Opinion
343 WDA 2024
08-26-2024
ALICIA VEITCH v. JOSEPH ROSS Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Dated February 20, 2024 In the Court of Common Pleas of Westmoreland County Domestic Relations at No(s): 722 of 2023-D.
Benjamin D. Kohler, Esq.
BEFORE: BOWES, J., SULLIVAN, J., and STEVENS, P.J.E. [*]
MEMORANDUM
STEVENS, P.J.E.:
Joseph Ross ("Father") appeals from the Order dated February 20, 2024, and filed on February 23, 2024, in the Court of Common Pleas of Westmoreland County Domestic Relations, which granted shared legal custody of the parties' biological minor child, L.R., to Father and Alicia Veitch ("Mother"), awarded primary physical custody to Mother, and provided partial physical custody to Father. After a careful review, we affirm.
The relevant facts and procedural history are as follows: On May 4, 2023, Mother filed a complaint in custody against Father seeking primary physical and shared legal custody of L.R., who was born in May of 2019. On May 22, 2023, Father filed an answer and counterclaim seeking primary physical custody and shared legal custody of L.R.
Thereafter, following a custody conciliation conference, by interim order entered on July 10, 2023, the trial court granted primary physical custody of L.R. to Mother and awarded the parties shared legal custody. The trial court granted Father, who lived in North Carolina, partial physical custody from June 27, 2023, to July 16, 2023, and August 6, 2023, to August 27, 2023. Additionally, following a second conciliation conference, by interim order entered on October 18, 2023, the trial court awarded primary physical custody of L.R. to Mother, awarded shared legal custody to the parties, and provided Father with partial physical custody to be exercised from October 22, 2023, to October 29, 2023, and December 26, 2023, to January 7, 2024.
On January 26, 2024, the trial court held a custody hearing at which both parties were present and represented by counsel. During the hearing, Mother testified that she and Father began dating in November of 2016, and L.R. was born in 2019 during the parties' relationship. N.T., 1/26/24, at 7. They, along with Mother's biological daughter, S.L., lived together in Westmoreland County, Pennsylvania, until April 18, 2022, at which time they moved to North Carolina so that Father could pursue a job opportunity. Id. at 8. Mother described the move as "sudden." Id.
Father was given permission to appear at the custody hearing by remote access.
Mother indicated that, when they lived in North Carolina, Father went to work, S.L. went to school, and L.R. spent the days with her. Id. Mother testified that, while they were in North Carolina, she witnessed Father abusing prescription drugs, which changed his behavior. Id. at 10-11. She indicated that she endured emotional abuse, including Father calling her names. Id. at 12. At one point, Father packed all of Mother's belongings, moved them out of the couple's bedroom, and put them in L.R.'s room, where Mother slept. Id. Mother indicated she was "fearful" that Father would "kick her out" of the home. Id. at 13. Thus, she called a domestic violence shelter and left the couple's North Carolina home with the two children. Id.
Mother testified she and the children spent one night in the shelter, and the next day, on September 15, 2022, Mother and the two children flew back to Westmoreland County, Pennsylvania. Id. at 9. Mother testified that, within two weeks of moving back to Westmoreland County, she found housing for her and the children in West Newton, Pennsylvania, and she began full-time employment as a teacher at a daycare facility. Id. at 6-13. She enrolled L.R. at the daycare facility and S.L. as an eighth grader in the local public school. Id.
Mother testified that, throughout L.R.'s life, she has been his full-time, primary caregiver. Id. at 15. She indicated L.R. was diagnosed with a medical condition for which he needed to wear a helmet and received physical therapy when he was younger. Id. at 16. She took him to his doctor's appointments and ensured that he received proper medical care. Id. She indicated that she enjoys spending time with L.R., including making cookies and going to movies. Id. She noted that she and Father were both raised in Westmoreland County, Pennsylvania, and her parents live in Penn, Pennsylvania, which is approximately twenty-five minutes from her home in West Newton. Id. L.R. visits with his maternal grandparents approximately once a month. Id.
Mother clarified that, when L.R. was a baby, he suffered from torticollis, which is a tightening of the neck muscles that caused him to lean to one side. Id. at 17. This condition was corrected with physical therapy. Id.
Mother testified that S.L. is approximately ten years older than L.R., but they have a "very close" relationship. Id. at 17. She indicated it would be a "terrible disruption" to L.R.'s life if he were separated from his half-sister, S.L. Id. Mother opined it would be in L.R.'s best interest for her to maintain primary physical custody because she has been his primary caregiver for his entire life, and she has provided L.R. with a sense of structure and stability. Id. She noted that L.R. is doing well at his present daycare, where Mother works. Id. L.R. has friends and "loves his teachers." Id.
Mother testified that she plans to place L.R. in kindergarten at the public elementary school, which is "right by her house." Id. at 18. She expected L.R. to attend kindergarten in the fall of 2024. Id. at 21. She would like Father to exercise periods of partial physical custody during the summers. Id. She noted that, if Father moved back to Pennsylvania or visited the area, she would be willing to have Father exercise additional periods of partial custody. Id. at 19.
On cross-examination, Mother confirmed she did not put Father on notice that she was leaving the North Carolina home with the two children. Id. at 23. When she arrived in Westmoreland County, Pennsylvania, she filed a petition for a protection from abuse order; however, she withdrew the petition and agreed to a custody schedule. Id. She noted the custody schedule provided Father with physical custody from September 30, 2022, to October 9, 2022, and Mother with physical custody from October 9, 2022, to October 22, 2022. Id. However, at the end of his period of physical custody on October 9, 2022, Father did not return L.R. to Mother, and, thus, Mother had to get an emergency custody order directing Father to return L.R. to her custody. Id. Mother testified Father informed her that he did not return L.R. as scheduled due to "significant vehicle problems." Id. at 24. However, Mother testified she did not believe Father's excuse. Id.
Mother admitted that the paternal grandparents asked to have L.R. during Thanksgiving, and she agreed to let them visit L.R. while he was at the maternal grandparents' house for the holiday. Id. at 25. She indicated that Father filed a petition for custody in North Carolina, and the North Carolina court confirmed jurisdiction was in Pennsylvania. Id. However, Mother testified she and Father agreed on a temporary holiday schedule. Id. at 26.
She noted that on one occasion she received a text from Father asking her and L.R. to meet with him at 8:00 a.m. at a bank in Irwin, Pennsylvania, and she texted back that she could meet him at 11:00 a.m. Id. at 28. She went to the bank with L.R., but Father never appeared for the visit. Id. Mother testified that from January 8, 2023, to June of 2023, Father never visited L.R. Id. at 29. At the court conference in June of 2023, the parties agreed to a summer schedule. Id.
On redirect examination, Mother testified that L.R. has his own bedroom, and their house in West Newton has a backyard. Id. at 42.
Kimberly Keffer testified that she knows Mother and Father socially. Id. at 31-32. Moreover, she is a director of a daycare, and Mother used to work at the daycare as a head teacher in the toddler classroom. Id. at 32. She indicated Mother was a "good employee," very patient with the children, and related well to the parents. Id. She testified Mother is "a hard worker," and she "always made a point to work at a place where she could take [L.R.] with her[.]" Id. at 33. She described Mother as a "hands on" parent who made home cooked meals, helped her children with homework, and was interested in her children's education. Id. She indicated L.R. seems to be "very happy" when he is with Mother, and she has observed a "very close" bond between L.R. and S.L. Id.
Ms. Keffer clarified the daycare at which she is a director is a different daycare than the one where Mother currently works. Id. at 32.
L.R.'s maternal grandfather ("Maternal Grandfather") testified that he lives in Penn, Pennsylvania, with L.R.'s maternal grandmother ("Maternal Grandmother") (collectively "Maternal Grandparents"). He indicated that Mother and her children are "the joys of [his] life." Id. at 35. He opined Mother is "a great mother," and L.R. seems "very happy" with his current living situation. Id. He noted S.L. and L.R. have a "fantastic brother-and-sister relationship." Id. at 36. He indicated that he speaks on the telephone with Mother every other day, and he sees L.R. every other week. Id. at 35-36. Mother brings L.R. to Maternal Grandparents' house, and Maternal Grandparents visit L.R. at Mother's house. Id. at 36. He noted that, since Father moved to North Carolina, he has no contact with Father. Id.
On cross-examination, Maternal Grandfather indicated that, before Mother and the children moved to North Carolina with Father, there was little warning. Id. at 37. When Mother lived in North Carolina with the children, Maternal Grandparents visited on one occasion. Id.
Maternal Grandmother testified she lives in Penn, Pennsylvania, with Maternal Grandfather, and she is retired. Id. at 39. She testified she sees Mother, L.R., and S.L. approximately every three weeks. Id. at 40. L.R. has a toybox filled with toys at Maternal Grandparents' home. Id. She indicated L.R. and S.L. have a close bond, and she opined it is in L.R.'s best interest for him to live with S.L. Id. She testified Mother is "a good mother," and L.R. is "a healthy, happy four-year-old child." Id. at 41.
Father confirmed he and Mother met in 2016, and L.R. was born in 2019. Id. at 50. Father was present at the hospital when L.R. was born. Id. When he lived with Mother and L.R., his main role was to work and support the family. Id. After L.R. was born, he and Mother took walks with L.R., and he attended some of L.R.'s doctor's appointments when they lived in Pennsylvania. Id. at 51. He noted that, when he lived with Mother, he also acted as a parent to S.L. Id. He took S.L. to gymnastics and other extracurricular activities. Id.
Father testified he and Mother had a "rocky" relationship when they lived together in Pennsylvania, and they both agreed that a move to North Carolina would be a fresh start for them. Id. at 56. Father testified he and Mother have cousins in North Carolina. Id. at 52. He indicated his parents live one hour and twenty minutes from Father in North Carolina. Id.
Father indicated he had a successful business in Pennsylvania; however, he was given an "opportunity of a lifetime" in North Carolina. Id. at 53. Thus, after discussing the issue with Mother, he closed his business in Pennsylvania and moved the family to North Carolina. Id. He testified that, after the move to North Carolina, "everyone was happy." Id. at 57. The family went to the beach, and Mother often visited her cousins. Id.
Father testified that after the family moved to North Carolina he often received texts from Mother asking him to return home because L.R. was "uncontrollable," and she needed help. Id. at 55. Father acknowledged that Mother was probably feeling "stressed out" because of the move to North Carolina. Id. He indicated he took L.R. to the park, played soccer with him, and took him to carnivals when they lived as a family in North Carolina. Id. He acknowledged that Mother took L.R. to most of his doctor and dentist appointments in North Carolina. Id.
Father indicated that, at some point, he began to realize that Mother was not happy. Id. at 59. However, Father testified that he signed a five-year contract with his new employer in North Carolina, and he is only "two years into it." Id. Accordingly, he is unable to move back to Westmoreland County, Pennsylvania. Id. at 54.
Father testified that, on September 14, 2022, he came home from work and discovered Mother had left with L.R. and S.L. Id. at 59-60. Father testified he was "depressed for a couple days" after they left, and he was very worried about L.R. Id. He indicated he texted Mother, and she would not respond to his texts. Id.
Father testified that, near the end of September of 2022, he and Mother reached an agreement as to physical custody of L.R. Id. at 62. He admitted he did not return L.R. to Mother's custody as scheduled on October 9, 2022. Id. at 64. He explained that, after he put L.R. in the car seat to return him to Mother, he noticed that his car tires had been slashed. Id. He testified he emailed Mother immediately to let her know about the situation. Id. Father acknowledged Mother filed a petition for emergency custody the next day, and after securing a new tire, he returned L.R. to Mother. Id. at 65.
Father testified that, under the parties' agreement, the last day Father had custody of L.R. was on January 8, 2023, and he did not see L.R. again for six months. Id. at 66. He indicated he traveled to Pennsylvania on January 14, 2023, and Mother refused to allow him to see L.R. Id. at 67. He called Mother often seeking periods of custody. Id. at 69. Father confirmed that in June of 2023 the parties reached a temporary agreement whereby Father had substantial time with L.R. during the summer. Id.
He testified that, during his periods of custody, he took L.R. to an antique car show and the beach, as well as rode trolly cars and go-karts. Id. at 46. He testified he has a camper, and L.R. enjoys camping. Id. at 48. He coached a youth soccer team with the intent that L.R. would be able to play on the team; however, because of the parties' custody agreement, L.R. made only one game. Id. at 72-73. He indicated that, at his house in North Carolina, L.R. has his own bedroom and bathroom. Id. at 48. Additionally, he indicated that he took L.R. to the dentist in North Carolina because he had a toothache, and he scheduled a doctor's appointment for L.R. because he had a stomachache. Id. at 71. However, Mother canceled the doctor's appointment without Father's consent. Id. When Father called to make another appointment, the doctor did not have availability. Id.
Father testified the parties' custody agreement expired at the end of August of 2023, and a pretrial conference was scheduled for October 4, 2023. Id. at 74. Father indicated that, during this time, he texted Mother multiple times to make school plans for L.R. Id. at 75. He noted he found a private school in North Carolina where a child may attend three weeks on and three weeks off to assist parents who are separated. Id. He asked Mother to consider placing L.R. in the private school; however, she did not answer Father's texts. Id. Father then discovered Mother had enrolled L.R. in a state-funded school. Id.
Father testified he has concerns about L.R. residing with Mother, including mold around the caulking of the bathtub at Mother's home and a pill bottle being kept within reach of L.R. Id. at 80. Moreover, prior to the custody hearing, he became aware that S.L. "was caught smoking weed while [L.R.] was present in the house." Id. at 81. He texted Mother asking to discuss the situation, and Mother would not respond to the texts. Id. at 82. Father indicated that S.L.'s biological father was in jail for selling heroin and killing a person, and after he is released from jail, Father is concerned L.R. might be hurt. Id. He opined that it is in L.R.'s best interests for him to have primary physical custody, and Mother needs to focus on S.L. Id. at 83.
When Father talked to L.R. on Facetime, he took photographs of Mother's home. Id. at 79-80.
On cross-examination, Father acknowledged that Mother has indicated that any time Father comes to Pennsylvania she will make L.R. available to him. Id. at 84. However, Father noted his house in North Carolina is a ten-hour drive from Mother's home in Pennsylvania. Id. at 85. He further noted that he saves his vacation time to take off when he has physical custody of L.R. in North Carolina. Id. at 86.
L.R.'s paternal grandfather ("Paternal Grandfather") testified he lives approximately one hour from Father's house in North Carolina. Id. at 88. He indicated he speaks to Father on the phone "all the time." Id. Paternal Grandfather testified that he has taken L.R. camping, and he has developed a relationship with him. Id. at 89. Paternal Grandfather testified he has a good relationship with Mother. Id. at 90. He indicated Father is "a good father" to L.R., and he has no concerns with Father taking care of L.R. Id.
On cross-examination, Paternal Grandfather indicated that S.L. and his daughter enjoy spending time together. Id. During Christmas of 2023, he was in Pennsylvania, and his daughter spent some time at Mother's house with S.L. Id. at 92. When he went to pick up his daughter, he walked in
Mother's house, and Mother said, "Do you smell that?" Id. at 93. Paternal Grandfather replied, "Yeah, [I] smell it." Id. Mother indicated that she thought S.L. was smoking. Id. After Paternal Grandfather left Mother's house with his daughter, Mother texted L.R.'s step-paternal grandmother ("Step-Paternal Grandmother") to advise that she was going to ground S.L. Id.
Step-Paternal Grandmother confirmed that Father is her stepson. Id. at 94. She indicated Father is a "very interactive parent" who sets appropriate boundaries for L.R. Id. She has observed Father talking to L.R. and making sure L.R. understands the way things work. Id. She has no concerns with Father's parenting skills. Id.
Step-Paternal Grandmother acknowledged that she was advised that her daughter and S.L. were smoking marijuana at Mother's house. Id. at 96. L.R. was with Father during this time. Id. Step-Paternal Grandmother testified she grounded her daughter and took her telephone away from her. Id. Also, her daughter was set to begin therapy on February 5, 2024. Id.
At the conclusion of the custody trial, by order dated February 20, 2024, and entered on February 23, 2024, the trial court held that the parties would have shared legal custody of L.R., Mother would have primary physical custody of L.R., and Father would have partial physical custody to be exercised during long stretches available in L.R.'s schedule. In so holding, the trial court indicated that, based upon the evidence and testimony, it made the following findings as to the sixteen custody factors under 23 Pa.C.S.A. § 5328:
1. 23 Pa.C.S.A. § 5328(a)(1)-The first factor involves examining which party is more likely to encourage and permit frequent and continuing contact between the Child and the other party. Father argues that Mother leaving North Carolina with the Child is sufficient evidence that Mother will not encourage and permit contact between him and the Child. Conversely, Mother argues that Father failed to return the Child as scheduled in October 2022, prompting her to file an emergency petition. In sum, the [trial] court views both of these instances as equally damning to both parties, so the factor is neutral in the analysis.
2. 23 Pa.C.S.A. § 5328(a)(2)-The second custody factor pertains to any past or present incidents of abuse and whether there is a continued risk of harm to the Child or any abused party. Mother filed for a PFA against Father but withdrew the petition before the allegations could be adjudicated. This factor is also neutral.
3. 23 Pa.C.S.A. § 5328(a)(3)-Third, the [trial] court considers the parental duties performed by each party on behalf of the Child. Based upon the testimony, it appears that Mother has historically been the primary caretaker of the Child. The [trial] court does note that, during Father's periods of physical custody, he is capable of performing all essential parental duties for the Child. Therefore, this factor slightly favors Mother.
4. 23 Pa.C.S.A. § 5328(a)(4)-The fourth factor addresses the need for stability and continuity in the Child's education, family life, and community life. With the Child being at such a young age, it is difficult to assess whether any roots have been established in the educational setting for the Child. The Child clearly has closer ties to Mother's family both in Pennsylvania and North Carolina, as Mother's relatives live closer to Father than Paternal Grandparents do. Additionally, the Child only resided in North Carolina for a relatively short period of time. Therefore, this factor favors Mother.
5. 23 Pa.C.S.A. § 5328(a)(5)-The fifth factor addresses the availability of extended family for each of the parties. For his part, Father called Paternal Grandparents…to express their support for his seeking primary physical custody, even though they reside over an hour away from Father. Mother indicated that Maternal Grandparents reside in Penn, which is approximately twenty minutes away [from Mother's home in West Newton] and are willing to provide support as well. This factor favors Mother.
6. 23 Pa.C.S.A. § 5328(a)(6)-Next, the [trial] court considers the sibling relationships for the children. Mother has a child from a prior relationship. Father worries about this child being an appropriate influence on the Child. This factor slightly favors Mother.
7. 23 Pa.C.S.A. § 5328(a)(7)-This factor concerns the well-reasoned preference of the child, based upon the child's age, maturity, and judgment. As stated above, the Child is too
young to provide reliable testimony regarding a preference; therefore, this factor is neutral.
8. 23 Pa.C.S.A. § 5328(a)(8)-The eighth factor for the [trial] court to consider is whether either parent has made an attempt to turn the child against the other or to otherwise damage the relationship between the child and the other parent. Neither parent has made any such allegation. This factor is neutral.
9. 23 Pa.C.S.A. § 5328(a)(9)-The next factor relates to the ability of each parent to maintain a loving, stable, and nurturing relationship with the Child. It is clear from the testimony presented by the parents that each of them maintains a strong relationship with the Child. This factor is neutral.
10. 23 Pa.C.S.A. § 5328(a)(10)-The tenth factor looks at the ability of each parent to attend to the daily physical, emotional, developmental, educational, and special needs of the Child. No evidence was produced to demonstrate either that the Child had any special needs or that either parent is unable to meet the Child's daily needs. This factor is neutral to the analysis.
11. 23 Pa.C.S.A. § 5328(a)(11)-The proximity of the parties is a factor that would typically have great importance in the analysis applied by the [trial] court when the decision before the [trial] court addresses a primary physical custodian. The distance between residences is approximately ten (10) hours by car. The parties have been utilizing a Gander Mountain store in Fredericksburg, Virginia, as an exchange point. Clearly, the distance is too great to utilize a shared physical custody schedule.
12. 23 Pa.C.S.A. § 5328(a)(12)-Then [sic] next factor is whether appropriate childcare is available for the parents. Mother currently has the Child enrolled in a daycare program where she works. Father indicated that daycare options exist near him as well. This factor is neutral.
13. 23 Pa.C.S.A. § 5328(a)(13)-The custody factor related to the level of conflict between the parties and the willingness and ability of the parties to co-parent with one another is one that deserves special consideration. Mother testified that Father had been emotionally abusive to her[,] which necessitated her relocating to Pennsylvania. Since separating, the [trial] court finds that the parties have been able to co-parent as needed. Therefore, this factor is neutral.
14. 23 Pa.C.S.A. § 5328(a)(14)-The next custody factor examines the history of drug and alcohol concerns for the parents. Neither party presents any issues related to drug or alcohol issues. Therefore, the [trial] court finds that this factor is neutral.
15. 23 Pa.C.S.A. § 5328(a)(15)-The next factor examines the mental and physical health of each party. Neither party reports or alleges any mental or physical health issues. Therefore, this factor is neutral.
16. 23 Pa.C.S.A. § 5328(a)(16)-The [trial] court does not believe that any additional information than that covered by the previous fifteen factors needs to be considered in order to make a determination as to the best interest of the Child.
Trial Court Opinion, filed 2/23/24, at 3-6 (underlining omitted and formatting altered).
Father filed a timely notice of appeal, as well as a contemporaneous Pa.R.A.P. 1925(b) Statement. On April 8, 2024, the trial court filed a brief opinion indicating it was relying upon the analysis in its February 23, 2024, opinion.
On appeal, Father sets forth the following issues in his "Statement of the Questions Involved" (verbatim):
1. Whether the Trial Court erred in determining that [Mother] should maintain primary physical custody?
2. Whether the Trial Court erred in determining that [Mother's] mental health was not an issue when determining primary custody of [L.R.]?
3. Whether the Trial court erred in deciding that the availability of extended family favored [Mother]?
4. Whether the Trial Court erred in favoring [Mother] due to a sibling relationship?
5. Whether the Trial Court erred by stating that the factor was neutral in determining which parent was more likely to
encourage and permit frequent and continuing contact with the other parent?
6. Whether the Trial Court erred by stating that [Father] took a job in NC and that [Mother] and the children lived in NC until an alleged incident occurred?
Mother's Brief at 5 (suggested answers omitted).
Initially, we note that when reviewing a custody decision by the trial court, our scope of review is of the broadest type and our standard of review is an abuse of discretion. See D.K. v. S.P.K., 102 A.3d 467, 478 (Pa.Super. 2014). This Court will not find an abuse of discretion "merely because a reviewing court would have reached a different conclusion." In re K.D., 144 A.3d 145, 151 (Pa.Super. 2016).
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 finding of the trial court.D.K., 102 A.3d at 478 (citation omitted).
We have stated:
The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court's consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion.A.V. v. S.T., 87 A.3d 818, 829 (Pa.Super. 2014) (citations omitted).
In addition to our deference to the trial court's credibility and weight determinations, we are mindful that "it is within the trial court's purview as finder of fact to determine which factors are most salient and critical in each particular case." M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013) (citations omitted). Most important, in any custody action under the Act, the paramount concern is the best interest of the child. See 23 Pa.C.S.A. §§ 5328, 5338. "The best-interests standard, decided on a case-by-case basis, considers all factors which legitimately have an effect upon the child's physical, intellectual, moral, and spiritual well-being." D.K.D. v. A.L.C., 141 A.3d 566, 572 (Pa.Super. 2016) (citations omitted).
23 Pa.C.S.A. § 5338 relevantly provides that "[u]pon petition, a court may modify a custody order to serve the best interest of the child." 23 Pa.C.S.A. § 5338(a).
Relevantly, Section 5328(a) provides:
(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 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.
(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).
Here, as indicated supra, the trial court set forth a complete analysis of the sixteen custody factors set forth in 23 Pa.C.S.A § 5328(a), making findings and discussing the evidence as to each of these findings. The trial court concluded that it was in J.R.'s best interest for Mother to have primary physical custody with Father having partial physical custody.
Father now points to various facts and contends the trial court failed to consider and/or did not adequately consider the facts. Father also questions the weight given by the trial court to various factors. We find Father is not entitled to relief on his claims.
In his first issue, Father contends the trial court erred in relying on Mother's "false testimony" that the reason the family moved to North Carolina was because Father thought it would be a good opportunity. Father's Brief at 11. Father contends they moved to North Carolina so that Mother could be closer to her cousins, who live in North Carolina. See id.
To the extent the trial court determined the reason the family moved to North Carolina was because it was a good opportunity for Father, we note Father specifically testified the family moved to North Carolina because he was given an "opportunity of a lifetime" as it relates to his career, as well as it would be a fresh start for the couple. N.T., 1/26/24, at 53. Simply put, there is no evidence supporting Father's contention the trial court relied on "false testimony" or misapprehended the evidence.
In his second issue, Father contends the trial court failed to consider that Mother was stressed when she lived in North Carolina with Father. He contends the trial court erred in failing to take Mother's stress into consideration in analyzing custody factor 15 related to the mental condition of a party.
While Father testified Mother was stressed when she lived in North Carolina, the trial court was free to make credibility determinations with regard thereto, as well as determine the amount of weight to be placed on this evidence. See D.K., supra. Given that Mother no longer lives in North Carolina, the trial court did not err as it relates to custody factor 15.
In his third issue, Father contends the trial court erred in weighing custody factor 5 in favor of Mother. Specifically, Father contends there is no competent evidence supporting the trial court's finding that "Maternal Grandparents reside in Penn, which is approximately twenty minutes away [from Mother's home in West Newton] and are willing to provide support as well." Trial Court Opinion, filed 2/23/24, at 4.
Contrary to Father's averment, the trial court's finding is supported by the record. For instance, Mother testified her parents live in Penn, and L.R. visits with his Maternal Grandparents approximately once a month. N.T., 1/25/24, at 16. Further, Maternal Grandfather confirmed he and Maternal Grandmother live in Penn, he speaks to Mother on the telephone every other day, and he visits with L.R. every other week. Id. at 35-36. Maternal Grandmother testified L.R. has his own box of toys at Maternal Grandparents' home, and she visits with L.R. approximately every three weeks. Id. at 40. Based on the evidence of record, we conclude the trial court's conclusions regarding custody factor 5 are reasonable. D.K., 102 A.3d at 478 (citation omitted).
In his fourth issue, Father contends the trial court erred in failing to consider that, although there is a sibling relationship between L.R. and S.L., the sibling relationship is not a positive factor. In this regard, Father indicates that S.L. has been caught smoking marijuana, and she presents a "substantial risk" to L.R. Father's Brief at 14.
Contrary to Father's assertion, the trial court specifically acknowledged "Father worries about [S.L.] being an appropriate influence on the Child." Trial Court Opinion, filed 2/23/24, at 4. However, when weighed against the bond S.L. and L.R. have with each other, the trial court found the existence of the sibling relationship "slightly favors Mother." Id. Father asks us to re-weigh the evidence. This we cannot do. See A.V., supra.
In his fifth issue, Father asserts the trial court's conclusion regarding the first custody factor, which party is more likely to encourage and permit frequent and continuing contact between the child and the other party, is not supported by competent evidence and is unreasonable. Specifically, Father contends the trial court failed to consider that Mother left North Carolina with L.R. and failed to let Father know L.R.'s whereabouts. He also contends that Mother has a history of not accommodating Father when he wants to visit L.R. Accordingly, given this evidence, Father avers the trial court erred in holding the first custody factor was "neutral." Trial Court Opinion, filed 2/23/24, at 3.
Contrary to Father's assertion, the trial court specifically stated that, as it relates to the first custody factor, it considered the fact Mother left North Carolina with L.R. See id. However, the trial court weighed this factual finding against the evidence that Father failed to return L.R. to Mother's custody in a timely manner after exercising his partial custody in October of 2022. Id. "On issues of credibility and weight of the evidence, we defer to the findings of the trial judge who has had the opportunity to observe the proceedings and demeanor of the witnesses." K.T. v. L.S., 118 A.3d 1136, 1159 (Pa.Super. 2015) (citation omitted). Moreover, the trial court's legal conclusion based on the evidence of record was reasonable. See D.K., supra.
In his final issue, Father challenges the trial court's factual finding that Mother, Father, and L.R. lived in "North Carolina until an incident occurred between Mother and Father, causing Mother and [L.R.] to return to Pennsylvania in mid-September 2022." Trial Court Opinion, filed 2/23/24, at 1. Father contends there was no "incident." Father's Brief at 16. Father asserts the trial court erred in "putting any weight [on Mother's] testimony in reference to an alleged incident, and her need to file for a [protection from abuse order] was a manipulation on her part of the system." Id.
Here, Mother testified at length about an "incident" whereby Father moved her belongings out of the master bedroom and placed them in L.R.'s bedroom. She further testified that, in response to this "incident," she left the North Carolina home with the two children. Accordingly, the trial court's factual finding is supported by competent evidence of record, and the weight that it placed on this evidence was within its discretion. See D.K., supra.
In sum, Father essentially asks this Court to override the credibility determinations of the trial court, reassess the evidence to credit his position, and re-weigh the factors to arrive at a different outcome. This we cannot do. We remind Father that "parties cannot dictate the amount of weight the trial court places on evidence." A.V., 87 A.3d at 829. It is axiomatic that the trial court is the arbiter of credibility, and this Court cannot interfere with the trial court's careful and thorough consideration of the best interests of the child with findings that are supported by the record. See A.V., 87 A.3d at 820. Here, the trial court clearly considered the facts about which Father complains and weighed them in considering the best interest of L.R. As the testimonial and documentary evidence support the trial court's determinations, we find Father is not entitled to relief. See id.
Based on the aforementioned, we affirm the trial court's custody order dated February 20, 2024, and filed on February 23, 2024.
Order affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.