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W.C.F. v. M.G.

Superior Court of Pennsylvania

April 29, 2015

W.C.F., Appellant
v.
M.G., Appellee

Appeal from the Order Entered June 17, 2014. In the Court of Common Pleas of Philadelphia County. Family Court at No(s): OC1300107.

BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.[*]

 Judge Wecht joins this Opinion. Judge Strassburger files a Dissenting Opinion.

OPINION

Page 324

LAZARUS, J.:

W.C.F. (" Father" ) appeals from the order entered in the Court of Common Pleas of Philadelphia County granting M.G. (" Mother" ) primary custody of the parties' two-year old daughter (" Child" ), granting the parties shared legal custody, and granting Father partial custody (six days every two weeks). After our review, we vacate and remand. Despite multiple findings that point to an award of primary custody to Father, the trial court awarded Mother primary physical custody and Father partial custody. After our review of the parties' briefs, the record, and the lower court opinions, we conclude that the court's determination that Mother be awarded primary physical custody is unreasonable in light of its own factual findings which are amply supported in the record. See S.W.D. v. S.A.R., 2014 PA Super 146, 96 A.3d 396 (Pa. Super. 2104) ( this Court may reject trial court's conclusions in child custody matter only if they involve error of law or are unreasonable in light of factual findings).

Mother and Father were married in 2010. Their only child was born in 2012. Father is Assistant Director of Technology at the Mastery Charter High School in Germantown. Mother is a Senior Manager of Technical Accounting at Comcast.

Father is a U.S. citizen; he was raised in Florida. Mother is a native of Malaysia and moved to the United States after meeting Father. Mother became a naturalized

Page 325

citizen in October 2012, two weeks before Child was born. Mother's parents (Maternal Grandmother and Maternal Grandfather) relocated to the United States in July 2012, before Child was born, and moved into Mother and Father's two-bedroom apartment in Old City Philadelphia.

Since Child's birth, Maternal Grandmother has been the primary caretaker for the parties' child. As a result of Father's belief that Mother's family, in particular Maternal Grandmother, was blocking his attempts to bond with Child, the parties agreed that Maternal Grandparents would move out of the parties' apartment and obtain their own residence. As it turned out, however, Mother and Child left along with Maternal Grandparents on January 23, 2013.

The next day, Father filed a complaint for shared legal and physical custody of Child. Mother filed for divorce and sought to confirm her legal and primary physical custody in that complaint. Since separation, Mother has resided with her sister and her parents on the 700 block of South Street in Philadelphia. Mother's brother resides there on occasion as well. Father resides in an apartment in Ardmore, where a separate bedroom is set up for Child.

On February 8, 2012, the court entered an interim order preserving the " status quo." Notably, Mother created that status when she took Child out of the marital home and moved in with her parents. The interim order provided Mother with primary physical custody and Father with partial physical custody every Monday, Wednesday and Friday from 6:30 p.m. until 8:30 p.m., and on Sunday from 11:00 a.m. to 6:00 p.m. The court scheduled a protracted hearing, which included psychological evaluations, and the court heard testimony on August 9, 2013 and on February 5, 2014.[1]

On August 23, 2013, Father filed an amended complaint for custody, seeking sole legal and primary physical custody of Child with supervised visitation or partial custody to Mother. Following the custody hearing, the trial court, on June 17, 2014, entered the current custody order and filed a Summary Opinion dated June 18, 2014. The order grants Mother primary physical custody and grants Father partial physical custody on a repeating two-week basis, as follows:

o Saturday 10:00 a.m. until Sunday 7:00 p.m.
o Tuesday 5:00 p.m. to 8:00 p.m.
o Thursday 5:00 p.m. to Friday 7:00 p.m.
o Tuesday 5:00 p.m. until Wednesday 8:00 p.m.
o Thursday 5:00 p.m. until 8:00 p.m.

Father filed a timely notice of appeal and a concise statement of matters complained of on appeal on July 16, 2014. The trial court filed a Pa.R.A.P. 1925(a) opinion on August 20, 2014. Father raises the following issues for our review:

1. Did the trial court err in awarding primary [physical] custody to Mother despite its determination that it was in the child's best interests to award primary custody to Father?
2. Did the trial court err in expressly relying on Mother's primary physical custodian status, the interim custody status quo created by order without prejudice, in making its determination, especially where evidence

Page 326

showed that Mother surreptitiously vacated the marital residence with the child when she was only 3 months old and that Maternal Grandmother, in fact, was the primary caregiver?
3. Did the trial court err in concluding that keeping the child in the daily care of Maternal Grandmother was " less disruptive" given the Court's own findings and evidence to the contrary?

Appellant's Brief, at 7.

We begin with our scope and standard of review: We review a trial court's determination in a custody case for an abuse of discretion, and our scope of review is broad. M.P. v. M.P., 2012 PA Super 215, 54 A.3d 950, 953 (Pa. Super. 2012). Because we cannot make independent factual determinations, we must accept the findings of the trial court that are supported by the evidence. Id. We defer to the trial judge regarding credibility and the weight of the evidence. Id. The trial judge's deductions or inferences from its factual findings, however, do not bind this Court. Id. We may reject the trial court's conclusions, but only if they involve an error of law or are unreasonable in light of its factual findings. Id. See also J.R.M. v. J.E.A., 2011 PA Super 263, 33 A.3d 647 (Pa. Super. 2011); Hanson v. Hanson, 2005 PA Super 227, 878 A.2d 127, 129 (Pa. Super. 2005); Landis v. Landis, 2005 PA Super 78, 869 A.2d 1003, 1011 (Pa. Super. 2005).

When a trial court orders a form of custody, the best interest of the child is paramount. J.R.M. v. J.E.A., 2011 PA Super 263, 33 A.3d 647, 650 (Pa. Super. 2011). To determine the child's best interest, the trial court must consider the following factors when " ordering any form of custody." 23 Pa.C.S. § 5328(a). Those factors are:

(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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