J-A09002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

B.J.F. N/K/A B.J.S. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

J.P.F.

Appellee No. 1543 MDA 2016

Appeal from the Order Entered August 19, 2016

In the Court of Common Pleas of York County

Civil Division at No(s): 2013-FC-000212-03

BEFORE: SHOGAN, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.: FILED MAY 31, 2017

B.J.F. n/k/a B.J.S. (“Mother”) appeals from the order entered August 

19, 2016, in the Court of Common Pleas of York County, which denied her 

petition for modification of custody order, and maintained primary physical 

custody of her minor son, D.F. (“Child”), with J.P.F. (“Father”) during the 

school year. After careful review, we affirm.

We summarize the relevant factual and procedural history of this 

matter as follows. Child was born in June 2004, during the marriage of 

Mother and Father. Mother and Father separated in December 2012. Joint 

Stipulation of Fact, 8/12/2013, at 1 (unnumbered pages). Following her 

separation from Father, Mother commenced the underlying custody 

proceedings by filing a complaint in custody on March 21, 2013. Currently, 

Mother resides in Lancaster County, Pennsylvania, with her new husband 
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and their one-year-old son, while Father resides approximately fifty-two 

miles away in York County, Pennsylvania, with his girlfriend. N.T, 

8/11/2016, at 6, 8, 15; Trial Court Opinion, 10/2/2015, at 9. The parties 

are subject to a final custody order, entered October 2, 2015, which awards 

shared legal custody. The order further awards Father primary physical 

custody of Child during the school year, and awards Mother partial physical 

custody. Specifically, the order awards Mother physical custody of Child on 

the first, second, and fourth weekends of every month, from Friday after 

school until Sunday at 7:00 p.m. The parties exercise shared physical 

custody on an alternating week basis during the summer.1, 2

____________________________________________

1 The provision in the October 2, 2015 custody order describing the parties’ 

summer custody schedule appears to be incomplete. The provision 

provides, in its entirety, as follows. 

SUMMER SCHEDULE:

Mother shall have custody the first Sunday after school

concludes for the year at 7:00 p.m. Mother shall continue to 

have custody through the following Tuesday at 7:00 p.m. Father 

shall have from Tuesday at 7:00 p.m. through Sunday at 7:00 

p.m. Father shall be entitled to two non-consecutive weeks of 

custody during the summer with thirty (30) days advance 

written notice to Mother. Either party may sign the child up for 

summer camp which will be during their week of custody 

recognizing that the camp during Father’s week may overlap a 

few of Mother’s days.

During the summer, if Father needs daycare for more than 

four (4) consecutive hours on any given day, he shall first offer 

Mother the time with the child. If Mother elects to exercise the 

time, she shall provide transportation to and from the Father’s 

residence. 

(Footnote Continued Next Page)
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On May 6, 2016, Mother filed a petition for modification of custody 

order. In her petition, Mother averred that she should be awarded primary 

physical custody of Child during the school year due to, among other things, 

Child’s well-reasoned preference to live primarily with her. Petition for 

Modification of Custody Order, 5/6/2016, at ¶ 5. According to the trial court, 

the parties agreed during a pre-trial conference that Child’s preference was 

the only circumstance that changed since the entry of the October 2, 2015 

order. Trial Court Opinion, 8/19/2016, at 3. Thus, the parties agreed that 

the court should interview Child, but would not need to hear the testimony 

of any other witnesses. Id. The court interviewed Child on August 11, 

2016. On August 19, 2016, the court entered an order denying Mother’s 

petition, and maintaining primary physical custody of Child during the school 

(Footnote Continued) _______________________

Order, 10/2/2015, at 3 (unnumbered pages). However, the record reveals 

that the parents exercised an alternating week summer custody schedule 

prior to the entry of the October 2, 2015 order, and continued to exercise an 

alternating week schedule following the entry of the order. See, e.g., 

Interim Order for Custody, Pending Trial, 6/10/2016, at 4 (“[T]he parents 

share physical custody on alternate weeks during the summer.”). Child 

reported that in the summer he spends “seven days with my mom and five 

with my dad.” N.T., 8/11/2016, at 7.

2 Mother appealed the October 2, 2015 order, which a panel of this Court 

affirmed on April 18, 2016. See B.J.F. v. J.P.F., 145 A.3d 785 (Pa. Super. 

2016) (unpublished memorandum). 
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year with Father.3 Mother timely filed a notice of appeal on September 16, 

2016, along with a concise statement of errors complained of on appeal.

Mother now raises the following issues for our review.

I. Did the Trial Court err in that it did not give adequate 

consideration to the specifically[-]stated and well[-]reasoned 

preference of the child to live primarily with Mother during the 

school year and to change school districts, as the court abused 

its discretion in determining that Father should maintain primary 

custody of the child during the school year and that the child 

should not change schools?

II. Did the Trial Court err in that it did not give adequate 

consideration to the specifically[-]stated and well[-]reasoned 

preference of the twelve[-]year[-]old child to live primarily with 

Mother during the school year and to change school districts, by 

basing its opinion on the Court’s misunderstanding that the child 

was only eleven [] years old?

III. Did the Trial Court err in that it did not give adequate 

consideration to and properly incorporate the findings contained 

in the Trial Court’s October 2, 2015 Opinion together with the 

specifically[-]stated well[-]reasoned preference of the child to 

live primarily with Mother during the school year and to change 

school districts?

IV. Did the Trial Court err in that its conclusions are 

unreasonable and an abuse of discretion as shown by the 

evidence of record, specifically the Court’s conclusions with 

regard to the stated, well[-]reasoned preference of the 

twelve[-]year[-]old child to live primarily with Mother during the 

school year and to change school districts?

____________________________________________

3

Father filed an answer and counterclaim to Mother’s petition for 

modification of custody order on June 2, 2016, in which he requested that 

the trial court award him counsel fees. The court denied Father’s request for 

counsel fees in its August 19, 2016 order. Father does not attempt to 

challenge this decision on appeal. 
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Mother’s brief at 17-18 (suggested answers omitted).

We consider these issues mindful of our well-settled standard of 

review.

In reviewing a custody order, our scope is of the broadest type 

and our standard is abuse of discretion. We must accept 

findings of the trial court that are supported by competent 

evidence of record, as our role does not include making 

independent factual determinations. In addition, with regard to 

issues of credibility and weight of the evidence, we must defer to 

the presiding trial judge who viewed and assessed the witnesses 

first-hand. However, we are not bound by the trial court’s

deductions or inferences from its factual findings. Ultimately, 

the test is whether the trial court’s conclusions are unreasonable

as shown by the evidence of record. We may reject the 

conclusions of the trial court only if they involve an error of law, 

or are unreasonable in light of the sustainable findings of the 

trial court.

V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations omitted).

“When a trial court orders a form of custody, the best interest of the 

child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014) 

(citation omitted). The factors to be considered by a court when awarding 

custody are set forth at 23 Pa.C.S.A. § 5328(a).

(a) Factors.--In ordering any form of custody, the court shall 

determine the best interest of the child by considering all 

relevant factors, giving weighted consideration to those factors 

which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and 

permit frequent and continuing contact between the 

child and another party. 

(2) The present and past abuse committed by a 

party or member of the party’s household, whether 

there is a continued risk of harm to the child or an 

abused party and which party can better provide 
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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. 

(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. 
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(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).

Mother’s claims on appeal are interrelated, so we address them 

together. Mother argues that Child presented a well-reasoned preference to 

live primarily with her during the school year and to change school districts. 

Mother’s brief at 29-42. Mother contends that the trial court erred by failing 

to give adequate weight to Child’s preference, and by maintaining primary 

physical custody with Father. Id. Mother contends that since both her 

household and Father’s household are equally suitable, Child’s preference 

should tip the scales in her favor. Id. at 35. Mother suggests that allowing 

Child to live primarily with her would result in Child spending more time with 

both parents, and more time with his half-brother. Id. at 30-31, 34. 

Mother also suggests that the court failed to give sufficient weight to Child’s 

preference because the court believed that Child is eleven years old, when in 

reality Child is twelve years old. Id. at 32-33. 

In order to understand the trial court’s decision to deny Mother’s May 

6, 2016 petition for modification of custody order, we first must discuss the 

court’s decision to maintain primary physical custody with Father in its prior 

custody order entered October 2, 2015. In its opinion accompanying that 
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order, the court discussed each of the Section 5328(a) factors. The court 

found that Sections 5328(a)(1), (3), (4), (9), and (11) weighed in favor of 

Father, while Section 5328(a)(6) weighed in favor of Mother. Trial Court 

Opinion, 10/2/2015, at 6-10. The court found that the remaining factors did 

not weigh in favor of either party. Id. The court concluded that Mother 

failed to prove that awarding her with primary physical custody during the 

school year would be in Child’s best interest. Id. at 10. The court 

emphasized that Child was doing well under the parties’ current custody 

arrangement, and expressed concern that an award of primary physical 

custody to Mother would result in Child having to leave his current school 

and community. Id. at 10-11. The court explained that while it was 

confident that Child could adapt to such a change, “it would not be ideal for 

him.”4 Id. at 11. 

In its opinion accompanying the order entered August 19, 2016, the 

trial court incorporated its previous findings with respect to the Section 

____________________________________________

4 The trial court also discussed the ten relocation factors listed at 23 

Pa.C.S.A. § 5337(h). As we discussed in our memorandum affirming the 

October 2, 2015 custody order, “where neither parent is relocating, and only 

the custodial rights of the parties are at issue, section 5337 of the Child 

Custody Act is not per se triggered.” D.K. v. S.P.K., 102 A.3d 467, 474 (Pa. 

Super. 2014). However, where “the children stand to move a significant 

distance, trial courts should still consider the relevant factors of section 

5337(h) in their section 5328(a) best interests analysis.” Id. at 476. The 

court’s analysis of the Section 5337(h) factors was substantively identical to 

its analysis of the Section 5328(a) factors, and focused on Child’s need for 

stability. See Trial Court Opinion, 10/2/2015, at 4-6.
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5328(a) factors, and reexamined only Section 5328(a)(7), which requires 

consideration of the well-reasoned preference of the child. Trial Court 

Opinion, 8/19/2016, at 3. While the court acknowledged that Child would 

prefer to live primarily with Mother during the school year, the court 

concluded that such a change would not be in Child’s best interest. Id. at 4-

6. The court emphasized that Child has attended school in Father’s school 

district for his entire academic career, is doing well in his current school, has 

no behavioral problems, and participates in extracurricular activities. Id. at 

5. The court also emphasized that Child has established friendships and 

relationships within his current school. Id. The court explained, “Child is 

doing exceptionally well under the current custody arrangement and it would 

not be in Child’s best interest to uproot him from his school, friends, and 

activities he has known his whole life.” Id. at 6. “Child did speak to Father 

about his concerns, and Father indicated he would change his work schedule 

to allow him to be home when Child returns from school.” Id. at 5.

During its interview with Child on August 11, 2016, the trial court 

asked Child what he thought of the current custody arrangement. Child 

responded as follows. 

A. I do like the summer schedule.

Q. Um-hum.

A. And -- but during the school year, for school, I want to be at 

my mom’s during the week and my dad’s on the weekend. I say 

that because that way I’d be able to spend more time with both 

of them because when I’m at my dad’s during the week, I would 
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come home, and I would be with [Father’s girlfriend], but he 

would still take two hours. It would be like two hours or so until 

he gets home from work --

Q. Okay. 

A. -- because he works later than schools goes.

Q. The last time we were here, I think it was about an hour that 

he was -- when you were at your -- I think you were at your 

godmother’s for an hour. Has that changed?

A. Huh-uh.

Q. That’s the same?

A. But for seventh grade, if I went there, I would come home, 

and I would be with [Father’s girlfriend], but it will take away 

time from being with him, and he said he can adjust his 

schedule, but in the morning, so he wouldn’t be there in the 

morning, and [Father’s girlfriend] would get me up. That way I 

would be able to spend a little more time with him because in 

the morning, it doesn’t take -- it would only be like not even half 

an hour, so I would be able to spend a little more time with him. 

But if I went to school at my mom’s, I’d be able to see her more, 

and then I could go to my dad’s on the weekend, and I could see 

him when he’s not working.

Q. Okay. I’m just a little confused what you said in the morning 

time. 

If you went to school at your dad’s house, you’re saying that 

your dad would be there to get you -- get you off to school in the 

morning?

A. [Father’s girlfriend] would. 

Q. [Father’s girlfriend] would, okay. 

And then I was a little confused. You would be able to see your 

dad a little bit more in the morning? You’re saying that’s --
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A. So if he did adjust the schedule and he wasn’t there in the 

morning, that would only be like about half hour [sic] I don’t see 

him.

Q. Okay.

A. But if he didn’t adjust it, then it would be -- and I would see 

him in the morning, but it would be about two hours that I didn’t 

see him after school. 

Q. Okay. All right. I think I understand. 

A. But then I’d still not have extra time with my mom.

***

THE COURT: [Child], I want to make sure I understand. 

The reason why you’re saying you’d like to go to school at your 

mom’s house is because you’re trying to maximize the time you 

have with both parents?

[Child]: Yes.

THE COURT: I didn’t want to put any words in your mouth, but 

that’s what I hear you saying.

[Child]: Um-hum.

[Counsel for Mother]: If I may interject, would it also be to 

spend more time with your brother?

[Child]: Right.

THE COURT: Okay.

N.T., 8/11/2016, at 9-11, 34-35. 

While it is true that Child expressed a preference to live primarily with 

Mother during the school year, the trial court was under no obligation to 

adjust the parties’ custody schedule based on Child’s preference alone. 
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Section 5328(a)(7) is only one of sixteen factors that courts are required to 

consider when making an award of custody. Our case law is clear that 

courts must consider each of these factors, and that the amount of weight 

that a court gives to any one factor is almost entirely within its discretion. 

See M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013), appeal denied, 

68 A.3d 909 (Pa. 2013) (citing A.D. v. M.A.B., 989 A.2d 32, 35–36 (Pa. 

Super. 2010)) (“It is within the trial court’s purview as the finder of fact to 

determine which factors are most salient and critical in each particular 

case.”).5 

In this case, our review of the record supports the trial court’s findings 

that Child is doing well in Father’s custody, and that Child would benefit from 

the stability that remaining primarily with Father during the school year 

would provide. Thus, the court was well within its discretion when it 

concluded that Child’s preference pursuant to Section 5328(a)(7) should not 

outweigh the other Section 5328(a) factors, particularly Section 5328(a)(4), 

which requires consideration of the need for stability and continuity in the 

child’s education, family life, and community life.

____________________________________________

5 The one exception is that trial courts must give weighted consideration to 

those factors which affect the safety of the child. See 23 Pa.C.S.A. § 

5328(a).
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Accordingly, we conclude that the trial court did not err or abuse its 

discretion by denying Mother’s petition for modification of custody order, and 

we affirm the court’s August 19, 2016 order.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/31/2017