J-S47016-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.S.W. 

Appellant

v.

H.M.W.

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:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2267 MDA 2015

Appeal from the Order Entered November 25, 2015 in 

the Court of Common Pleas of Lancaster County Civil 

Division at No(s): CI-15-05403

BEFORE: SHOGAN, LAZARUS, JENKINS, JJ.

MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 27, 2016

A.S.W. (“Father”) appeals from the order entered on November 23, 

2015, in the Court of Common Pleas of Lancaster County, awarding H.M.W. 

(“Mother”) primary physical custody of E.M.W. (“Child”) (born in March of 

2012), awarding Father partial physical custody, and awarding Mother and 

Father shared legal custody of Child pursuant to 23 Pa.C.S. § 5328(a). We 

affirm.

The trial court set forth the extensive factual history of this case in its 

opinion accompanying the subject order, and the trial court’s recitation is 

supported by the testimonial and documentary evidence. As such, we adopt 

it herein. See Trial Court Opinion, 1/22/16, at 2-9. Mother and Father are 

husband and wife, but they have been separated since June of 2015. Both 
J-S47016-16

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are high school teachers at different high schools. Mother teaches health 

and physical education. Father teaches career education, driver’s education, 

health, and physical education. Father is also the varsity soccer coach. In 

addition to coaching at the high school during the high school season, Father 

is involved in off-season and summer season soccer coaching.

On May 28, 2015, Father filed a complaint for primary physical custody 

and shared legal custody of Child. Thereafter, Father changed his request 

from primary physical custody to shared physical custody. On August 20, 

2015, a custody conciliation conference was held, but no agreement was 

reached. On September 15, 2015, the trial court adopted the conciliation 

officer’s recommendation and entered a temporary order awarding shared 

legal custody of Child to Mother and Father. Mother was awarded primary 

physical custody, and Father was awarded partial physical custody of Child 

on alternating weekends. The trial court order also directed a further 

custody hearing to be held on October 30, 2015. The custody hearing was 

continued to November 12, 2015 to obtain the testimony of Child’s therapist 

to determine the best interest of Child. 

The trial court held a custody hearing on November 12, 2015 and 

November 19, 2015. At the hearing the trial court heard the testimony of 

Mother; Father; J.A., a parent whose child plays on Father’s soccer team; 

J.S., Child’s therapist; B.L., an aquatic instructor; S.W., Child’s paternal 

grandmother; and M.A.C., Child’s maternal grandmother. On November 23, 
J-S47016-16

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2015, the trial court again awarded Mother primary physical custody, Father 

partial physical custody on alternating weekends, and shared legal custody 

of Child to both Mother and Father.

On December 23, 2015, Father filed a notice of appeal and a concise 

statement of errors complained on appeal pursuant to Pa.R.A.P. 

1925(a)(2)(i) and (b). 

On appeal, Father raises the following question for our review:

1. Whether the lower court erred in its application of the 

factors under 23 Pa.C.S.[] § 5328(a) in determining the 

best interest of the child?

Father’s Brief at 7. 

In custody cases, our standard of review is as follows:

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.

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

With any custody case under the Child Custody Act, 23 Pa.C.S. 

§§ 5321-5340, the paramount concern is the best interests of the child. In 
J-S47016-16

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applying the Custody Act, a trial court must determine a child’s best 

interests through consideration of the following sixteen factors:

§ 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) 

(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.
J-S47016-16

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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. § 5328.

Father argues that the trial court misapplied the factors for 

determining the best interest of Child pursuant to section 5328(a). Father’s 

Brief at 11. Specifically, Father contends that the trial court “erred in finding 

that Mother is more likely to encourage and permit frequent and continuing 

contact between Father and Child.” Id. at 13. Additionally, Father argues 

that the trial court erred in finding that “Father’s employment as varsity 
J-S47016-16

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boys’ soccer coach prevents him from having sufficient [] time with [C]hild.”1

Id. at 17.

With regard to section 5328(a)(1), which party is more likely to 

encourage and permit frequent and continuing contact between the child and 

another party, the trial court found:

Mother is more likely to encourage and permit frequent and 

continuing contact between Father and [C]hild, than is Father. 

Despite a right of first refusal agreement between the parties, on 

a number of occasions Father called his mother to care for 

[Child] when he had a conflict, rather than Mother. This breach 

of commitment made by him is a serious sign to the [trial] court 

that he does not appropriately value either his word or Mother’s 

relationship with [Child]. He has refused to permit [Child] to go 

on a vacation with Mother and her family despite a history of 

such events in the family. Mother has honored the agreement. 

Trial Court Opinion, 1/22/16, at 11. 

With regard to section 5328(a)(3), the trial court stated:

While both parties perform parental duties, Mother has 

performed and continues to perform the majority of the parental 

duties for [C]hild. She has consistently had more available time 

in her schedule to spend with [C]hild and to attend to [C]hild’s 

needs. She can get [C]hild to day care at a later and more 

reasonable hour for [C]hild in the morning, and pick her up 

earlier in the afternoon, providing more parent time. Prior to the 

separation, Mother was for all intents and purposes, the parent 

who transported [C]hild to and from daycare. She was the 

major nurturing parent while the family was intact, and has 

continued that situation into separation. All of the testimony 

presented indicate[s] that Father is so involved in soccer that he 

is simply not available at significant time for [C]hild because he 

____________________________________________

1 While not specified in his brief, Father appears to challenge section 

5328(a)(3), the parental duties performed by each party on behalf of the 

child. 
J-S47016-16

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must attend various games, practices, training, and other sportrelated activities. 

Id. at 11-12. 

Moreover, the trial court stated it had “some problems with Father’s 

credibility.” Id. at 16. The trial court stated that, “Father blamed Mother 

for some of his problems” and “raised negative issues about the relationship 

between Mother and [Child].” The trial court found that Father’s “hostility 

colors those perceptions and makes it difficult to know the degree of their 

accuracy.” Id. The trial court further found that Father “inaccurately 

minimized the problems posed by his schedule and that much of his 

testimony was confusingly difficult if not contradictory because of a variety 

of inconsistencies contained therein.” Id. Consequently, the trial court 

found that “an examination of the listed aspects of [C]hild’s life and her 

relationship with her parents indicated that Mother as the primary custodial 

parent would better serve [C]hild’s best interest.” Id. Father’s issue on 

appeal seeks review of the trial court’s findings of fact and credibility 

determinations. Our standard of review, however, does not permit this 

Court to re-find facts, re-weigh the evidence, or to impeach the credibility 

determinations of the trial court. We may only reject the trial court’s 

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

sustainable findings of the trial court. See C.R.F., III, 45 A.3d at 443. 

Furthermore, the trial court analyzed each factor regarding custody and 
J-S47016-16

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found that, as stated above, the factors weighed in Mother’s favor. See Trial 

Court Opinion, 1/22/16, at 11-16. We find no abuse of discretion. 

For the foregoing reasons, we affirm the order of the trial court 

awarding primary physical custody to Mother, partial physical custody to 

Father, and shared legal custody to both Mother and Father.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/27/2016
1 

ongoing participation in therapy and by agreement continued the matter until November 

12, 2015 in order to allow both parents time to confer with the child's therapist. The 

2015. On October 30, the Court and the attorneys for the parties discussed the child's 

Officer's recommended order and scheduled a hearing before the court for October 30, 

waiver of custody case time requirements was fired on July 20, 2015 and approved by 

the Court on July 21, 2015. The conference was held on August 20, 2015, and no 

agreement was reached. On September 15, 2015, the Court adopted the Conference 

for July 29, 201 S. An uncontested motion for continuance of the Conference and 

This matter was initiated on May 28, 2015, when a Complaint in Custody was 

~· - J,l.,t.·lf..J• 

filed by- (Father) agains-Mother) for custody of 

- • .,._ • t,.J. ··lt·tJ· 

·the parties' child-• A, born on March 30, 2012. On June 

19, 2015, an Order of Court was issued scheduling a Custody Conciliation Conference 

Procedural History 

OPINION SUR APPEAL 

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'Defendant 

SUPER. CT. NO.: 2267 MDA 2015 

No. Cl-15-05403 . v. 

Plaintiff 

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA A- S- l,J. CIV.ILACTION-LAW 

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Circulated 09/07/2016 01:38 PM
2 

I Although the hearing occurred on two separate dates, the two transcripts were paginated as one unit. The 

citations to the transcript will therefore not refer to the hearing dates, but only the page numbers. 

soccer coach at his school". (N.T. 15)1 That position involves his coaching, monitoring 

Both parents are high school teachers at different schools. Father teaches 

Career Education, Driver's Education, Health and Physical Education.(N.T. 13) Mother 

teaches Health and Physical Education. (N.T. 173) Father is also the head varsity 

18) 

separation, Mother has had primary physical custody of the child and Father has had 

partial physical custody on alternate weekends and specific weekday evenings. (N.T. 

. I ( 

biological daughter. The child lived with both parents from her birth to her parents' date 

of separation in June of 2015 when Mother left the marital residence. {N.T. 14) Since 

is their 

FACTUAL HISTORY . G, If• /,J, 

t' 

Father and Mother are husband and wife and•••• 

a Concise Statement of Errors Complafned of On Appeal. 

On December 23, 2015, Father filed a notice of Appeal of the November 20 

Order to the Pennsylvania Superior Court. Said Notice was served upon the Court with 

to Father on alternating weekends and every Tuesday and Thursday evening. 

written report to be sent to the attorneys. 

A hearing was begun but not completed on November 12, 2015, and was 

continued to November 19th, 2015 for the purpose of completing the testimony. On 

November 20, 2015, the Court issued a Custody Order giving shared legal custody bf ,.,,.u. . .·. . 

•••to the parties, primary physical custody to Mother and partial physical custody 

therapist, whose.testimony was deemed to be necessary, was directed to prepare a 

) 
3 

2Futsal is an indoor soccer game with a small ball that doesn't bounce. lt is a form of 

indoor soccer. N.T. 16. 

(swimming), 195 (dance)). Father informed the Court that he can make himself more 

64 (pickup from daycare), 85 {tumbling), 118-119 (library concert), 131 (therapist), 193 

parents testified to a number of occasions when his contact with his daughter had to be 

changed, or he missed one of her activities because of a soccer event. (See, e.g., N.T. 

gets closer to the season, it becomes more intense and more involved." (N.T. 193) Both 

attend for one of his soccer players. (N.T. 218) She also testified that "his soccer 

schedule started in January and continues all the way up through summer. And as it 

school and soccer league then begin. Mother mentioned other events that intruded on 

Father's time with his daughter. For instance, he had to change their custody schedule 

for the weekend before the hearing, because there was an all-star game he had to 

. . 

, continuing for the rest of the month; there are pickup games. When the pickup 

sessions end, Futsal league starts on Saturdays. The Futsal Saturday games continue 

until school ends in June and Futsal2 is then scheduled for Tuesday and Thursday, 

. running from8 to 10 a.m. until the beginning of the season in August. (N.T. 70-73). On 

the first "teen" Monday of August, "two a day" practices begin, from 8 to 10 a.m. and 6 

to 8 p.m. and last for one week, Monday through Friday. (NT 16 -17) Thereafter, 

coaching duties. Outside of his school coaching, Father is also involved in off-season 

and summer soccer (N.T. 17) The beginning of soccer season is the first "teen" 

Monday in August. The season ends the second week in October, though it can go 

beyond that if the team goes post-season. On Fridays,.starting sometime in March and 

and supervising the players as they play, and. his schedule is dominated by his soccer 

. . . . 
4 

activities such as gymnastics, dance and the like, for which the parents serve as 

Post separation, when each party had custody of the child alone, both engaged 

in many Interesting activities . with9llmlllfand ··"·"'· both . twe a healthy and organized 

,,.,,,. ..... 

schedule and environment for her. (N.T. 19 et seq.) also has her own 

(N.T. 129) 

had a busy life, filled with activities for the child and a specific daily schedule. That 

situation continued after separation also. (N.T. 74, .1.85) _Father admitted that prior to 

•• ,. • ._a. . 

their separation he did not spend much time with , his reason being that 6.M.W•· 

Mother did not permit him to. He said she was rigid and kep on a tight 

schedule which excluded him. (N.T. 60) Although April of 2015 was the first time he 

had ever watched the child overnight, he explained to the court that he had been given 

only limited opportunity to do so by Mother. (N.T. 128) Regarding medical 

appointments, he explained that he only had made them for the child a few times, but If 

he had been allowed by Mother he would have done so every time it was necessary .. 

more involved._(N.T. 195-196) 

Mother has a full time teaching job during the school _year and teaches an 

· online course during the summer with a one hour a week commitment for five weeks. 

(N.T. 174) Testimony was uncontradicted that when Mother is not working h~attentt. 

.. . •. ,... . 

and concern was directed toward her daughter. Before separation she and•••• 

available than his schedule indicates, because during the soccer season he has 

assistants who can lead the practice. (N.T. 80) Mother said that he told her the same 

thing throughqut their marriage, but never followed through. (N.T. 218, 247) Father has 

. been more available for the child's activities in early 2015 after his lawyer told· him to be 

) 
5 

that he has trouble arranging dates with friends because he finds it difficult to ascertain 

the identities of appropriate neighborhood or school friends. (N.T. 79) For Halloween 

Father also arranges play dates for her with her cousins from his family. He testified 

(N. T .. 189) Only Mother took her to gymnastics. (N. T. 84) Mother took her to dance 

cla~ and Father would come alt'e'r soccer. (N. T. 194-95) f\,'1other arranges play dates 

•• ,, • .,.,. i~- .. 

for with friends from school and with neighborhood children. (N:T. 1 187) 

bath. She scheduled medical appointments and did'the established bedtime routine. 

(N.T. 188) During much of their life prior to separation, Father wasn't at home. His 

school duties, particularly soccer, kept him away sometimes until well after dinner. 

twice when she had something she couldn't miss. (N.T. 179) Father agreed, saying 

that he occasionally took the child to day care, but in summer he could not pick her up 

because of soccer practice. (N.T. 25, 64) Mother got the child ready for ~hool. She 

I - , .,,. ,,.,. 

made her breakfast and cooked dinner. The majority of times,.she gave her 

. . . + 

. . 

to use the schedule she had used since the child was born. (N.T. 74, 1_85). She 

always dropped the chUd off at daycare and picked her up after, except tor once or 

Mother was clearly the child's main care giver prior to separation and continues 

spectators. She has continuing swimming lessons, in which the parents are permitted 

to participate in the water with her. Mother has always been the participating parent for 

that event, and the swimming instructor told the court that the child is happy in class. · 

. . · 6.N.t.J• . with her mother. When during one of Father's appearances, was acting 

particularly active and energetic, he appeared tobe unsure and told theteacher he 

didn'.1.J<now why she was ~ing like this. The teacher had to reassure him that it was 

•• ... .. , .... t,.I• . 

just• I 5 acting lrke I M. (N.T. 110) · 
6 

attend his soccer games with him, saying that at the Futsal games there is space for 

her to play while he is involved with the game and that at practices, she could interact 

Father at first requested primary custody, but has now changed that request to 

50/50 shared physical custody. He told the court that he was concerned at first that 

Mother would remove the child from Pennsylvania, and that if he had primary custody 

re could keep her here. HE:! acknowledged at the hearing that he had spoken out of 

f'gar an~no longer would ask for sole custody. (N.T. 140) He minimized his busy 

,.,. . ., .. 

schedule in his testimony, insisting instead that it would be in best interest to 

has always taken the child when asked to do so. (N.T. 213) 

custodial parent had a conrnct. Father has disregarded this agreement on several 

occasions, calling on his mother (the Paternal Grandmother) instead of Mot.bar .. Mother 

The parties had an agreement that each would have a right of first refusal if the 

159) 

.. 

often, particularly her grandparents. (N:T. 50) They have dinner with his parents every ',..,..t,.1. 

Sunday. (N.T. 86) He arranges play dates for · with her cousins. (N.T. 79, ) 

· Mother's parents live. in ~ew Jersey and she has two sisters who live in Virginia. They· 

visit back and forth several times a year and go on a longer family vacation in the 

summer. ' (N.T. 185) It ' is during these . visits that '-"·""· meets and interacts with her 

other family members. This year, when Mother spoke to Father in April about going for 

' ,. ,,.,,,,. ' 

the family vacation with her parents, Father insisted that 3 7( could not go. (N.T. 

him. to accompany them in her neighborhood, he decided not to participate. (N. T. 187) 

Father has extended family in Lancaster County and the child interacts with them 

of 2015, Father-asked to trick and treat with••1 •1a. When Mother agreed and asked 

1..11.IJ. 

,'' 'i 

) 
7 

the application. (N.T. 91, 202) Defending his action, he told the-Ccurt that he would not 

expect Mother to tell him if she changed the child"s religion. (N.T. 88) Second, after the 

child told her that she didn't like the way Mr. Ashley washed her hair, Mother asked and 

enrolled her in Sunday School, although she never actually attended. (N.T. 33-34, 87) 

He not only did not discuss this with Mother; but did not put her contact information on 

They had agreed to raise the child Catholic and did attend a Catholic Church on 

occasion although Father has a Lutheran background. (N.T. 87) However, after 

. ..,..~. 

separation, Father took• &to an orientation at a friend's Lutheran church and 

three instances in which Father withheld information concerning the child from her. 

Communication between the parents has its difficulties. Mother told the Court of 

205) 

does, and she acquires the values ot trust, integrity and responsibility by watching him 

· +coach his students at soccer games. (N. T. 53 et seq) There was also testimony from 

Mother and her mother who said that Father had told them that desp~e his schedule he '·"'·"'· . could have full custody because hls parents would take care of :•. (N.T. 158, 

make mistakes with him, he· doesn't get angry when the house is messy like Mother· 

. ~"" .. 

doesn't push her the way Mother does, so that she is more. relaxed and is not afraid to 

with the players and their parents, which would-enaole her to gain social skills (N.T. 32,· 

138-139) He asserted that he did have flexibility in his schedule to allow time for his 

child. Mother's opinion of that assertion is that he had repeatedly told her the same 

thing, but never exhibited the ability to change his schedule to spend more time with the 

child. He JJ.a~proposed a 4/3/3/4 day schedule- '(N. T,ii.,43) He believes that being with 

~n-~~ . . . him is in • 7 best interest because he lives in the home she grew up in, he 

··., 

i ) 
they have told him that its no worse than other children in the class. (N.T. 48) Father 

himself said that he heard from one of the teachers that the child was always chewing 

on something unless she was very busy. (N.T. 45) Because of the early stages of 

8 

And during Father's testimony, he said he saw her chewing at his house, but thought it 

- .·~ . was just a bad habit. (N.T. 145) Her te'achers have also seen the behavior, because 

place that the activity occurs is at Mother's house, and neither he nor her teachers see 

it. However, the child's paternal grandmother testified that she has seen the behavior 

at Father's house, and that when she went to hug the child, her hair was wet. (N.T.152) 

agreed with the decision, but now expresses disagreement, contending that the only 

Father did not attend the parents' first meeting with the therapist. (N.T:'216)' He at first 

chewing on her hair, fingernails and clothing. Mother arranged for a consultation with a 

therapist in order to ascertain whether this was a sign of stress or just a b~d habit. 

i 

Father testified that Mother hasn't notified him of all of the child's developmental 

milestones, although ~a was unable to remember a specific 

, 

insta_nq,e. (N.T. 130) 

..... .,. 

The child's therapy is another point of contention.-has a habit of 

residence, that said the child was being transferred to a different class. Father did not 

Inform Mother. Mother said she lets father know what is going on with the child. 

the bathtub because Father had to finish chairing a meeting dealing with soccer. The 

. . . ··ft·~· . 

third incident was a time when IT I 3 fell off the bed, and landed on her head; and 

although she exhibited physical symptoms that upset Father, he neither took her to the 

doctor nor called Mother, not telling her until two days later. There was also a time 

When the child's school sent a letter to the marital residence, but not to Mother's 

learned from Father that he had left a male friend alone with••• while she was in 

.. ') 

E.11.1,1· 
9 

. with Father, Father sometimes exhibits hostility toward mother in his testimony and 

communications with the child, Father failed to inform mother of substantial events in 

spend with the child than does Father, is more likely to foster the child's relationship 

been the primary nurturing parent since the child's birth, has substantially more time to 

Whether the Court erred in granting primary physical custody of a three year old 

child when, although both parents love and parent the child appropriately, Mother has 

ISSUE 

him. (N. T. 203) When Mother moved out, Father walked the child around the home, 

pointing out expressly everything that Mother had taken with her or left for them. (N.T. 

209) He did not always honor her right of first refusal if he had a conflict. (N.T. 212) 

He tried to limit his daughter's contact with Mother's family. 

when withher Mot~. (N.T. 38) When he missed an open house for preschool 

. ........ . , . 

parents, he told - that the reason for his absence was that Mother didn't remind 

J1! 

(N.T. 35-36) He told the Court also that the child exhibited negative body language 

Father's testimony and actions contained a great deal of hostility towards, and 

criticism of Mother, sometimes subtle and sometimes not so subtle. He said, for 

. . ..... .._.,. 

instance, that prior to separation "she did not include him in her planning for ), 

met his plans with disdain and sometimes sabotage" his plans. He said he finds it 

difficult to speak with her because she isn't receptive to his discussions about custody. 

better understanding of wha~was. Q.R,ing on. (N.T. 103) 

•,t" 

therapy, Jennifer Smoker, the therapist was unable to characterize the behavior in any 

meaningful way. The parents agreed that it should continue until the therapist had a 

) 
10 

ANALYSIS 

The Court's paramount decision in a child custody case Is to decide what is in the best 

interest of the child. Costello v. Costello, 666 A 2d 1096, 446 Pa. Super 371 (1995). A 

determination of what is in the best interests of the child is made on a case-by-case . 

basis and must be premised .. upon consideration of all factors which legitimately have 

an effect upon a child's physical, intellection, moral and spiritual well-being. Alfred v. 

Braxton, 659 A.2d 1040, 442 Pa. Super 381 (1995) A shared custody arrangement may 

be ordered by the Court if both parents are 1) capable of making reasonable child 

rearing decisions. and willing and able to provide love and care for their children: 2) both 

parents evidence a continuing desire. for active involvement in the child's life; 3) both 

parents are recognized by the child as a source of security and love; 4) and a minimal 

degree of cooperation between the parents are possible; Hill v. Hi!/, 619 A.2d 1086, 

422 Pa: Super 533 (1993); In re Wes/eyJ.K, 445 A.2d 1243, 299 Pa. Super 504 

(1982) Additionally, the Superior Court has directed that in making its decision, the trial 

court must consider the factors set out in Section 5328 of the Pennsylvania Custody 

Statute. 

This Court included its §5328 conclusions in its order of November 20, 2015. An 

expanded discussion of these items is as follows: 

§5328. Factors to consider when awarding custody 

a. Factors - . 

child's life, Father took action to interfere with contact between mother's family and the 

child, and Mother seems to be more aware ofthe child's needs and environment. 

) 
11 

about the lack of supervision during those times. 

(3) The parental duties performed by each party on behalf of the child. 

While both parties perform parental duties, Mother has performed and continues 

to perform the majority of the parental duties for the child. She has consistently had 

more available time in her schedule to spend with the child and to attend to the child's 

alone, without an assigned caretaker. The Court can appreciate Mother's concern 

somewhat taken aback by Father's belief that his 3 year old child's best interest will be 

served by attending frequent high school soccer games and practices with him when 

his attention is taken up with the players and the action, and the child is left to play 

There was no past or present abuse by either parent. There has been no 

involvement with the Children and Youth Social Service Agency. However, the Court is 

(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. 

events in the family. Mother has honored the agreement. 

a commitment made by him is a serious sign to the court that he does not appropriately 

. . . ... ,. . .,,. 

,.lue either his word or Mother's relationship with He has refused to permit 

. ,. ..... 

•• .. to go on a vacation with Mother and her family despite a history of such 

(1) Which party is more likely to encourage and permit frequent and continuing 

contact between the child and another party. 

The Court finds that Mother Is more Hkely to encourage and permit frequent and . 

continuing contact between Father and child, than Is Father. Despite a right of first 

refusal agreement.Jletween the parties, on a number of occasions Father called his 

~·H·W•. · 

mother to care for I JI: when he had a confHct, rather than Mother. This breach of 
12 

number of yearly vislts back and forth and long vacation visits and it seems that these 

New Jersey and her sisters live in Virginia. However, prior to separation there were a 

Father has a close relationship with his family, who live in the Lancaster area. 

. . ,. 

Prior to separation, his parents visited with Father an~~ther and••• every 

Sunday ·afternoon. Father's mother would baby-sit at various times. He now 

,. 

sees his parents often and the children of family members are W 7 's only 

playmates when she is in his custody. Mother's family is not local. Her parents live in 

(5) The availability of extended family. 

schedule. 

separation, and has fewer extraneous distractions to interfere with her parenting 

the schedule of time and activities which the child experienced. prior to the parties' 

Both parents evidence a stability and Father continues to live in the marital 

residence in which the child resided for all of her life. However, Mother has continued 

. practices. training, and other sports-related activities: 

(4) The n·eed for stability and continuity in the child's education, _family life and 

community life. · · 

testimony presented indicate tha1.,Father is so involved in soccer that he is simply not 

. . . ~~·~· . .· 

available at significant times for-because he must attend various games, 

., '• 

family was intact, and has continued that situation into the separation. All of the 

transported the child to and from daycare. She was the major nurturing parent while the 

. . 

child in the morning, and pick her up earlier in the afternoon, providing more parent 

time. Prior to the separation, Mother was for all intents and purposes, the parent who 

') 

needs. She can get the child to day care at a later and more reasonable hour for the 

) 
13 

complex 50/50 custody arrangement and expressed satisfaction that such would keep 

. e_ •. Mother from taking the child on long visits with her family. As she grows, 'illlll will 

symptoms of great concern to~ •he has breached a right of first refusal agr~eme.~t: 

and. seems to prefer to have watched by his parents; h~ h!=IS requested a 

. . . . .· ,, .. ,,, 

Catholic child in a Lutheran Sunday School without telling Mother-; he failed to tell 

,r. 

Mother in a reasonable time about -s hurting her head and exhibiting physical 

Mother about several important and basic aspects of the child's life: he enrolled this 

child against Mother, some of his attitudes and behavior have that potential. He 

exhibited anger in nts demeanor on the witness stand that was very obvious to the 

court. Along with that anger, he expr4';d hostile and negative views of Mother, such 

as when he failed to attend one of Q 2 's activities and expressly blamed it on 

Mother to the child, saying that "Mommy forgot to tell me." He has failed to confer with 

This is a troublesome area. While Father has not explicitly attempted to turn the 

'1, 

.. 

(7) The well-reasoned preference of the child, based on the chHd's maturity and 

judgment. 

The child Is only three years of age and cannot express a preference. 

(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. 

There are no siblings. 

(6) The child's sibling relationships. 

will continue since Mother has a close relationship with her family. While••• 

would see father's parents more often, she clearly is connected to and will continue to 

see mother's family. · 

, . 
14 

. ·• 

_., 

(11) The proximity of the residences of the parties. 

prefere'e~ a three year eld little,.girl. Mother appears to the Court to be more in sync 

with -·s needs and preferences. 

him full time and attending his soccer activities also concerns the court. Attendance at 

the games every now and then wjth appr(¥>riate supervision will undoubtedly benefit the 

child. But for more than that, we must remember that soccer is father's thing, not the 

mother's rigidity as a "drill sergeant". It appears to the court that Father is allowing his 

hostility toward Mother to interfere with his pae1~ decision making, and he must learn 

to curtail this tendency. Father's belief that-will be benefitted by being with 

) Again, both parties can parent according to this child's nee,.~ut the Court sees 

Mother as having the edge. For instance, her requirement that-go to bed on 

time was based on a reading of her child's crankiness when tired; Father attributed it to 

welfare. However, the court is concerned about the possibility that stress has created 

nervous habits for the child, and is not convinced by Father's negative attitude toward 

giving the child help in the form of therapy. The Court also has concerns about Father's 

conveying negative attitudes to the child about Mother and Mother's family. 

(10) Which party lsmore likely to attend to the daily physical, emotional, 

developmental, educational and special needs of the child. 

with Mother .and Mother's family. 

(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. 

Both of these parties can maintain a loving stable nurturing relationship with th~ . 

child. It was clear to the court that both parents love the child and are dedicated to her 

certainly learn from such behavior that Father does not value her continued relationship · 

) 
15 

physical custody In Mother would serve Elizabeth's best interest. Mother is more likely 

Consideration of the above factors have convinced this Court that primary 

with care of the child. . . .,,., 

Neither party has a problematic mental or physical condition that will interfere 

•. 

(15) The mental and physical condition of a party or member of a party's 

household. 

There is no drug or alcohol abuse in either party's household. 

than blame others for any problems he has with the custody matter. 

(14) The history of drug or alcohol abuse of a party .Gr member of a party's 

household. 

• and behavior toward Mother, andhis tendency to blame her for his shcrtcomlngs in 

G· 

relation to . The Court is· concerned that this approach will grow worse as the 

child grows older, and cautions Father to examine his own behavior and beliefs rather 

There is a certain level of conflict here, mostly seen in Father's hostile attitude 

(13) The level of conflict between the parties and the willingness of the parties to 

cooperate with one another .... 

appropriate child-care arrangements, in that they have each other and Father's mother 

available. 

(12) Each party's availability. to care for the child or ability to make appropriate 

child-care arrangements. 

Mother is more available to care for the .child, since she does not have the 

equivalent of Father's extra-curricular soccer activities. Both can certainly make 

for the child. 

The parents live ten to twenty minutes from each otlier. "They can use the same 

day care provider and are close enough to make alternate appropriate arrangements 

) . 
16 

Based on the abov~.cuk1~' the Court finds that Mother is the appropriate 

primary custodian of and that Father has not provided the facts 

CONCLUSION 

parent would better serve the child's best interests. 

and her relationship with her parents indicates that Mother as the primary custodial 

• 

Father's credibility. This does not mean that the Court denies that Father is not a loving 

and nurturing father; it is just that an examination of the listed aspects of the child's life 

of his testimony was confusingly difficult if not contradictory because of a variety of 

inconsistencies contained therein. The Court therefore has some problems with 

finds that he inaccurately minimized the problems posed by his schedule and that much 

perceptions and makes it difficult to know the degree of their accuracy. The Court also 

when with Mother. ( N.T. 35-38) However, the Court finds that his hostility colors those 

Mother believes that the child is doi.ng fine under the current schedule, and the 

Court accepts her opinion. (N.'T. 242) At the hearing, Father blamed Mother for some of 

~ . ' 

his problems, such as when he asserted to •s athat he missed a school meeting 

because Mother hadn't reminded hi~~ather also raised negative issues about the 

relationship between Mother and~, such as his perception of Mother's rigidity 

and negativity in scheduling and interaction and the child's negative body language 

devote to the child, she has less hostility toward father than he has toward her, which 

will maintain the custody arrangement without unnecessary difficulties. 

to promote the child's relationship with Father, she has continued into separation her 

provision of the parenting duties connected with the child, she has more free time to 

) 

'l 

) 

) 
17 

,jl 

NOTICE Of ENTRY OF OROF:B OR DECREE 

PURSUANT TO PA. B.C.P. NO: zse 

NOTIFJCATION • THE ATif.\CHED DOCUMENT 

HJ\$ BEEM Ffl..ED IN nus CASE 

PROTHONOTARY OF L-'\NCt\STER CO., PA 

DATE: /-ad..-{ <t, 

BY THE COURT: 

'~ LESLIE GORBEY, JUDGE 

Attest/rd/.) J. '1 ",_A~ a.J ~t~ 

Copies to: · · Michael E. McHale, "Esqui"re ../ 

Lisa J. McCoy, Esquire../ 

remain in effect. 

supporting a shared custody arrangement. The Order of November 20, 2015 shall 

} 

.·· t ·1 

).