J-S77044-14

2015 PA Super 72

R.S., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

T.T.,

Appellee No. 2170 EDA 2014

Appeal from the Order entered June 19, 2014, 

in the Court of Common Pleas of Delaware County, 

Domestic Relations, at No(s): 2013-006464

BEFORE: STABILE, JENKINS, and STRASSBURGER*, JJ.

OPINION BY STRASSBURGER, J.: FILED APRIL 10, 2015

R.S. (Father) appeals from the final custody order entered June 19, 

2014, in the Court of Common Pleas of Delaware County, which awarded 

primary physical custody of Father’s minor son, E.S. (Child), to his mother 

(Mother) during the school year, and awarded Father and Mother shared 

physical custody during the summer months. The order also awarded the 

parties shared legal custody. We vacate and remand for further proceedings 

consistent with this opinion.

Child was born in December of 2007, as a result of Father’s 

extramarital affair with Mother. On June 19, 2009, Father filed a complaint 

for partial physical custody and shared legal custody of Child. Father filed an 

amended complaint for custody on February 1, 2011, in which he requested 

 

* Retired Senior Judge assigned to the Superior Court.
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shared physical custody of Child. This culminated in a custody order entered 

October 3, 2011, which awarded the parties shared legal and physical 

custody. Subject to a special schedule for vacations and holidays, Father was 

granted physical custody of Child each week from 8:00 a.m. Monday 

morning until 6:00 p.m. on Wednesday. Father also was granted physical 

custody on alternating weekends. 

On June 28, 2013, Mother filed a petition to modify the custody order, 

in which she requested that she be granted primary physical custody of 

Child. Father filed a petition to modify the existing custody order on July 23, 

2013, in which he requested primary physical and legal custody of Child. A 

custody trial was held on April 28, 2014. Following the trial, by order 

entered June 24, 2014, the trial court granted Mother primary physical 

custody of Child. Subject to a holiday, birthday, and vacation schedule, 

Father was awarded partial physical custody of Child each Wednesday during 

the school year from 4:00 p.m. until 7:00 p.m., and on alternating 

weekends from Friday after school until Sunday at 8:00 p.m. During the 

summer months, Father was awarded shared physical custody on alternating 

weeks. Mother and Father retained shared legal custody. 

Father timely filed a notice of appeal on July 15, 2014. However, 

Father failed to file concomitantly a concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). Father later filed a concise 
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statement on July 29, 2014. Father filed an amended notice of appeal the 

following day.1, 2

Father now raises the following issues for our review.

1. Should this Court vacate the lower court’s final custody order 

because it was based on unreasonable conclusions relative to the 

Child’s need for stability, and therefore does not further the best 

interest of the Child, because:

a) The court’s most important conclusion (relative to 

[Child’s] commuting time) was not supported by any 

evidence and was thus not a sustainable finding;

b) The court’s order was unreasonable because it failed to 

address the fact that the Child will now be deprived of 

Father’s care for extended periods during the school 

week, which is particularly problematic in light of the 

court’s simultaneous conclusion that Mother will not 

further the Child’s relationship with Father?

Father’s Brief at 4.

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 

 

1 As Mother has not objected to this late filing or claimed any prejudice, we 

have accepted Father’s concise statement in reliance on our decision in In 

re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009) (holding that an 

appellant’s failure to comply strictly with Pa.R.A.P. 1925(a)(2)(i) did not 

warrant waiver of the appellant’s claims, as there was no prejudice to any 

party).

2

Father amended his notice of appeal to indicate that this is a Children’s 

Fast Track appeal.
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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).

Section 5338 of the Act provides that, upon petition, a trial court may 

modify a custody order if it serves the best interests of the child. 23 Pa.C.S. 

§ 5338. “The best[-]interests standard, decided on a case-by-case basis, 

considers all factors that legitimately have an effect upon the child’s 

physical, intellectual, moral, and spiritual well-being.” Saintz v. Rinker, 902 

A.2d 509, 512 (Pa. Super. 2006) (citing Arnold v. Arnold, 847 A.2d 674, 

677 (Pa. Super. 2004)).

The factors to be considered by a court when awarding custody 

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

(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. 
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(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 

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.
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23 Pa.C.S. § 5328(a).3

Instantly, the trial court considered the Section 5328(a) custody 

factors, and concluded that factors 1 and 12 favored Father, while factors 2, 

3, 4, and 10 favored Mother. Final Custody Order, 6/24/2014, at 4-7 

(unnumbered pages). The court also found that factors 5, 6, 7, 8, 9, 13, 14, 

and 15 did not favor either party and that, because the parties live 14 miles 

apart, factor 11 “favors a non-shared custody schedule.” Id. at 5-7.

In response, Father contends that the trial court abused its discretion 

by concluding that factor 4 favored Mother. Father’s Brief at 13-15. Father 

directs our attention to the following discussion of this factor from the trial 

court’s final custody order.

The need for stability and continuity in the child’s education, 

family life and community life: This factor favors Mother. The 

[c]ourt is very cognizant that stability and continuity are 

important to the [C]hild’s best interest, which would favor 

keeping the shared custody schedule in place. However, the 

[c]ourt believes that positive benefits the [C]hild will receive 

from Mother having primary physical custody outweigh the 

benefits of maintaining the status quo in this case. The [C]hild 

will benefit from being with Mother primarily during the school 

week. [Child] already has friends at his current school district 

where Mother resides. The [c]ourt believes it is in the [C]hild’s 

best interest to remain in his current school district. Father 

testified that he believes [Child’s] current school is a good school 

for the [C]hild. Both parties agree that the current schedule 

requires the [C]hild to be driven in a vehicle back and forth too 

 

3 Section 5328 has been amended to include an additional factor at 23 

Pa.C.S. § 5328(a)(2.1). Because Mother’s petition to modify custody order 

was filed prior to January 1, 2014, the effective date of Section 

5328(a)(2.1), that factor does not apply to this case. See § 6 of 2013, Dec. 

18, P.L. 1167, No. 107, effective January 1, 2014.
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frequently and that time spent doing this is not in the best 

interest of the [C]hild. The [c]ourt finds that the [C]hild should 

be primarily with one parent during the school week so that he 

can establish a routine, but that the parties should have custody 

in the summer, on an alternating week basis, to minimizing [sic] 

the time [Child] must ride in a car back and forth.

Final Custody Order, 6/24/2014, at 5 (citation omitted, unnumbered pages).

Father argues that the court’s finding that “[b]oth parties agree that 

the current schedule requires the [C]hild to be driven in a vehicle back and 

forth too frequently and that time spent doing this is not in the best interest 

of the [C]hild” is not supported by the record, and requires reversal. 

Father’s Brief at 13-16. Father contends that “[t]here was no testimony 

adduced relative to the effect that the commute of [Child] was detrimental 

to him. Moreover, the record is devoid of any evidence that the ‘parties 

agreed’ to such a proposition.” Id. at 14. Father also argues that the trial 

court abused its discretion by failing to “consider the effects of depriving 

[Child] of his Father during the school year,” particularly in light of the 

court’s conclusion that factor 1, concerning which party is more likely to 

encourage and permit frequent and continuing contact between the child and 

the other party, favored Father. Id. at 14, 16-18.

An examination of the trial court’s analysis in light of the record before 

us, accepting the trial court’s factual findings and credibility determinations, 

leads us to conclude that several of the trial court’s conclusions are 

unreasonable under the circumstances of this case, and ultimately, the trial 
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court abused its discretion in awarding Mother primary physical custody of 

Child during the school year. 

As noted, the main reason Mother sought a change in custody is that 

Child will be starting elementary school and she believes that Child would be 

better off living with a single parent in order to establish a more stable 

routine. See Petition to Modify Custody Order, 6/28/2013, at 2 

(unnumbered pages) (“Mother contends that shuttling [Child] back and forth 

each mid-week between his parents will not be beneficial to [Child] once he 

enrolls in regular school as the same would be disruptive, confusing and 

detrimental.”). Mother explained as follows.

A. It’s just going to make it a lot more difficult and hard than it 

has to be. It’s unnecessary. It’s going to put obstacles in front 

of [Child’s] education because it’s going to be confusing and 

detrimental and it’s going -- that stability won’t be there. So he 

needs one primary home base where he can get a structured 

routine, so that he can focus and concentrate on his studies and 

his academics without being shuttled back and forth. Because if 

you shuttle back and forth, it’s just going to disrupt things and 

projects will be due again, and then second grade, third grade, 

fourth. It’s going to get -- I mean, I’ve graduated. I’ve gone to 

Penn State. It gets harder and harder, the higher up you go. So 

the more prepared, the more stability, the more structured that 

home base is and -- he can’t have that with having two home 

bases....

***

....my only concern is that during the school weeks, the school 

term, so that he can get that structure and get a routine, and 

get -- and the emotional and the psychological also impacts of it, 

too, the extracurricular activities. That school has a lot of events 

and things going, so it’s just he needs that stability and that 

structure now. If we continue as it is, as it goes, it will just get 
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more and more disruptive and more confusing and more 

detrimental and his education will suffer.

N.T., 4/28/2014, at 157-59.

Mother’s concerns, while well-meaning, do not require modification of 

the 2011 shared physical custody order. We agree with Father that there 

appears to be no evidence of record indicating that he agreed that Child was 

being driven back and forth too frequently, or that Child’s time in transit was 

not in his best interest. To the contrary, the trial court acknowledged in its 

opinion that Father “submitted a post-trial proposed order requesting a 

schedule of shared physical custody. The proposed schedule for shared 

physical custody was the same as the schedule established by the Order in 

custody dated October 3, 2011.” Final Custody Order, 6/24/2014, at 2 

(unnumbered pages). This is consistent with the argument of Father’s 

counsel prior to trial, and with Father’s testimony, that Father would accept 

a shared physical custody arrangement in lieu of primary physical custody if 

the court would include “some caveats” in the custody order to prevent 

Mother’s alleged attempts at alienating Child from Father. N.T., 4/28/2014, 

at 13, 302.

Additionally, the record does not support the trial court’s conclusion 

that the distance between the parties’ residences militates against a shared 

custody arrangement. Mother testified that she lives within 2 miles of 

Child’s school, id. at 53, and that Father lives approximately 14 miles away. 

Id. at 54. She testified that she drives Child to school during her periods of 
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custody. Id. at 48. According to Mother, it would take Father about 35 or 

40 minutes to transport Child from Father’s home to school and/or her 

home. Id. at 54. Father disputed this claim, stating that the drive took him 

only 20 minutes and, sometimes, only 15 minutes. Id. at 281. Father 

testified that, under the 2011 custody schedule, he picks up Child directly 

from school on Monday and Tuesday, and he is willing to continue doing so. 

Id. at 272, 280. Additionally, Father also expressed a willingness to allow 

Child to participate in a baseball league near Mother and to attend those 

games. Id. 333-34. 

Nothing presented by Mother convinces us that a change to primary 

custody is necessary here. Even if we could infer that the trial court was 

concerned with the amount of time Child would spend being driven to school 

from Father’s residence each day, rather than the time being driven to and 

from custody transfers, it was an abuse of discretion for the court to 

conclude that Father’s time with Child should be limited based on the slight 

unpleasantness Child may experience as a result of a, at maximum, 35 to 40 

minute car ride.4 

Based on the foregoing, we find that the trial court abused its 

discretion in determining that a shared custody schedule would limit Child’s 

ability to remain in Mother’s school district, participate in activities there, 

 

4 Arguably, in light of the parties’ relative close proximity to one another and 

their willingness to drive Child to school during their periods of custody, the 

transportation issues that concern the court could be resolved by 

implementing a week on/ week off custody schedule.
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and maintain his established friendships. Accordingly, we reject the court’s 

conclusion that Child’s entrance into full-day schooling requires that one 

parent must have primary physical custody so that Child may establish a 

routine. This is the situation faced by every set of parents of a school-aged 

child, and does not present a special circumstance requiring a primary 

custody arrangement. To the contrary, this Court has long held that 

[i]n determining whether to award shared [] custody, the trial 

court must consider the following factors: (1) whether both 

parents are fit, capable of making reasonable child rearing 

decisions, and willing and able to provide love and care for their 

children; (2) whether both parents evidence a continuing desire 

for active involvement in the child's life; (3) whether the child 

recognizes both parents as a source of security and love; and (4) 

whether a minimal degree of cooperation between the parents is 

possible. 

Yates v. Yates, 963 A.2d 535, 542 (Pa. Super. 2008), quoting In re 

Wesley J. K., 445 A.2d 1243, 1249 (Pa. Super. 1982). The record herein 

demonstrates that all four of the preceding factors have been met such that 

shared legal and physical custody of Child is in his best interest.

Finally, we note the “[i]n a case which presents the possibility of a 

change in custody, it is incumbent on the court to fully discuss the possible 

effect on the child of the proposed transfer of custody.” E.A.L. v. L.J.W., 

662 A.2d 1109, 1117 (Pa. Super. 1995) (quotation and citation omitted). 

See also Masser v. Miller, 913 A.2d 912, 921 (Pa. Super. 2006) (quoting 

Johns v. Cioci, 865 A.2d 931, 937 (Pa. Super. 2004)) (“The court must give 

attention to the benefits of continuity and stability in custody arrangements 
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and to the possibility of harm arising from disruption of longstanding 

patterns of care.”). 

In the instant case, there is no discussion by the trial court about the 

possibility of harm to Child in uprooting him from the care pattern he has 

known from a young age. We agree with Father that the trial court’s 

decision is rendered more problematic by the conclusion that Mother is less 

likely than Father to encourage Child’s relationship with the other parent. 

The court’s decision dramatically reduces Father’s custodial time with Child 

during most of the year, and may result in considerable damage to Child’s 

relationship with Father, despite the court’s conclusion that Father is a 

capable parent. 

Accordingly, because we conclude that the trial court abused its 

discretion by awarding Mother primary physical custody during the school 

year, we vacate the trial court’s order and remand this case for the court to 

enter a new custody order awarding both parties shared physical custody. 

Order vacated. Case remanded for further proceedings consistent with 

this opinion. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015