from the Order Entered September 19, 2017 In the Court of
Common Pleas of Luzerne County Civil Division at No(s): 13351
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT
("Father") appeals pro se from the order
denying his Petition for Modification of a Custody Order with
respect to his minor son, M.P. ("Child"). We
conclude that the trial court did not abuse its discretion in
awarding primary physical custody to M.M.
("Mother"), and did not err in not considering the
factors set forth in Wiseman v. Wall, 718 A.2d 844');">718 A.2d 844
(Pa.Super. 1998), because the Wiseman factors have
been superseded by statute. We therefore affirm.
and Mother married in March 2013 and separated in August
2013; Child was born in November 2013. It is not clear from
the record if Father and Mother obtained a
divorce. They exercise custody of Child pursuant to
an April 29, 2016 order, which awarded primary physical
custody to Mother and partial physical custody to Father.
Pursuant to the order, Father had partial custody on an
alternating basis: Every other weekend, from Friday at 6 p.m.
until Sunday at 6:00 p.m.; alternating Tuesdays from 8:00
a.m. until Wednesday 6:00 p.m.; and alternating Tuesdays from
8:00 a.m. until Thursday at 8:00 a.m. The court also awarded
both parents shared legal custody.
January 19, 2017, Father filed a Petition for Modification of
a Custody Order, in which he requested shared physical
custody of Child. The trial court conducted a two-day custody
hearing during which the parties each testified
concerning their efforts to promote Child's relationship
with the other party. Mother testified that she sends Father
numerous pictures and videos of Child when he is in her
custody, and encourages Child to call Father on the phone.
N.T., 8/29/17-8/30/17, at 247-50, 288. Mother further
testified that Father only sent her pictures of Child on
"Christmas two years ago" and on the first day of
the custody hearing. Id. at 247, 253. Mother
testified that she receives no communication from Child when
he is in Father's care. Id. at 248, 262. Father
testified that Child did not want to call Mother during his
periods of custody, and that he did not send pictures of
Child because the camera on his phone broke. Id. at
parties also testified as to their cooperation with the other
party. Mother testified that Father engages in "mental
terrorism" by belittling and insulting her. Id.
at 257-58. Mother recalled several instances during which
Father belittled her in Child's presence, by yelling at
her and telling Child that Mother is "mean."
Id. at 254. In addition, Mother testified that
Father told her that when Child was older, Father would have
Child read the court documents on Google to make sure Child
does not make the same mistake Father did by marrying a
"toxic" person. Id. at 257. Although
Mother admitted to insulting Father, she insisted that she
has never done so in front of Child. Id. at 253-54,
admitted that he called Mother "mean" in the
presence of Child, but claimed it was because Mother was
criticizing his job. Id. at 175-76. He further
testified that he felt like he was being attacked when he
spoke with Mother. Id. at 175. Father testified that
he mentioned Google Scholar because he was concerned Child
would be able to see the court documents when he is older.
Id. at 198. Father wanted to remind Mother that
everything is available on the Internet and to suggest that
it would be better if they settled their differences.
also testified that she purchased gifts for Father from Child
for Father's birthday, Father's Day, and Christmas.
Id. at 250. Further, Mother purchased tickets for a
Monster Truck show for Father and Child, which was during
Mother's period of custody and Mother has invited Father
to the park during her period of custody. Id. at
158-59, 249-50. Father testified that he had Child make
Mother a necklace and a little handprint. Id. at
parties also testified about getting Child ready for
preschool after returning from Father's custody. Mother
stated that Father used to prepare Child for preschool, so
that Mother could drop him off at school. Id. at
242-244. In approximately March 2017, Father refused to get
Child ready. Instead, he would drop Child off at Mother's
house while Child was in his pajamas. Id. Mother
would not have sufficient time to prepare, and, therefore,
Child would get to school late. Id. Father testified
that this was because Mother had "unilaterally"
changed the procedure for exchanging custody from one where
Mother would pick up Child at Father's house, to one
where Father would drop off Child. Id. at 144.
According to Father, Mother texted Father one day two hours
before the scheduled exchange that she was unable to pick up
Child that day. Id. Father testified that she also
said she wanted him to have Child ready for school when he
returned Child to Mother's house. Id. at 145.
parties both also testified about their experiences with
co-parenting counseling. Mother testified that she attempted
to improve her relationship with Father by suggesting that
they attend co-parenting counseling. Id. at 245.
Although Father attended the counseling, Mother said he
refused to participate meaningfully.
[Father] said I don't know why we're here. I'm
filing for 50/50 custody next week and we'll continue to
parallel parent. And then he checked his phone the whole time
we were there as the counselor was talking to us about our
issues and trying to get us set up with a counselor to move
Id. at 246. Mother testified that after several
unproductive sessions, the counselor said they were "not
going anywhere with this" and they were "too high
conflict." Id. In contrast to Mother's
testimony, Father testified that they attended two or three
sessions and that he wanted to continue the sessions.
Id. at 168-70.
parties also offered testimony about Child's interactions
with his extended family. Paternal Grandparents live in
Virginia and visit with Father once per month. Id.
at 80-81, 87. Child has visited Paternal Grandparents'
home twice since birth. Id. at 110. In contrast,
Mother's sister and Maternal Grandparents live within a
few blocks of Mother. Child spends time with his maternal
cousins on a weekly basis, and spends holidays, birthday
parties, and vacations with his cousins. Id. at
September 19, 2017, the trial court denied Father's
Petition for Modification. Father filed a pro se
Motion for Reconsideration of Order on October 12, 2017,
which the court denied that same day. Father filed a timely
pro se Notice of Appeal on October 12, 2017.
now raises the following issues for our review.
1) Should this Honorable Court overturn the Trial Court's
Custody Decision and grant [Father's] petition to modify
the custody agreement based on the following factors:
1. The Trial Court showed a bias toward a "preferred
parent" when reaching a decision in this case.
2. The Trial Court reached unreasonable conclusions and
misapplied the law when determining that Custody Factors 1,
5, 8, and 13 defined in PA 23 § 5328 were in favor of
3. The Trial Court based its decision on factors that had
little or nothing to do with the best ...