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C.B v. J.B. and M.B. and T.B

April 22, 2013

C.B.,
APPELLANT
v.
J.B. AND M.B. AND T.B., APPELLEES



Appeal from the Order of October 24, 2011 In the Court of Common Pleas of Mercer County Civil Division at No: 2011-164, C.A.

The opinion of the court was delivered by: Wecht, J.

BEFORE: MUSMANNO, J., BOWES, J., and WECHT, J.

OPINION BY WECHT, J.

In this appeal, we are called upon squarely to determine the point in time at which a trial court must specify the reasons for its decision in a child custody case. We address this question under the "new" Child Custody Act ("the Act"), which our General Assembly enacted in November 2010, and which took effect in January 2011.*fn1

In this case, C.B. ("Aunt") appeals the custody order entered on October 24, 2011. That order awarded primary physical custody of G.B. (born December 2004) and K.B. (born November 2003) to their paternal uncle, J.B. ("Uncle"), from whom Aunt is separated. To decide this appeal, we must address the timing of the trial court's application of the sixteen custody factors delineated in the Act.

J-A24016-12

We hold today that the Act requires a trial court to address each of these factors prior to the deadline by which a litigant must file a notice of appeal, and preferably at the time the custody order is issued or shortly thereafter. We apply this holding prospectively, as the trial court here was not bound to anticipate this construction of the Act.

As we explain below, because Aunt was not prejudiced by the timing of the court's attempt to comply with the terms of the Act in this case, we affirm.

On May 15, 2007, following juvenile dependency proceedings, the trial court appointed Aunt and Uncle as permanent legal guardians of G.B. and K.B. The court's order provided the birth parents, M.B. and T.B. ("Birth Parents"),*fn2 two hours of visitation per month, plus portions of certain holidays. The court expressed a goal of increasing Birth Parents' contact with G.B. and K.B., provided that the contact was in G.B.'s and K.B.'s best interests.

Aunt and Uncle separated in December 2010. Uncle departed the marital residence with G.B. and K.B. in order to reside with his paramour. Thereafter, on January 14, 2011, Aunt filed a complaint seeking primary physical custody of the children. Following several preliminary custody proceedings, including Uncle's petitions for special relief and for relocation with the children, Aunt's substance abuse evaluations, and court-ordered child custody evaluations, the trial judge held a two-day custody hearing on October 21 and 24, 2011. While only Aunt, Uncle, and Birth Parents testified during that hearing, the court incorporated testimony presented by other witnesses during the prior proceedings. At the close of the custody hearing, the trial court entered the above-referenced order, which awarded Uncle primary physical custody of G.B. and K.B., and granted Aunt periods of partial custody.

Prior to rendering its decision, the trial court articulated on the record two of the reasons for its decision, pursuant to 23 Pa.C.S. § 5323(d). The trial court further stated that it had considered all of the statutory factors enumerated in section 5328(a) in order to determine the children's best interests. The trial court did not address each of those factors on the record at that time.

Aunt filed a timely notice of appeal and a concomitant statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). In response, the trial court filed a Pa.R.A.P. 1925(a) opinion, along with extensive findings of fact and conclusions of law that expounded in detail upon the court's reasoning and analyzed at length the Act's sixteen statutory factors. Aunt presents the following questions for our review:

1. Whether the trial court abused its discretion and committed reversible error in failing to consider all factors set forth in 23 Pa.C.S. § 5328 before entering the October 24, 2011, Custody Order?

2. Whether the trial court abused its discretion by providing [Uncle] with a preferred status for custody because of his biological relationship to the minor children?

3. Whether the trial court abused its discretion and committed reversible error by drawing improper and unfounded inferences from [Aunt's] nationality and perceived communication barriers and potential educational setbacks resulting therefrom?

Aunt's Brief, at ii.

At the outset, we observe that, although Aunt filed her custody complaint on January 14, 2011, the Act applies to this case, inasmuch as the ensuing custody proceedings occurred after January 24, 2011, the effective date of that new law. C.R.F., III v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) ("[I]t is the date of the commencement of the hearing that determines whether the Act applies, not the date the petition or complaint was filed.").

In the Act, our General Assembly identified sixteen factors that trial courts must consider in determining the best interests of a child at the time that custody is awarded. Those factors are as follows:

(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.

(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 ...


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