J-A18028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.L.B., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

M.J.E.,

Appellant No. 202 MDA 2015

Appeal from the Order entered January 22, 2015, 

in the Court of Common Pleas of Bradford County, 

Civil Division, at No: 2008 FC 0227

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED OCTOBER 21, 2015

M.J.E. (Father) appeals pro se from the order entered January 22, 

2015, in the Court of Common Pleas of Bradford County, which awarded 

primary physical custody of his minor daughter, S.N.E. (Child), born in July 

of 2003, to Father’s former wife, S.L.B. (Mother). After careful review, we 

vacate and remand for further proceedings consistent with this 

memorandum.

On April 21, 2014, Mother filed a petition to modify the parties’ 

existing custody order, entered on May 20, 2009, pursuant to which Mother 

and Father exercised shared legal and physical custody of Child. A custody 

trial was held on January 22, 2015, before the Honorable Jeffrey A. Smith. 

Mother was represented by counsel during the trial, and Father proceeded 

pro se. The court first heard the testimony of Mother, who was cross-
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examined by Father. Mother’s counsel also cross-examined Father, who 

then offered a brief statement to the court. Finally, Child was questioned by 

Mother’s counsel and by Father. Following the trial, the court entered its 

order awarding primary physical custody of Child to Mother. The order also 

awarded both parties shared legal custody and awarded Father partial 

physical custody. Specifically, Father was awarded physical custody every 

other week from Thursday evening until Sunday evening during the school 

year. The court’s order further provided that the custody schedule would be 

reversed during the first six weeks of summer, such that Mother would have 

physical custody every other week from Thursday evening until Sunday 

evening.1 Father timely filed a notice of appeal on January 30, 2015, along 

with a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(a)(2)(i) and (b). 

Father now raises the following issues for our review, which we have 

reordered for ease of disposition.

 

1 The subject order states that Father is to receive “extended weekends” of 

physical custody, without specifying how often those weekends are supposed 

to take place. Order, 1/22/15, at 1. However, a later provision in the order 

indicates that the physical custody schedule is intended to be biweekly, and 

that Mother will receive physical custody every other weekend when the 

custody schedule is “reversed” during the first six weeks of summer. Id. 

Thus, we can infer that Father was intended to receive custody every other 

weekend at all other times. This interpretation is consistent with the trial 

court’s comments at the close of the custody trial. See N.T., 1/22/15, at 53 

(“I think that what I will do is make an order that provides you with every 

other weekend . . . .”).
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[1.] Under PA [l]aw, can the [trial c]ourt issue a [c]ustody 

[o]rder without detailing the reason for its decision either on the 

record or in it’s [sic] written opinion?

[2.] Under PA law, can the [trial c]ourt modify an existing 

custody [order] based on [g]ender?

[3.] Under PA law, can an 11[-]year[-]old minor child have the 

maturity and life experience [to] make decisions [i]n [her] best 

interest[]?

Father’s brief at 5 (trial court answers omitted).

We address Father’s claims mindful of our well-settled standard of 

review.

In reviewing a custody order, our scope is of the broadest type 

and our standard is abuse of discretion. We must accept 

findings of the trial court that are supported by competent 

evidence of record, as our role does not include making 

independent factual determinations. In addition, with regard to 

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

the presiding trial judge who viewed and assessed the witnesses 

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

deductions or inferences from its factual findings. Ultimately, 

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

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

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

or are unreasonable in light of the sustainable findings of the 

trial court.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

“When a trial court orders a form of custody, the best interest of the 

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014) 

(citation omitted). The factors to be considered by a court when awarding 

custody are set forth at 23 Pa.C.S.A. § 5328(a).

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

determine the best interest of the child by considering all 
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relevant factors, giving weighted consideration to those factors 

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

(1) Which party is more likely to encourage and 

permit frequent and continuing contact between the 

child and another party. 

(2) The present and past abuse committed by a 

party or member of the party’s household, whether 

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

abused party and which party can better provide 

adequate physical safeguards and supervision of the 

child. 

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

(relating to consideration of child abuse and 

involvement with protective services).

(3) The parental duties performed by each party on 

behalf of the child. 

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

education, family life and community life. 

(5) The availability of extended family. 

(6) The child’s sibling relationships. 

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

on the child’s maturity and judgment. 

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

the other parent, except in cases of domestic 

violence where reasonable safety measures are 

necessary to protect the child from harm. 

(9) Which party is more likely to maintain a loving, 

stable, consistent and nurturing relationship with the 

child adequate for the child's emotional needs. 

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

physical, emotional, developmental, educational and 

special needs of the child. 
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(11) The proximity of the residences of the parties. 

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

ability to make appropriate child-care arrangements. 

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

willingness and ability of the parties to cooperate 

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

from abuse by another party is not evidence of 

unwillingness or inability to cooperate with that 

party. 

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

or member of a party’s household. 

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

member of a party’s household. 

(16) Any other relevant factor. 

23 Pa.C.S.A. § 5328(a).

Instantly, Father’s first issue is that the trial court erred by failing to 

consider the Section 5328(a) factors. Father’s brief at 12-15. Father argues 

that the court’s “opinion and subsequent ruling failed to address and detail 

all the enumerated factors, and thus the child’s bests interests.” Id. at 14-

15. We agree.

It is well-settled that the Child Custody Act requires courts to consider 

each of the Section 5328(a) factors when “ordering any form of custody.” 

23 Pa.C.S.A. § 5328(a). “Mere recitation of the statute and consideration of 

the § 5328(a) factors en masse is insufficient.” S.W.D., 96 A.3d at 401

(citing C.B. v. J.B., 65 A.3d 946, 950 (Pa. Super. 2013), appeal denied, 70 

A.3d 808 (Pa. 2013)). A court must “set forth its mandatory assessment of 
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the sixteen factors prior to the deadline by which a litigant must file a notice 

of appeal.” C.B., 65 A.3d at 955.

In expressing the reasons for its decision, there is no 

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

that is required is that the enumerated factors are considered 

and that the custody decision is based on those considerations. 

A court’s explanation of reasons for its decision, which 

adequately addresses the relevant factors, complies with [the 

Child Custody Act].

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

marks omitted).

Here, it is clear that the trial court was required to consider the 

Section 5328(a) factors.2 While the court offered an explanation of its 

decision at the conclusion of the January 22, 2015 custody trial, the court 

did not directly address any of these factors, other than Child’s preference to 

spend more time with Mother. In addition, the court did not draft an opinion 

 

2 Mother argues, inter alia, that it was not necessary for the trial court to 

consider the Section 5328(a) factors, “because the trial court only modified a 

portion of the parties’ custody arrangement.” Mother’s brief at 5 (citing 

M.O. v. J.T.R., 85 A.3d 1058 (Pa. Super. 2014)). In M.O., a panel of this 

Court held that a trial court was not required to consider the Section 5328(a) 

factors “[b]ecause the trial court did not make an award of custody, but 

merely modified a discrete custody-related issue . . . .” 85 A.3d at 1063. In 

contrast, the trial court in the instant matter awarded primary physical 

custody to Mother, when the parties previously had been awarded shared 

physical custody. Notably, consideration of the Section 5328(a) factors may 

be necessary even when a court denies a petition to modify. S.W.D., 96 

A.3d at 406. In such cases, the key question is whether the petition to 

modify requests a change to the underlying form of custody. Id. (“Even if 

the trial court only reaffirmed its prior order, it nonetheless was ruling upon 

a request to change the form of physical custody and, therefore, bound to 

decide whether the prior order remained in [the c]hild’s best interest.”).
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explaining its decision.3 Accordingly, we must vacate the court’s order and 

remand this matter for the preparation of a new order and opinion. Upon 

remand, the trial court is directed to hold further proceedings, if necessary, 

and to issue a new order and opinion within forty-five days of the date of 

this memorandum.4

Order vacated. Case remanded for further proceedings consistent with 

this memorandum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/21/2015

 

3 The Honorable Maureen T. Beirne issued a “Statement in Lieu of 1925 

Opinion,” dated February 19, 2015, in which she explained that Judge Smith 

is now retired, and that the reasons for Judge Smith’s ruling could be found 

in the transcript of the January 22, 2015 custody trial.

4

In light of our conclusion that this case must be remanded for a new order 

and opinion, we do not address Father’s remaining arguments. Without a 

proper opinion considering each of the Section 5328(a) factors, we are 

unable to determine if the court abused its discretion by awarding Mother 

primary physical custody.