J-S09023-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.D.G., JR. 

Appellant

v.

K.W.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1768 MDA 2017

Appeal from the Order Entered October 12, 2017

In the Court of Common Pleas of Lycoming County Civil Division at 

No(s): 16-21, 649

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 20, 2018

M.D.G., Jr. (“Father”) appeals pro se from the October 12, 2017 order 

awarding primary physical custody of his son, M.D.G., III (“Child”), born in 

August 2013, to K.W. (“Mother”). Because we conclude the trial court did not 

abuse its discretion in awarding primary physical custody to Mother and partial 

physical custody to Father, we affirm.

Mother and Father lived together in Harrisburg, Dauphin County, at the 

time of Child’s birth. In May 2014, Mother moved to Williamsport, Lycoming 

County, in an effort to find work that would allow her to care for Child fulltime. Father moved to Williamsport in August 2015, and resumed living with 

Mother. However, Mother and Father separated in May 2016. They failed to 

reconcile their differences, and ended their relationship in September 2016. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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On December 23, 2016, Father filed a Complaint for Custody, in which 

he alleged that Mother was preventing him from spending time with Child. The 

parties appeared for a custody conference before a hearing officer on February 

3, 2017. On February 7, 2017, the trial court approved the hearing officer’s 

recommendations, and entered an interim order awarding Mother primary 

physical custody and Father partial physical custody. The order awarded 

partial physical custody to Father: every other weekend from 4:00 p.m. on 

Friday until 7:00 p.m. on Sunday; on the Thursday following Father’s custodial 

weekends, from 4:00 p.m. on Thursday until 7:00 p.m on Friday; and on the 

Sunday following Mother’s custodial weekend, from 8:00 p.m. on Sunday until 

7:00 p.m. on Monday. Order, filed 2/7/17, at 2. The order awarded the parties

shared legal custody. 

The trial court conducted a custody hearing on October 3, 2017, and 

October 12, 2017. Relevant to this appeal, the parties testified regarding their 

work schedules. Father works one full-time job. N.T. Hearing, 10/3/17, at 28.

He works most weekdays from 6:00 a.m. to 2:30 p.m., and every other 

weekend from 11 a.m. to 7 p.m. Id. at 28. When Father works weekends, he 

has the preceding Friday and following Monday off. Id. at 30. Mother works 

three part-time jobs. She works at a childcare center on Tuesdays and

Thursdays from 8:00 a.m. to noon, and on Fridays from 9:30 a.m. to 11:30 

a.m. Id. at 198. Mother also works as a private nanny approximately four 

nights every other week from after school until 11:15 p.m. Id. at 111-13.

Mother brings Child with her to her job at the childcare center and to her job 
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as a nanny. Id. Finally, Mother works at a pizza shop on the days that she 

does not have custody of Child. Id. at 115.

Mother testified that Child falls asleep at the home where she nannies, 

and he does not wake up when she transports him back to her home at 11:15 

p.m. Id. at 127-29. She testified that modifying the custody schedule would 

be detrimental to Child, because he has developed a close relationship with 

her employer’s children. Id. 130-32. 

The trial court set forth its findings of fact on the record at the conclusion 

of the custody hearing and discussed each of the statutory custody factors. 

23 Pa.C.S.A. § 5328(a). The court spoke positively about both parents, but 

emphasized Mother’s history as Child’s primary caregiver and that she

encouraged Child’s relationship with Father. N.T. Findings of Fact, 10/12/17, 

at 4-6. After discussing the factors, the court concluded that it would be in 

Child’s best interest to maintain the parents’ existing child custody schedule, 

with a slight increase in Father’s partial physical custody time. Id. at 9. The 

trial court found that Child’s schedule “is a bit unorthodox with the way mom 

works, the way he goes back and forth with dad leaving so early in the 

mornings, but this child has done this for years and has adjusted to it.” Id. at 

7. The court explained, “[b]ased upon your schedules and the way that your 

lives work at this point I do think what is best for [Child] is to generally 

maintain the current schedule.” Id. at 9.

At the conclusion of the hearing, the court entered a final custody order, 

which slightly increased Father’s partial physical custody time by awarding 
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him one additional evening per week from 4:00 p.m. until 8:00 p.m. on a day

of the parents’ choosing.

Father filed a pro se Motion for Reconsideration on October 20, 2017, 

which the court denied on October 25, 2017. On November 13, 2017, Father 

filed a timely pro se1 Notice of Appeal,2 along with a Concise Statement of 

Errors Complained on Appeal. 

Father now raises the following issues for our review. 

1) Whether the [trial] court erred by failing to apply the 

proper standards in deciding custody petitioned for by a 

non-custodial parent seeking equally shared physical and 

legal custody[?]

2) Whether the trial court erred and/or abused its discretion 

when it failed to apply and/or misapplied the child custody 

laws by reaching a manifestly unreasonable result that is 

not supported by competent evidence[?]

3) Whether the trial court abused its discretion in 

determining custody when no factor overwhelmingly 

favored nor disfavored any parent[?]

4) Whether the trial court abused its discretion when 

determining custody based on the parent’s [sic] schedules 

as recorded in testimony[?]

Father’s Br. at 2.

____________________________________________

1 Father had counsel at the time he filed his complaint for custody, and during 

the custody hearing.

2 A party must file his or her notice of appeal within thirty days after the entry 

of the order being appealed. Pa.R.A.P. 903(a). Here, thirty days after October 

12, 2017, was November 11, 2017. Because November 11, 2017, was a 

Saturday, Father timely filed his notice of appeal on Monday, November 13, 

2017. See 1 Pa.C.S.A. § 1908 (“Whenever the last day of any such period 

shall fall on Saturday or Sunday, . . . such day shall be omitted from the 

computation.”).
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“In reviewing a custody order, our scope is of the broadest type and our 

standard is abuse of discretion.” V.B. v. J.E.B., 55 A.3d 1193, 1197 

(Pa.Super. 2012) (quoting C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 

2012)). 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.” Id. (quoting C.R.F., 45 A.3d at 443). 

We defer to the credibility determinations of the presiding trial judge, “who 

viewed and assessed the witnesses first-hand.” Id. (quoting C.R.F., 45 A.3d 

at 443). We, however, “are not bound by the trial court’s deductions or 

inferences from its factual findings[,]” and “[u]ltimately, the test is whether 

the trial court’s conclusions are unreasonable as shown by the evidence of 

record.” Id. (quoting C.R.F., 45 A.3d at 443). We may reject the trial court’s 

conclusions “only if they involve an error of law, or are unreasonable in light 

of the sustainable findings of the trial court.” Id. (quoting C.R.F., 45 A.3d at 

443).

“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 that a trial court must consider when awarding 

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

(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:
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(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.

(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 
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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).

Although Father lists four separate issues in his statement of questions 

involved, his brief contains only one combined argument section. Father 

argues that the trial court abused its discretion by failing to award shared 

physical custody, noting that the Section 5328(a) factors do not 

“overwhelmingly favor[] or disfavor[] any one parent.” Father’s Br. at 4-5. In 

addition, Father argues that the court abused its discretion when considering 

the parents’ work schedules. Id. at 5. Father contends that “there is neither 

evidence nor factor for child custody that suggests that it is within the child’s 

best interest to be with the Mother while she is working rather than being with 

the Father, who at which time would not be working.” Id. at 6.

We first address Father’s argument that the trial court abused its 

discretion based on its findings pursuant to Section 5328(a). Father claims 

that the trial court should have awarded shared physical custody because, in 

his view, no factor “overwhelmingly favor[ed] or disfavor[ed]” either parent.

Father’s Br. at 5. 

“The Custody Act requires only that the trial court articulate the reasons 

for its custody decision in open court or in a written opinion or order taking 
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into consideration the enumerated factors.” M.J.M. v. M.L.G., 63 A.3d 331, 

336 (Pa.Super. 2013). In a custody action, it is within the trial court’s

discretion based on the record before it to determine the relevant weight to 

give each of the Section 5328(a) factors in a particular case. See id. at 339.

Here, the trial court complied with Section 5328(a) by considering the 

factors, and by setting forth its findings of fact on the record at the conclusion 

of the custody hearing. Because the record supports the court’s factual 

findings, we must accept them. V.B., 55 A.3d at 1197. Moreover, the court 

was free to decide which of the factors were most relevant to Child’s best 

interest, and to weigh each of them as it saw fit. M.J.M., 63 A.3d at 339. 

Because the court reasonably determined that the record before it supported 

an award of primary physical custody to Mother and that the such an award 

would be in Child’s best interest, we conclude that the court did not abuse its 

discretion in not awarding shared physical custody.

We next address Father’s argument that the trial court abused its 

discretion when considering the parents’ work schedules.

During the custody hearing, Father proposed that he should have 

primary physical custody of Child, and that Mother should have partial physical 

custody. Specifically, Father proposed a custody schedule that was the “mirror 

image” of the February 7, 2017 interim order. N.T. Hearing, 10/3/17, at 32, 

78. In the alternative, Father proposed a “week on/week off” or “two/two, 

five/five” shared physical custody schedule. Id. at 37. Father’s primary point 

of contention with the existing custody schedule was that Mother brings Child 
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with her while she works as a nanny, and then transports Child home at 11:15 

p.m. Id. at 35-36.

We conclude that Father is not entitled to relief. Pursuant to the October 

12, 2017 order, Father has custody of Child every day that he is not working, 

and one evening per week. Although Mother works during her periods of 

primary physical custody, she is able to bring Child with her to two of her 

three part-time jobs. Mother only works her third part-time job at the pizza 

shop when Child is in Father’s custody. Thus, the order ensures that Child 

spends the maximum amount of time with his parents, and that the parents 

are never in need of childcare.3 The evidence supports the court’s conclusion 

that Child was adjusted to the schedule and that the schedule was in his best 

interest, and we conclude that the trial court did not abuse its discretion. 

Based on the foregoing, we conclude that the trial court did not abuse 

its discretion by awarding primary physical custody of Child to Mother, and 

awarding partial physical custody of Child to Father. Therefore, we affirm the 

court’s October 12, 2017 order.

Order affirmed. 

____________________________________________

3

In addition, Child attends preschool on Mondays, Wednesdays, and Fridays 

from 9:00 a.m. to 11:30 a.m.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/20/18