J-A19045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.B.M. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

S.A.S.

Appellee No. 438 EDA 2016

Appeal from the Order Entered January 6, 2016

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): D.R. No. 0C1201493

BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and DUBOW, J.

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 16, 2016

A.B.M. (“Mother”) appeals from the order entered January 6, 2016, in 

the Court of Common Pleas of Philadelphia County, which awarded shared 

legal and physical custody of her son, C.S.-M. (“Child”), born in August of 

2012, to his father, S.A.S. (“Father”). After careful review, we affirm. 

We summarize the relevant factual and procedural history of this 

matter as follows. Mother and Father married in May of 2008. N.T., 

8/14/2015, at 232. They separated in February of 2012, due to Father’s 

alcoholism, substance abuse, and mental health issues.1 Id. at 232-51. 

Following his separation from Mother, Father spent four months in an 

inpatient rehabilitation facility. N.T., 4/22/2015, at 45. Father has 

____________________________________________

1 The parties testified that they are divorced, but our review of the record 

does not reveal when the divorce decree was entered.
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remained sober since leaving the facility in June of 2012, and now addresses 

his mental health issues by taking prescription medications and attending 

therapy. Id. at 44-49.

The parties agreed to a custody stipulation following Child’s birth, 

which was entered as an order of court on September 18, 2012. Pursuant to 

the stipulation, Mother was awarded primary physical custody of Child, and 

Father was awarded supervised partial physical custody of Child four days 

per week for two hours at a time. In addition, the parties were awarded 

shared legal custody. Mother and Father later modified their custody 

arrangement by entering into a letter agreement, dated May 22, 2013. 

Pursuant to the letter agreement, Father was awarded expanded periods of 

partial physical custody on Mondays and Thursdays, subject to weekly tests 

for drugs and alcohol. On August 22, 2014, Father filed a complaint seeking 

shared physical custody of Child.2 

The trial court held a custody hearing on April 22, 2015, August 14, 

2015, November 13, 2015, and December 4, 2015. Following the hearing, 

on January 6, 2016, the court entered its order awarding Mother and Father 

shared legal and physical custody of Child. Specifically, the court awarded 

physical custody of Child to Mother on Mondays and Wednesdays overnight 

from pick up at school until drop off at school the following morning, and on 

____________________________________________

2 The complaint is listed on the docket but not contained in the certified 

record. 
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alternating weekends from pick up at school on Friday until drop off at 

school on Monday. The court awarded custody to Father on Tuesdays and 

Thursdays overnight from pick up at school until drop off at school the 

following morning, and on alternating weekends from pick up at school on 

Friday until drop off at school on Monday. The court further directed that 

Father would submit to hair follicle tests in February, May, August, and 

November of 2016, in order to demonstrate his ongoing sobriety. Mother 

timely filed a notice of appeal on February 4, 2016, along with a concise 

statement of errors complained of on appeal.

Mother now raises the following issues for our review.

1. Did the trial court err as a matter of law and abuse its 

discretion by awarding the parties equally-shared physical 

custody of a three[-]year-old child, even though Father had 

previously had no overnight custody of the child by agreement 

because of his serious addiction and mental health issues?

2. Did the trial court err as a matter of law and abuse its 

discretion by making a physical custody schedule that requires 

the child to “ping-pong” back and forth between the parties’ 

homes every single week day?

3. Did the trial court err as a matter of law and abuse its 

discretion by only requiring Father to submit to hair follicle 

testing for a period of less than one year, given his serious 

addiction issues?

4. Did the trial court err as a matter of law and abuse its 

discretion by finding Father credible regarding his lack 

compliance with alcohol testing and that Father was in “full 

remission” of one of his mental health disorders?
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5. Did the trial court err as a matter of law and abuse its 

discretion by finding Father is the party more likely to encourage 

and permit frequent contact between Mother and the child?

Mother’s brief at 16-17 (suggested answers and trial court answers 

omitted).3

We consider Mother’s issues 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) 

____________________________________________

3 Mother indicates in the argument section of her brief that she no longer is 

pursuing the second issue listed in her statement of questions involved, in 

which she asserted that the trial court erred and abused its discretion by 

crafting a custody schedule which requires Child to “ping-pong” back and 

forth between the parties’ homes. Mother’s brief at 33. Mother avers that 

this issue is now moot in light of an agreed upon order entered on March 29, 

2016, subsequent to the filing of her appeal. Id. Thus, we will not address 

this issue. 
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(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 

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. 
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(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.

23 Pa.C.S.A. § 5328(a).

Instantly, the trial included its findings with respect to nearly all of the 

Section 5328(a) factors as part of its January 6, 2016 order.4 The court 

found that Section 5328(a)(1) weighed in favor of Father, and that the 

remaining factors either weighed in favor of both parents or did not weigh in 

____________________________________________

4 The trial court failed to address Section 5328(a)(2.1). However, there was 

no evidence presented during the custody hearing which related to this 

factor.
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favor of either parent. In its opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii), 

the trial court explained that it found the facts of this case conducive to a 

shared physical custody arrangement because Child has a close relationship 

with both Mother and Father and is happy in both of their homes. Trial 

Court Opinion, 3/1/2016, at 9, 15. The court further explained that Mother 

and Father are both fit and capable parents, and are able to cooperate in 

order to make decisions in Child’s best interest. Id. at 14-15. 

Mother’s first issue on appeal is that the trial court erred and abused 

its discretion by awarding the parties shared physical custody of Child. 

Mother’s brief at 28-33. Mother argues that she has acted as Child’s 

“primary caretaker” for his entire life, and that the court failed to consider 

the harmful impact that dramatically changing the parties’ custody schedule 

could have on Child. Id. at 28, 31-33. Mother also asserts that the court 

based its decision not on the best interest of Child, but on a desire to be fair 

to Father. Id. at 31-33.

Initially, we observe that Mother’s argument appears to invoke the socalled “primary caretaker doctrine.” Prior to the implementation of the 

current Child Custody Act in 2011, this doctrine instructed that, “in cases 

involving an award of primary custody ‘where two natural parents are both 

fit, and the child is of tender years, the trial court must give positive 

consideration to the parent who has been the primary caretaker.’” M.J.M. 

v. M.L.G., 63 A.3d 331, 337 (Pa. Super. 2013), appeal denied, 68 A.3d 909 
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(Pa. 2013) (quoting Commonwealth ex rel. Jordan v. Jordan, 448 A.2d 

1113, 1115 (Pa. Super. 1982)) (emphasis omitted).

However, it is well-settled that courts in custody matters are no longer 

obligated to give positive consideration to a parent’s status as a primary 

caretaker. As this Court has explained, 

The language of [the Child Custody Act] is clear. It explicitly 

provides that all relevant factors shall be considered by the trial 

court, and the only factors that should be given “weighted 

consideration” are factors that “affect the safety of the child[.]” 

[23 Pa.C.S.A. § 5328(a).] When the words of a statute are clear 

and free from all ambiguity, the letter of it is not to be 

disregarded under the pretext of pursuing its spirit. If the 

Pennsylvania Legislature intended for extra consideration be 

given to one parent because of his or her role as the primary 

caretaker, it would have included language to that effect. Stated 

another way, the absence of such language indicates that our 

Legislature has rejected the notion that in analyzing both 

parents, additional consideration should be given to one because 

he or she has been the primary caretaker.

Furthermore, the consideration the primary caretaker doctrine 

sought to address (which parent spent more time providing dayto-day care for a young child) is addressed implicitly in the 

enumerated factors. See, e.g., 23 Pa.C.S.A. §§ 5328(a)(3) 

(“The parental duties performed by each party on behalf of the 

child.”); (a)(4) (“The need for stability and continuity in the 

child's education, family life and community life.”). The 

considerations embraced by the primary caretaker doctrine have 

been woven into the statutory factors, such that they have 

become part and parcel of the mandatory inquiry.

***

We hasten to add that this conclusion does not mean that a trial 

court cannot consider a parent’s role as the primary caretaker 

when engaging in the statutorily-guided inquiry. As discussed 

above, a trial court will necessarily consider a parent’s status as 

a primary caretaker implicitly as it considers the section 5328(a) 
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factors, and to the extent the trial court finds it necessary to 

explicitly consider one parent's role as the primary caretaker, it 

is free to do so under subsection (a)(16). It is within the trial 

court’s purview as the finder of fact to determine which factors 

are most salient and critical in each particular case. Our decision 

here does not change that.

M.J.M., 63 A.3d 338-39 (some citations and quotation marks omitted) 

(footnote omitted). 

Thus, while the trial court in the instant matter acknowledged in its 

January 6, 2016 order and its opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii) 

that Mother has served as Child’s primary caretaker throughout his life, the 

court was not obligated to give this consideration any particular amount of 

weight. In addition, the court was free to conclude that this consideration 

was outweighed by other important evidence presented in the case. Here, 

the trial court found that Mother has been resistant to allowing Father to 

spend significant periods of time caring for Child, and that Father would have 

been more involved in Child’s life if Mother would have allowed it. See Trial 

Court Opinion, 3/1/2016, at 7-8. Our review of the record supports the 

court’s finding.

Further, as the custody hearing progressed, the trial court entered 

interim orders which expanded Father’s partial physical custody to include 

overnights with Child. No evidence was presented during the custody 

hearing which indicated that Child has struggled or suffered because of 

Father’s increased custody time. When asked about Child’s adjustment to 
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Father’s additional periods of custody, Mother testified that Child now asks 

who is going to pick him up at the end of the day, and who is going to be 

there when he wakes up. N.T., 12/4/2015, at 60. When asked whether she 

has any concerns about Father’s ability to meet Child’s needs, Mother 

testified only that Father continues to use fabric softener when doing Child’s 

laundry, despite her concern that it was causing, or could cause, Child’s 

eczema to flare up. N.T., 11/13/2015, at 148-49. Mother was not able to 

articulate any other problems resulting from Father’s increased custody 

time. It was proper for the trial court to conclude that Child’s best interest 

would be served by spending equal time with both of his parents, and we 

discern no abuse of discretion. 

In her third issue on appeal, Mother argues that the trial court abused 

its discretion by ordering Father to submit to hair follicle tests for less than a 

year, despite his lengthy history of drug and alcohol abuse. Mother’s brief at 

34-38. Mother specifically challenges the court’s finding that Father has 

been sober for three years. Id. at 36. According to Mother, Father 

submitted to only a fraction of the alcohol tests that he was required to 

submit to in 2013, pursuant to the parties’ May 22, 2013 letter agreement, 

and he did not submit to any alcohol tests at all in 2014. Id. at 35.

The trial court addressed this claim in its opinion as follows. 

Throughout the course of this trial the Court has always 

considered the safety of the child first. The Court continued to 

order drug and alcohol testing; all of which were negative. 

Additionally, the Court required an alcohol strip test before and 
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after every overnight with Father. All of these tests were 

negative. Mother testified that when she was unavailable, both 

her Father (maternal grandfather) and her current husband 

performed the alcohol strip test on Father. Father will continue 

with his treating physicians and therapist who will continue to 

assess Father’s continued sobriety. Based on Father’s past three 

years of sobriety, the Court still required hair follicle testing for 

another year. Mother is not without recourse if she ever feels 

Father’s sobriety is in question. The Court considered all of the 

evidence presented and weighted it, along with all of the custody 

factors in rendering its decision. The Court committed no error 

of law nor did it abuse its discretion in making this 

determination. 

Trial Court Opinion, 3/1/2016, at 10.

With respect to Mother’s claim that Father failed to submit to the 

alcohol testing required by the parties’ letter agreement, Father readily 

admitted to this problem during the custody proceedings. Father testified 

that he learned in approximately the summer of 2013 that his weekly urine 

screens were testing for drugs only and not for alcohol. N.T., 4/22/2015, at 

24, 51, 185. Despite this discovery, Father did not recall being tested for 

alcohol during all of 2014, nor did he report making an effort to be tested for 

alcohol.5Id. at 54-55, 161-63. Father stated that he notified Mother 

shortly after learning that his urine screens were not testing for alcohol. Id.

____________________________________________

5 According to Father’s counsel, exhibit M-3, which is not contained in the 

certified record on appeal, indicates that Father began submitting to 

breathalyzer tests in September of 2013 after he discovered that he was not 

being tested for alcohol. N.T., 4/22/2015, at 186. These tests continued 

until December 2, 2013. Id. Reportedly, exhibit M-3 is a document

“show[ing] the testing [Father] submitted at the Charles O’Brien Treatment 

Center at Penn from August 2012 to . . . January 2015[.]” Id. at 151.
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at 24-25, 52, 185. Father explained that Mother was well aware that he was 

not being tested for alcohol in 2014, but that Mother did not raise any 

concerns with regard to Father’s sobriety. Id. at 25-26, 52, 67, 187. Father 

further explained that he did not seek out alcohol testing in 2014 because “I 

was under the impression that I had a new agreement in place with [Mother] 

and her attorneys at the time that were [sic] going to get rid of my weekly 

testing . . . .” Id. at 208.

Despite Father’s failure to obtain regular alcohol testing in 2014, our 

review of the record confirms that sufficient evidence was presented to 

support Father’s sobriety. Father testified that he has not consumed alcohol 

since February of 2012, and that he continues to address his history of 

alcoholism by attending two to five Alcoholics Anonymous meetings per 

week, along with weekly therapy sessions. Id. at 44-49. It was within the 

trial court’s discretion to accept this testimony, and to conclude that less 

than a year of hair follicle testing was sufficient to ensure Father’s ongoing 

sobriety and Child’s safety. Mother’s claim that Father may have failed to 

maintain his sobriety at some point over the last several years is mere 

speculation, and has no support in the record.

Mother’s fourth issue is that the trial court erred and abused its 

discretion by finding that Father is in “full remission” with respect to one of 
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his mental health disorders.6 Mother’s brief at 38-40. The crux of Mother’s 

argument is that the court minimized the seriousness of Father’s mental 

health issues, and relied improperly on the testimony of Father’s 

psychiatrist, Dr. Marja Mattila-Evenden, who indicated during the custody 

hearing that Father is in “full remission” with regard to major depressive 

disorder and anxiety disorder. Id. Mother takes issue with this testimony 

because “the term ‘in remission’ is not even a qualifier under the coding 

system for general anxiety disorder in the Diagnostics and Statistics [sic] 

Manual – 5.”7 Id. at 39.

The court responded to Mother’s concerns with respect to Father’s 

mental health as follows. 

____________________________________________

6 As part of this issue, Mother repeats a portion her previous argument 

relating to Father’s failure to comply with alcohol testing, and the trial 

court’s decision to subject Father to hair follicle testing for less than a year. 

See Mother’s brief at 40. Because we have already rejected this argument, 

we need not address it again. 

7 Mother appears to be referring to the fifth edition of the American 

Psychiatric Association’s Diagnostic and Statistical Manual of Mental 

Disorders, commonly referred to as the “DSM.” “The DSM is a ‘categorical 

classification system that divides mental disorders into types based on 

criteria sets with defining features. . . . [T]he DSM is an authoritative 

compilation of information about mental disorders and represents the best 

consensus of the psychiatric profession on how to diagnose mental 

disorders.’” Commonwealth v. Hollingshead, 111 A.3d 186, 190 n.4 (Pa. 

Super. 2015), appeal denied, 125 A.3d 1199 (Pa. Super. 2015) (quoting 

Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. 

Med. Ass'n, 458 S.W.3d 552, 556 n.1 (Tex. App. 2014)). 
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The Court found Dr. Mattila-Evenden testified credibly at trial. 

Father was very forthcoming regarding his mental health 

diagnosis. He has been in regular therapy and also sees a 

psychiatrist. Dr. Mattila-Evenden has been treating Father since 

July 2013. She testified he is in full remission. Father will 

continue treating with Ms. Crauciuc and Dr. Evenden. Mother 

also meets weekly with her individual therapist. 

It is understandable that Mother sees things as how they were 

throughout the parties’ marriage. The Court recognizes that 

before the birth of their child, Mother endured some terrible 

times during Father’s addiction. Father readily acknowledges 

this fact and testified credibly and with great specificity as to 

these times. Nevertheless, Father has been sober since before 

the birth of their child. Whether or not something is a “qualifier” 

under the coding system of the PSM-S [sic] is not what is 

relevant here. There was only credible evidence presented at 

trial that Father poses no risk of harm to the child. Conversely, 

Mother was found to have changed and contradicted her 

testimony on a number of occasions throughout the trial. The 

Court neither erred nor abused its discretion in making this 

determination. What is also of great relevance is that the child’s 

best interests are served through this Court’s January 6, 2016 

order.

Trial Court Opinion, 3/1/2016, at 13-14.

Our review of the record confirms that Mother’s claim merits no relief. 

Dr. Mattila-Evenden testified during the custody hearing that Father has 

been diagnosed with major depressive disorder, generalized anxiety 

disorder, and alcohol and sedative dependence. N.T., 12/4/2015, at 27. 

However, Dr. Mattila-Evenden clarified that Father is in remission with 

regard to all of these diagnoses, and that he is not currently suffering from 

symptoms of depression or significant anxiety. Id. at 29, 32-33, 39, 41-43. 

Thus, the court did not abuse its discretion by declining to weigh Father’s 

mental health diagnoses against him. While Mother protests that the court’s 
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use of the term “remission” is improper pursuant to the DSM as it relates to 

Father’s generalized anxiety disorder, Mother’s argument is mere pedantry 

and does not require reversal of the subject custody order. 

Finally, Mother claims in her fifth issue on appeal that the trial court 

abused its discretion by finding that Father is more likely than Mother to 

encourage and permit frequent and continuing contact with the other parent 

pursuant to Section 5328(a)(1). Mother’s brief at 40-44. Mother argues 

that the court concluded erroneously that she was resistant to providing 

Father with additional custody time. Id. at 41-42. Mother further contends 

that Father is uncooperative and refuses to discuss basic parenting issues 

with her. Id. at 42-44. In particular, Mother emphasizes that Father chose 

not to invite her to Child’s third birthday party. Id. at 42-43.

In its opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii), the trial court 

discussed its analysis of Section 5328(a)(1) as follows. 

Mother focuses on an isolated occasion where she was originally 

not included in the child’s third birthday party planned by Father. 

To Mother’s credit, Father was included in the first two birthday 

parties planned by Mother. Moreover, Mother’s current husband 

testified that they already had a family party for the child’s third 

birthday. Father was not included in this party. Of significance, 

is that the parties were involved in acrimonious litigation at the 

time of the child’s third birthday. Ultimately, Mother did attend 

the third birthday party planned by Father. The Court

considered all of this testimony and gave it the appropriate 

weight in rendering its decision.

***

Moreover, Mother acknowledged denying the child time with his 

Father on Father’s Day 2014. Mother testified that it was “just a 
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day” and spent that day with her husband and his family instead. 

Mother’s testimony regarding this issue was apathetic. Father 

testified credibly that each time he requested additional time, it 

took Mother months before addressing it. Father requested to 

have additional time when Mother went out of town or was 

unavailable to care for the child overnight. Mother refused and 

gave the child to her parents rather than allow the child and 

Father to spend additional time together. On the other hand, 

maternal grandmother testified that Father would call her when 

she was in town to see if she wanted to join him and the child at 

the park or at a music class, even though Father had limited 

time with the child. When considering the totality of this 

evidence, the Court found this Factor weighed heavily in favor of 

Father. Therefore, the Court did not err nor abuse its discretion 

in making this determination.

Trial Court Opinion, 3/1/2016, at 10-11 (citations to the record omitted).

Once again, we conclude that the record supports the trial court’s 

findings. The parties presented extensive testimony during the custody 

hearing concerning the circumstances surrounding Child’s third birthday 

party. Father’s girlfriend, J.D., testified that Mother was not initially invited 

to Child’s third birthday party because she and Father believed Mother would 

be holding a separate party for Child, and because Father thought it would 

be inappropriate to have a party together due to the ongoing custody 

litigation. N.T., 8/14/2015, at 13-14, 75-76. The court was free to accept 

this explanation.

Further, it is clear from the record that the trial court did not consider 

Father’s initial failure to invite Mother to the birthday party to be particularly 

unusual or troubling. See, e.g., 8/14/2015, at 67 (“[L]ook, you’re not going 

to have parties together anymore. . . . I don’t find it as odd as they didn’t --

if they didn’t invite her at all.”). The court was well within its discretion 
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when it concluded that this incident should not cause Section 5328(a)(1) to 

weigh against Father. 

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

its discretion by awarding Mother and Father shared legal and physical 

custody of Child. Accordingly, the court’s January 6, 2016 order is affirmed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/16/2016