J-S71030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.L.O., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

S.K.,

Appellant No. 1055 WDA 2015

Appeal from the Order entered June 8, 2015, in the Court of Common Pleas of Blair County, Civil Division, at No(s): 2013 GN 3679

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 08, 2016

S.K., a/k/a S.O.K. (“Mother”) appeals from the ord er entered on June

8, 2015, that awarded the parties shared legal cust ody of their son, N.K.-O.

(“Child”). The order also awarded primary custody of Child to K.L.O.

(“Father”) and partial physical custody to Mother. We affirm.

The trial court set forth the procedural history o f this appeal as

follows:

The parties . . . are the parents of one (1) minor child, [Child, born in November of 2013.] The parents met in January 2013 through the “Christian Mingle” on-line dating service and were married [in June of 2013.] The parties lived together for approximately one (1) month until [Father] filed fo r divorce [in July of 2013]. [Father] is self-employed in the as phalt sealing business. His primary season is June through Octob er each year, and he is generally off November through May. [Mother] is currently not working due to recent knee surgery. She attends physical therapy three (3) times per week. It is h er hope to return to her former employment cleaning houses.J-S71030-15

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[Father] is currently forty-one (41) years of age and resides in his own home . . . [in] Roaring Spring, PA. He has resided there for five (5) years and describes his home as a ranch[-]style home, sitting on 31⁄2 acres, mostly wood ed. The home has three (3) bedrooms and two (2) baths upsta irs. There is a full bath downstairs. [Child] has his own bed room and playroom.

[Mother] is 31 years of age and lives [in] Sproul, PA, where she has resided since on about October 1, 201 4. She lives with her fiancé, [T.H.], her two (2) daughter s from a prior relationship, [A.] (7 years of age), and [J.] (5 ye ars of age), as well as [Child]. [T.H.] moved in with this family unit at the end of June, 2014.

There is a Custody Order in effect, dated February 4, 2014, along with an Addendum dated June 17, 2014. Pursuant to the controlling orders of court, the parents sha re legal and physical custody, while [Mother] has primary reside ntial custody of [Child]. [Father] has partial custody the first three (3) weekends each month from Friday, 9:00 a.m. until Sa turday at 3:00 p.m., and Friday [at] 9:00 a.m. until 3:00 p.m . the fourth weekend. The holidays are shared by mutual agreeme nt. The parties share in transportation and normally exchan ge custody at the Sheetz [s]tore in McKee, PA.

[On June 16, 2014, Father] filed a request for a c ustody evidentiary hearing [1] as he is seeking primary, physical custody of the subject child. The first evidentiary hearin g was held December 11, 2014, during which a former neighbor [ of Mother, L.B.], testified on behalf of [Father]. [Father] a lso testified on his own behalf. [Mother] testified, however, due t o time constraints, she was unable to complete her testimo ny. Therefore, a second evidentiary hearing was held Ju ne 1, 2015, during which [Mother] completed her testimony and h er fiancé, [T.H.], testified as well.

Trial Court Opinion and Order, 6/8/15, at 1–2 (inte rnal citations omitted)

(footnote added). The trial court entered its Opin ion and Order on June 8,

1 Mother filed a complaint for custody on December 3, 2013, and Father filed a counter-complaint on December 6, 2013.J-S71030-15

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2015, discussing its findings related to the sixtee n custody factors set forth

in section 5328(a) of the Child Custody Act, (“the Act”), 23 Pa.C.S. §§ 5321–

5340.

On July 8, 2015, Mother filed a timely notice of a ppeal and concise

statement of matters complained of on appeal pursua nt to Pa.R.A.P.

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

In her brief on appeal, Mother raises the followin g issues:

A. Whether the lower court erred and abused its dis cretion by awarding primary physical custody to [Father], as t here was insufficient evidence to show that [Father] had met his burden to show that modification was in the child’s best inte rests?

B. Whether the lower court erred and abused its dis cretion by fashioning a custody order that separated the subje ct child from his siblings, as the evidence did not show a compel ling reason to separate the children?

C. Whether the lower court’s custody determination went against the weight of the evidence, as the majority of the evidence on the custody factors under 23 Pa.C.S.A. § 5328 milit ated in favor of a finding that primary physical custody should b e awarded to [Mother]?

D. Whether the lower court erred and abused its dis cretion by basing its decision on the past conduct of [Mother] , as it was no longer applicable because there was no evidence it produced an ongoing negative effect on the child’s welfare?

E. Whether the lower court erred and abused its dis cretion by failing to appropriately consider [Mother’s] role a s the primary caretaker of the subject child in fashioning the ne w custody order?

Mother’s Brief at 3. Mother combined her argument of issues A and C.J-S71030-15

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Mother argues that the evidence presented supporte d a finding that

she should have been awarded primary physical custo dy of Child. She

asserts that Father did not produce sufficient evid ence to support an award

of primary physical custody. Mother also contends that the trial court erred

by separating Child from her daughters, A. and J., who are his half-sisters,

as the evidence showed that Child has a loving, aff ectionate, and beneficial

relationship with them. Mother also argues that th e trial court erred in

basing its decision on her past conduct because it had no ongoing negative

effect on him. Finally, Mother contends that in fa shioning the custody order,

the trial court erred and abused its discretion by failing to consider her role

as Child’s primary caretaker. Mother’s Brief at 5.

Initially, we observe that because the custody hea rings in this matter

were held in December of 2014 and June of 2015, the Act is applicable.

C.R.F. v. S.E.F. , 45 A.3d 441, 445 (Pa. Super. 2012) (holding when custody

evidentiary proceeding commences on or after the ef fective date of the Act,

January 24, 2011, the provisions of the Act apply).

In custody cases, our standard of review is as fol lows:

In reviewing a custody order, our scope is of the b roadest type and our standard is abuse of discretion. We must a ccept findings of the trial court that are supported by c ompetent evidence of record, as our role does not include ma king independent factual determinations. In addition, w ith regard to issues of credibility and weight of the evidence, w e must defer to the presiding trial judge who viewed and assessed t he 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 a re unreasonableJ-S71030-15

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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 fin dings of the trial court.

R.L.P. v. R.F.M. , 110 A.3d 201, 207–208 (Pa.Super. 2015) (quoting C.R.F.
,
45 A.3d at 443).

We have stated:

The discretion that a trial court employs in custod y matters should be accorded the utmost respect, given the sp ecial nature of the proceeding and the lasting impact the result will have on the lives of the parties concerned. Indeed, the kn owledge gained by a trial court in observing witnesses in a custody proceeding cannot adequately be imparted to an appe llate court by a printed record.

Ketterer v. Seifert , 902 A.2d 533, 540 (Pa. Super. 2006) ( quoting

Jackson v. Beck , 858 A.2d 1250, 1254 (Pa. Super. 2004)).

In M.A.T. v. G.S.T. , 989 A.2d 11 (Pa. Super. 2010) ( en banc ), we

stated the following regarding an abuse of discreti on standard.

Although we are given a broad power of review, we a re constrained by an abuse of discretion standard when evaluating the court’s order. An abuse of discretion is not m erely an error of judgment, but if the court’s judgment is manifes tly unreasonable as shown by the evidence of record, di scretion is abused. An abuse of discretion is also made out wh ere it appears from a review of the record that there is n o evidence to support the court’s findings or that there is a cap ricious disbelief of evidence.

Id. at 18–19 (quotation and citations omitted).

With any custody case decided under the Act, the p aramount concern

is the best interests of the child. See 23 Pa.C.S. §§ 5328, 5338.

Section 5338 of the Act provides that upon petition , a trial court may modifyJ-S71030-15

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

§ 5338. The best interest factors that the trial c ourt must consider are set

forth at 23 Pa.C.S. § 5328. E.D. v. M.P. , 33 A.3d 73, 80–81 n.2 (Pa. Super.

2011).

Section 5328(a) of the Act provides as follows:

§ 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 conside ring 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 per mit frequent and continuing contact between the child a nd 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 wh ich party can better provide adequate physical safeguards and sup ervision of the child.

(2.1) The information set forth in section 5329.1(a )(1) and (2) (relating to consideration of child abuse and i nvolvement 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 ch ild’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, base d on the child’s maturity and judgment.J-S71030-15

- 7 - (8) The attempts of a parent to turn the child agai nst 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 chil d adequate for the child’s emotional needs.

(10) Which party is more likely to attend to the da ily 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 chil d 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 i nability to cooperate with that party.

(14) The history of drug or alcohol abuse of a part y or member of a party’s household.

(15) The mental and physical condition of a party o r member of a party’s household.

(16) Any other relevant factor.

23 Pa.C.S. § 5328. 2

In A.V. v. S.T. , 87 A.3d 818 (Pa. Super. 2014), this Court explain ed:

2 Effective January 1, 2014, the statute was amende d to include an additional factor at 23 Pa.C.S. § 5328(a)(2.1) (pro viding for consideration of child abuse and involvement with child protective s ervices). Although applicable at the time of the custody hearings in t his matter, there was no evidence that would have required the trial court’s consideration of this factor.J-S71030-15

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“ All of the factors listed in section 5328(a) are requi red to be considered by the trial court when entering a custo dy order.” J.R.M. v. J.E.A. , 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original). . . . The record must be clear on ap peal that the trial court considered all the factors. Id.

Section 5323(d) provides that a trial court “shall delineate the reasons for its decision on the record or in op en court or in a written opinion or order.” 23 Pa.C.S.A. 5323(d). Additionally, “section 5323(d) requires the trial court to set fo rth its mandatory assessment of the sixteen [Section 5328 c ustody] factors prior to the deadline by which a litigant m ust file a notice of appeal.” C.B. v. J.B. , 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied , 70 A.3d 808 (Pa. 2013). Section 5323(d) applies to cases involving custody and relocation. A.M.S. v. M.R.C. , 70 A.3d 830, 835 (Pa. Super. 2013).

In expressing the reasons for its decision, “there is no required amount of detail for the trial court’s exp lanation; all that is required is that the enumerated factors are considered and that the custody decision is based on those con siderations.” M.J.M. v. M.L.G. , 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied , 68 A.3d 909 (Pa. 2013). A court’s explanation of reasons for its decision, which adequately addresse s the relevant factors, complies with Section 5323(d). Id.

A.V. , 87 A.3d at 822–823.

In the present appeal, the trial court discussed t he sixteen custody

best-interest factors as follows:

(1) Which party is more likely to encourage and per mit frequent and continuing contact between the child a nd another party?

The testimony established that [Mother] has been v ery open and willing to provide [Father] additional tim e over and above the partial custody schedule set forth in the Custody Order. For example, when [Mother] was working on M ondays, she agreed that [Father] could have the child from 8:45 a.m. until 4:30 or 5:00 p.m. Both parents testified tha t, generally, their communication is civil in nature and that the y have been able to work out the holidays by mutual agreement a s well asJ-S71030-15

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make adjustments in the custody schedule. [Father] testified that he has been flexible with [Mother] relative to his schedule and gave some specific examples. We are satisfied that both parties have demonstrated a willingness to be flexi ble and both would encourage or promote continuing contact with the other 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 pa rty and which party can better provide adequate physical safeguards and supervision of the child.

There is no evidence of any present or past abuse committed by [Father] to [Child] or any party. [Fa ther] lives alone except when [Child] is in his custody. [Fath er] presented the testimony of [L.B.], who used to live next door to [Mother] and her family. She testified that she had observe d [Mother] screaming, yelling and cursing at the children and observed her beating them with a wooden spoon. [L.B.] also test ified that she has seen [T.H.], [Mother’s] fiancé, tap the girls’ genital areas when he corrects them. There was no evidence prese nted of any physical abuse between [Mother] and [T.H.] [T. H.] did acknowledge that he was scheduled for a hearing on Friday, June 5, 2015[,] in the State of Minnesota relative to al legations that he threatened his wife and left a bruise on her leg . [T.H.] denied the allegations and indicated that the alleg ed incident occurred more than one (1) year ago.

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

We find that both parents have performed parental duties concerning [Child] and that each parent is fully ca pable of performing such parental duties. It is also signif icant that both parents have attended the vast majority of [Child’s ] medical appointments.

[Father] was present when the child was born at Na son Hospital, Roaring Spring, PA. [Child] did have med ical issues upon birth and [Child] was transported by ambulance to the Conemaugh Hospital Neonatal intensive Care (NIC) Un it in Johnstown, PA. Each of the parents [was] with [Chi ld] during the five (5) days that he was in the NIC Unit.J-S71030-15

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(4) The need for stability and continuity in the ch ild’s education, family life and community life.

[Child] is only 11⁄2 years of age and, therefore, is not currently attending school. Both parents have been significantly involved in [Child’s] life since the date of his bi rth. [Mother] has served as primary custodian, however, [Father] has had significant partial custody rights. There is no do ubt that both parents love [Child] and have formed a bond with hi m. We also accept that [Child] has formed a bond with his two half-sisters, [A. and J.] [Child] also has the benefit of having his parental grandparents and extended members of [Father’s] fam ily in the area to serve as an additional support system into his future.

We accept [Mother’s] testimony that the last 11⁄2 yea rs “has been the most stable time” in her life. [T.H. ] seems to have helped stabilize her life. [Mother] and [T.H. ] have lived together for a little over one (1) year and are int erested in purchasing a larger home. They are looking at a ho me in Queen, PA, which is just over the Blair County Line in Bedford County, however, still within the Claysburg-Kimmel School District. The parents do live in different school districts, although [Child] has not yet started school.

[T.H.] has a Chemistry Degree and is employed as a Station Chemist for the Homer City Generating Stati on, where he directs all activities for the environmental discha rge of services along the Eastern seaboard. He has been employed i n his current position for approximately three (3) years. His job brought him from Minnesota to Pennsylvania, origina lly residing in Indiana, PA, before relocating to Sproul, PA to be with [Mother]. [T.H.] has filed for divorce in Blair Co unty, PA[,] against his current wife, to whom he has been marri ed for fourteen years. [T.H.] has five adult children, th ree of whom he adopted during his first marriage, and the youngest two from a different marriage. There was no testimony as to w hether he has maintained contact and communication with any o f his children.

[T.H.] recognizes that he is not the biological fa ther of [Child], and respects the role that [Father] has pl ayed and will continue to play in [Child’s] life. [T.H.] engages in activities with the children and helps the girls with their school work on a nightly basis.J-S71030-15

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(5) The availability of extended family.

[Father’s] parents live in Martinsburg, PA, approx imately 9 miles from his home. [Father] has extended family in the area, as he grew up in the Roaring Spring, Martinsburg ar ea and is a graduate of Central High School. The paternal gran dmother was employed as a Manager of the Housekeeping Departmen t at the Village of Morrison’s Cove Retirement home. It was her intention to retire this past December and she woul d be available, along with other extended family members , to care for [Child] if and when [Father] was unavailable.

[Mother] is from the Carlisle area, where certain family members still reside. Her fiancé, [T.H.], moved to Pennsylvania from Minnesota and has no family in Pennsylvania.

(6) The child’s sibling relationships.

[Father] has no other children, while [Mother] has two (2) daughters, [A.] (7 years of age) and [J.] (5 years of age) of her prior relationship with [M.D.]. [Mother] was forme rly married to [M.D.], and she freely acknowledged that he was ver y abusive and controlling during their relationship. [A. and J.] are the halfsiblings of . . . [Child]. [Mother] described her two (2) daughters as “mother hens” and [stated] that they l ook out for [Child]. She further testified that there is a spe cial bond between [J.] and [Child].

(7) The well- reasoned preference of the child, base d on the child’s maturity and, judgment.

Not applicable as the subject child is only 11⁄2 year s of age.

(8) The attempts of a parent to turn the child agai nst the other parent, except in cases of domestic violence w here reasonable safety measures are necessary to protect the child from harm.

There is no evidence that either party engages in any actions in an attempt to turn the child against the other parent, therefore, this is a non-factor.J-S71030-15

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(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the chil d adequate for the child’s emotional needs?

Both of these parents love [Child]. We do find, ho wever, that [Father] is the party more likely to maintain a loving, stable, consistent and nurturing relationship with [Child] adequate for the child’s emotional needs.

[Mother], unfortunately, has a significant past hi story. She has been married two (2) times. Her first marr iage was to [M.D.], who has fathered five (5) children with [Mo ther]. Her parental rights to her first three (3) children — [M .] (now 13 years of age), [C.] (11) and [L.] (8) — were involun tar[ily] terminated through a dependency proceeding in Dauph in County, PA. [Mother] met [M.D.] in 2001 when she w as 17 years of age and he was 21. [Mother’s] mother obje cted to their relationship[,] and [Mother] moved out of her mothe r’s home into the home of [M.D.’s] parents. Unfortunately, things did not work out there[,] and the couple went out on their own. [Mother] testified that after she became pregnant w ith [M.], [M.D.] became “nasty and controlling”. [C.] was bo rn in 2003[,] and the parties married in April 2005. At that tim e, [Mother] testified that [M.D.] became “very physically abusi ve”, that there were “a lot of police calls” and that she was “tran sported by ambulance numerous times” but would eventually agre e to drop the criminal charges filed against [M.D.]

[Mother] told of a “major incident” in 2007 when t he police were called and [M.D.] was arrested and put in the Dauphin County Prison. She indicated that she refused to t estify against him and, therefore, was charged with Perjury, Unswo rn Falsification, Endangering Welfare of Children[,] a nd five (5) counts of Cruelty to Animals. She confirmed that [ M.D.] was abusive toward the children. She eventually pled g uilty to the Endangering Welfare and Animal Cruelty charges and received probation.

During the course of the investigation, the local Children, Youth & Services took custody of the children and d irected that [Mother] attend parenting classes, obtain stable ho using and employment, attend visits with the children at the foster parents[’,] and put other reunification services in to effect. [Mother] unfortunately, chose to resume her relatio nship withJ-S71030-15

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[M.D.], eventually resulting in reunification servi ces ending and termination of parental rights decrees being entere d against both parents.

[Mother] acknowledged that relative to the underly ing CYS investigation wherein the Agency took custody and u ltimately terminated the parents’ parental rights, . . . the allegations also included deplorable home conditions, including the smell of animal feces and urine. At that time, there were t wo (2) dogs and two (2) cats residing within the residence.

[M.D.] is also the biological father of [A. and J. ]. [Mother] has full legal and physical custody of these two gi rls through a Dauphin County Order.

We specifically note [Mother’s] testimony concerni ng any continued contact between [A.], [J.,] and [M.D.] wa s inconsistent between our hearings. At our first he aring, [Mother] testified that [M.D.] does not have contac t with the girls and that they have “no relationship” with him . She testified that [M.D.] has attempted to contact her, but that she ignores him. She did state that [M.D.] will text her on oc casion and inquire about the girls, and she will respond since he is their father.

During our second hearing, [Mother] acknowledged t hat she has run into [M.D.] on a few occasions (she est imates 3 to 4) in public locations and has allowed him to have contact with [A. and J.], although she also states that the “gir ls don’t know him as their father”. She indicated that [M.D.] cu rrently lives in Carlisle, PA.

[Mother] dropped out of high school, but achieved her GED in 2009. She is currently taking on-line courses th rough Mississippi State University with the intent of ach ieving a Bachelor’s Degree in Operational and Broadcast Mete orology. She just completed her first term.

As we stated in paragraph 4 above, we do believe t hat the Mother’s fiancé, [T.H.], has been a stabilizing fac tor in her life. Absent [T.H.’s] involvement, we are not convinced t hat [Mother] could provide a safe, stable and structured home en vironment for her children, including specifically [Child] he rein.J-S71030-15

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During his testimony, [Father] stated when the par ties were married and residing together, [Mother] was co nstantly in contact, including daily phone calls, with a [J.D.] , a former boyfriend. [J.D.] is an over-the-road truck driver . [Father] testified about an interlude that they had in June, 2014 at a hotel near the Williams Grove Speedway. [Father] k ept asking [Mother] where she was going [to] stay and indicate d that he could not get much of an answer out of her. She th en stated that she was going to meet a friend, whom she later identified as [J.D.] and admitted that he was going to give her m oney for a motel room. [Father] later went to the motel room and saw [J.D.’s] clothes and shoes in the bathroom. [Fathe r] stated that he had a “sick feeling” and then was told that we [ sic] was not allowed to stay in the motel room that night with h is wife.

[Mother] denied any romantic tryst, however, we do not find her testimony credible. [Mother] acknowledged that she had a hard time “getting over” [J.D.] when she was with [Father] and that [J.D.] is “still a friend” of her s.

[Mother] has lived at several different addresses since September, 2010, when she separated from [M.D.]

[Mother] acknowledged that her oldest daughter, [C .], is now sixteen (16) years of age and lives with her pa ternal grandparents. The father to this child is [C.S.] [Mother] does not have any custodial rights relative to this chil d. She was fourteen (14) years of age when she gave birth to t his child.

[Father] also complained of the Mother smoking dur ing her pregnancy with [Child]. [Mother] testified that [F ather] never voiced such complaint, however, again we find [Moth er’s] testimony not to be credible.

Clearly, [Mother’s] past history has been unstable and chaotic. She has exercised poor judgment in her pa st relationships with men. [T.H.] does appear to have provided some structure and stability in her life and that o f her children, but again, their relationship is less than a year o ld.

What is of utmost concern to the court is the test imony of [L.B.], who testified on behalf of [Father]. [L.B. ] is a stay-athome mother with an 11 year old child. She lives i n Claysburg and has known [Mother] since the family moved in ne xt door inJ-S71030-15

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March, 2014. They lived next door for approximatel y 71⁄2 months until on or about October 7, 2014. During t his course of time, there were occasions when [L.B.] babysat [Mot her’s] children. She also testified that [Mother] told he r that she served as a “housekeeper and companion” for a gentl eman and that she would do garden work and perform oral sex on him for $10.00 per hour. [Mother] also advised [L.B.] that she did not want [Father] to know that she had picked up this e xtra job. [L.B.] indicated that she met this gentleman, did n ot feel comfortable and never returned. She also advised [ Mother] that this man was “not normal” and she voiced her concer ns. She indicated [Mother] then quit this employment two (2 ) weeks later.

[L.B.] indicated that she was inside [Mother’s] ho me approximately 20 to 30 times between the time perio d of March—October 2014. She described that one could ba rely walk through [Mother's] bedroom; the bathroom was total chaos, the children’s room was rarely clean, and that the smel l of cat litter boxes was “unimaginable”. [L.B.] testified that [ Mother] had three (3) cats, then a fourth and then a fifth cat as well as a dog. The house was exterminated in September 2014 and then again by the landlord after [Mother] and the family moved out in October 2014.

[L.B.] related different incidents where there was lack supervision by [Mother], specifically an incident w hen [J.] (then 4 years of age) was riding her bike, went out on th e roadway and was almost hit by a vehicle; another incident i n August or September 2014 when a man came to the house whom th e children called “daddy” and [Mother] asked [L.B.] t o keep the girls out of the house as she wanted to have sex wi th this individual. [T.H.] was at work at this time. [L.B .] told of another incident during a September 2014 evening wh en the two girls were outside playing and [Mother] was nowhere to be found. [L.B.] went inside the house and found [Chi ld] alone in the house. She held him until [Mother] came back h ome approximately 1⁄2 hour later.

Around Mother’s Day, 2014, [L.B.] met [Mother’s] m other [(“Maternal Grandmother”)]. [L.B.] indicated that [Mother] was talking about sex, dildos and handcuffs[,] and she brought out handcuffs and whips and said she was going to use t hem on [T.H.] that night. During this conversation, the g irls wereJ-S71030-15

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present in the living room[,] and [Maternal Grandmo ther] was holding [Child].

[L.B.] related another incident that occurred in l ate summer, 2014 when [Mother] told her that they had c hampagne and wine coolers and had “a heck of night drinking and partying”. [Mother] said she sent the girls to bed early and remarked[,] “I hope you didn’t hear anything”, expl aining that they were running outside naked[,] and that [Matern al Grandmother] videotaped she and [T.H.] while they w ere having sex on the back deck. [L.B.] testified that [Mater nal Grandmother] tried to show her the video on her cel l phone but that [Mother] told her not to.

[L.B.] also testified that she has seen the girls sit around the house naked with [T.H.] putting lotion on them. She has heard [Mother] scream and swear and hit the childre n with a wooden spoon.

[L.B.] testified that she came to court to testify “for the welfare of all three children, especially [Child]”. She wants to see [Child] grow up in a good home environment. [L .B.] was concerned as to the children’s welfare during the s ummer of 2014 and did contact Blair County Children, Youth & Families. [L.B.] also indicated that the police have visited her on a few occasions to discuss [Mother] and the living enviro nment for the children.

We are satisfied that [L.B.] acted with good inten tions in coming to court and testifying on behalf of [Father ]. Her testimony was very detailed and specific. [Mother] acknowledged that she and [L.B.] had a friendly rel ationship before going their separate ways. [Mother] never p rovided any plausible explanation as to why their friendship en ded, adding further credence to the testimony of [L.B.]

[L.B.] also confirmed that she just recently met [ Father] and that she is not friends with him or his family.

We find [L.B’s] testimony to be credible and, ther efore, have serious concerns as to the home environment th at [Mother] has, and will provide into the future for [Child]. We are fully satisfied that [Father] has, and will continue to p rovide a healthy home environment for [Child]. We were impressed wi th [Father]J-S71030-15

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and are encouraged by the fact that he seems to hav e a positive relationship with his parents and extended family m embers, who together will provide a positive source of support for this young child growing up.

(10) Which party is more likely to attend to the da ily physical, emotional, developmental, educational and special needs of the child?

We find that both parties have, and would continue to attend to the daily physical, emotional, developmen tal, educational and special needs of the child. [Child ] is healthy and developmentally on track.

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

The parties live approximately 10 minutes away fro m each other.

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

[Father] has his parents and other extended family members available in the area to care for [Child]. Neither [Mother] nor [T.H.] have any family in the area, th erefore, it would be necessary for them to utilize a daycare or a caregiver if both are working and /or otherwise unavailable.

(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.

Generally, since [Child’s] birth, both parties hav e been able to engage in civil communication with each oth er and have shown a willingness to be flexible and cooperate co ncerning [Child].

(14) The history of drug or alcohol abuse of a part y or member of a party’s household.

This is a non-factor for both parties.

(15) The mental and physical condition of a party o r member of a party’s household.J-S71030-15

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This is a non-factor for both parties, other than [Mother] is currently engaged in physical therapy as she is rec overing from knee surgery.

(16) Any other relevant factors.

There was much testimony spent on issues involving the paternal grandparents, especially the paternal gran dfather, and [Mother]. In summary, we accept the fact that they do not have a positive relationship and that there is not an op en and civil line of communication between them. However, based upon the evidence adduced during both of our hearings, we ca n understand why the paternal grandparents have conce rns relative to [Mother’s] home environment and past hi story involving men, including specifically her interlude with [J.D.] while she was married and cohabitating with . . . [ Father].

As a word of caution, we would strongly encourage the paternal grandparents (especially the paternal gran dfather) and [Mother] to be civil with each other and avoid maki ng any derogatory and disparaging comments about the other
, especially in the presence of [Child].

Summary/Conclusion:

In considering all relevant factors to determine c ustody as set forth in 23 Pa.C.S.A. §5328, and taking into co nsideration the paramount concern in a child custody case, i.e. , the best interests of the child, [Child], we are going to aw ard [Father] primary residential custody. In review of [Father’ s] circumstances, we find nothing but positive factors . [Father] has no prior drug and alcohol history nor criminal invo lvement. He owns his own home and is stable and self-supporting . He has a close relationship with his parents and extended fa mily members, many of whom are in the Blair County area. He has been totally devoted and committed to his son, bein g present at the time of his birth and attending all medical app ointments except for the brief two (2) month period of time t hat the consensual PFA Order was in effect. He has provide d, and from all accounts will continue to provide, a healthy, s afe, stable and secure home environment for his son.

[Mother] does appear to be taking some steps to im prove the quality of her life. We certainly give her cre dit for obtainingJ-S71030-15

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her GED and participating in college courses on-lin e through Mississippi State University. As we stated above, [T.H.], who has a good job and significant income has brought s ome stability into her life. However, their relationship has onl y been in existence for a little over one (1) year. Based up on [Mother’s] prior history, we have some concerns as to the futu re of this relationship.

[Mother] has had a chaotic history, including invo lvement with the criminal justice system and Dauphin County Children Youth & Services. Her parental rights were termina ted for three (3) of her children. She has made questionable cho ices concerning her relationships with men. She has had instability regarding her housing and employment. We are also very concerned with the incidents as testified to by [L. B.], whose testimony we found to be credible. It is important to note that some of incidents that [L.B.] testified to occurred after [Mother] and [T.H.] began their relationship. [Mother] and [T.H.] have lived together since June, 2014, and they lived nex t door to [L.B.] until October, 2014.

Based upon [Father’s] self-employment, he is readi ly available the months of November through May to car e for his son. Even during his busy season, his work schedul e is flexible. It is important that [Child] maintain his relations hip and bond with his two (2) half-sisters, [J. and A.] Therefo re, we will attempt to construct a custody schedule that allows [Mother] and her family significant time with [Child].

As we stated in court, we commend the parties for their ability to engage in civil communication over the y ears. We are especially impressed that since the Order was origi nally entered, there were no prior petitions for contempt or speci al relief. It is our hope that upon entry of this Order, the parties can continue to communicate and cooperate with each other, and b e flexible relative to the custody schedule. We trust that th ey will continue to keep in mind [Child’s] best interests a nd welfare first and foremost.

Trial Court Opinion and Order, 6/8/15, at 3–12 (int ernal citations omitted)

(emphasis in original).J-S71030-15

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As noted, Mother combines argument on her first an d third issues.

Mother’s Brief at 3, 5. She contends that the tria l court committed an error

of law or abused its discretion by awarding Father primary physical custody

of Child because the evidence showed that she was t he proper parent to

have primary physical custody, and Father did not p roduce sufficient

evidence to warrant an award of primary physical cu stody to him. Mother’s

Brief at 5. Mother challenges the weight that the trial court placed on the

testimonial evidence in relation to the section 532 8(a) custody/best interest

factors.

Mother does not dispute the trial court’s determina tion regarding the

weight it assigned to section 5328(a)(1), (2), (7), (8), (1), (11), (14), (15),

or (16) based on the testimonial evidence. Rather, Mother specifically

challenges the weight that the trial court placed o n the testimonial evidence

with regard to section 5328(a)(3), asserting that s he has been Child’s

primary caregiver and the provider of parental duti es for Child under the

February 4, 2014 custody order and its Addendum dat ed June 17, 2014.

Mother’s Brief at 7. In her separately-numbered fi fth issue in her brief,

Mother asserts that the trial court should have acc orded more weight to her

performance of parental duties as Child’s primary c aretaker, citing M.J.M. v.

M.L.G. , 63 A.3d 331, 339 (Pa. Super. 2013). Mother’s Bri ef at 15–16. In a

related argument, Mother argues that because she ha d primary physical

custody of Child under the June 2014 custody order and Addendum, the trialJ-S71030-15

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court should have weighed considerations of stabili ty under section

5328(a)(4) in her favor. Mother’s Brief at 7.

In M.J.M. , this Court considered the mother’s argument that the trial

court erred by failing to afford proper considerati on to her role as the child’s

primary caretaker. The mother had desired for the trial court to afford more

weight to her role as the child’s primary caretaker . A panel of this Court

reasoned that the Act indicated that the only facto rs given weighted

consideration are factors that affect the safety of the child. M.J.M. , 63 A.3d

at 338. The M.J.M. panel explained:

The language of [the Act] is clear. It explicitly provides that all relevant factors shall be considered by th e trial court, and the only factors that should be given “weighted consideration” are factors that “affect the safety of the child[.]” Id . “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarde d under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 192 1(b); see also Ario v. Ingram Micro, Inc. , 600 Pa. 305, 317, 965 A.2d 1194, 1201 (2009). If the Pennsylvania Legislature inten ded for extra consideration be given to one parent because of his or her role as the primary caretaker, it would have included la nguage to that effect. Stated another way, the absence of su ch language indicates that our Legislature has rejected the not ion that in analyzing both parents, additional consideration sh ould be given to one because he or she has been the primary caret aker.

Furthermore, the consideration the primary caretak er doctrine sought to address (which parent spent more time providing day-to-day care for a young child) is add ressed 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 stabi lity and continuity in the child’s education, family life an d community life.”). The considerations embraced by the primar y caretaker doctrine have been woven into the statutory factors , such that they have become part and parcel of the mandatory i nquiry.J-S71030-15

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In short, the Legislature has created a mandatory inquiry to aid trial courts in determining the best interes ts of the child in a custody dispute. In doing so, it articulated the components of a parent’s obligations and characteristics, and a c hild’s needs and welfare, that must be incorporated in the trial court’s custody decision where the parents are incapable of doing so on their own. In setting forth these factors, the Leg islature has required the trial court to give additional weight only to factors that it finds affect the safety of the child. This language is clear, and we cannot expand it to provide that a trial cou rt must also give weighted consideration to a party’s role as pr imary caretaker. We simply cannot graft the judicially-c reated primary caretaker doctrine on to the inquiry that the Legis lature has established, and so we conclude that the primary ca retaker doctrine, insofar as it required positive emphasis on the primary caretaker’s status, is no longer viable.

We hasten to add that this conclusion does not mea n that a trial court cannot consider a parent’s role as th e primary caretaker when engaging in the statutorily-guided i nquiry. As discussed above, a trial court will necessarily con sider a parent’s status as a primary caretaker implicitly as it cons iders the section 5328(a) factors, and to the extent the tria l 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 f act to determine which factors are most salient and critical in each particular

case. See A.D. v. M.A.B. , 989 A.2d 32, 35-36 (Pa. Super. 2010) (“In reviewing a custody order . . . our role does not include making independent factual determinations. . . . I n addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who view ed and assessed the witnesses first-hand.”). Our decision here does not change that.

M.J.M , 63 A.3d at 338–339 (footnote omitted).

Based on this Court’s discussion of the primary ca retaker doctrine in

M.J.M. , we find no merit to Mother’s contentions regardin g the weight that

the trial court afforded to the testimony related t o factors 5328(a)(3) and

(4), and the primary caretaker doctrine. We find t hat the trial court’sJ-S71030-15

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conclusions are not unreasonable, as shown by the e vidence of record, and

we find no error of law on the part of the trial co urt. We, therefore, will not

disturb the trial court’s determination as to the f actors set forth in

5328(a)(3) and (4). C.R.F. , 45 A.3d at 443.

Next, Mother asserts that the trial court should h ave afforded

additional weight to the fact that she lives with h er fiancé, T.H., and her two

daughters, who are available to assist her with Chi ld. She argues that the

trial court should have found that she has more in- home support from her

family members than Father, who lives alone but has extended family

members living nearby. Accordingly, Mother urges t hat the trial court

should have weighed the factors set forth in sectio n 5328(a)(5) and (12) in

her favor. Mother’s Brief at 7–8.

Again, Mother is requesting this Court to disturb the trial court’s

weight determinations with regard to these factors. As we stated in M.J.M.
,
this Court’s role does not include making independe nt factual

determinations, and, with regard to issues of credi bility and weight of the

evidence, we must defer to the presiding trial judg e, who viewed and

assessed the witnesses first-hand. Here, we find t hat the trial court’s

conclusions are not unreasonable as shown by the ev idence of record, and

we find no error of law on the part of the trial co urt. Thus, we will not

disturb the trial court’s determination as to the f actors set forth in section

5328(a)(5) and (12). C.R.F. , 45 A.3d at 443.J-S71030-15

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Mother avers that the trial court should have foun d that the

testimonial evidence with regard to section 5328(a) (6), Child’s relationships

with his half-siblings, weighs in favor of Mother r etaining primary physical

custody of Child. Mother’s Brief at 8. In her sep arately-numbered second

issue in her brief, Mother argues that the trial co urt should have accorded

more weight to the consideration of raising the hal f-siblings and Child

together under the “family unity” or “whole family” doctrine, citing M.J.M.
,

63 A.3d 331. Mother’s Brief at 15–16.

For the reasons expressed in M.J.M. concerning the viability of the

primary caretaker doctrine in light of the Act, we find no merit to Mother’s

argument concerning the family unity or whole famil y doctrine. We find that

the trial court’s conclusions are not unreasonable, as shown by the evidence

of record, and we find no error of law on the part of the trial court.

Therefore, we will not disturb the trial court’s de termination. C.R.F. , 45

A.3d at 443.

Finally, Mother challenges the trial court’s credi bility and weight placed

on the section 5328(a)(9) factor. She complains th at the trial court placed

undue weight on this factor and accepted unreliable testimony from L.B.,

who Mother posits did not witness the incidents tha t she described and had

not complained to police. Mother’s Brief at 8–10. Mother urges that L.B.

could not have observed any of the incidents after October of 2014, because

Mother moved from L.B.’s residential area. Id. at 9. Mother asserts thatJ-S71030-15

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there was no testimony of any negative effect upon the children currently

residing in her home due to any of the alleged inci dents described by L.B.

Id. at 9–10. In her related fourth issue in her brief , Mother avers that the

trial court committed reversible error in basing it s decision on Mother’s past

conduct because there was no ongoing negative effec t on Child or his halfsiblings. Mother’s Brief at 12–13. Mother contend s that the trial court

improperly considered her past history, citing In re Leskovich , 385 A.2d

373, 377 (Pa. Super. 1978), a case which predated t he Act.

We find no merit to Mother’s claims. The trial co urt did not base its

custody decision on Mother’s past actions. Rather, the trial court considered

all of the evidence concerning Mother’s actions, in cluding those from the

summer and early fall months preceding the custody hearings. For the

reasons expressed in M.J.M. , we find no expression of the Legislature in the

Act of any test regarding an ongoing negative effec t on children. The Act

sets forth only the sixteen-factor custody/best int erest test. We find that

the trial court’s conclusions in this matter are no t unreasonable, as shown by

the evidence of record, and we find no error of law on the part of the trial

court. Therefore, we will not disturb the trial co urt’s determination. C.R.F.
,

45 A.3d at 443.

Order affirmed.J-S71030-15

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/8/2016