J-S26008-17

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.N. IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

C.M.

Appellant No. 1885 MDA 2016

Appeal from the Order Entered October 24, 2016

In the Court of Common Pleas of Adams County

Civil Division at No(s): 08-S-440

BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED JUNE 13, 2017

C.M. (“Father”) appeals from the October 24, 2016 child custody order 

denying his motion to modify the existing custody arrangement wherein A.N. 

(“Mother”) exercises primary physical custody of their two daughters, S.M. 

and M.M., in Rotterdam, New York. We affirm.

S.M. and M.M. were born of Mother and Father’s marriage during May 

2004, and March 2006, respectively. Mother initiated the custody litigation 

on March 27, 2008, and has maintained either primary or shared custody 

since that date. The trial court summarized the most recent developments 

in the case as follows:

Father resides in Adams County, Pennsylvania[.] . . . Mother 

was permitted by this Court to relocate with the Children to 

Michigan in 2012, then subsequently relocated to New York 

State, first to Saugerties, then to Rotterdam. Since relocating in 
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2012, Mother has had primary physical custody of the Children 

and Father has had partial physical custody of the Children on a 

routine basis throughout the year[.]

. . . .

[On August 13, 2014, Father filed a petition to modify the 

custody order.] Father requested a reversal of the current 

physical custody schedule, in effect since October 29, 2014. 

Father's instant petition raises a number of the same issues that 

were considered during the hearing that resulted in the October 

2014 Order denying Father's prior request for primary physical 

custody.

A pre-trial conference was held on July 8, 2016, at which 

time the parties were instructed to file Criminal History/Abuse 

Verifications for themselves and members of their respective 

households as required by Pa.R.C.P. 1915.3-2 and 23 Pa.C.S. 

§5329.2 An in camera interview of the Children was conducted 

on August 5, 2016. Trial was conducted on October 18, 2016. 

The undersigned denied Father's request for primary physical 

custody and outlined the analysis therefor in a written 

memorandum filed contemporaneously with the Order of Court.

Trial Court Opinion, 12/6/16, at 1-2 (footnotes omitted).

As it relates to the children’s respective preferences and the trial 

court’s conclusion that Mother and T.N. (Stepfather”) changed employment 

to alleviate the underlying issues that formed the basis of the custody 

dispute, we briefly review the relevant testimony. 

During the in camera hearing, S.M. declared her preference to live 

with Father, primarily because she felt that Mother worked too often at her 

managerial position at a restaurant and was seldom home. N.T., 8/5/16, at 

4, 9. S.M. discussed one specific occasion in which Mother and Stepfather 

worked until the early morning hours while she and ten-year-old M.M. were 
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home alone. Id. at 12. That episode led to police involvement and an 

investigation by the local children’s service agency. Id. While the matter 

was subsequently closed without any further proceedings, the ordeal 

continued to resonate with S.M., and Mother’s extensive work schedule 

started to adversely affect the mother-daughter relationship. 

S.M. testified that, beyond the isolated incident discussed above, 

Mother and Stepfather are seldom home before 5:00 p.m. on weeknights 

and sometimes worked as late as 9:30 p.m. Id. at 5-6. She indicated that 

they were also rarely home on weekends. Id. at 21. S.M. feels 

overburdened by her household responsibilities while Mother and Stepfather 

were at work, including caring for her sister and the family’s pets. Id. at 

13-14. She summarized her position as follows, “I feel like it would be neat 

to have a parent in the area . . . because without a parent it’s really just me 

raising my little sister and I don’t want to do that. I mean, I already wasted 

a lot of my childhood doing that.” Id. at 24. 

Additionally, S.M. believes that Mother’s absences impaired her ability 

to complete homework and precluded her from engaging in after school 

activities. In sum, S.M. testified that she could handle being home alone for 

an hour or two, but she considered the custody change when Mother started 

arriving home from work progressively later. Id. at 21. 

Unlike her older sister, M.M. was less enthusiastic about the potential 

custody change. She told the trial court that she missed Mother when she 
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was away from her for extended periods over the summer and thought that 

the existing custody schedule was “good.” Id. at 41. M.M. recognized 

S.M.’s desire to change the custody arrangement, and felt pressured by her 

older sister to acquiesce. Id. M.M. was unsure whether or not she wanted 

to change the custody arrangement because she sees benefits to both sides. 

Id. at 41, 45. She also noted that she and S.M. have been left home alone 

while in Father’s custody, albeit during daylight hours. Id. at 44. 

Ultimately, M.M. opined that she would be satisfied with either parent 

exercising primary physical custody. Id. at 45. 

During the subsequent evidentiary hearing, Mother described the 

incident that led to police involvement as follows:

I was working for a company that was very low staffed. I 

received a call on a, I believe, it was a Friday evening. They 

asked me to come in and do something for them, so I told the 

ladies they could stay up and wait for me to be back, and I left, 

and they had let the dogs out in the back yard and the neighbor 

called the police.

When the police arrived [S.M.], my oldest daughter, was in 

her room with her laptop and earbuds in and my other daughter 

went to the front door and opened it, and the officer asked if her 

parents were home, and she said no. And so he believed that 

she was there by herself, so I received a call and I was already 

on my way back to the residence.

N.T., 10/18/16, at 41-42. 

Mother affirmed that the incident was the only occasion that the 

children had been left home alone at night. In addition, Mother testified that 

she subsequently obtained a new position at Chili’s that permitted her to 
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select one of three possible shifts: 7:00 a.m. to 5:00 p.m., 10:30 p.m. to 

7:30 p.m., and 3:00 until closing time around midnight. Id. at 60. She 

knows her schedule one month in advance. Id. at 47, 60. Stepfather works 

for the same company and has an identical choice of shifts at a different 

location. Id. at 61. As the general manager, Mother is able to coordinate 

both schedules to ensure that someone is home with the children on 

weekends and by 5:00 p.m., on week days. Id. at 62, 64. She believes 

that the increased flexibility of the new employment will alleviate S.M.’s 

apprehensions about enduring another school year where she is confined 

home alone with her sister every day after school. 

In denying Father’s petition for modification, the trial court determined 

that the underlying issue of Mother’s work schedule was rectified and that 

the children would rarely be left alone after school. In addition, it noted that 

the revised schedule permits the girls to participate in several extracurricular 

activities that were previously unavailable to them. Essentially, the court 

reasoned,

Father's Petition was a wake-up call for Mother. Had she not 

made the changes she has made in her work schedule, the Court 

might have made a different decision. The Court believes that 

Father and Mother are loving and caring parents who want what 

is best for their Children.

See Analysis and Discussion of Statutory Factors, 10/24/16, at 6. 

Accordingly, it denied the petition for modification.
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Father filed a timely notice of appeal and raised ten issues in a 

concomitantly filed concise statement of errors complained of on appeal. 

Instantly, he compresses those ten complaints into one expansive issue, 

“Whether the Trial Court erred in misinterpreting several items of testimony 

and thus abused its discretion by denying Father’s request for [primary] 

physical custody.” Father’s brief at 7. Mother, who is not represented, 

declined to file a brief. 

We review the trial court’s custody order for an abuse of discretion. 

S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa.Super. 2014). We defer to the trial 

court’s factual findings that are supported by the record and its credibility 

determinations. Id. This Court will accept the trial court’s conclusion unless 

it is tantamount to legal error or unreasonable in light of the factual findings. 

Id. 

In denying Father’s petition for primary custody, which would have 

had the effect of relocating the children from Rotterdam, New York to Adams 

County, Pennsylvania, the trial court considered the best interest factors 

outlined in 23 Pa.C.S. § 5328(a) and the ten relocation factors enumerated 

in § 5337(h).

1

 Section 5328(a) provides an enumerated list of factors a trial 

court must consider in determining the best interests of a child:

____________________________________________

1

In relation to relocation, the Child Custody Law provides: 

(Footnote Continued Next Page)
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(Footnote Continued) _______________________

(h) Relocation factors.--In determining whether to grant a 

proposed relocation, the court shall consider the following 

factors, giving weighted consideration to those factors which 

affect the safety of the child:

(1) The nature, quality, extent of involvement and duration of 

the child's relationship with the party proposing to relocate and 

with the nonrelocating party, siblings and other significant 

persons in the child's life.

(2) The age, developmental stage, needs of the child and the 

likely impact the relocation will have on the child's physical, 

educational and emotional development, taking into 

consideration any special needs of the child.

(3) The feasibility of preserving the relationship between the 

nonrelocating party and the child through suitable custody 

arrangements, considering the logistics and financial 

circumstances of the parties.

(4) The child's preference, taking into consideration the age and 

maturity of the child.

(5) Whether there is an established pattern of conduct of either 

party to promote or thwart the relationship of the child and the 

other party.

(6) Whether the relocation will enhance the general quality of life 

for the party seeking the relocation, including, but not limited to, 

financial or emotional benefit or educational opportunity.

(7) Whether the relocation will enhance the general quality of life 

for the child, including, but not limited to, financial or emotional 

benefit or educational opportunity.

(8) The reasons and motivation of each party for seeking or 

opposing the relocation.

(Footnote Continued Next Page)
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§ 5328. Factors to consider when awarding custody.

(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)(1) 

and (2) (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.

(Footnote Continued) _______________________

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

member of the party's household and whether there is a 

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

(10) Any other factor affecting the best interest of the child.

23 Pa.C.S. § 5337(h).

The court found that § 5337(h)(1) slightly favored Father and §§ (h)(2), (7) 

and (10) favored Mother. As we discuss in the body of the memorandum, 

the children’s preferences, considered under § (h)(4), were divided. The 

remaining relocation factors were either neutral or inapplicable. 
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(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.

23 Pa.C.S. § 5328(a). 
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As it relates to § 5328(a), the trial court determined that factors four, 

ten, twelve, and fourteen militated in favor of maintaining the status quo 

and factors five and six favored Father. The court found that factor one 

promoted both parties equally. Similarly, the benefits of factor seven, 

regarding the well-reasoned preferences of the children, were divided 

between the parents. While S.M. had a strong preference to live with 

Father, M.M. lacked her sister’s motivation. The remaining best-interest 

factors were determined to be either neutral or inapplicable. See Analysis 

and Discussion of Statutory Factors, 10/24/16, at 2-6. 

Father asserts that the trial court abused its discretion or committed 

an error of law with respect to § 5328(a)(5), (10), (12), and (14). In 

addition, he challenges the trial court’s consideration of the family dynamics 

implicated in § 5328(a)(2) regarding parental supervision, (a)(4) and (10) 

concerning the stability in education and satisfying the child’s educational 

needs, respectively. 

Father argues that the § 5328(a) factors weigh in favor of awarding 

him primary physical custody. For the reasons that follow, we discern no 

abuse of discretion.

As it relates to Father’s claims that certain aspects of the trial court’s 

consideration were contrary to the weight of the evidence, this Court 

previously explained, 
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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.

R.M.G., Jr., supra at 1237 (internal citations omitted). The test 

is whether the evidence of record supports the trial court’s 

conclusions. Ketterer v. Seifert, 2006 PA Super 144, 902 A.2d 

533, 539 (Pa.Super. 2006).

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

Father’s arguments misconstrue our standard of review and ignore our 

deference for the trial court’s role as fact finder. His position is founded 

upon myriad assertions that challenge that aspect of the trial court’s role. 

For example, Father contends that: (1) the trial court should have found a 

“routine lack of supervision” by Mother; and that the court erred in (2) 

“favoring Mother on the issue of education;” (3) not giving more weight to 

the girls’ relationship with their extended family; (4) overstating the benefits 

of maintaining the existing custody schedule; (5) considering Father’s failure 

to disclose his entire criminal history on an affidavit filed with the court;2(6) 

noting a lack of communication regarding S.M.’s glasses; (7) ignoring 

Father’s superior support system; and (8) crediting Mother’s ability to 

____________________________________________

2

Father contends that the inaccuracies in the criminal history verification 

affidavit were the consequence of his counsel’s inadvertent omissions. 
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balance her work schedule in order to be more attentive to her children’s 

needs. 

Tellingly, Father does not complain that the foregoing aspects of the 

trial court’s determinations are unsupported by the record or even that the 

underlying evidence of record was so unreliable as to make the court’s 

considerations pure conjecture. Instead, Father essentially entreats that this 

Court reweigh the evidence adduced during the hearing in order to reach 

conclusions in his favor. Contrary to Father's protestations, however, a 

party cannot dictate the weight that the trial court attributed to the evidence 

or its consideration of any single factor. Indeed, as we explained in M.J.M.

v. M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013), “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.” We simply will not revisit the trial court's 

factual findings which are based on the certified record in order to reassess 

the weight of the evidence. J.R.M. v J.E.A., 647, 650 (Pa.Super. 2011) 

(“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”). “Ultimately, the test is whether the trial court's conclusions are 

unreasonable as shown by the evidence of record.” M.J.M., supra at 334. 

Having found that the certified record sustains the trial court's above–

referenced findings of fact, we do not disturb them.
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However, two of Father’s assertions warrant further examination. 

First, Father assails the accuracy of the trial court’s findings that he imbibed 

immediately prior to a custody exchange in Phillipsburg, New Jersey, and the 

insinuation that he then drove the children for two and one-half hours to his 

home in Gettysburg. As Father accurately observes, the trial court 

misconstrued the evidence of record. In actuality, Father drank beer at a 

Phillipsburg restaurant after he arrived with the children from Gettysburg in 

anticipation of transferring physical custody to Mother. N.T., 10/18/16, at 

86. Hence, the evidence does not support the implication that Father chose 

to drink beer and then drive the children home. 

Nevertheless, the trial court’s misstep is harmless. The trial court 

realized its initial mistake of fact and subsequently explained that, 

considering Father’s prior convictions for driving under the influence of 

alcohol, the decision to drink during the custody exchange and then make 

the trek back to Gettysburg was unsound regardless of whether the children 

were in the car with him. Trial Court Opinion, 12/6/16, at 7.

We agree with the trial court’s reasoning. Father has a history of 

substance abuse and DUI-related offenses. Mother testified about her 

experience with Father’s “excessive drinking” and drug use, behavior in 

which she believes Father continues to engage, and a DUI arrest since 2012. 

Id. at 85-86. In addition to that evidence, the certified record establishes 

that Father pled guilty to “Driving While Impaired” in Maryland during 2009, 
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and to possession of a controlled substance and DUI in Pennsylvania during 

2009 and 1992, respectively. See Plaintiff’s Exhibit 14. While the evidence 

regarding the prior criminal offenses is stale in relation to any determination 

of Father’s present parenting ability, when viewed through the prism of 

Father’s former experiences, his decision to imbibe while at a custody 

exchange is compelling evidence of his poor judgment. As the certified 

record substantiates the trial court’s decision, no relief is due.

The final component of Father’s argument is that the trial court 

misconstrued the children’s well-reasoned preference to reside in his primary 

physical custody. As the ultimate arbiter of fact, the trial court is best suited 

to determine the weight to be given to the children’s preferences. 

Cardamone v. Elshoff, 659 A.2d 575, 583 (Pa.Super. 1995). The 

significance of the preferences vary with age, maturity and intelligence 

together with the reasons given. Wheeler v. Mazur, 793 A.2d 929 

(Pa.Super. 2002).

Recall that S.M. clearly favored Father in the custody dispute. Indeed, 

the record establishes that S.M.’s entreaties to Father were the primary 

impetus for Father’s motion to modify the custody arrangement. While the 

trial court acknowledged S.M.’s preference, it also determined that her tenyear-old sibling, M.M., favored residing with Mother or, at a minimum, was 

ambivalent about the potential change. Ultimately, the trial court 

determined that M.M.’s impartiality and Mother’s efforts to alleviate the 
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issues that fueled S.M.’s yearning to live with Father favored maintaining the 

status quo as to both children. 

The crux of Father’s contention is that, in light of M.M.’s equivocations, 

the trial court should have relied upon the strength of S.M.’s wish to reside 

with him to bolster “the collective preference of the children” in his favor and 

award him primary physical custody. Father’s brief at 16. We disagree. 

Father’s current contention fails for the identical reason that his 

foregoing assertions missed the mark. Plainly, Father is challenging the 

weight that the trial court attributed to both M.M.’s ambivalence and 

Mother’s ability to rectify the scheduling issues that formed the basis of 

S.M.’s well-reasoned preference to move to Pennsylvania. While Father’s 

argument consistently refers to portions of the children’s testimony proffered 

during the August 2016 in camera hearing for support of his position that 

Mother is inattentive to their daughters’ needs, he neglects to acknowledge 

that all of the events that S.M. and M.M. discussed related to Mother’s prior 

work schedule. The children have resided with Father since the end of the 

academic year, when Mother still held her former employment. Hence, 

Father’s argument essentially assails the trial court for declining to attribute 

greater weight to past events than what is anticipated to occur as a result of 

the new scheduling opportunities. Accordingly, Father’s argument is 

unpersuasive. As the certified record supports the trial court’s finding that 

Mother alleviated the primary cause of her daughter’s distress, the court did 
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not abuse its discretion in denying Father’s motion notwithstanding S.M.’s 

stated preference to reside with him. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/13/2017