Opinion
J. A21020/16 No. 982 EDA 2016
09-07-2016
J.S. v. R.H. AND J.H. APPEAL OF: J.S.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered February 29, 2016
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2010-FC-1558 BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J. MEMORANDUM BY DUBOW, J.:
Appellant, J.S., (Grandmother) appeals from the February 29, 2016 Order entered in the Court of Common Pleas of Lehigh County which denied Grandmother's oral Motion for Modification of Legal Custody and reinstated the September 22, 2015 Order which denied Grandmother's Petition for Contempt and Modification. After careful review, we affirm on the basis of the trial court Opinion.
The Order is dated February 26, 2016 but a review of the certified record indicates it was filed February 29, 2016.
The trial court set forth the factual and procedural history as follows:
[R.H. (Father)] and [J.H. (Mother)] are the biological parents of twin boys, J.H. and R.H., born [in] March [of] 2005. On July 2, 2011, by agreement of the parties, the Honorable William E. Ford entered an order awarding [Father] and [Mother] joint legal
custody of the boys. [Father] was awarded primary physical custody and [Grandmother] received partial physical custody.
Under the partial physical custody agreement, the children are with [Grandmother] after school from Tuesday through Friday. The children then are driven to their father's home at or around 8:00 p.m. each evening after [Father] returns home from work.
On September 23, 2014, [Grandmother] filed a Petition for Contempt and Modification. In her petition, she alleged [Father] violated the July 2, 2011 custody order by failing to turn the children over to her on Fridays throughout the summer of 2014 and for failing to obtain health insurance for the children. [Grandmother] further sought modification based on an allegation that the children were being abused by [Father].
On September 8 and 10, 2015, the [c]ourt conducted hearings on [Grandmother]'s petition along with a similar petition filed by [Mother] which is not the subject of the instant appeal. The [c]ourt heard testimony from the parties, a psychologist, and [Grandmother]'s husband. The [c]ourt also interviewed the minor children individually in camera outside the presence of the parties and counsel but with the Court Reporter.
On September 22, 2015, the [c]ourt entered an order denying both contempt and modification petitions which included an extensive review of the [c]ourt's findings under the custody factors enumerated in 23 Pa.C.S.A. § 5328 and 5329.1. Based on those factors, the [c]ourt denied modification and maintained the existing custody arrangements. The only addition was that the [c]ourt directed the biological parents and [Father]'s paramour to enroll and participate in Co-Parenting Education classes.
Appellant filed her Notice of Appeal on October 22, 2015. The [c]ourt directed her to file a 1925(b) Statement, which she timely filed on November 18, 2015. Upon review of the issues complained of on appeal, the [c]ourt felt it was appropriate to request that the matter be remanded for purposes of interviewing the minor children with counsel present. The matter was remanded on or about January 6, 2016 and the [c]ourt re-interviewed the minor children on February 18, 2016. On February 29, 2016, the [c]ourt entered an order finding that the re-interviews did not yield any different information which
would necessitate modifying the September 22, 2015 Order. Accordingly, the September 22, 2015 Order was reinstated.Trial Court Opinion, filed 4/22/16, at 3-4.
Grandmother timely appealed. Both Grandmother and the trial court complied with Pa.R.A.P. 1925.
Grandmother raises the following issues on appeal:
1. Did the trial court err in finding that [Father] is more likely to encourage and permit frequent and continuing contact between his children and [Grandmother]?Grandmother's Brief at 4-5.
2. Did the trial court err in finding that [Father] has not committed past abuses of his children?
3. Did the trial court err in not finding that [Grandmother] was more qualified to perform parental duties on behalf of the children?
4. Did the trial court err in failing to find that [Grandmother] would be better able to provide for stability and continuity in the children's education, maturity, and judgment?
5. Did the trial court err in failing to find that [Father] has attempted to turn the children against [Grandmother]?
6. Did the trial court err in failing to determine that [Grandmother] is better able to maintain a loving, stable, consistent, and nurturing relationship with the children, and to attend to the daily physical, emotional, developmental, educational, and special needs of the children, than is [Father]?
7. Did the trial court err in failing to rationally consider the uncontradicted testimony of Dr. Ronald Esteve?
8. Did the trial court err in denying [Grandmother]'s request for co-legal custody and primary physical custody of her minor grandchildren?
Our standard of review regarding child custody matters is well settled:
[O]ur 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.A.D. v. M.A.B., 989 A.2d 32, 35-36 (Pa. Super. 2010) (internal citations and quotation marks omitted).
In a 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." Id. at 36 (internal citations and quotation marks omitted). When "ordering any form of custody" the trial court must consider 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.
(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
(3) The parental duties performed by each party on behalf of the child.23 Pa.C.S. § 5328(a).
(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.
The Honorable Douglas G. Reichley, who presided at the hearing, has authored a comprehensive, thorough, and well-reasoned Opinion, citing to the record, relevant case law, and applicable statutes in addressing Grandmother's challenges to the trial court's February 29, 2016 Order. After a careful review of the parties' arguments and the record, we affirm on the basis of the trial court's Opinion, which concluded that: (1) the trial court did not abuse its discretion when it denied Grandmother's Petition for Contempt and Modification; (2) although it is "unorthodox," the parental duties for the children are performed by a "three[-]person structure" and it is in the best interests of the children to maintain the physical and legal custody that was in place at the time of the hearing. See Trial Court Opinion, filed 4/22/16, at 5-16.
The parties are instructed to attach a copy of the trial court's Opinion to all future filings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/7/2016
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