.M.] into pre -school, I needed shot records and when I called her pediatrician where he r dad was, she was very behind on her vaccinations. So, we had to get them up to speed so [R.M.] could go to pre-school.” N.T., 8/6/15, at 18. Mot her acknowledged that she

took the “lead and initiative” to obtain all of R.M .’s necessary vaccinations, which required her to drive to R.M.’s pediatrician’ s office in Father’s community a total of three or four times. Id . at 19-21. Mother testified that R.M. is currently a patient at Blair Medical A ssociates, located in her community. Id . at 23. As the certified record supports the tria l court’s decision to weigh this factor in Mother’s favor, we will not disturb it. With respect to § 5328(a)(13), the level of conflic t between the parties and willingness to cooperate, the court found, in p art,

Father was not sincere in his statements that he wo uld cooperate with Mother. This was demonstrated by Fa ther not informing Mother that the child’s doctor appointmen t was canceled and allowed Mother to drive a significant distance to that canceled appointment. Further[,] Father remov ed Mother’sJ-A07006-16

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name as an [e]mergency [c]ontact at [R.M.]’s pediat rician’s office. This was done without Mother’s consent or k nowledge[.] Trial Court Opinion, 9/29/15 at 10-11. Indeed, Mot her testified with respect

to the final vaccination scheduled for R.M. in the beginning of 2015, as

follows: [W]e drove early the whole way over to the doctor’s [office]. When we showed up, they said that they had called [ Father] to cancel because they didn’t have the vaccine at that time. When I asked why they didn’t call me; my number was take n off of the emergency contacts. So, we drove all the way over there for no reason. . . . N.T., 8/6/15, at 21. Mother observed that Father n ever answered her inquiry regarding why he did not let her know of th e cancellation. Id . at 22- 23. This evidence supports the trial court’s concl usion that Father lacked a sincere desire to cooperate with Mother. In addition, with respect to § 5328(a)(13), the cou rt found, “Mother testified she would foster a positive relationship between Father and [R.M.]. Mother also drove the majority of the distance for the exchange of the child, to accommodate Father[‘]s not having a driver’s lic ense. . . .” 3 Trial Court Opinion, 9/29/15, at 11. Mother’s testimony also s upports this finding. See N.T., 8/6/15, at 19, 158. Upon review of the testimonial and documentary evid ence, we discern no abuse of discretion by the trial court in granti ng Mother primary physical custody of R.M. and Father partial physical custody during the school year.

3 Upon inquiry by the trial court as to whether he h as his “[driver’s] license back,” Father responded, “Yes, I do.” N.T., 8/6/15 , at 91.J-A07006-16

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We conclude that the court carefully and thoroughly considered R.M.’s best interests in light of the § 5328(a) custody factors . Father’s arguments on appeal challenge the court’s determinations regardi ng credibility and weight

of the evidence. It is well-established that we de fer to the trial court in this regard; therefore, Father’s arguments are without m erit. See A.V. , supra at 820; see also Ketterer , supra . Accordingly, we affirm the order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 5/16/2016