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S.R.R. v. D.W.R.

Superior Court of Pennsylvania

June 28, 2013

S.R.R., Appellee
D.W.R., Appellant


Appeal from the Order Entered January 4, 2013 In the Court of Common Pleas of Jefferson County Civil Division at No(s): 1251-2009 C.D.




D.W.R. ("Father") appeals from the order entered on January 4, 2013, which awarded S.R.R. ("Mother") primary physical custody of their three children, A.R., J.R., and E.R., and granted Father periods of partial physical custody. We affirm.

Mother and Father are married, and all three children were born of their relationship. Mother initiated the underlying litigation by filing a custody complaint on November 13, 2009. The parties' initial consent decree awarded Mother and Father shared physical custody. Following a mediation conference to address recurring disputes and increasing animosity, the trial court presided over a custody trial on October 26, 2010, and entered an order on December 17, 2010, that awarded Father primary physical custody of all three children. Mother was granted periods of partial physical custody, including alternating periods of weekend custody. Mother and Father shared legal custody.

Two weeks later, Father filed a petition to modify his award of primary custody so that he could maximize his time with the children. A prehearing conference was scheduled for February 24, 2011; however, following several continuances, Mother's successful petition and cross-petition for contempt, Father's two unsuccessful petitions for special relief and contempt, and Father's fruitless motion for recusal, the trial court held an evidentiary hearing on November 4, 2011. Thereafter, on May 21, 2012, the trial court awarded Mother primary physical custody and granted Father alternating periods of weekend physical custody while the children are in school and biweekly custody during the summer.

During Father's ensuing appeal, this Court determined that the new child custody law, effective January 24, 2011, applied to this case. We vacated the custody order and remanded the matter for the trial court to comply with its statutory mandate under the new custody law to consider the best-interest factors listed in 23 Pa.C.S. § 5328. The trial court complied with our directive, and on January 4, 2013 it entered an opinion and order that awarded Mother primary physical custody of the three children under terms identical to its previous custody order, incorporated its findings of facts and conclusions of law from its previous opinion, and addressed each of the sixteen factors enumerated in § 5328(a).

This timely appeal followed.[1] Father presents a single generic issue for our review: "Whether the [trial] court erred in granting primary physical custody to Appellee." Father's brief at 4. Mother failed to present a countervailing argument on appeal. For the reasons that follow, no relief is due.

We recently reiterated our scope and standard of review of a custody determination as follows:

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.
With any child custody case, the paramount concern is the best interests of the child. This standard requires a case-by-case assessment of all the factors that may legitimately affect the physical, intellectual, moral and spiritual well-being of the child.

M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.Super. 2013) (quoting J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super. 2011)).

Pursuant to 23 Pa.C.S. § 5328(a), the determination of a child's best interest requires the examination of the following sixteen factors:

(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 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. § 5328(a).

Herein, the trial court found that none of the best-interest factors weighed in Father's favor. Indeed, the court found that factors two, six, seven, fourteen, fifteen, and sixteen were inapplicable and that factors three, ten, and eleven were balanced evenly between the parents. The seven remaining factors all militated in favor of awarding Mother primary physical custody. In sum, after addressing each of the best-interest factors individually, the trial court reasoned,

After review of the evidence . . . the Court has made Findings showing that Mother is the parent most likely to provide for the children's emotional needs, as well as cooperate with the other parent in facilitating for their visitation and contact.
The father has, since the beginning of this case, failed to cooperate with Mother and continually raised the level of conflict. While he is unsatisfied with Mother's residence, he moved from his "ideal" residence into a residence with his girlfriend and her children. This relationship almost immediately failed. He has continually proven to be unreasonable in his demands and non-accommodating in any requests. As such, for any custody [arrangement] to have any chance of including both parties, Mother would be in the best position under these factors to be the primary custodian; because she would allow and accommodate Father's visits.
The best interest and permanent welfare of the minor children will be served by living primarily with mother. As such, the Court will enter the following order:

Trial Court Opinion and Order, 1/4/13, at unnumbered page 6.

Father argues that the trial court erred in applying the best-interest factors. For ease of disposition, we separate Father's challenges into three groups. First, Father assails the court's assessment of factors one, eight, and thirteen, which collectively relate to his acrimonious interactions with Mother, his attempts to alienate Mother from the children, and his obdurate refusal to cooperate. Second, Father challenges the trial court's assessment of factors three and ten concerning parenting. Finally, Father questions the court's findings under factor four regarding the children's need for stability and continuity. Beyond one isolated reference to a lack of evidence to support the trial court's finding relating to alienation, which the certified record contradicts, [2] Father essentially requests that we re-examine the evidence adduced during the custody hearing in a more favorable light.

As it relates to the first category of challenges, Father contends that, although he desired to limit Mother's contact with her children to "visitation only, [and] no overnights . . . unless she gets a better living environment, " the trial court misconstrued his concern for his children's wellbeing as an unreasonable animosity toward Mother and his unwillingness to cooperate in parenting. Father's brief at 10. In support of his position that he actually encouraged contact between Mother and the children, Father highlights his testimony during the custody hearing where he described encouraging his oldest son, A.R. to spend additional time with Mother. In addition, Father argues that he provides Mother with contact information when he has custody and, on occasions, has invited Mother to participate in certain events. Likewise, he asserts that, in reality, Mother limits his contact with the children, albeit under the guise of preventing him from contacting her regarding marital issues. Thus, he contends that the lack of communication was not limited to his actions.

In relation to the parties' comparative parenting abilities, Father refers to the evidence he adduced to demonstrate that he was the superior parent, i.e., "she does not perform [parental duties] at the same level as [Father does.]" Id. at 10. Similarly, Father asserts "[he] has done more to show [that] he will do more to attend to the children's needs." Id. at 12. Likewise, Father maintains that Mother is not as involved as he is in the children's activities.

Next, Father argues that he offers the children greater stability in their education, family and community life. Primarily, he attempts to explain the circumstances surrounding his relocation with his then-paramour to another school district, which necessitated that A.R. endure a temporary change of schools before Father's evanescent union dissolved.

Mindful of our limited standard of review, we decline Father's implicit requests to revisit the trial court's credibility determinations and findings of fact that are supported by the record in order to reassess the weight of the evidence in his favor. See M.J.M., supra at 334 ("We must accept findings of the trial court that are supported by competent evidence of record. . . . Ultimately, the test is whether the trial court's conclusions are unreasonable as shown by the evidence of record."). As we must defer to the trial court on issues of credibility and weight of the evidence, and our review of the certified record confirms the trial court's conclusions, we discern no basis to disturb its custody decision based upon Father's contrary evidence.

Finally, in an attempt to bolster his foregoing arguments and to provide a basis to challenge the trial court's legal conclusions, Father relies upon the primary caretaker doctrine. Essentially, he asserts that the trial court failed to "give weight to the fact that [he] has been arguably the primary care giver." Father's invocation of this precept is unavailing. The primary caretaker doctrine is an extra consideration that applied in limited instances where a trial court has deemed both parents equally fit to act as the primary custodian. See M.J.M., supra. However, as we recently explained in M.J.M., the precedential underpinnings of the judicially-created precept have been eroded by the subsequent enactment of the sixteen specific best-interest considerations enumerated in the new custody law. Id. at 338-339. As we observed in M .J.M.,

If the Pennsylvania Legislature intended for extra consideration be given to one parent because of his or her role as the primary caretaker, it would have included language to that effect. Stated another way, the absence of such language indicates that our Legislature has rejected the notion that in analyzing both parents, additional consideration should be given to one because he or she has been the primary caretaker.
In short, the Legislature has created a mandatory inquiry to aid trial courts in determining the best interests of the child in a custody dispute. In doing so, it articulated the components of a parent's obligations and characteristics, and a child's needs and welfare, that must be incorporated in the trial court's custody decision where the parents are incapable of doing so on their own. In setting forth these factors, the Legislature has required the trial court to give additional weight only to factors that it finds affect the safety of the child. This language is clear, and we cannot expand it to provide that a trial court must also give weighted consideration to a party's role as primary caretaker. We simply cannot graft the judicially-created primary caretaker doctrine on to the inquiry that the Legislature has established, and so we conclude that the primary caretaker doctrine, insofar as it required positive emphasis on the primary caretaker's status, is no longer viable.

Id. (footnote omitted).

Thus, while the trial court necessarily considered the natural implication of both parents' roles as the primary caretaker in applying § 5328(a) factors three and ten, a presumption no longer exists that would tip the scales in favor of the primary caretaker in close cases. Accordingly, we reject Father's assertion that the trial court committed legal error in failing to apply the doctrine in the case at bar. Order affirmed.

Judament Entered.

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