J-S38031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

H.M.M.H., : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

C.E.A., :

:

Appellant : No. 295 MDA 2015

Appeal from the Order entered on January 14, 2015

in the Court of Common Pleas of Lancaster County,

Civil Division, No. CI-09-15535

BEFORE: WECHT, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 17, 2015

C.E.A. (“Father”) appeals from the Order granting shared legal custody 

of L.A.M.-H. (“Child”), born September 11, 2008, to Father and H.M.M.H. 

(“Mother”), and primary physical custody of Child to Mother. We vacate the 

Order and remand for further proceedings.

In its Opinion, the trial court set forth the relevant factual and 

procedural history, which we adopt herein for purposes of this appeal. See

Trial Court Pa.R.A.P. 1925(a) Opinion, 3/16/15, at 1-5.

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

1. Whether the [trial] court erred in its application of the factors 

under 23 Pa.C.S.A. § 5328 in determining the best interest of 

[C]hild when it reduced [Father’s] custodial time with [C]hild?

2. Whether the [trial] court erred in its application of the factors 

under 23 Pa.C.S.A. § 5328 when it did not properly review 

the factors to determine whether the individual factors 

weighed in favor of a party?
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3. Whether the [trial] court erred in determining that [Father] 

could not properly pick up [] Child because of his back 

problems and wrist problems? 

Brief for Father at 6.

In custody cases, 

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

Additionally, 

[t]he discretion that a trial court employs in custody matters 

should be accorded the utmost respect, given the special nature 

of the proceeding and the lasting impact the result will have on 

the lives of the parties concerned. Indeed, the knowledge 

gained by a trial court in observing witnesses in a custody 

proceeding cannot adequately be imparted to an appellate court 

by a printed record. 

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

omitted).
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In any custody case decided under the Child Custody Act (“Act”),

1

the 

paramount concern is the best interests of the child. See 23 Pa.C.S.A. 

§§ 5328, 5338. Section 5328(a), which sets forth a list of sixteen factors 

that the trial court must consider when making a “best interests of the child” 

analysis for a custody determination, 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 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.

(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.

 

1 See 23 Pa.C.S.A. §§ 5321 et seq. Because the custody trial was held in 

December 2014, the Act applies to this case. See C.R.F., 45 A.3d at 445 

(holding that, if the custody evidentiary proceeding commences on or after 

the effective date of the Act, i.e., January 24, 2011, the provisions of the Act 

apply).
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(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.A. § 5328(a).

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

modify a custody order if it serves the best interests of the child. Id.; see 

also E.D. v. M.P., 33 A.3d 73, 80-81 n.2 (Pa. Super. 2011). When deciding 
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a petition to modify custody, a court must conduct a thorough analysis of 

the best interests of the child based on the relevant section 5328(a) factors. 

E.D., 33 A.3d at 73, 80. “All of the factors listed in section 5328(a) are 

required to be considered by the trial court when entering a custody order.” 

J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original).

Moreover, section 5323(d) mandates that, when the trial court awards 

custody, it “shall delineate the reasons for its decision on the record in open 

court or in a written opinion or order.” 23 Pa.C.S.A. 

§ 5323(d). The trial court may not merely rely upon conclusory assertions 

regarding its consideration of the section 5328(a) factors in entering an 

order affecting custody. See M.E.V. v. F.P.W., 100 A.3d 670, 681 (Pa. 

Super. 2014). 

As Father’s first and second issues are related, we will address them 

together. Father contends that the trial court’s analysis of the section 

5328(a) factors does not support a reduction of his custodial time with Child. 

Brief for Father at 13. Rather, Father asserts, the trial court’s analysis 

suggests that (1) it had no concerns regarding the appropriateness or level 

of care provided by Father; and (2) both parents provide an equal level of 

care for Child during their respective custodial periods. Id. at 13-14. Father 

claims that the trial court’s decision to reduce his custodial time with Child is 

inconsistent with its analysis of the section 5328(a) factors. Id. at 14. 

Although Father concedes that the trial court articulated its “perceived 
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concern” regarding his drowsiness when taking prescription medications, and 

his inability to pick up Child due to his wrist and back problems, Father 

contends that the trial court’s analysis does not include a determination that 

these issues affect Father’s ability to adequately care for Child, or that Child 

is unsafe in Father’s care. Id. Father argues that the trial court’s decision 

to grant him custodial time in the summer, in an amount equal to Mother’s 

custodial time, rebuts any presumption that he is unfit to care for Child 

because of his use of prescription medication and his wrist and back 

problems. Id. Finally, Father contends that the trial court did not explain 

the application of the section 5328(a) factors to the specific facts and 

circumstances of the case, and failed to provide any meaningful explanation 

for its decision to decrease Father’s custodial time with Child. Id. at 15-16. 

Our review of the record discloses that the trial court entered a 

custody Order on January 22, 2013, wherein it granted Father partial 

physical custody of Child on alternating weekends from Saturday at 9:00 

a.m. until Monday at 9:00 a.m., with an additional two and one half days of 

physical custody of Child per week.2 See Trial Court Order, 1/22/13, at 2 

(unnumbered). On July 2, 2014, Father filed a Petition for Modification of 

the January 22, 2013 custody Order, seeking additional custodial time with 

Child. On October 6, 2014, the trial court entered a temporary custody 

 

2 The Order defined a “day,” for purposes of custody, as 9:00 a.m. to 8:00 

p.m., but also specified that “Father shall have two (2) overnight periods of 

weekday custody.” See Trial Court Order, 1/22/13, at 2 (unnumbered).
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Order in which it modified Father’s partial physical custody of Child to 

“alternate weekends [] from Wednesday after school until Sunday at 6:00 

p.m.” See Trial Court Order, 10/6/14, at 2. On January 14, 2015, following 

a custody trial,3the trial court modified Father’s physical custody during the 

school year to “every other weekend from Friday after school until Monday 

at school[,]” and during the summer “on a weekly rotating basis from 

Sunday at 6:00 p.m. to the following Sunday at 6:00 p.m.” See Trial Court 

Order, 1/14/15, at 2.

Troublingly, in relation to its most recent modification of Father’s 

custodial time with Child, the trial court indicated that it was “not bound to 

address the sixteen [section 5328(a)] factors in determining [Child’s] best 

interest.” See Trial Court Opinion 1/14/15, at 3 (unnumbered); see also

Trial Court Pa.R.A.P. 1925(a) Opinion, 3/16/15, at 6.

4

 In arriving at this 

determination, the trial court relied on A.V. v. S.T., 87 A.3d 818, 823-24 

(Pa. Super. 2014). 

 

3 The trial court made no ruling at the conclusion of the custody trial, nor did 

it discuss the section 5328(a) factors on the record. See N.T., 12/19/14, at 

145. Rather, the trial court indicated that it would issue an order setting 

forth its custody determination. See id. 

4

In contrast to these statements, the trial court entered a pretrial Order on 

November 20, 2014, in which it acknowledged that, during the upcoming 

custody trial scheduled for December 19, 2014, “[t]he [trial c]ourt is 

required to consider all of the relevant child custody factors as set forth in 

23 Pa.C.S.A. § 5328(a).” 
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Here, Father’s Petition for Modification compelled the trial court to 

decide which physical custody arrangement was in Child’s best interest, 

squarely implicating an award of a form of custody under section 5323(a),5

and requiring the trial court to consider all of the section 5328(a) factors. 

See S.W.D. v. S.A.R., 96 A.3d 396, 406 (Pa. Super. 2014) (holding that a 

father’s petition to ratify the informal custody arrangement between the 

parents constituted a request to change the form of physical custody and, 

therefore compelled the trial court to consider all the section 5328(a)

factors). The trial court’s reliance upon A.V. implicates its mistaken belief 

that, because the January 14, 2015 custody Order did not change the type 

of custody previously awarded to Father (i.e., partial physical custody), the 

trial court was not required to consider the factors set forth in section 

5328(a). Such an interpretation is incorrect, and contravenes the plain 

language of section 5328(a), which requires the trial court to determine the 

best interest of the child by considering all relevant factors “[i]n ordering 

any form of custody[.]” 23 Pa.C.S.A. § 5328(a) (emphasis supplied); see 

also E.D., 33 A.3d at 73, 80 (holding that, when deciding a petition to 

 

5 Section 5323(a) identifies the types of custody that a trial court may award 

“after considering the factors set forth in section 5328.” 23 Pa.C.S.A. 

§ 5323(a) (emphasis supplied).
J-S38031-15

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modify custody, a trial court must conduct a thorough analysis of the best 

interests of the child based on the relevant section 5328(a) factors).

6

Because the trial court was ruling on Father’s “request to change the 

form of physical custody[, it was,] therefore, bound to decide whether the 

prior [O]rder remained in Child’s best interest.” S.W.D., 96 A.3d at 406. 

Accordingly, the trial court’s failure to address the 5328(a) factors

constitutes an abuse of discretion. Id. at 407. We are therefore constrained 

to vacate the trial court’s January 14, 2015 Order, and remand for 

application of the section 5328(a) best interest factors, and further 

proceedings, if necessary. 

Due to our disposition of Father’s first two issues, we need not address 

his remaining issue.

Order vacated; case remanded for further proceedings; jurisdiction 

relinquished.

 

6 The trial court also relied on M.O. v. J.T.R., 85 A.3d 1058, 1063 (Pa. 

Super. 2014), wherein the Court held that the trial court’s modification of 

the existing custody order, which did not change the underlying award of 

custody but merely provided that father was permitted to work during three 

of his summer vacation weeks with children, did not directly implicate 

section 5328(a) or require the trial court to address the section 5328(a) 

factors. We conclude that M.O. is inapposite, as the modification at issue in 

that case did not involve any award of custody. See A.V., 87 A.3d at 824 

n.4.
J-S38031-15

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015
Order on March 12, 2010. 

conference on March 10, 2010, where an agreement was reached, and the Court entered a final 

a temporary custody order on January 21, 2010. The parties attended a follow-up custody 

parties attended the custody conference, where no agreement was reached, and the Court entered 

Court entered a scheduling order scheduling a custody conference for December 10, 2009. The 

Plaintiff••••••••• ... ("Mother") filed a Complaint in Custody against 

C.A,E, 

Defendant••••-•llil•JI - ("Father") on October 27, 2009. On November 5, 2009, the 

I. PROCEDURAL HISTORY 

1/./,A. M. J/. 

custody order. 

rationale for ruling on Defendant request for a modification of the parties' 

Complained on Appeal, the Court addresses the matters individually and further details its 

&.A.£'. s 

Pa.R.A.P. 1925(a). In response to the defendant's statements in his Statement of Matters 

the Opinion and Order dated January 13, 2015, upon which the Court relies in compliance with 

Opinion and Order dated January 13, 2015. The reasons for that custody decision are stated in 

PA R.A.P.1925 OPINION 

CA€. 

The defendant, ••••I., has filed a Children's Fast Track Appeal of the Court's 

Defendants. 

Plaintiff, 

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v. No. CI-09-15535 

C.c..A. 

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

H.M.M.H. CIVIL ACTION-LAW 

-- 

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2 

Father filed a Petition to Modify Custody on March 29, 2010, and the Court entered an 

order scheduling a custody conference for May 26, 2010. The parties attended the custody 

conference, where an agreement was reached, and the Court entered a custody order on June 14, 

2010 and scheduled a follow-up conference for August 19, 2010. The parties attended the 

follow-up custody conference and reached an agreement, which the Court entered as a final 

custody order on September 7, 2010. 

On August 25, 2011, Father filed a Petition to Modify Custody. The Court entered an 

Order scheduling a custody conference for October 27, 2011. The custody conference was 

attended by Mother only and the Court entered an Order on November 4, 2011 reinstating the 

September 7, 2010 custody order. 

On November 10, 2011, Father filed another Petition to Modify Custody and the Court 

entered an Order scheduling a custody conference for January 19, 2012. The parties attended the 

custody conference, where an agreement was reached, and the Court entered a final custody 

order on February 10, 2012. 

On July 26, 2012, Father filed a Petition to Modify Custody and the Court entered an 

Order scheduling a custody conference for September 13, 2012. The parties attended the custody 

conference, where no agreement was reached, and the Court entered a temporary custody order 

and scheduling a hearing for October 25, 2012. The Court entered an Order on October 25, 2012 

continuing the custody hearing to January 3, 2013. Prior to the custody hearing, the parties 

reached a custody agreement and the Court entered a final custody order on January 18, 2013. 

Father filed a Petition for Modification on July 2, 2014. The Court issued an Order 

scheduling a custody conference for August 18, 2014. The parties attended the custody 

conference, where no agreement was reached, and the Court entered a temporary custody order 

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3 

issues with his back and wrist that prevent him from working though Father asserts that his 

Father is currently unemployed and is physically disabled. (Id. at 9, 49-51 ). Specifically, he has 

Father only has a ninth grade education and has worked manual labor jobs. (Id. at 56, 89). 

respective parents in their parent's homes. (Id. at 4, 69, 86-87). 

(DOB: 9/11/08) ("Child"). (Id. at 4, 89). Both parties live in Lancaster, Pennsylvania with their 

Mother and Father were married in September 2007 and divorced in February 2009. 

L./r./M .... H. 

(Trial Tr. p. 87, Dec. 19, 2014). They have one child together,······· 

II. SUMMARY OF THE FACTS 

granting Mother's Petition for Special Relief on March 11, 2015. 

the holiday schedule set forth in the January 13, 2015 Order. The Court entered an Order 

Mother filed a Petition for Special Relief on March 11, 2015, asking the Court to clarify 

Notice of Appeal and Concise Statement of Errors on February 12, 2015. 

on January 7, 2015. The Court entered a final custody order on January 13, 2015. Father filed his 

schedule on January 5, 2015 and counsel for defendant submitted a proposed holiday schedule 

with the Court's December 24, 2014 Order, counsel for plaintiff submitted a proposed holiday 

after which the Court issued a temporary order regarding the Christmas holiday. In accordance 

On December 24, 2014, counsel for the parties participated in an in-chambers conference 

custody hearing was attended by both parties with counsel on December 19, 2014. 

conference on November 17, 2014, after which the Court entered a 1915.4-4(f) Order. The 

pretrial memorandum on November 15, 2014. Counsel for both parties attended the pretrial 

Mother filed her pretrial memorandum on November 12, 2014, and Father filed his 

17, 2014 and a custody hearing for December 19, 2014. 

on October 3, 2014. The Court issued an Order scheduling a pretrial conference for November 

( 

\ 

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4 

to Modify dated July 2, 2014, Father sought to have a shared custody schedule and for the Child 

kindergarten at Central Manor Elementary School in 2014. (Id. at 13, 93). In his original Petition 

2013 custody order entered by agreement of the parties. (Id. at 90). The Child started attending 

The relevant time period for testimony in this case is the time period after the January 18, 

frequently sounds or appears groggy when Mother communicates with him. (Id. at 98-99). 

Child has told her and what she has observed. (Id. at 98-99, 108-110). Specifically, Father 

driving and supervising the Child. iliL at 98-99). She has these concerns based upon what the 

Mother testified that Father's medicines make him drowsy and that she has concerns about him 

stenographer. (Id. at 88). She works Monday through Friday from 8:00 a.m. to 4:30 p.m. (Id.). 

is not prohibited from driving. (Cust. Order p. 2, Jan. 13, 2015). 

It ,..,.,1 8. 

Mother lives with her parents, ("Maternal Grandfather")••••1t 

("Maternal Grandmother"), and .. A.- m maternal grandparents' home in Lancaster, Pennsylvania . 

• 

(Trial Tr. p. 86-87, Dec. 19, 2014). Mother works for Lancaster General Health as a cardiac 

dated December 26, 2014 indicating that so long as Father takes his medication as prescribed he 

drive a car. (Id. at 145-146). Father has provided verification from Dr. Stephen F. Gold, D.O. 

dizzy sometimes. (Id.). The Court directed Father to provide a physician's clearance for Father to 

affect his ability to parent. (Id. at 72-74). She did state that Father's medicines do make him 

Paternal Grandmother testified that she does not believe that Father's disability and medicines 

29, 75). At the time of the custody hearing, she also worked part-time at K-Mart. (Id. at 77-78). 

4-8). Paternal Grandmother works as a mortgage loan originator and works from home. (Id. at 

Father lives with his mother ("Paternal Grandmother") in a three-bedroom home. ~ at 

Social Security Disability but testified that he has appealed this decision. (Id. at 49-51). 

disabilities to not affect his ability to care for his child. (Id. at 9-11). Father has been denied 

J. 

1. 

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5 

A. Trial Court Standard of Review 

i. Child Custody 

"[Tjhe paramount concern in child custody proceedings is the best interest of the child." 

Moore v. Moore, 634 A.2d 163, 169 (Pa. 1993). In making the custody determination, the 

Court's guiding principle is the best interests of the Child, in accordance with the factors set 

forth in 23 Pa.C.S.A. § 5328. The test as to the best interests of the children when two parents 

are involved is evaluated on a scale that is initially weighed equally as to each parent. Sawka v. 

to attend the elementary school located in the district where he resides. (Def.'s Pet. To Mod. 2, 

July 2, 2014). At the custody hearing, Father waived the issue related to school. (Trial Tr. p. 13, 

Dec. 19, 2014). 

Father testified that the prior custody order entered by the agreement of the parties dated 

January 18, 2013 created confusion regarding "who was picking up [the Child] up, where she 

was going to be sleeping, and what her schedule's going to be throughout the week." (Id. at 11- 

12). The custody schedule Father references was "every other weekend and two-and-a-half days 

a week, and those two-and-a-half days a week varied upon what [Mother's] schedule was." (Id. 

at 12). Father testified that he filed this custody modification to get a consistent schedule so that 

the Child has some stability in her life. (Id.). 

Father testified that he and the Child both enjoy the time they get to spend with each 

other after he picks the Child up from school. (Id. at 27). Specifically, he stated that the Child 

looks forward to the days when Father has the Child after school and then Mother gets the Child 

after work "[b ]ecause she gets to spend time with Daddy each day, and then she gets to see 

Mommy." (Id.) 

III. ST AND ARD OF REVIEW 

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6 

individual facts. N.H.M. v. P.0.T., 947 A.2d 1268, 1273 (Pa. Super. Ct. 2008); E.A.L. v. L.J.W., 

662 A.2d 1109, 1118 (Pa. Super. Ct. 1995). 

ii. Petitions to Modify Custody 

In considering a petition for modification of a custody Order between parents, each party 

bears the burden of proof by a preponderance of the evidence to show they should be granted 

custody, and thus the evidentiary scale is evenly balanced at the outset of the proceedings. 23 

Pa.C.S.A. § 5327(a); Sawka v. Sawka, 625 A.2d 692 (Pa. Super. Ct. 1993); In re Temos, 450 

A.2d 111 (Pa. Super. Ct. 1982). When a trial court's modification of the terms and conditions of 

a custody order does not affect type of custody award, the trial court is not bound to address all 

sixteen statutory factors in determining the children's best interest. A.V. v. S.T., 87 A.3d 818, 

82411. 4 (Pa. Super. Ct. 2014); M.O. v. J.T.R., 85 A.3d 1058 (Pa. Super. Ct. 2014). 

B. Appellate Standard of Review 

It is well established that the scope of review of this court in child custody disputes is of 

the broadest type-abuse of discretion. In re Arnold, 428 A.2d 627, 628 (Pa. Super. Ct. 1981); 

Commonwealth ex rel. Spriggs v. Carson, 368 A.2d 635 (Pa. 1977). An abuse of discretion in the 

context of child custody does not consist merely of an error in judgment. K.B. II v. C.B.F., 833 

A.2d 767 (Pa. Super. Ct. 2003); T.B. v. L.R.M., 753 A.2d 873 (Pa. Super Ct. 2000), order affd, 

786 A.2d 913 (Pa. 2001 ). Abuse of discretion exists only when trial court overrides or misapplies 

the law in reaching its conclusion or when its judgment is manifestly unreasonable or the result 

of partiality, prejudice, bias, or ill will, as shown by the evidence of record. N.H.M. v. P.O.T., 

947 A.2d 1268, 1272 (Pa. Super. Ct. 2008); K.B. II v. C.B.F., 833 A.2d 767 (Pa. Super. Ct. 

Sawka, 625 A.2d 692, 695 (Pa. Super. Ct. 1993). In a custody action, the particular 

circumstances of the case must be considered, and each case is to be decided on its own 

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7 

In his Concise Statement of Errors, Father raises four issues on appeal. 

A. Issue One 

Father states that the "lower court erred in its application of the factors under 23 

Pa.C.S.A. § 5328 in determining the best interest of the child when it reduced Defendant's 

custodial time with the child[.]" (Stmt. of Mtrs. Com pl. On Appeal 1, ~ 2. A., Feb. 12, 2015). In 

consideration of all of the evidence presented at the December 19, 2014 hearing, the Court 

ordered a custody schedule where Mother has primary custody of the Child and Father has 

partial custody of the Child every other weekend and after school every day that Mother is 

working when the Child gets out of school. During the summers, the parties have shared custody 

of the Child on a week on/week off schedule and the parties alternate holiday custody of the 

An appellate court is bound by the trial court's factual findings if they are supported in 

the record; the appellate court exercises its own independent deductions and inferences from 

facts as found by trial court judge. Anderson v. Mc Vay, 743 A.2d 472 (Pa. Super. Ct. 1999); 

K. W.B. v. E.A.B., 698 A.2d 609 (Pa. Super. Ct. 1997). Because the Superior Court's role does 

not include making independent factual determinations, when reviewing a custody order, the 

Superior Court must accept findings of the trial court that are supported by competent evidence 

of record. J.M.R. v. J.M., 1 A.3d 902, 911 (Pa. Super. Ct. 2010) quoting Collins v. Collins, 897 

A.2d 466, 471 (Pa. Super. Ct. 2006); In re K.T.E.L., 983 A.2d 745, 749 (Pa. Super. Ct. 2009). 

With regard to issues of credibility and weight of the evidence, the Superior Court must defer to 

the presiding trial judge who viewed and assessed the witnesses first-hand. J.M.R., 1 A.3d at 911 

quoting Collins, 897 A.2d at 4 71. 

IV. DISCUSSION 

2003). 

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Father testified that he was not happy with the January 18, 2013 custody order because it 

was confusing and he wanted the Child to have stability in her life. The January 13, 2015 Order 

is not confusing and provides stability for the Child as she is more likely to know where she will 

be sleeping every night. Father stated that he wants to be the one picking up the Child every day 

from school, which he will be doing since Mother's work schedule is Monday through Friday 

from 8:00 a.m. until 4:30 p.m. Father testified that the Child particularly enjoys the days in 

which Father picks her up from school and she then goes to Mother in the evenings after Mother 

returns from work because she "gets to spend time with Daddy each day, and then she gets to see 

Mommy." (Trial Tr. p. 27, Dec. 19, 2014). Under the January 13, 2015 Order, Father will be the 

one picking up the Child every day from school and the Child will get to spend part of every 

weekday with both Mother and Father. 

Father wants a 50/50 custody schedule and Mother wants a custody schedule where she 

retains primary custody. Both parties appear to love their Child deeply and want what is in her 

best interests. Under the circumstances, it is not feasible for the Court to grant what both parties 

seek for physical custody. In consideration of the best interests of the Child, the Court entered 

the January 13, 2015 custody order. 

B. Issue Two 

Father states that the "lower court erred in its application of the factors under 23 

Pa.C.S.A. § 5328 when it did not properly review the factors to determine whether the individual 

factors weighed in favor of a party[.]" (Stmt. of Mtrs. Comp 1. On Appeal 1, ,i 2. B., Feb. 12, 

2015). The rationale for the Court's decision as explained in Part IV.A. of this Opinion is 

applicable to this issue. (See infra. Part IV .A.). The Court considered all of the relevant factors in 

Child. 

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9 

Father is physically disabled due to back and wrist problems. Because of his 

disability, Father takes medication. Mother presented evidence that Father's 

medications make him drowsy, which causes her concern for Father's ability to 

Mother raised the issue of Father's ability to adequately care for the Child when the 

Child is in Father's care because of his physical disabilities and how his 

medications affect him. Father testified that he cannot pick the Child up because of 

his back problems and wrist problems .... 

Father is currently unemployed and is physically disabled. Specifically, he has 

issues with his back and wrist that prevent him from working though Father asserts 

that his disabilities to not affect his ability to care for his child .... 

Order dated January 13, 2015, which reads, 

Compl. On Appeal 1, ,i 2. D., Feb. 12, 2015). This is a misstatement of the Court's Opinion and 

properly pick up the Child because of his back problems and wrist problems[.] (Stmt. of Mtrs. 

Father states that the "lower court erred in determining that the Defendant could not 

D. Issue Four 

of this Opinion is also applicable to this issue. (See infra. Parts IV .A. & B.). 

,i 2. C., Feb. 12, 2015). The rationale for the Court's decision as explained in Parts IV.A. and B. 

that Defendant's time with the child should be reduced[.]" (Stmt. of Mtrs. Comp 1. On Appeal 1, 

Pa.C.S.A. § 5328 when it did not determine whether the factors favored Plaintiff to the extent 

Father states that the "lower court erred in its application of the factors under 23 

C. Issue Three 

for them is sure to not be exactly what either party desires. 

each other and cannot agree on a custody schedule, the custody schedule that the Court fashions 

ten days out of every fourteen days. When parties struggle to respectfully communicate with 

January 13, 2015 custody schedule, the Child has meaningful contact with both of her parents for 

parties' requests for custody as they coincide with the best interests of the Child. Under the 

making its custody determination and ordered a custody that attempted to accommodate both 

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NOTICE OF ENTRY OF ORDER OR DECREE 

PURSUANT TO PA. R.C.P. ~W: 236 

NOTIFICATION - THE ATTACHED DOCUMENT 

HAS BEEN FILED !N THIS CASE 

PROTHONOTARY OF LANCASTER CO., PA 

DATE: 3-/ G::rf, b 

10 

BY THE COURT: 

physical custody to Father with a shared.physical custody schedule during the summer. 

entered an order granting shared legal custody, primary physical custody to Mother, and partial 

Super. Ct. 2008). The Court carefully considered the best interests of the Child, and as a result, 

bias, or ill will, as shown by the evidence ofrecord. N.H.M. v. P.O.T., 947 A.2d 1268, 1272 (Pa. 

and the Court's conclusion was not manifestly unreasonable or the result of partiality, prejudice, 

rel. Spriggs v. Carson, 368 A.2d 635 (Pa. 1977). The Court did not override or misapply the law, 

abuse of discretion. In re Arnold, 428 A.2d 627, 628 (Pa. Super. Ct. 1981 ); Commonwealth ex 

The scope of appellate court review in child custody disputes is of the broadest typeV. CONCLUSION 

Father's admission that he cannot physically lift up his Child. 

up the Child because of his back and wrist problems, but merely accepted the plain meaning of 

his knee. (Id. at 10-11, 54-55). The Court never determined that Father could not properly pick 

playing-that he will kneel down, assist her to stand up with his left arm, and rest the Child on 

testified that he has a modified manner in which he helps the Child up when she stumbles while 

for the child?", Father stated, "No, I just can't lift her up." (Trial Tr. p. 11, Dec. 19, 2014). Father 

counsel's question on direct examination, "Does your back condition impact your ability to care 

(Cust, Order p. 2, 4-5, Jan. 13, 2015). At the December 19, 2014 hearing, in response to his 

supervise and transport the Child. 

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