J-A19032-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.M. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

T.C.M., :

:

Appellant : No. 745 EDA 2017

Appeal from the Order entered January 26, 2017

in the Court of Common Pleas of Montgomery County,

Civil Division, No(s): 2016-09945

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 21, 2017

T.C.M. (“Father”) appeals from the Order (hereinafter, “the Custody 

Order”) granting J.M. (“Mother”) primary physical custody, and shared legal 

custody, of K.M. (born in November 2000), A.M. (born in August 2003), and 

L.M. (born in October 2006) (collectively, “the Children”), and granting Father 

partial physical custody and shared legal custody.1 We affirm. 

The trial court summarized the relevant factual and procedural history 

of this appeal, which we incorporate as though fully set forth herein. See 

Trial Court Findings of Fact, 1/26/17, at 1-4.

The trial court entered the Custody Order on January 26, 2017. On the 

same date, the court issued its Findings of Fact, wherein it addressed the 

seventeen custody factors (hereinafter, “the best interest factors”) set forth in 

 

1 The Custody Order provided that, during the Children’s summer vacation 

from school, Father and Mother shall have shared physical custody.
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subsection 5328(a) of the Child Custody Act (“the Act”). See 23 Pa.C.S.A. 

§ 5328(a). 

Father timely filed a Notice of Appeal, followed by a court-ordered 

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement of 

errors complained of on appeal, presenting eighteen separate issues. The 

trial court then issued a Pa.R.A.P. 1925(a) Opinion (hereinafter, the “Rule 

1925(a) Opinion”).

Father now presents the following questions for our review:

A. Whether the [trial] court abused its discretion and committed 

an error of law in weighing the [best interest] factors by 

granting [] Mother primary custody of the Children?

B. Whether the [trial] court properly applied the [best interest] 

factors in analyzing the best interests of the Children?

C. Whether the [trial] court abused its discretion and committed

an error of law in denying [] Father the opportunity to 

participate in the Children’s daily lives?

D. Whether the [trial] court deviated from applicable standards 

in establishing a schedule of when [] Father would be able to 

have physical custody of the Children individually and 

together?

Father’s Brief at 5-6 (issues renumbered for ease of disposition, capitalization 

omitted).

“We review [a] trial court’s custody order for an abuse of discretion.” 

M.G. v. L.D., 155 A.3d 1083, 1091 (Pa. Super. 2017). In conducting this 

review,

[t]he appellate court is not bound by the deductions or inferences 

made by the trial court from its findings of fact, nor must the 
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reviewing court accept a finding that has no competent evidence 

to support it. However, this broad scope of review does not vest 

in the reviewing court the duty or the privilege of making its own 

independent determination. Thus, an appellate court is 

empowered to determine whether the trial court’s incontrovertible 

factual findings support its factual 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.

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

brackets omitted). This Court has further explained that 

[o]n issues of credibility and weight of the evidence, 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 concern of the trial court is 

the best interest of the child. 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 of discretion. The test is whether the evidence of 

record supports the trial court’s conclusions. 

Id. (citations, paragraph breaks and brackets omitted); see also Ketterer v. 

Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (stating that “[t]he discretion 

that a trial court employs in custody matters should be accorded the utmost 

respect, given the special nature of the proceeding and the lasting impact the 

result will have on the lives of the parties concerned.”) (citation omitted).

In any custody case, the primary concern is the best interests of the 

child. See 23 Pa.C.S.A. §§ 5328, 5338; see also M.G., 155 A.3d at 1091. 

In assessing the child’s best interest, the trial court must consider the best 

interest factors, enumerated at subsection 5328(a) as follows:
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(a) Factors.—In ordering any form of custody, the court shall 

determine the best interest of the child by considering all relevant 

factors, giving weighted consideration to those factors which 

affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit 

frequent and continuing contact between the child and 

another party.

(2) The present and past abuse committed by a party or 

member of the party’s household, whether there is a 

continued risk of harm to the child or an abused party and 

which party can better provide adequate physical 

safeguards and supervision of the child.

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

(relating to consideration of child abuse and involvement 

with protective services).

(3) The parental duties performed by each party on behalf 

of the child.

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

education, family life and community life.

(5) The availability of extended family.

(6) The child’s sibling relationships.

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

child’s maturity and judgment.

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

other parent, except in cases of domestic violence where 

reasonable safety measures are necessary to protect the 

child from harm.

(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, education 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. “All of the [best interest] factors ... 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 omitted).

Subsection 5323(d) of the Act mandates that, when the trial court 

awards custody, it “shall delineate the reasons for its decision on the record in 

open court or in a written opinion or order.” 23 Pa.C.S.A. § 5323(d). “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 

[best interest] factors are considered and that the custody decision is based 

on those considerations.” A.V., 87 A.3d at 823 (citation and quotation marks 

omitted); see also id. (stating that “[a] court’s explanation of reasons for its 
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decision, which adequately addresses the relevant factors, complies with 

Section 5323(d).”).

Here, we will address Father’s first three issues together, as they are 

closely related, and all essentially challenge the trial court’s weighing of the 

best interest factors. 

In his first issue, Father contends that the trial court “erred in making 

factual findings that suggested that both Mother and Father were capable of 

[exercising] primary physical custody, but then granted [primary] physical 

custody to [] Mother.” Father’s Brief at 16. Father additionally argues that 

“[t]he [trial] court’s findings of fact[] are not reasoned, and instead, make 

prejudicial statements in favor of [] Mother, such as ‘Mother worked as the 

CEO of the family.’ The [trial] court frowned upon [] Father being a surgeon 

and physician.” Id. at 17-18 (quoting Trial Court Findings of Fact, 1/26/17, 

at 9).

In his second issue, Father asserts that the trial court improperly 

applied the best interest factors in analyzing the best interests of the 

Children. Father’s Brief at 18. Father urges that “[t]here is no dispute that 

[he] is able, available and wanted to have physical custody of the Children[, 

yet he] ... was only entitled to one overnight per week with all three Children 

at the same time.” Id. at 21; see also id. at 22, 23 (asserting that such 

custody schedule causes disruption in Father’s relationship with the Children 

and “separation among the Children”). Father additionally argues that the 
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trial court overlooked that (1) Mother made disparaging comments to the 

Children concerning, inter alia, Father’s alleged alcohol abuse; (2) in 

contradiction of Mother’s claim that Father is an alcoholic, Father submitted 

an “expert report” opining that Father “had a low probability of having an 

alcohol [] abuse” issue; and (3) paternal grandmother had often helped 

Mother care for the Children. Id. at 22, 23; see also id. at 22 (asserting 

that Mother’s testimony at the custody hearing was not credible).

In his third issue, Father argues that the trial court improperly denied 

him the opportunity to participate in the Children’s daily lives. Id. at 30. 

According to Father,

[t]here is no evidence in the record that [he] did not participate in 

the Children’s daily well-being. The [trial] court stated in its [Rule 

1925(a)] [O]pinion that the “majority of the household duties had 

always been, and currently were still, performed by Mother.” 

“Household duties” is not a statutory factor in awarding primary 

physical custody. Such an arbitrary statement punishes [] Father 

for being a physician and surgeon.

 * * *

Moreover, if [] Father is able to maintain fifty percent [physical] 

custody during the summer, when there are still household chores 

to be done and [] Father still works, it is unreasonable to suggest 

that the factors must change during the school year.

Id. at 32-33 (citations omitted). Father further points out that the trial court 

found that “Father is also an involved, loving, doting parent[,] who attends to 

the[] [Children’s] activities, participates in school programs and always 

makes time to engage with the [C]hildren.” Id. at 34 (quoting Rule 1925(a) 

Opinion, 3/31/17, at 15). Father contends that this finding “contradicts” the 
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trial court’s awarding primary physical custody to Mother. Father’s Brief at 

34.

In its Findings of Fact, the trial court thoroughly addressed all of the 

best interest factors, and determined that it was in the Children’s best 

interests to award Mother primary physical custody during the school year. 

See Trial Court Findings of Fact, 1/26/17, at 4-12. Additionally, the court 

addressed Father’s above-described claims in its Rule 1925(a) Opinion, 

adeptly summarized the relevant law, and determined that the court did not 

abuse its discretion in weighing the best interest factors, or in awarding 

Mother primary physical custody during the school year. See Rule 1925(a) 

Opinion, 3/31/17, at 6-9, 14-17. As the trial court’s analysis is sound, and 

the record supports its factual findings, we incorporate it herein by reference. 

See Rule 1925(a) Opinion, 3/31/17, at 6-9, 14-17; Trial Court Findings of 

Fact, 1/26/17, at 4-12. Like the trial court, we decline Father’s invitation to 

disturb the court’s findings and weighing of the evidence, in favor of the 

findings and custody arrangement that Father proposes. See M.J.M. v. 

M.L.G., 63 A.3d 331, 337 (Pa. Super. 2013) (rejecting appellant/mother’s 

argument asking this Court to reconsider the trial court’s findings and 

credibility determinations with regard to the best interest factors); see also 

A.V., supra (stating that a reviewing court should defer to the trial court on 

issues of credibility and weight of the evidence). Accordingly, as the trial 

court’s sound analysis of the best interest factors was careful and thorough, 
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and we discern no abuse of the court’s discretion in fashioning a reasonable 

award of physical custody that was in the Children’s best interests, we defer 

to the court’s decision. See A.V., supra (stating that “[a]ppellate 

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 of discretion.”); see also id., supra, (stating that a reviewing court 

may not interfere with a trial court’s conclusions where they are reasonable in 

view of the trial court’s factual findings). We thus affirm on the basis of the 

trial court’s Rule 1925(a) Opinion and Findings of Fact as to Father’s first 

three issues. See Rule 1925(a) Opinion, 3/31/17, at 6-9, 14-17; Trial Court 

Findings of Fact, 1/26/17, at 4-12. 

In his final issue, Father argues that the trial court rendered an 

“arbitrary” physical custody award, which “was in deviation of the statutory 

guideline and not in the Children’s best interests[,]” where “Father only has 

[all] three Children together four times a month over a ten month period, 

even though [Father] lives near [] Mother, closer to [the Children’s] school, 

[and] on the bus route ....” Father’s Brief at 25-26. Father urges that 

[t]he better solution to meet the Children’s best interests was ... 

[to award the parties] shared physical custody[, and] ... a more 

balanced schedule[,] where all three Children could stay with [] 

Father together more than four nights per month during the 

school year, [which is] ... a disproportionate [and] unjustified 

holding. ... The arbitrary decision of the [trial] court does not 

reflect the reasoning as to why [] Father can have the Children

together 4 nights [per month] during ten months out of the year, 

and fifteen nights [per month] for two summer months.
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Id. at 29.

In its Rule 1925(a) Opinion, the trial court explained that it (1) had 

considered the Children’s “articulate and well reasoned” desires for a physical 

custody schedule that was best suited to their respective individual needs; 

and (2) was cognizant that the court had fashioned an unconventional 

custody schedule, whereby the Children were not always together during 

Father’s custodial time, and each had a slightly different schedule. See Rule 

1925(a) Opinion, 3/31/17, at 10-11. The court determined that, 

nevertheless, it was appropriate, and in the Children’s respective best 

interests, to employ a physical custody schedule that the Children expressed 

they prefer, even though it does not ensure that the Children are all together 

at all times. Id. The trial court’s reasoning is sound and supported by the 

record, and we discern no abuse of the court’s discretion in finding that the 

unconventional physical custody schedule put into place was in the Children’s 

best interests.2 Accordingly, we affirm on this basis in rejecting Father’s final 

issue. See id.

Order affirmed.

 

2 Our determination is unaltered by Father’s pointing out that that he was 

awarded shared physical custody during the Children’s summer vacation, but 

not during the remainder of the year. The trial court found that such 

arrangement was the one best suited to the Children’s best interests, and 

their expressed preferences. See Rule 1925(a) Opinion, 3/31/17, at 8-9 

(stating, inter alia, that “the [C]hildren have a very strong preference towards 

spending more time in Mother’s household during the school year in order to 

provide them with consistency and stability, especially in their academic 

pursuits.”); see also id. at 10-11. Contrary to Father’s assertion, this 

physical custody arrangement is neither arbitrary nor unreasonable.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/21/2017