J

- S24026

- 18

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 J.W.I., Appellant

v.

H.A.I. : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1955 MDA 2017
Appeal from the Order Entered, November 17, 2017, in the Court of Common Pleas of York County, Civil Division at No(s): 2006

- FC

- 002108

- 03.

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J. MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 28, 2018 In this matter, J.W.I. (Father) appeals the modification of his physical custody of his 11

- year - old daughter, who has special needs. Upon the request of H.A.I. (Mother), the trial court reduced Father’s physical custody from shared to partial; legal custody rema ins shared. After careful review, we find no abuse of discretion and affirm accordingly. On November 15, 2017, the trial court held a hearing on Mother’s petition to modify the parties’ long standing arrangement of shared physical custody. Mother had pr eviously sought primary physical custody as recently as 2013. At that time, the trial court denied her request, opting to keep the arrangement the same. Since then , the parties continued to experience difficulties co

- parenting

. The subject of these proc eedings is the parties’ 11

- year - old daughter, C.I. The daughter suffered a stroke in utero and isJ

- S24026

- 18

- 2

-

developmentally delayed as a consequence. She did not speak until she was four years old. MRI scans reveal ed that she has use of approximately half of her brain. Moreover, she presents weakness on the right side of her body. She was in a neurological support class in the fifth grade , where she achieve d high marks

. Mother argue s that modification of shared custody is warranted because Father has failed to fully participate in the child’s life, and as such, the child is not living to her potential. Father is an electrician

. Testimony revealed that h e work ed Monday through Friday, 6:00 a.m. to 2:00 p.m. During his custodial period, which he exercised on a week

- on - week

- off basis, the child reside d in the home of Paternal Grandmother during the school week and in Father’s apartment during the weekends

. On his custody days, Father pick ed the child up from school and took her to Patern al Grandmother’s where he stay ed until around the child’s bedtime at 8:00 or 9:00 p.m. Paternal Grandmother made dinner, helped with homework, assist ed with brushing the child’s teeth and showering, and finally put the child to bed. Around this time, som etimes before and sometimes after, Father would leave to go to his own apartment

. In the morning, Paternal Grandmother drove the child to school. The trial court’s order reduced Father’s shared custody to partial custody

– alternating weekends plus an ad ditional weeknight visit each week . The weeknight visit does not include an overnight. The court further ordered the
p arties to resume the week

- on - week

- off shared custo dy schedule during the

summer. Father presents this timely appeal.J

- S24026

- 18

- 3

-

He raises the fol lowing issues for our review, which we have reordered for ease of disposition.

1. Did the trial court err by finding that Father had not fulfilled his parental duties in the months prior to trial in light of Father’s debilitating surgery in February 2017 a nd his required convalescence? 2. Did the trial court err in its analysis of the custody factors pursuant to 23 Pa.C.S.A. § 5328, in finding that said analysis warranted a change in the long

- standing equal physical custody arrangement? 3 . Did the trial cou rt err by changing the equal physical custody schedule and awarding Mother majority physical custody as insufficient evidence was produced at trial demonstrating the existing long

- standing arrangement did not serve the best interest of the child? 4 . Did th e trial court err in utilizing the change in Father’s work schedule as one of the bases for alternating the equal physical custody schedule? Father’s Brief, at 5

- 6. Our scope and standard of review of an appeal from a custody order is as follows:

In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. W e must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual det erminations. 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 ligh t of the sustainable findings of the trial court.J

- S24026

- 18

- 4

-

V.B. v. J.E.B. , 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted). We may dispose of Father’s first issue instantly. Father argues that the trial court held against him the fact that he temporarily could not fulfill parental duties after he underwent a s urgery that required a convalescence period . While the trial court concluded that Father abdicated his parental role to his mother, the Paternal Grandmother , the court did not reach this conclusion o n account of the surgery and Father’s recovery time. In its opinion pursuant to Pa.R.A.P. 1925, the trial court dismissed this notion.

The [trial court] entirely disagrees with this characterization.... Father testified that he was able to reengage with h is daughter after his surgery, returning to normal day

- to

- day activities, at the beginning of the 2017

- 2018 school year. [] [ The trial court] did not take into consideration the time period that Father was recovering over the summer of 2017 from his surger y to change the primary custody during the school year. Rather, the [trial court] looked at this school year...and found that it is in the best inter est of the child for primary physical custody to be with Mother during the school year. Trial Court Opinion (T.C.O.), 12/16/17, at 5

- 6 (ci tation to transcript omitted). Thus, i t is clear that the trial court did not penalize Father for his temporary inability to fulfill his parental obligations while he recovered from surgery. Father’s remaining issues pertain to both specific and general aspects of the custody analysis mandated by § 5328(a). Father argues that the trial court should have continued the previous arrangement given its long

- standing
nature. He claims he did not abdicate his parental role, but merely made proper child care arrangements as authorized under the custody statute.J

- S24026

- 18

- 5

-

Additionally , he surmises, the trial court’s decision is against the weight of the evidence. We discuss these “inextricably int ertwined” contentions together, just as Father does in his brief. Se e Father’s Brief, at 16. Father argues that we must view this case against the “backdrop” of the previous custody litigation, including the findings the trial court made in 2013, as well as th is Court’s decision affirming those findings

. See H.A.I. v.
J.W.I . , 5 MDA 2014 , 2014 WL 10896813 (Pa. Super. 2014 ) (unpublished memorandum)

. Five years ago , the trial court denied Mother’s request for primary custody. We affirmed . In doing so, we observed the trial court’s finding that the child, given her special needs and her age, did not respond well to changes in her routine. Id . , at * 14. We also noted the close relationship the child

– then 8 years old

- had with Paternal Grandmother. Id. Father cites to our previous memorandum and observation s. See Father’s Brief, at 38. He calls the trial court’s oversight of these facts “grotesquely disturbing.” Id. , at 37. He further describes the trial court’s present decision as “cavalier” becaus e the court left “completely unaddressed ” the impact the decision would have on the child. Id. , at 38. It seems Father desires us to impose upon the trial court a “law of the case” rule regarding prior custody findings. We disagree. C ustody law is not the law of inertia. We do not force
p e titioners and custody courts to obey the status quo in perpetuity absent a showing of some change

. Rather, “ [u] pon p etition, a court may modify a custody order to serve the best interest of the child.” 23 Pa.C.S.A . § 5338(a).J

- S24026

- 18

- 6

-

This provision codifies the standard set forth by our Supreme Court in Karis v. Karis, 544 A.2d 1328, 1332 (Pa. 1988)( “A petition for modification of a partial custody to shared custody order requires the court to inquire into the best intere st of the child regardless of whether a ‘substantial’ change of circumstances has been shown”). See 2010 Comment to §5338

. Similarly , there is no presumption that custody shall be awarded to a particular parent. See 23 Pa.C.S.A. § 5327(a). In other word s, neither parent maintains the high ground when defending against a custody modification

. The legislature has only mandated that a court may modify a custody order to serve the best interest s of the child. See 23 Pa.C.S.A. § 5338. It placed upon neithe r parent an initial burden to establish that modification is in the best interests of the child. This situation is markedly different from relocation cases, where the legislature explicit ly provided that the party moving shoulder the burden of proof. See 23 Pa.C.S.A. § 5337(i). Contrary to Father’s argument, had the trial court not conducted a new, contemporaneous review of the custody factors under § 5328(a) in response to Mother’s petition , its decision would have been erroneous. See M.E.V. v.
F.P.W. , 100 A.3d 670, 682 (Pa. Super. 2017 ) ( holding that the trial court failed to provide the requisite contemporaneous review of the § 5328 factors in determining whether to modify a 17

- month

- old custody order). Finally, to the extent our c ustody l aw demands ho mage to the custody arrangement’s status quo, the same is explicitly contemplated by § 5328(a)(4), which requires the court to consider “the need for stability andJ

- S24026

- 18

- 7

-

continuity in the child’s education, family life and community life.” Reverence for “how it has been” is implicitly contemplated by other factors as well , e.g., § 5328(a)( 10 ): “ Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.” The status quo might be a perfectly fi ne bas is for denying a modification, but that decision must be ascertained through a proper analysis of the factors identified by § 5328(a). With these guideposts in mind , we conclude that the trial court conducted a proper, contemporaneous review of the c ase under § 5328(a). To the extent that the child needed a strict routine, complete with Paternal Grandmother’s involvement, such a need has evidently dissipated over the last several years

. As is the trial court’s exclusive prerogative , the court afford ed these facts little w eight in the instant analysis. Custody orders are fluid b y their nature ; an application of t he custody factors must be able to adapt to the child’s growth and c hange. In terms of the need for stability and continuity, the trial cou rt found factor 4 favo red neither parent

. See 23 Pa.C.S.A. § 5328(a)(4) . The court determined that both parties exaggerated minor issues

– e.g., the stepfathe r’s disciplinary tactics, and the child’s exposure to Father’s girlfriends. The court found both parents have done a good job keeping their daughter’s life stable. In terms of the Paternal Grandmother’s role in this child’s life, the trial court found that this relationship was not as essential as it had been previously. Specifically, the court found that the Paternal GrandmotherJ

- S24026

- 18

- 8

-

frustrates the daughter’s attempt to learn and achieve independence . To the extent that the Paternal Grandmother performs “long

- standing” parental duties

– i.e., cooking, bathing the child, putting her to bed, waking her up, driving her to school

– the trial court determined that those tasks were detrimental to Father’s case. The Paternal Grandmother, whose devotion to the child bleeds through the record , is simply not a party to thi s case. And if she was, there would be a presumption

– embossed in the custody statute

– that custody should be awarded to the parent. See 23 Pa.C.S.A. § 5327(b). In other words, the court is not bound by its previous recog nition of the Pat ernal Grandmother’s altruism. And t o the extent that she would have hypothetically been placed on equal standing with Mother, there would still have been a presumption that Mother sh ould have primary custody. Having determined that the tr ial court did not need to adhere to the long

- standing arrangement between Paternal Grandmother and child, we address Father’s alternative argument. He counters that the custody factor § 5328(a)(12) (relating to the party’s ability to make appropriate child

- care arrangements) is the codified proposition that a parent’s work schedule may not deprive that parent of custody if suitable arrangements can be made. See Father’s Brief, at 36. For support, Father cites to a line of cases d ecided under since

- repeale d sections of our c ustody l aw. See Gerber v. Gerber , 487 A.2d 413, 416 (Pa. Super. 1985); and see Wiseman v. Wall , 718 A.2d 844 (Pa. Super. 1998);J

- S24026

- 18

- 9

-

and see Johnson v. Lewis , 870 A.2d 368 (Pa. Super. 2005). These holdings may still retain persuasive value, but the custody criteria upon which these cases were decided have been assimilated into the § 5328(a) analysis. See
P.J.P. v. M.M. , 2018 Pa. Super. 100, 2018 WL 1979832 (Pa. Super. April 27, 2018) (holdi ng that the shared custody factors set forth in Wiseman v. Wall , 718 A.2d 844 (Pa. Super. 1998), which predated the 2011 amendments to the c ustody l aw, assimilated into the custody factors set f orth in 23 Pa.C.S.A. § 5328(a)); see also M.J.M. v. M.L.G. , 63 A.3d 331, 339 (Pa. Super. 2013)(“We simply cannot graft the judicially

- created primary caretaker doctrine on to the inquiry that the l egislature has established, and so we conclude that the primary caretaker doctrine, insofar as it required positive empha sis on the primary caretaker’s status, is no longer viable.”)

. As such, Father cites no binding authority beyond § 5328(a)(12) to support his claim. But more to the point, Father assumes a false proposition ; in reality , the trial court did not deprive Fat her of custody because he utilized the Paternal Grandmother to help get the child to school. Section 5328(a )( 12) recognizes that the custodial parent is in many ways a single parent, who must make alternative child care arrangements. Certainly this factor is not designed to punish working parents, particularly those children who have children with special needs. But surely there is a difference between hiring a nanny when the parent has to work the nightshift , as was the case in Johnson , and allowing the childcare provider to fulfill all parental obligations while the parent resides in a completely different homeJ

- S24026

- 18

- 10

-

from the child. Given the supporting facts , t he trial court was within its discretion to conclude that Father chose to delegate his parental role to Paternal Grandmother. Father suggests he wa s well within his rights to make this choice under §5328(a)(12). He is mistaken. The trial court did not award primary custo dy to Mother because it believed the child would be better o f f with Mother than with a babysitter

. The basis for the decision was the court’s conclusion that Father a bdicated his parental role

. This conclusion was supported by the record. Not only did th e court articulate reservations about Father’s role as a caregiver, but the court also identified the quality of his custodial time as being less beneficial t o the child than the time the child spent in Mother’s custody. For instance, the court heard test imony that the subject child desires to fulfill her role of being the “big sister” to Mother’s other child, a half

- sibling E.W., age 4. Because the child feels the need t o be an example, the child wants to do everything first. In this sense, the young er sibling keeps the child on her
toes. T he ir relationship has the effect of advancing the child’s own development. Although Father is quick to point out that the child articulated exasperation with her half

- sister (“she drives me nuts”), the court was stil l within its discretio n to find the sibling relationship factor in favor of Mother. See 23 Pa.C.S.A. § 5328(a)(6). In another example of Mother’s custodial time being more advantageous, t he trial court noted that Mother takes the child to a personal trainer. Mother testified that Father has frustrated her attempts to coordinateJ

- S24026

- 18

- 11

-

this therapy, because he does not take the child to appointments that occur on his time. Finally, in articulating her preference to liv e with Mother, the child explained during her in camera interview that Paternal Grandmother is prone to complete the child’s daily tasks for her, e.g. showering

. She stated Paternal Grandmother also “drives her nuts.” 1 The court determined that Paternal Grandmother’s chil d rearing style was overbearing in light of the developmentally beneficial independence that the child enjoys in Mother’s home. Given the differing levels of care at each household, t he court placed a fair amount of weight on t he child’s preference that she live primarily with Mother

. See 23 Pa.C.S.A. § 5328(a )( 7). In his brief, Father argues that the court should not place such weight

o n the “ambiguous” testimony of a “neurologically challenged 11

- year - old.” See Father’s Brief, at 26. He contends that “the child was not as cognitively and intellectually sound as the court painted her to be.” Id. , at 27. We have long held, and reaffirm today, that “[t]he weight to be given to a child’s preference can best be determined by the judge befo re whom the child appears.” Cardamone v. Elshoff , 659 A.2d 575, 583 (Pa. Super. 1995). On

_________________ __________ ______ ____ _______ 1 Father argues that the trial court abused its discretion by downplaying the child’s frustration with her half

- sibling while exaggerating her frustration with Paternal Grandmother when the child used the exact same phrase (“she drives me nuts”) to describe both. But Father fails to realize that, to the extent these emotions are even the same, the frustration the child has with her half

- sibling drives the child toward independence. Conversely, the frustration the child has with Paternal Grandmother hinders her growth.J

- S24026

- 18

- 12

-

issues of credibility and weight of the evidence, we defer to the findings of the trial judge who has had the opportunity to observe the proceedings and demeanor of the witnesses .” K.T. v. L.S. , 118 A.3d 1136, 1159 (Pa. Super. 2015 ) ( citation omitted ) ( emphasis added). The trial court determined that the child , despite her limitations, was nevertheless able to express a well

- reasoned preference with normal cognitive

a bilities for an 11

- year - old child. See T.C.O., at 4

- 5. The cold record reveals some hesitation in some of the child’s answers. But we cannot ascertain whether such hesitation reflected a shy child who was forced to speak with an adult stranger, or a chil d with limited intellectual functioning, or some combination of both. In delineating its reasons for finding this factor in favor of Mother, the trial court explained:

It would be easy to say that this child who is 11, because of her developmental delays physically, emotionally, and socially, has some developmental delays intellectually, and she does slightly, but her immature communication with the court in the interview was not

– immature wasn’t the right word. It was a lack of articulation. She articul ated more like a 9 or 10

- year - old would, but it was clear to this judge that her cognitive abilities and her ability to think through things is actually quite normal. She was able to articulate to me relationships, opinion, so forth, and give reasons. T he reasons were not always incredibl y articulate, but they made sense, and I find this child’s maturity and judgment frankly impressive given the other developmental delays she has. N.T., 11/15.17, at 266

- 267.J

- S24026

- 18

- 13

-

This explanation from the trial judge exemplif ies why we must afford discretion to trial judge presiding over these custody cases. In a case like this where parents evidently disagree about the extent of child’s intellectual disability, it would be absurd for this Court to substitute its own judg e ment for that of the trial judge , who wa s uniquely situated to observe the child

. Like the other findings discussed above, t he trial court’s summation of the child’s prefer ence is supported by the facts. Father’s main argument is that the trial court pla ced the wrong weight on the evidence. Here, too, Father’s point is deficient. We have said:

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.

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

. In sum, Father disagrees with the weight the trial court placed on the facts yielded by the testimony and evidence presented at trial. Our review of these facts support the trial court’s conclusions. As such, we cannot discern any abuse of discret ion.J

- S24026

- 18

- 14

-

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/28/2018