Opinion
J-S25014-18 No. 1559 WDA 2017
05-09-2018
M.F.E. Appellant v. C.K. Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order September 27, 2017
In the Court of Common Pleas of Westmoreland County
Civil Division at No(s): 33 of 2014-D BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, M.F.E. ("Father"), appeals from the order entered in the Westmoreland County Court of Common Pleas, which retained primary physical custody of the parties' minor child, Z.M.E. ("Child"), with Appellee, C.K. ("Mother"), subject to Father's periods of increased partial physical custody. We affirm.
In its Opinion and Order dated September 27, 2017, the trial court accurately set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Father raises one issue for our review:
WHETHER THE TRIAL COURT'S AWARD OF PRIMARY CUSTODY TO MOTHER WAS IN ERROR AND AGAINST THE WEIGHT OF THE EVIDENCE WHEN THE TRIAL COURT'S FINDINGS OF FACT CONCLUDED THAT THE STATUTORY FACTORS FOR CUSTODY FAVORED FATHER?(Father's Brief at 4).
In reviewing a child custody order:
[O]ur scope is of the broadest type and our standard is abuse of discretion. This Court 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, this Court must defer to the trial judge who presided over the proceedings and thus viewed 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.S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation omitted). "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." A.D. v. M.A.B., 989 A.2d 32, 36 (Pa.Super. 2010).
When deciding whether to modify an existing custody order, the trial court must consider all of the factors set forth at 23 Pa.C.S.A. § 5328(a). J.R.M. v. J.E.A., 33 A.3d 647 (Pa.Super. 2011). The amount of weight a trial court gives to any one factor is largely within the court's discretion. M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013) (explaining trial court's purview, as finder of fact, is to determine which factors are most salient and critical in each particular case). The trial court must give weighted consideration to those factors which affect the safety of the child. 23 Pa.C.S.A. § 5328(a).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Timothy A. Krieger, we conclude Father's issue merits no relief. The trial court's Opinion and Order comprehensively discusses and properly disposes of the question presented. ( See Opinion and Order, dated September 27, 2017, at 4-13) (examining each relevant factor under applicable statute; maintaining primary physical custody of Child with Mother and increasing periods of Father's partial physical custody is in Child's best interest). Accordingly, we affirm on the basis of the trial court's opinion.
Father is correct that the trial court found more of the applicable custody factors favored Father. Nevertheless, the court decided factors three (parental duties performed by each party on behalf of the child) and four (the need for stability and continuity in the child's education, family life, and community life), favored Mother. In its analysis of factor four, the court discussed Child's autism diagnosis. The court doubted that the benefits of granting Father primary physical custody in Texas "will outweigh the potentially serious psychological and emotional damage that may well be caused by an abrupt removal from Mother's primary physical custody." (Opinion and Order at 6). The record supports the court's analysis, particularly in light of Dr. Bush's report and testimony about the emotional turmoil Child could face if he were removed from Mother's primary custody at this juncture, given Child's autism diagnosis. We will not second guess the weight the trial court gave factors three and four, when it decided to continue primary physical custody with Mother. See 23 Pa.C.S.A. § 5328(a); M.J.M., supra .
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/9/2018
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