Roupe, D. v. Ficarri, A.

J-S39001-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

DUSTIN ROUPE : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : AMANDA FICARRI : No. 174 WDA 2024

Appeal from the Order Dated January 8, 2024 In the Court of Common Pleas of Beaver County Civil Division at No(s): No. 10209-23

BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J. MEMORANDUM BY DUBOW, J.: FILED: January 8, 2025

Dustin Roupe (“Father”) appeals from the January 8, 2024 order entered in the Beaver County Court of Common Pleas that awarded him and Amanda Ficarri (“Mother”) shared legal and physical custody of the parties’ four-yearold child, L.J.R. (“Child”). Father raises challenges to weight of the evidence with regards to the trial court’s consideration of the 23 Pa.C.S. § 5328 custody factors and further argues that the trial court improperly considered Father’s motivation in pursuing primary physical custody of Child. Upon review, we affirm.

The Honorable Kim Tesla has authored a thorough and accurate procedural and factual history in the February 26, 2024 Pa.R.A.P. 1925(a) Opinion and Order (“Opinion”), which we adopt for purposes of this appeal. Trial Ct. Op., 2/26/24, at 1-4. By way of background, Father and Mother were never married but lived together for approximately five years until they

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separated in May 2022 and agreed to an informal shared custody agreement, where Child spent equal time with each parent. Mother and Father are both employed and both have extended family that live nearby. Father has a new significant other, Amber Falletta, and the two have a child together. Father and Ms. Falletta have purchased a portion of Father’s parents’ 45-acre property and intend to build a home there together.

On February 14, 2023, Father filed a custody complaint requesting primary physical custody of Child and averring that Mother had mental health issues. On July 14, 2023, the trial court entered a proposed order that awarded the parties shared legal and physical custody on a “2-2-3 day” rotating schedule. The proposed order gave preference to Father’s work schedule.

On August 3, 2023, Father filed exceptions, again averring that Mother had mental health issues. The court held pre-trial conferences on September 29 and October 6, 2023, but was unable to mediate the conflict between the parties. While Mother was in agreement with the July 14, 2023 proposed order, Father wanted to pursue primary physical custody.

The court held hearings on December 15, 2023, and December 19, 2023. The parties entered a stipulation that “Mother’s mental health would not be an issue at trial, so it would not be necessary for Mother to present expert testimony on her mental health to the [c]ourt during trial.” Trial Ct. Op. at 2. Father presented testimony from himself; Ms. Falletta; Wendy Richards, Father’s mother; and Leroy Richards, Father’s father. Mother

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presented testimony from herself; Dominic Ficarri, III, Mother’s father; Jeanette Ficarri, Mother’s mother; Traci Rice, Mother’s sister; Cody Rogers, parents’ mutual friend and babysitter for Child; and Dominic Ficarri, Mother’s brother.

Relevant to this appeal, the court heard evidence that on July 23, 2023, Father filed a petition for a reduction of child support payments but, after hearing evidence, the court increased Father’s support obligation. Father admitted that, after the child support hearing, he became upset and angry and confronted Mother outside of the courthouse. As a result of the incident, the parties agreed to a protection from abuse (“PFA”) order with Mother as the protected party. The court entered the order without either party making admissions to the underlying accusations, and by agreement of the parties, the court subsequently dismissed the PFA action.

On cross examination, Mother’s counsel asked Father why he continued to pursue primary physical custody. and Father testified that he wanted one more day of custody because of his belief that he should have custody whenever Mother was working and needed to use childcare providers. Father also expressed concerns with Mother’s care of Child relating to Child’s education and hygiene. Also on cross examination, Father testified that his plans to build a house were delayed because the court increased his child support obligation.

On January 2, 2024, after considering each of the Section 5328 custody factors on the record, the court issued a decision awarding the parties shared

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legal and physical custody of Child on a “2-2-3 day” rotating schedule. The trial court also made a finding that “a primary incentive of [F]ather for continuing to pursue a change in the shared custody order is the recent increase in child support and [F]ather’s desire to lower child support in order to build a house.” Order, 1/2/24, at 2 (unpaginated).

Father timely appealed. Father and the trial court complied with Pa.R.A.P. 1925.

Father raises the following issues for our review:

1. Did the honorable trial court err[] and abuse its discretion by issuing an order that focuses on an errant assumption regarding the main motivation of [] Father being a desire to reduce his child support, which is not a custody factor?

2. Did the honorable trial court err[] and abuse its discretion by issuing an order that fails to grant Father primary physical custody and fails to accurately apply 23 Pa.C.S. [§ ]5328, the [17] relevant custody factors, to the facts of this case? Father’s home provides structure, stability, sibling relationships, routines, a better school district, extended family in a rural setting, activities and a wonderful way of life. Mother has no available, secure childcare, leaves for work extremely early in the morning limiting the child’s sleep, lacks stability at present, and lives too far for a shared schedule to be sustainable when school starts.

Father’s Br. at 7.

A.

This Court reviews a custody determination “for an abuse of discretion, and our scope of review is broad.” S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014). This Court will not find an abuse of discretion “merely because a reviewing court would have reached a different conclusion.” In re K.D.,

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144 A.3d 145, 151 (Pa. Super. 2016). We must accept the findings of the trial court that the evidence supports. S.W.D., 96 A.3d at 400. Importantly, “[o]n issues of credibility and weight of the evidence, we defer to the findings of the trial judge who has had the opportunity to observe the proceedings and demeanor of the witnesses.” K.T. v. L.S., 118 A.3d 1136, 1159 (Pa. Super. 2015) (citation omitted). We can interfere only where the “custody order is manifestly unreasonable as shown by the evidence of record.” Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super. 2006) (citation omitted). Further, in a custody case, relief is not warranted unless the party claiming error suffered prejudice from the mistake. J.C. v. K.C., 179 A.3d 1124, 1129-30 (Pa. Super. 2018).

When reviewing child custody matters, our “paramount concern and the polestar of our analysis” is the best interests of the child. Saintz, 902 A.2d at 512 (citation omitted). “The best-interests standard, decided on a case-by-case basis, considers all factors which legitimately have an effect upon the child’s physical, intellectual, moral, and spiritual well-being.” D.K.D. v. A.L.C., 141 A.3d 566, 572 (Pa. Super. 2016) (citations omitted). “Common sense dictates that trial courts should strive, all other things being equal, to assure that a child maintains a healthy relationship with both of his or her parents, and that the parents work together to raise their child.” S.C.B. v. J.S.B., 218 A.3d 905, 916 (Pa. Super. 2019).

The trial court “shall determine the best interest of the child by considering all relevant factors, giving substantial weighted consideration to

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the factors . . . which affect the safety of the child,” including the specific factors mandated by the Custody Act. 23 Pa.C.S. § 5328(a). The court must “delineate the reasons for its decision[.]” Id. at § 5323(d). Finally, “[i]n any action regarding the custody of the child between the parents of the child, there shall be no presumption that custody should be awarded to a particular parent” and no “preference based upon gender.” Id. at §§ 5327(a), 5328(b).

In his first issue, Father avers that the trial court abused its discretion when it improperly considered Father’s motivation in pursuing primary physical custody of Child. Father’s Br. at 17, 24. Father argues that the trial court made an “errant” finding that Father pursued primary physical custody of Child in an effort to reduce his recently increased child support obligation. Id. Father asserts that this is not a custody factor and, therefore, the court should not have considered it. Id. at 17. Father’s arguments lack merit.

In presenting his argument, Father fails to acknowledge that Section 5328 compels the trial court to “determine the best interest of the child by considering all relevant factors[.]” 23 Pa.C.S. § 5328(a) (emphasis added). The statute provides a non-exhaustive list of the specific factors that the trial court “shall” consider, including catchall factor 16: “Any other relevant factor.” Id. at § 5328 (a)(16).

Instantly, the trial court acknowledged that factor 16 allows the court to consider “any other relevant factor” and found Father’s motivation to save money to be relevant. Trial Ct. Op. at 20. The trial court opined:

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The Court believes that Father’s motivation in continuing his efforts to obtain primary custody of the minor child is relevant, given that his motivation appears to not concern the actual best interests of the minor child but to his own interest in obtaining a decrease in his child support payments.

Id. The court further explained that it did not base its decision solely on Father’s motivations but, rather, properly considered all the custody factors in coming to a decision. The court opined:

In addition, the Court did not base its custody decision solely on its finding that Father had ulterior motives in pursuing child custody litigation. The Court heard two days of testimony in this case. It heard the testimony of both parties, and examined the evidence and exhibits presented at trial. The Court carefully reviewed the § 5328 factors and applied them to the factual circumstances of this case before making its child custody determination. The Court determined that the current child custody arrangement was working for both parties, even though the current order still benefits Father over Mother, since it accommodates his work schedule but not hers. Even if the Court did not consider Father's motivation in continuing to pursue primary custody of the minor child, the Court's analysis and application of the § 5328 factors would not change. Regardless of Father’s motivations behind continuing to pursue primary custody, proper application of the § 5328 factors shows that shared custody is in [Child]’s best interest.

Id.

Father provides no legal authority to support his position that a parent’s motive in filing a custody petition is not a relevant factor for the court to consider. Upon review, we conclude the record supports the court’s findings. Accordingly, we find no abuse of discretion.

In his second issue, Father avers generally that the trial court misapplied the Section 5328 custody factors. Father’s Br. at 25-26. Essentially, Father asks this Court to reweigh the evidence, which we cannot do. In accordance

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with our well settled standard of review, we defer to the trial court on issues of weight and credibility. The Honorable Kim Tesla has authored a comprehensive, thorough, and well-reasoned Opinion, including discussion of relevant law, and has engaged in an analysis of each of the Section 5328 custody factors and made specific findings regarding each factor, which the record supports. Trial Ct. Op. at 8-18. (addressing Father’s second issue on appeal, considering all the Section 5328 custody factors, and finding that it was in Child’s best interest to award shared legal and physical custody of Child to parents). After a thorough review of the parties’ briefs, the applicable law, and the trial court’s Opinion, we discern no abuse of discretion. We, thus, adopt the trial court’s analysis as our own and affirm on the basis of the trial court’s February 26, 2024 Opinion.

In sum, the trial court did not err when it considered Father’s motive in filing the custody complaint. Moreover, the trial court thoroughly considered all the Section 5328 custody factors prior to its custody award, and the record supports the trial court’s findings. Accordingly, we find no abuse of discretion.

All parties are instructed to attach a redacted copy of the trial court’s February 26, 2024 Opinion to all future filings.

Order affirmed.

Judge Nichols joins the memorandum.

Judge Kunselman did not participate in the consideration or decision of this case.

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J-S39001-24

DATE: 1/8/2025

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Circulated 11 22 AM Circulated 12/20/2024 11:22 1122 AM ,. • f

THE COURT IN THE OF COMMON COURT OF COMMON PLEAS OF BEAVER COUNTY COUNTY PENNSYLVANLA PENNSYLVANIA PENNSYLVANLA CIVIL DIVISION CIVIL DIVISION —-- LAW DIVISION DUSTIN ROUPE, ROUPE,

PLAINTIFF

VS. NO. NO, NO. 10209-2023

FIC ARRI, FIC ARRI, AMANDA FICARRI, CUSTODY CUSTODY CUSTODY

DEFENDANT

Pa. R.A.P.1925(a)(2) Pa. R.A.P. 1925(a)(2) R.A.P. 1925(a)(2) OPINION OPINION AND AND ORDER

I TESLA, I J. FEBRUARY FEBRs 6 6 2024 2024 2024

INTRODUCTION

Court is an The matter before the Court an appeal Dustin Roupe appeal by Dustin Roupe (hereinafter, Roupe "Father") of (hereinafter, "Father") (hereinafter, "Father") of the the the

Court's January Court's January 2, 2, 2024, 2024, Custody Custody Order Order granting shared custody granting shared custody between custody between Father and Amanda Father and Amanda Amanda

Ficari (hereinafter, """Mother') Ficarri Ficari Mother") of their minor child, Mother") LJ.R. child, L.J.R. LJ.R. On appeal, Father On appeal, On appeal, Father Father

argues argues that the the Court did did not not properly properly consider consider the the sixteen child custody sixteen child custody factors custody of 23 Pa. of23 factors of23 Pa C.S.A. Pa C.9_A C.9_A

§5328, and $5328, $5328, and that that the erred by Court erred the Court by making making aa a factual factual finding finding that one of that one of Father's Father's motivations motivations in motivations in in

continuing to continuing pursue primary to pursue of the custody of primary custody the minor child was minor child to obtain was to obtain aa a decrease decrease in decrease in his in his child his child child

support payments, support payments, which had been been increased increased during the litigation during the litigation of his his matter. matter. For matter. For the the reasons reasons reasons

stated below, the Court finds that Court finds that Father's claims claims are are without without merit. merit.

FACTS AND FACTS AND PROCEDURAL PROCEDURAL HISTORY HISTORY

On On February February 14, 14, 2023, 2023, Father filed aaaComplaint Father filed Complaint for Custody against Custody for Custody against Mother against Mother requesting Mother requesting requesting physical custody primary physical of the parties' minor child L.J.R. custody of L.JR. In the Complaint, Complaint, Father Complaint, Father alleged Father alleged that alleged that that

was employed Mother was employed by UPMC Wexford as as aa a patient care technician. Father patient care Father further further alleged further alleged that alleged that that

n ,, s

suffered from Mother suffered from mental mental health issues issues that prevented prevented her from properly caring for properly caring properly caring for the the minor minor minor

child. child. Father requested primary physical and child. Father and legal legal custody. The Count custody. The Court entered aa Count entered a Proposed Order Order Proposed Order Proposed

July 14, on July 114, 2023, 2023, providing for for shared physical and legal physical and for the custody for legal custody the parties, parties, and parties, allowing and alloswi and alloswi have primary physical Father to have during his custody during physical custody days off days his days off work. work.

On August 3, On 3, 2023, Father filed Exceptions to the Proposed Proposed Custody Custody Order. Custody The Court Order. The Court

scheduled scheduled a aa pre-trial on Father's Exceptions. conference on pre-trial conference Exceptions. In his Exceptions, In his Exceptions, Father Exceptions, Father again again alleged again alleged alleged

that that Mother suffered from Mother suffered mental health from mental issues that health issues that may may negatively negatively impact negatively impact her impact her ability to to care ability to ability care for care for for child on the child on aa % time basis. % time

The Court held pre-trial conferences on Court held on September and October September 29 and October 6, 6, 2023. 2023. At the pre- At the pre

trial conferences, the trial conferences, the Court Court attempted attempted to mediate the to mediate conflict between the conflict between the the parties parties to parties to foster amicable amicable foster amicable

co-parenting of co-parenting of the the minor child. Mother minor child. Mother indicated indicated that the July 14, the July 14, 2023, 2023, Proposed Custody Order Proposed Custody Proposed Custody Order

would not accept was acceptable to her. However, Father would accept the Proposed Proposed Order, Order, and indicated indicated that that

wished to he wished he further pursue to further pursue the the custody custody litigation in his litigation in effort to his effort obtain primary to obtain custody of primary custody primary custody of the of the the

minor child. Therefore, minor child. Therefore, after the pre-trial after the conference on pre-trial conference on October 6, 2023, October 6, the Court 2023, the 2023, entered an entered Court entered an an

Order scheduling Order trial in scheduling trial in this this matter matter to begin in to begin in December, 2023. 2023 December, 2023 December,

trial in this matter, the Prior to trial the Court was was alerted alerted that that there would be aaastipulation stipulation between stipulation between

the the parties parties that that Mother's Mother's mental would not health would mental health not be an an issue at trial, issue at trial, so so it would not it would be necessary not be necessary necessary

for Mother for Mother to to present present expert expert testimony on her testimony on her mental mental health health to to the the Court during trial Court during during trial

The Court The Court held held trial trial and and heard heard testimony from both testimony from both parties on December parties on December 15 and December 15 and December

14 I9 0of 2023. I9 of 0of The Court 2023. The Court heard heard oral argument and oral argument announced its and announced decision on its decision on January January 2, January 2, 2024. 2, 2024. 2024.

During trial, During During trial, it it came came to the Court's to the Court's attention that Father attention that Father had had recently recently filed filed aaapetition petition for petition for aaa

reduction of child reduction of support payments child support on July payments on 23, 2023. 1The Court was 23,2023.' July 23,2023.' was informed informed that that Father Father became became became

On On July On 1 July 23, 2023, Father 23,2023, 23,2023, fled aa Father filed fled a petition for reduction petition for reduction of of bis his child support bis child support payments. support payments. The payments. The Honorable Honorable Judge Teel Honorable Judge Judge Tocci Teel entered an interim child entered child support support order on August 31, order on 34, 2023. 34, 2023. The Court held aaachild 2023. child support support support hearing on on September September 11, hearing September hearing on II, II, 2 2

IS A insA

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angry at angry at the the child child support support hearing when he learned learned that that his support support payments were to payments were to be increased increased

instead of decreased. instead of decreased. Following decreased. the support Following the support hearing, hearing, Father confronted Mother Father confronted Mother outside outside the the

on the courthouse on courthouse public street the public about the street about the support support payments. payments. He stated to Mother He stated Mother Mother "Are "Are you you serious? you serious?

can you do this to me?" An How can Order was entered An agreed PFA Order entered following this incident following this incident naming naming naming

Mother Mother as a protected as aa The Order protected party. The Order was entered without either was entered either party party making making any making admissions any admissions any

the underlying accusations, to the accusations, however during during the custody on December 15, custody trial on Father admitted 15, Father admitted

angry because of the increase that he became upset and angry increase in child child support, and that support, and he confronted that he confronted

and made the Mother and the above above statements to to her_ her. That her. That PFA Order Order has since since been been dismissed dismissed by by by agreement of agreement of the parties. parties the parties

custody trial, during At the custody during cross-examination cross-examination of of Father by Counsel for by Counsel for Mother, Mother, Counsel

for Mother for Mother asked asked Father Father what what his his objective objective was was in in continuing to pursue continuing to pursue primary custody primary custody primary of the custody of

minor child. Father minor Father responded responded that that he he wanted wanted one one more more day of custody day of of the custody of the minor minor child, child, because because

he believed that he believed he should that he should have custody whenever have custody whenever Mother to use needed to Mother needed childcare providers use childcare providers when providers when

work. Father also stated that his main she was at work. main concerns concerns with Mother's care care of of the the minor minor child child

to the child's education and hygiene. related to hygiene.

trial, no credible At trial, credible evidence evidence was was introduced introduced that established that Mother had any established that mental any mental any

ability to parent L.J.R. As indicated, illness that affected her ability Father was questioned indicated, when Father questioned by by by

for Mother, he stated Counsel for stated that he desired desired aa a change of one change of one additional day of custody day of custody the custody in the

shared order. shared order.

demeanor and testimony of observing the demeanor After observing of the parties, as well parties, as well as as considering all the considering all the

of23 factors of23 of 23 Pa. PA. C.S.A. §$$ 5328 on PA. C.S.A. C.S.A. on the record, the Court record, the Court made aa a specific specific finding of fact finding of fact that one one of of

2023, and issued 2023, and issued aaamodified child child support order on support order September 12. on September Judge Tocci's 2. Judge Tocci's September September I2 September 12 order increased I2 order increased child support payment obligation. Father's child obligation. Father filed exceptions the child exceptions to the child support order on support order on September September 21, September 21, 21, 2023. Judge Tocci held 2023. 2023. hearing on held aaahearing on Father's exceptions, on November 30, exceptions, and on 2023, the Court issued 30, 2023, an Ode issued an Order raking the September dismissing Father's exceptions and making raking September I2I2 order a 12 aa final support order order. support order

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primary incentives for continuing Father's primary continuing to pursue a change pursue aa shared custody change in the shared order was custody order was the the

recently-ordered recently-ordered increase increase in in Father's Father's child support payments child support payments and and Father's Father's desire to have desire to have his child his child

support payments support payments lowered lowered so so that that he can afford he can afford to build aaahouse. to build house.

tension between the parties, the Despite the tension the Court Court found that it was in in the best interest of interest of

the the minor child to minor child to maintain the provisions maintain the of the provisions of the shared shared custody order entered custody order on July entered on 14, July 14, July 2023, 14, 2023, 2023,

with some minor with some modifications. The minor modifications. modifications. The Court Court incorporates incorporates into this Opinion into this its review Opinion its ofthe review of the $§ 5328 the 5328

factors factors on the record on the record as as preserved preserved by the D.A.R. by the D.A.R. recording recording system system on on January 2024. The 2, 2024. January 2, January Court The Court

has has attached attached a aa copy of an copy of an interim interim transcript transcript of of the Court's discussion the Court's discussion of the §$$ 5328 of the 5328 factors factors to to this this

Opinion. Opinion.

Father Father filed filed aaaNotice of Appeal Notice of Appeal and Concise Statement and Concise of Matters Statement of Complained on Complained Matters Complained on Appeal Appeal Appeal

on February 1, I, In his Concise I, 2024. In Concise Statement, Statement, Father raises raises two two claims of of error error by Court: by this Court:

(1) Father (I) (I) alleges that Father alleges that this Court erred this Court erred and and abused abused its discretion by its discretion allegedly failing allegedly by allegedly failing to failing to

accurately apply C.S.A. §$$ 5328 and apply 23 Pa. C.S.A. its sixteen and its sixteen child child custody custody factors to the facts facts

of this of this case. case.

(2) Father also alleges (2) alleges that this Court Court erred erred and abused abused its discretion by concluding by concluding that concluding that

one of one of Father's Father's motivations motivations in in continuing continuing to to pursue pursue a modification of aa modification of the the Proposed Proposed Proposed

Order was his Order was his desire to obtain desire to obtain a aa reduction reduction in his child in his child support support payments. asserts payments. Father asserts

that this was that this his motivation not his was not and that motivation and that it it is is not not a aa custody custody factor. custody factor factor

For the reasons For the stated below reasons stated and the below and the reasons discussed by reasons discussed by the the Court Court during its review during its of the review of $§ 5328 the $ 5328

on the factors on the record record at at the January 2, 2024, hearing, claims are hearing, Father's claims are without without merit.

the Court In addition, the Court notes that Father's Notice of of Appeal aa Request Appeal includes a Request for Request for

Transcript. However, Transcript. Transcript. However, Father Father has has taken none of taken none of the additional steps required additional steps for the required for the Beaver Beaver County County County

Court Reporters Court Reporters to prepare the to prepare the transcript transcript for for transmission transmission to to the Court. As Superior Court. the Superior of the As of the date of date of

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•

the the entry of this entry of this Opinion, the the Beaver Beaver County Count Court Reporters County Count Reporters have not received have not received a aa Transcript Transcript Transcript

Request Request Form or a Form or aa deposit deposit payment payment for the transcript for the transcript in in accordance with Pa. accordance with Pa. R.A.P. R.A.P. 1922, 1922, Rule 1922, Rule

LR4007, R.J.A. LR4007, and Pa. R.J.A. R.J.A. 4007. 4007. Per Pa. R.A.P. Per 4007. Per R.A.P. Rule Rule 1921, 1921, it is the it is the appellant's appellant's responsibility responsibility to responsibility to

cnsure that ensure cnsure that the record record is complete to is complete enable comprehensive to enable comprehensive appellate review. This appellate review. This responsibility responsibility responsibility

extends to requesting trial transcripts. R.A.P. Rule 1921. transcripts. Pa. R.A.P. R.A.P. 192L. Court entered 192L. The Court entered an an Order Order on on

February 13,2024, February 13,2024, 13, Father to directing Father 2024, directing to comply comply with these rules with these rules in in order order to to have have a aa complete complete record. complete record.

Because Father Because Father has has failed failed to to take take the the necessary necessary steps for the steps for the Court Court Reporters to transcribe Reporters to transcribe the the

proceedings, proceedings, there is no there is transcript of no transcript of the the trial held in trial held in this case at this case at this time. time. The Count Court requests The Count requests that requests that

Father's appeal be Father's appeal dismissed and be dismissed and costs costs accessed accessed to to him him as as the appellant. appellant. the appellant.

ANALYSIS

CS.A. 23 Pa. CS.A. $5328 C.S.A. §$5328 provides aaanon-exhaustive list 5328 provides list of of factors for the Court to the Court to consider

awarding child when awarding child custody. That statute, in in relevant part, in states: part, states:

(a) Factors.--In (a) Factors.--In ordering ordering any form of any form of custody, custody, the court shall the court shall determine determine the the best best interest the child of the interest of child by considering all by considering all relevant relevant factors, factors, giving weighted giving weighted consideration toto those those factors which affect affect the the safety of the safety of the child, child, including including the including the following: following:

() (1) Which party is more likely () to encourage likely to and permit encourage and permit frequent frequent and continuing contact continuing contact between between the the child and child and another another party. party.

(2) The (2) The present present and and past committed by abuse committed past abuse by aaaparty or member party or member of of the the party's party's household, whether there is a continued risk is aa risk harm to the risk of harm the child or child or an abused an abused party party and and which which party party cancan better better provide adequate physical provide adequate physical physical and supervision safeguards and child. supervision of the child.

(2.1) The information (2.1) information set section 5329.1(a) set forth in section 5329.1(a) 5329.1(a) (relating (relating to (relating to consideration of child abuse of child and involvement with protective abuse and protective services) services). services)

(3) The (3) The parental duties performed parental duties performed by each party by each on behalf party on of the behalf of the child. child.

The need (4) The (4) for stability need for and continuity stability and continuity in in the education, family child's education, the child's family life family life and community and community life. life.

(5) The availability (5) of extended availability of extended family. family family

The child's (6) The child's sibling relationships. relationships.

(7) The (7) The well-reasoned well-reasoned preference preference of of the the child, based on child, based on the the child's child's maturity maturity maturity judgment and judgment. judgment

(8) The attempts (8) attempts of of a aa parent to turn the parent to the child child against the other against the other parent, parent, except except except n cases in n cases of domestic violence where reasonable safety safety safety measures are measures are necessary to protect the child from harm from harm. harm

(9) Which party (9) party is more likely to maintain aa party a loving, loving, stable, loving, stable, consistent stable, and consistent and and the child nurturing relationship with the child adequate child's emotional adequate for the child's emotional emotional needs.

(I0) 0 Which party is 0) Which (I0) is more more likely more likely to attend attend to the the daily daily physical, physical, emotional, emotional, emotional, and special developmental, educational and special needs of the child child. child

(I1) the residences of (11) The proximity of the (I1) of the parties. parties.

(12) Each (12) party's availability Each party's to care availability to care for for the the child child or or ability ability ability to make make make appropriate child-care appropriate child-care arrangements arrangements arrangements.

(13) The (13) The level of conflict conflict between the parties and the willingness willingness and willingness and ability ability ability of of the the parties to cooperate parties to cooperate with one another. with one another. A A party's A effort to party's effort party's to protect protect aa protect a child from abuse child abuse by another another party is not party is unwillingness or not evidence of unwillingness unwillingness or cooperate with that party. inability to cooperate party.

(4) The (14) (4) The history of of drug or or alcohol alcohol abuse of aaaparty or member party or member of of aa a parry's party's party's household. household.

(I5) aa party (15) The mental and physical condition of a (I5) or member party or member of of aa a party's party's party's household household. household

(16) Any (16) Any other other relevant relevant factor. factor.

neutral.--In making aa (b) Gender neutral.--La neutral.--In a determination determination under under subsection subsection subsection (a), (a), no (a), no party no party party shall receive shall receive preference preference based based upon gender in upon gender in any any award granted under granted award granted under this chapter. this chapter chapter Pa.CSA. 23 Pa. Pa.CSA. $5328(a)-(b). C.S.A. §$5328(a)-(b). 5328(a)-(b). "All "AI of the factors "AI of listed in $$§ 5328(a) factors listed are required 5328(a) are to be required to required be considered considered considered

trial court by the trial court when entering aaacustody order." order." K.D. KD,_• KD,_•v. E.D., ED,, 2021 PA Super ED,, Super 224, Super 224, 267 224, 267 A.3d 267 A.3

(2021) (quoting 1215, 1231 (2021) (2021) (quoting J.R.M. (quoting VV JE.A., IR.M, v. 2011 Pa. Super. J.E.A., 2011 Super. 263, Super. 263, 33 A.3d 647, 263, 647, 652 647, 652 (2011)) 652 (2011) (2011) original) (emphasis in original) original).

The Superior Court has Superior Court has noted: has

reviewing aaacustody order, our In reviewing our scope of the scope is of the broadest type and our type and type our standard standard is is of discretion. abuse of discretion. We must accept accept findings ofof the court that are the trial court are supported supported by supported by by competent evidence competent evidence ofof record, as our record, as our role does not role does not include include making making independent making independent independent factual determinations. In addition, with regard to issues of credibilitycredibility and credibility and weight weight weight of the evidence, we must defer to the presiding trial judge presiding trial judge who viewed viewed and and assessed assessed the witnesses first-hand. However, we are not the not bound by by the trial trial court's court's deductions deductions or inferences from its factual findings. Ultimately, Ultimately, the test is whether the trial court's the trial court's conclusions are unreasonable as as shown byby the evidence of of record. WeWe maymay reject may reject reject the conclusions of the conclusions of the the trial court only trial court only if if they involve an they involve an error of law, error of law, or law, or are are are unreasonable unreasonable in light of in light of the the sustainable sustainable findings findings of of the the trial trial court. court.

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

M.IM. M.J.M. v. M.IM. V, ML.G, 2013 V, M.L.G., ML.G, 2013 PA Super 40, 63 63 A.3d A.34 331, A.34 331, 334 334 334 (2013) (2013) (quoting (2013) (quoting J.R.M. LR.M. V. LR.M. V J.E.A., 2011 JE.A., VJE.A., 2011

Super 263, PA Super 263, 33 33 A.3d A.3d 647, 650 650 (2011)). 647, 650 (2011)). I M.J.M., (2011)). In I MJ.M., the Superior MJ.M., Superior Court reviewed the Court reviewed the trial trial court's court's court's

obligations its review in its obligations in of the review of sixteen $§ 5328 the sixteen 5328 factors: factors:

In JR.M., the trial In JR.M., J.R.M., court issued trial court opinion in an opinion issued an in conjunction in conjunction with its awarding order awarding its order awarding the the mother mother primary custody in primary custody in which it failed which it failed to address each to address section 5328(a) each section 5328(a) factor. 5328(a) factor factor Instead, it Instead, it "based its decision almost it almost exclusively exclusively onon on' the fact fact that Child is that Child is and the parties' difficulty communicating breastfeeding and communicating with each other"other" and made and made no mention of no mention of the the preponderance preponderance of of the section 5328(a) the section 5328(a) factors. 5328(a) factors.

33 A.3d JR.M. 33 A.3d at 652. 652. By at 652. failing to By failing address each to address each section section 5328(a) 5328(a) 5328(a) factor factor in in its its its concluded that opinion, we concluded opinion, "the trial that "the that court failed trial court failed to to properly properly consider consider the the statutorily statutorily statutorily arriving at mandated factors in arriving at its its custody custody determination[.]" determination[.)" determination[.]" Id.Id. We held d. We held that that the the trial court must trial court consider all expressly consider must expressly all of of the the section section 5328(x) 5328(a) factors 5328(a) factors when entering entering entering aaacustody custody order order in in order order toto comply with the comply with the Custody Act's requirements, Custody Act's requirements, and requirements, and that that failure to failure do so to do amounts to so amounts to an an error error ofof law. Id; see law. Id.; Id; see also M.P., MP,,, 54 MP, 54 A.3d A.3d at 956 at 956 (holding that (holding that the trial court is required to to provide provide reasons for its decision decision prior to prior to prior appeal). appeal).

While Custody Act the Custody While the Act requires requires aaatrial trial court court to the reasons articulate the to articulate for its reasons for its decision decision to the prior to the filing of of aaa notice of appeal and of appeal and sets sets forth explicit explicit factors that the trial factors that trial must consider court must court consider when when reaching reaching itsits decision, 23 Pa.C.S.A. decision, 23 Pa.C.S.A. §§$$ 5323(d), $$ 5328(a), 5323(d), 5328(a), 5323(d), 5328(a), Mother argues Mother argues that that the trial court's articulation articulation of its reasons must must bebe detailed detailed extensive. She and extensive. She contends contends that the the trial trial court is required to include references required to references to to the record, the analysis of record, analysis of the the conflicting conflicting evidence, evidence, findings as to findings as the credibility to the credibility of the credibility of the witnesses onon the the particular issues issues and and discussion of the the witnesses' witnesses' respective respective respective biases. biases. Brief at 29. Appellant's Brief 29, 29,

7 I

Mother misinterprets the the depth depth of of the trial court's court's obligations. obligations. The Custody obligations. Custody Act Custody Act requires only requires only that that the the trial trial court court articulate articulate thethe reasons reasons for for its its custody custody decision custody decision in open court oror in a aa written opinion opinion or or order order taking into consideration taking into consideration the enumerated the enumerated Pa.C.S.A. $$ factors. 23 Pa.C.S.A. Pa.C.S.A. $$ 5323(d), 5328(a). Contrary §§ 5323(d), Contrary to Mother's argument,argument, there argument, there is is no required amount of of detail for the trial court's court's explanation; explanation; all that is required required required is is that the enumerated factors are that are considered considered and that the custody custody decision custody decision is is based based on those considerations. on considerations. For example, example, exampl e,f rom th from trial court's thee trial court's Explanation Explanation of Explanation of Decision Decision in the case atat bar, 5 it is clear clear that while the trial court found found the majority majority of majority of the the section 5328(a) factors to balance fairly section fairly equally equally between Mother and Father, Father, the Father, the court found that Father was more likely trial court likely to promote promote a aa relationship relationship relationship with Mother Mother than Mother would with Father than Father and Father attention to Child's educational and that Mother's attention educational needs needs was was aaa point point ofof grave grave concern. concern. The The trial trial court court further concluded that further concluded Father that Father would better attend to these these needs. Explanation of Decision, these Decision, 8/16/12, 1-9°b Thus, 8/16/12, at 1-9. 1-9° Thus, Thus, in its Explanation of of Decision, the trial court did did precisely precisely what it should have done; done; have done; it weighed the entirety of the section 5328(a) 5328(a) factors in making making the making the custody custody custody determination and articulated determination articulated its considerations considerations in in a aa manner that informed informed the the of the parties of the reasons for the custody custody award.

MJM.• M.J.M. MJM.• ML.G, v.ML.G, A.34 331, 335-36 M.L.G., 2013 PA Super 40, 63 A.3d A.34 335-36 (2013). 335-36 (2013) (2013)

I. Father' X. I. Father'ssfirst claim Father's claim that that the Court failed the Court failed to accurately apply to accurately the $$§ 5328 apply the the 5328 factors factors is without is without the Court merit because the Court considered considered each each factor on the record. record.

first claim, In his first claim, Father Father alleges Father alleges that the Court Court erred erred and its discretion and abused its discretion by by failing by to failing to failing

accurately apply accurately apply 23 C.S.A. §$$ 5328 and 23 Pa. CS.A. CS.A. its sixteen and its sixteen child child custody factors to the factual custody factors factual

of this circumstances of this case. that Mother case. Father maintains that Mother does Mother does not have any available childcare, any available childcare, childcare,

that that she that she leaves leaves for early in for work early in the the morning the morning which which allegedly allegedly limits limits the child's sleep, the minor child's and and sleep, and sleep,

that she generally that generally lacks lacks stability lacks stability in her life. Father concludes concludes that in his view aa a proper proper application application application

of the of sixteen §$$ 5328 the sixteen 5328 factors factors would would have have led led the the Court Court to to award award him him primary physical physical custody primary physical primary of custody of custody child. the minor child.

Father's claims Father's claims are are contradicted contradicted by by the the record. record. The Court record. The Court heard heard two two days of testimony days of in testimony in testimony

on December this matter on December 15 and 19,2023. and 19, At the January 2, 2024, hearing 2023. At 19,2023. after Counsel date, after hearing date, Counsel for for

parties gave closing arguments, both parties arguments, the Court Court went through each of through each of the sixteen sixteen factors on the the

record. The Court record. The Court carefully carefully reviewed and considered reviewed and considered the evidence evidence and and exhibits exhibits presented presented by presented both by both by

in making parties in making its decision decision after after having the the opportunity observe the parties' opportunity to observe demeanor and parties' demeanor parties' and

8 8

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during the custody attitudes during custody proceedings. proceedings. The Court Court will will provide provide aaasummary summary of summary review its review of its of of §$$ review of

5328 factors 5328 factors for for the the purposes purposes of of this this Opinion, Opinion, and and it it incorporates its review and incorporates its and discussion of the discussion of of the the

$$ 5328 factors in this Opinion § as if fully Opinion as forth herein. fully set forth herein.

Factor Factor (IL Factor ((IL "Which party 1), "Which party is is more likely to more likely likely to encourage to encourage and permit encourage and permit frequent and continuing frequent and frequent continuing contact continuing contact_ contact between the between between and another child and the child party" favors another party", party" favors Mother. favors Mother, Mother,

On On factor factor ((1) factor 1) of (1) of $§ 5328, of 5328, "Which 5328, Which party Which party is is more more likely likely to encourage encourage and to encourage and permit permit frequent and and permit frequent and frequent

continuing contact continuing contact between the child child and and another another party", party", after observing the demeanor observing the observing of the demeanor of demeanor of the the

parties and parties and hearing hearing testimony testimony from from both sides, the both sides, Court found the Court found that that Mother Mother was was more was more likely more to to likely to likely allow frequent and continuing encourage and allow contact between the continuing contact the minor minor child child and and Father. Father. The Father. p p

Court noted that Court that the the Provisional Order from from July July 2023 was tailor-made tailor-made to fit fit Father's Father's work Father's we and the arrangements schedule and arrangements that Father requested. requested. Mother Mother accepted accepted the Provisional Order, even Provisional Order, Order, even even

it did though it did not take her own own work work schedule schedule into account. account. The Court into account. Court also also found found significant found significant significant

cross-examination by Father's testimony during cross-examination by Counsel that he would Counsel for Mother that would be be amenable amenable to amenable te te

one additional receiving just one additional day day of of custody custody of the minor child. of the child. This testimony testimony struck testimony struck the Court the Court the Court

as not making much as much sense sense given Father's stated goal of acquiring goal of acquiring primary acquiring custody, and custody, primary custody, and the the Court the Court

found Father's testimony found Father's testimony telling of his motivation telling of motivation in to pursue continuing to in continuing pursue pursue child custody custody litigation custody litigation litigation

against Mother. against Mother. Jn addition, Mother. Jn In addition, the the Court Court noted that in noted that in his complaint Father original complaint his original complaint Father had had claimed claimed that claimed that that

Mother Mother had had mental health issues mental health issues which which prevented her from prevented her adequately caring adequately from adequately caring for for the the minor child. minor chit minor

However, despite this However, despite this claim claim Father Father only sought one only sought one additional additional day of physical day of day custody according physical custody physical custody according according to to his own testimony his own testimony at at trial. The Court trial. The trial. Court found found this this significant significant because significant because the Court could Court the Court could not could see not see not see

how how Mother, someone who Mother, someone works at who works at aaahospital hospital and cares for and cares for patients, could have patients, could such serious such have such serious serious

issues that she mental health issues she could could adequately adequately care care for her patients for her patients but but not not for for her own minor her own minor child. minor child

Later in the litigation Father stipulated that Mother's mental health would not be would not an issue be an issue at issue at trial, at ti%l ti%l

but but the the parties parties went and forth back and went back about the forth about specific meaning the specific of the meaning of meaning the stipulation's stipulation's wording. stipulation's wording. The wording. The The

Court made a Court aa finding of of fact that Father raised the issue of of Mother's mental mental health health in an effort in an effort to to

gain the gain the upper upper hand in the custody custody litigation. The Court never never heard anything anything concerning anything concerning regarding concerning regarding regarding

Mother's mental health Mother's mental health or or her her ability to properly ability to properly care care for the minor for the child during minor child during during the the child custody child custody custody

litigation. litigation. The litigation. believes that Court believes The Court that Father's statement that Father's statement that he only wanted he only more day one more wanted one day of day of custody custody custody this conclusion. supports this conclusion.

Factor Factor (8), "The Factor (8), (8), attempts "The attempts parent to attempts of aaaparent parent tum the to turn tum child against the child the other against the other parent, other parent, except parent, except in cases except cases of cases of violence where domestic violence domestic where reasonable safety measures reasonable safety measures are are necessary are necessary to necessary to protect protect the the child the harm" harm" from harm", child from child favors Mother favors Mother. favors Mother In its In consideration of its consideration of factor factor (8), factor "The attempts (8), "The (8), of a attempts of aa parent to turn parent to turn the the child against the against child against the

other except in cases of other parent, except of domestic domestic violence violence where where reasonable reasonable safety safety measures safety measures are necessary are necessary necessary

to to protect protect the child from harm", the the child Court finds the Court finds that that Father is more Father is more likely to make likely to likely make attempts attempts to attempts to turn turn

the child against the child against Mother. Mother. The Court Court was was troubled by Father's troubled by Father's testimony testimony that testimony stated that that stated that he he planned planned planned

on telling on telling his his three-year-old three-year-old son about the son about the effect that that his his child child support obligations have support obligations support obligations have have on on his on his

finances and and how how it affected him. it affected him. The The Court The does not believe Court does believe that that it is appropriate is appropriate for a appropriate for aaparent to parent to parent

involve their young involve their young child child in in adult adult matters matters concerning court-ordered child concerning court-ordered child support support payments. support payments. The payments. The The

that there Court finds that there is no legitimate basis no legitimate basis for Father to to tell L.J.R. about about the the increase increase in child in child

support support payments. payments. The Court also The Court also notes that Father notes that Father posted on Facebook posted on about how Facebook about he has how he has to has to to

"support support aa support second household a second household he shouldn't be responsible_" he shouldn't responsible." (Defendant's responsible." (Defendant's Ex. Ex. I). I). Father's Father's public public public post post about about these these matters concerned the matters concerned Court. Court the Court

review of In its review of this factor factor the Court Court also also referenced the PFA action between the action between the parties. parties. parties.

was automatically dismissed However, that PFA was dismissed without any any admissions to the admissions to the underlying underlying underlying

allegations allegations in in the the PFA, so the PFA, so Court did the Court not give did not the PFA give the PFA any any weight any weight and weight not consider did not and did not consider it in ;e it ;e

making making its custody determination. its custody determination determination

10 IO

Factor (9), Factor Factor (9), "Which (9), "Which " Which party is maintain a is more likely to maintain aa loving, loving. stable, loving. stable, consistent stable, and nurturing_ consistent and nurturing nurturing with the child relationship with child adequate adequate for the child's child's emotional emotional needs", needs", favors Mother. Mther M ther oo

On factor On factor (9), factor (9), "Which (9), "Which party is more likely likely to to maintain aaaloving, loving, stable, consistent and stable, consistent and

child adequate nurturing relationship with the child adequate for the child's child's emotional emotional needs", the Count needs", the Count Court found, found, found,

on the testimony presented, based on presented, that Mother would be more more likely likely to maintain aaaloving, likely to loving, stable, loving, stable, stable,

consistent, and consistent, and nurturing relationship with the minor minor child. child. Court noted child. The Court noted that that there there was was

obtained the password to aaababy evidence showing that Father obtained located in Mother's baby monitor located Mother's house house

seeking permission from without seeking from Mother. Without Without Mother's Mother's knowledge, knowledge, Father logged into the logged into logged the the

baby monitor to check baby baby check when Mother was putting the minor child to bed. check bed. This evidence bed. evidence concerned concerned

the Court the the Court for for several several reasons. reasons. reasons_ the evidence First, the evidence that Father Father logged into the baby logged into baby monitor baby monitor in monitor in

separate private residence Mother's separate residence and and looked through the monitor's camera camera while Mother's Mother's own own

was caring mother was caring for the child child to see see what time time the child went went to bed. This tactic to bed. tactic does does not not strike strike

Court as the Court as aaa good co-parenting strategy. strategy. was also There was also evidence showing that Father showing that showing Father Father

about Mother's choice of complained about of babysitters, below as babysitters, discussed more below as to to factor factor ((12). 12). The (12). The

Court found Court found itit concerning concerning that after Father directly contacted the directly contacted the babysitter aathird himself, he had a babysitter himself, third

party party anonymously contact the anonymously contact the babysitter. This evidence, babysitter. This evidence, along along with along with the evidence about the evidence about the the baby baby baby

monitor, raises concern monitor, concern to the the Court. the Court. Lastly. Lastly, the Court Lastly, the Court noted that ititit found itit concerning concerning that the concerning that the

PFA Order PFA Order was was entered entered soon soon after after the the child child support support hearing. hearing. However, as noted However, as noted above, above, because above, because

Order was dismissed by agreement that PFA Order agreement of the the parties, Court did parties, the Court did not consider consider the PEA PFA the PEA

Order and Order gave itit no and gave no weight in its its custody determination. In conclusion, determination. In of this conclusion, all of this evidence evidence led led

Court to the Court to find in favor of Mother on in favor on this this factor.

II 11 II

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Factor Factor Factor ( 12), "Each party's (12) (12) party's availability availability to care for to care for the the child child or or ability ability to make appropriate to make appropriate child-care child-cate appropriate child-cate arrangements", favors arrangements", arrangements", favorsMother. favors Mother Mother

On factor On factor ((12), factor 12), "Each (12), " Each party's "Each to care availability to party's availability care for for the or ability child or the child to make ability to ability make appropriate appropriate appropriate

child-care arrangements", child-care arrangements", the Court noted the Court noted that Mother had that Mother at aa been at had been a significant significant disadvantage significant disadvantage disadvantage

end of to Father following the end compared to of their their relationship. relationship. After they they broke they broke up, up, Mother up, Mother had had to to to

move out move of the out of the home home she she had shared with had shared with Father. Father. Within aa very Within a short period very short of time, period of time, Father time, Father had had had

aa new relationship and a and his new significant significant other other had moved into into his house to live house to live with with him.' him. him.

Father's choice to Father's choice to start start aa a new new family family and and Mother Mother having having to to move out of move out her home of her home put put her put at aa her at a

because she disadvantage because disadvantage she had had to to live live with her her parents parents until she could until she get her get could get own housing. her own housing. At housing. At At

first, Mother obtained first, Mother obtained aa a single-bedroom single-bedroom apartment. apartment. apartment. Father Father repeatedly repeatedly objected to repeatedly objected objected to that that apartment apartment apartment

attempted to and attempted and to have Mother move have Mother move to other apartments to other apartments that that he he had selected. Prior had selected. trial in to trial Prior to in this in this this

matter, matter, Mother Mother purchased purchased a aa home home in in Hopewell Hopewell Township. Township. At Township. At trial, trial, Mother Mother presented presented photographs presented photographs photographs

of her of her new new home. (Defendant's Ex. home. (Defendant's (Defendant's Ex. G). G). The G). Court found The Court found that that Mother's new house Mother's new house was was a was aa good good good

the minor home for the minor child. child. The evidence evidence showed that the house was fully decorated, that fully decorated, fully decorated, that it it was was

suitable for childrearing. clean, and that it was suitable also presented childrearing. Father also evidence at presented evidence at trial trial to show that to show that

his house was also a fr froo the aagood home for child. (Plaintiff's the minor child. child. (Plaintiffs Ex. (Plaintiffs Ex. 1). I). Therefore, I). Therefore, both Therefore, both parties parties parties have have good houses houses for for childrearing. childrearing childrearing

claims in Father claims in his Notice of of Appeal that Mother does does not have have any available childcare any available childcare

for for L.J.R. L.JR. while she is while she is at at work. work. The Court finds The Court finds that that Father Father contributed contributed to to Mother's difficulties difficulties in Mother's difficulties in in

acquiring childcare acquiring due to childcare due to his his intermeddling in her intermeddling in childcare decisions. her childcare decisions. Evidence at trial Evidence at trial showed showed showed

that Father that Father repeatedly repeatedly complained complained about about Mother's Mother's own own family family caring for the minor caring for child when minor child when

Mother was Mother was unavailable. unavailable. Father unavailable. Father testified testified that that he he objected to the objected to the minor rinor child rinor child staying staying overnight staying overnight with overnight with with

The Court The 2 Count notes Count notes that that Father's Father's new significant other new significant other had been Mother's had been best friend Mother's best friend prior prior to prior to Father Father and and Mother's and Mother'g Mother'g up break up. up

12 12

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Mother's Mother's family family members, members, including including Mother's Mother's parents, parents, because because he believes believes that that it it is the mother's is the mother's

responsibility to responsibility to be be with the minor with the child for minor child for nighttime nighttime issues issues like like wetting the bed. wetting the wetting bed. Father Father testified testified

that it is Mother's it is responsibility to Mother's responsibility to deal with those deal with those issues, issues, not not someone else's, including else's, someone else's, including Mother's including Mother's Mother's

own family. own family. Mother also asked Mother also asked Father's assist with Father's parents to assist childcare during with childcare her custody during her custody period. custody period. period.

However, Father However, attempted to Father attempted to use use this this against Mother by against Mother arguing that by arguing that any any time when any time LJR. L.J.R. was when LJR. was

being watched by being watched by Father's Father's parents Mother's custody during Mother's parents during should count custody should as Father's count as Father's custody custody time custody time

and and not Mother's. This led not Mother's. led Mother Mother to asking Father's stop asking to stop Father's parents parents for childcare assistance. for childcare assistance assistance

n addition, In n addition, Mother established at Mother established at trial that she had that she acquired professional had acquired daycare services daycare professional daycare services

within five minutes of home in of her home in Hopewell. However, Father's Father's intermeddling intermeddling in intermeddling in Mother's Mother's

childcare decision childcare decision may may have caused the have caused the daycare daycare provider provider to stop working to stop working with Mother. Mother. Father Father

called called the daycare provider the daycare provider to ask about to ask the provider's about the qualifications and provider's qualifications certifications. Next, and certifications. Next, Next,

Father Father had had aa a third third party the daycare call the party call daycare to ask additional to ask additional questions. questions. Father's interference interference in in

Mother's daycare decision Mother's daycare decision may may have contributed to have contributed to the the daycare daycare provider provider not provider offering further offering not offering further

daycare daycare services services to to Mother. Mother. (Defendant's (Defendant's J). When (Defendant's Ex. J). Mother told When Mother Father that told Father that he had had caused caused the the

daycare to stop daycare stop working working with her on Our Family Family Wizard, Wizard, Mother stated "I I was told I was over and told over and over over

again again you did not you did not consent consent but but this this was something II was something had to I had as it do as to do was my it was time with my time my with [L.J.R.] with [L.JR.] as [L.JR.] as

you do you do what what you you want on II respect that as on your time and I as [L.J.R.'s] as that your [LJ.R.'s] dad that [LJ.R.'s] time is your time is your your time your time

but II don't but I don't understand understand why why my my time isn't isn't thought about!" (Id.). thought about!" (d.). This statement (d.). statement also shows that also shows that

Mother is Mother is willing willing to to cooperate cooperate with Father Father for for L.J.R.'s L.JR.'s best L.JR.'s best interests, even if interests, even if he isn't isn't willing willing to willing to cooperate cooperate with her. her her

At trial, At trial, Mother Mother presented presented evidence of her evidence of efforts to her efforts to acquire aanew acquire a new daycare daycare provider since sinee provider sinee provider

Father's intermeddling caused the original Father's intermeddling daycare provider original daycare to terminate provider to terminate its its relationship relationship with relationship her with her. her

(Defendant's Ex. Ex. K). K). Despite these difficulties, difficulties, Mother Mother established at trial established at trial that she is that she on the is on the waitlist waitlist

13 13

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for aaanew for daycare provider. new daycare provider. However, at the However, at time of the time of trial trial Father Father was continuing to was continuing continuing to meddle meddle in ; ;

decisions about Mother's decisions about childcare. childcare. Mother presented evidence that Father has presented evidence has continued continued to to

interfere with her interfere with choice of her choice of childcare childcare by by repeatedly questioning her repeatedly questioning decisions on her decisions on childcare childcare

providers. providers providers

All All this conflict led this conflict led the tthhe Court to e Court additional language add additional to add language to to the final custody the final order directing custody order custody directing directing

parties to not the parties not interfere with the other other parent's decision regarding regarding preschool, preschool, daycare, preschool, and daycare, and daycare,

babysitting services while babysitting services while the minor child the minor child is is in in their their physical custody. The Order custody. The physical custody. Order directs directs directs the the non- non non

custodial custodial parent to make parent to make any any inquires concerning the conceming inquires conceming of the adequacy of the adequacy custodial parent's the custodial choice of parent's choice parent's of

preschool, preschool, daycare, or babysitter daycare, or babysitter only only through through their their legal counsel unless legal counsel agreed to unless agreed to in in writing. writing. writing.

As As to to the the alleged alleged lack of stability lack of in in Mother's stability in life, the Mother's life, the Court Court believes believes that any any instability that any instability in instability in in

caused by these hardships Mother's life was caused hardships she she had to endure endure and and overcome. endureand overcome. overcome. By the time By the By of trial time of trial

Mother had Mother had regained regained stability stability in her life. in her life. Father's Father's current current claim that she claim that she still still lacks lacks stability stability is stability is

without merit without merit based based on on the the record. record. Also, Also, Mother Mother presented evidence at presented evidence at trial trial that that she she is on aaawaitlist is on is waitlist

for for a new professional aa new daycare provider. professional daycare provider. (Defendant's provider. (Defendant's Ex. K). (Defendant's K). Therefore, Therefore, this Therefore, this factor favors favors factor favors

Mother. Mother.

Factor((13), Factor Factor "The level 13), "The level of of conflict conflict between between the the parties and the parties and willingness and ability willingness the willingness ability of ability of theparties of the parties the parties to Io cooperate cooperate with one another. cooperate with another....", another. , favors Mother , favors Mother.

Next, on Next, on factor factor ((13), factor (13), "The level 13), "The level of of conflict conflict between between the the parties and the parties and the willingness and willingness and willingness

ability of ability of the parties parties to cooperate with one one another... another... ", ", the Court found that another....", that Mother Mother was was more more

willing to cooperate willing cooperate with with Father than Father Father was with Mother. on the Based on evidence and the evidence and

testimony presented testimony presented at at trial, trial, Mother showed that Mother showed that no no matter matter what what Father said or Father said did to or did to her, she she her, she her,

would would still still cooperate with Father cooperate with Father so so that that he could remain in could remain in the the minor child's life minor child's life and and have have have

continued contact continued contact with the minor with the minor child. child. child. Mother Mother accommodated Father's work accommodated Father's schedule by work schedule

agreeing to the agreeing to the Proposed Proposed Order, even though Order, even though the Order did the Order did not not accommodate accommodate her her own work own work

schedule. As schedule. schedule. As stated stated above, above, Mother's messages to Father on on Our Family Family Wizard show show that she is that she is

allow Father to allow willing to Father to to make his own own decisions decisions about about childcare childcare while he has custody of L.J.R.. custody of custody L.JR.. L.JR..

in Mother's However, Father's repeated meddling in Mother's decisions about childcare, childcare, and childcare, and his his use of of the use of the the

monitor to baby monitor to track the minor minor child's sleeping while he is with Mother, sleeping habits while Mother, show show that that Father that Father Father

is Mother the same is not showing Mother respect and same respect and courtesy shows him. courtesy that Mother shows him. Therefore, Therefore, factor Therefore, factor factor

(13) favors (13) favors Mother. Mother.

Factor Factor (I0), Factor "Which party ( 10), "Which is more party is likely to more likely to attend attend to to the physical, daily physical, the daily emotional, developmental, physical, emotional, emotional, developmental. developmental, and educationaland special educational educational special needs of the needs of child", slightly the child", slightly favors favors favors Mother. Mother Mother

The Court that factor Court found that factor ((10), factor (10), "Which party 10), "Which party is more likely to attend likely to attend to the daily to the daily physical, daily physical, physical,

emotional, developmental, emotional, educational and developmental, educational special needs and special of the needs of child", child", weighed the child", weighed slightly weighed slightly in slightly in

circumstances. While the Court believes Mother's favor based on the circumstances. believes that that both Mother and both Mother and Father and Father Father

are good parents, are good evidence at parents, the evidence shows that at trial shows that Mother Mother is more likely is more likely to likely to attend to the attend to the minor minor minor child's needs. child's

Factor Factor (3), Factor (4), (5), and (3)(41(5) (3)(41(5) and (6) weighed and (6) weighed equally in in favor equally in both Mother of both af favor af and Father. Mother and Father, Father,

The Court found The Court found that that factors factors (3), (3), (4), (4), (5), (5), and and (6) and (6) weighed (6) equally in the equally in weighed equally the favor of both favor of bot

factor (3), parties. On factor factor (3), "The parental (3), "The parental duties duties performed performed by each party by each on behalf party on of the behalf of the child", child" the child" 6,

Court Court found that both found that both Father and Mother Father and are equally Mother are equally good good parents parents to to the minor child, the minor so factor child, so child, factor (3) factor (3) (3)

does does not not weigh in either weigh in either party's party's favor. favor. There was ample There was ample evidence ample at trial evidence at that both trial that both Mother And both Mother Mother and And

Father spend time Father spend time with with the the minor child, child, that that they child to do activities they take the child activities with with friends friends and and and

family, and generally family, and generally that that they do things they do with the minor things with minor child child that that a aa good good parent good parent would parent would do would wt do with do wt their child. their child. (Defendant's child. (Defendant's Exs. Exs. H, H, L; Plaintiff's L, Plaintiff's L, Ex. 4) Plaintiffs Ex. Ex. 4). 4)

On factor On factor (4), factor "The need (4), "The stability and need for stability and continuity in the continuity in the child's education, education, family child's education, life and family life family and and

community life", the Court community Court determined determined that that this factor factor was was favorable to both parties. parties. As parties. discussed As discus

overcome several above, while Mother had to overcome several difficulties difficulties and disadvantages since she disadvantages since she moved out moved out

she had shared of the home she shared with Father, Father, at at this point in time Mother has built aa in time a stable stable life for life for

herself and L.JR. Mother presented and L.J.R. L.JR. presented evidence evidence that that she purchased a house in Hopewell purchased aa Township Hopewell Township Hopewell Township

of the home to and presented numerous photographs of to the Court. Father's Father's Notice Notice of of Appeal Appeal raises Appeal raises raises

issues issues with with the the minor child's sleeping minor child's habits. However, sleeping habits. habits. However, Father's Father's repeated repeated insistence insistence that that Mother Mother

duty to deal a duty has a a deal with any any nighttime issues issues of of the the minor child child has prevented prevented Mother Mother from asking from asking asking

to care her family to care for the minor child overnight, which which they are fully they are fully capable capable of capable of doing. doing. Again, doing. Again, it Again, it

has caused appears that Father has caused the issues that he complains of through complains of continuous interference through his continuous interference

custodial rights with Mother's custodial rights during the has custody the time that she has of L.J.R. custody of L.JR. As L.JR. far as As far as the the minor minor

educational needs, the Court notes child's educational notes that that the minor child child is not even four four years old, and years old, years old, and he he is is

not not even in kindergarten even in kindergarten yet at this yet at point in this point in time. time. time. Father wants the Father wants the minor child to attend minor child attend pre-school, pre-school, pre-school,

but the Court does not believe that Court does that this this goal warrants taking goal warrants taking custody custody away Mother. away from Mother. away

factor (5), On factor factor "The availability (5), "The availability of of extended extended family", Court found family", the Court found that this this factor factor also also

favored both parties. favored both parties. Both parties. Both parties parties have extended family, have extended including the family, including parties' the parties' parents, parents, who parties' parents, are who are

able to able to help help with with caring caring for for the the minor minor child. child. Mother Mother had had her her parents parents help with supervising help with help supervising supervising the the

child while she minor child she was was at at work, but Father complained complained about their involvement. Mother asked involvement. Mother asked

to help her with childcare Father's parents to as well, childcare as well, but when Father attempted attempted to argue attempted argue that argue that since since

his parents his parents were were watching watching L.J.R. L.JR. during during Mother's Mother's custody time, that custody time, that time should count time should count as as his his own his ou ou

custody time, Mother custody Mother was advised advised to to not ask Father's parents parents to help with childcare help with childcare during during her during her

time of time of custody. custody. of Father's custody. Regardless of Father's complaints, complaints, both parties have extended parties have extended family who are family who family are are

available available to support each to support each parent parent in in raising in their minor raising their child, so minor child, this factor so this factor does does not not favor one party favor one party party over the other over other other.

On factor On factor (6), "The factor "The child's child's sibling relationships", Court notes relationships", the Court notes that that the minor minor child child has

aaastep-sister, step-sister, the the daughter daughter of of Father's Father's significant significant other, other, and and aa a new new half-brother, the son half-brother, the son of of Father Father

and his and new significant his new significant other. other. The The Court Court finds finds that that the the fact fact that the minor that the child has minor child a new has aa new brother brother

does not does not justify taking taking custody away from Mother, because because in the current current arrangement minor arrangement the minor

of his child spends half of his time time with Father Father and and his his new brother. Father testified testified that his his significant significant significant

other has custody other custody of of her daughter daughter at at the same time time that he has custody of L.J.R., custody of so the minor child L.J.R., so

with his step-sister spends time with step-sister and his half-brother when Father Father has custody. The Court custody. The custody. Court finds finds

that that the current arrangement the current arrangement provides provides the the minor child with minor child with ample ample time to see time to see his step-sister and step-sister his step-sister and

Thus, this factor does half-brother. Thus, does not favor either either party, as the party, as the Court Court does does not not find find it fair to to take take

custody away just because Father has quickly Mother's custody formed a quickly formed aa new family since Mother family since Mother and

parted ways. Father parted ways ways

Factor(2), Factor Factor 02.D,676, (4), (2.1• (7), ( 11), ((4), (2 02.D,676, and(1 and(1 14), and ( 15) irrelevant to 5) are irrelevant the facts to the the facts of of his his case case. case

The Court The considered factors Court considered factors (2), (2.1), (7), (2), (2.1), (1), (7), ((1), 11), ((14), 14), and (14), and ((15) and 15) on (15) the record, on the record, but record, but found found

that that these these factors factors were irrelevant in were irrelevant in this case. The this case. The Court Court found found factor factor (2), factor (2), "The present (2), "The present and past present and past past

abuse committed abuse committed by by a aa party party or or member member of of the the party's party's household, household,whether there is whether there household,whether is aaacontinued risk continued risk

child or of harm to the child or an an abused abused party and which party can can better provide provide adequate adequate physical physical physical

safeguards and safeguards and supervision supervision of of the be irrelevant to this case the child", to be case because there are are no

of abuse. allegations of allegations abuse. As to abuse. As to factor factor (2. factor 1), The (2.1), (2.1), "The information The information set set forth fonth in fonth section 5329.1(a) in section 5329.1(a) (relating 5329.1(a) (relating (relating

consideration of to consideration of child abuse and and involvement with protective the Court services)", the protective services)", Court noted noted that that

after a after aa child support support hearing which concluded concluded in in an an increase in Father's child child support payments, support payments, payments,

Father was Father upset by was upset by the the increase. On the same increase. On same day day as as the child support the child hearing, aaareport support hearing, hearing, report was report was filed filed

against Mother to against Mother to CYS, CYS, which which the Court found the Court found suspicious. CYS found suspicious. CYS found that there was that there was no basis for no basis

the complaint. However, the complaint. However, the Court noted the Court on the noted on record that the record that itit did did not consider this not consider this factor factor in in making making making

child custody its child its custody determination. determination. On factor factor (7), factor (7), "The "The well-reasoned well-reasoned preference of the preference of the child, child, based child, based

on the on the child's child's maturity maturity and judgment", and judgment", the Court judginent", the Court determined determined that that the the minor minor child child is is too too young young to young

a determination make a a determination as as to to her custody preference. On factor ((1H), 11), "The proximity of the proximity of proximity the

of the parties", the Court residences of Court found that that there was some travel time involved involved in in the the current current

situation, but that any situation, any travel time did not have aa a substantial effect effect on on the best best interests interests of of the the minor minor

child. The child. The Court Court found found factor factor (14), "The factor "The history of drug history of or alcohol drug or alcohol abuse of of aa a party or member party or party of member of

aaaparty's household", to be irrelevant to to be to this this case. case. Lastly, the the Court did did not not find factor factor ((15), factor "The 15), "The (15),

of a mental and physical condition of aa party or or member of of aa a party's party's household", to be relevant in this household", to

case.

In conclusion, In conclusion, the Court Court found that more of the $$§ 5328 factors of the the factors favored Mother in this this case.

the Court However, the Court decided decided to the July to keep the July 14, I4, 2023, I4, 2023, Proposed Proposed Order in place Order in place with only only only minor minor

modifications regarding modifications regarding the the custody custody exchange location and exchange location and aaaprovision ordering the parties ordering the parties to make parties

inquiries inquiries about about the adequacy of the adequacy of the other parent's the other parent's childcare arrangements through childcare arrangements through counsel. through The counsel. The

Court also Court also noted noted that it it asked asked the the parties whether aa a week-on-week-off custody custody arrangement custody arrangement would arrangement

acceptable to both parties, but both. be acceptable both parties stated both stated that that that" this arrangement cause them arrangement would cause them

Court took this problems. The Court this to imply that the current current custody order was working custody order working for both parties. working parties

Court found that this The Court this arrangement the best interests of arrangement was in the of the minor child child and and was the best best

arrangement for arrangement for the the current current circumstances circumstances of of this this case. case.

Based on the Based on discussion above, the discussion above, Father's first claim claim is without merit, as the merit, as reviewed the Court reviewed

each of each sixteen §$$ 5328 factors in open of the sixteen open court on on the the record at at the the January January January 2, 2, 2024, 2024, hearing and hearing and hearing

applied them to the factual circumstances properly applied circumstances of case. of this case.

Father'sssecond claim 2. Father' Father's claim that the Court Court erred by by finding Father'ssmotivation finding that Father' Father's motivation in in in child custody litigation Was pursuing child was to obtain was obtain a in child aa decrease in child support spport payments spport payments is payments is is without merit as Without without as that factual finding was not not the sole sole basis basis of the Court Court's ' scustody Court's decision decision custody decision custody and is supported by the trial record. and

second claim Father alleges in his second claim that that this Count Count erred and Court erred and abused its its discretion discretion by discretion by by that one concluding that one of of Father's motivations motivations in continuing motivations continuing to pursue a modification pursue aa of the modification of the Proposed Proposed Proposed obtain a Order was to obtain aa reduction in his child in his child support payments. asserts that payments. Father asserts that this was not this was not his not his his motivation and motivation and that it is is not aaacustody custody factor.

case, the In this case, the Court Court heard evidence evidence at trial trial that Father Fther F ther aa filed aa filed a petition petition petition for for reduction reduction in reduction in in

on July child support on July 23, 2023. The The Court Court learned that that Father Father became angry angry angry at the the hearing on his hearing on hearing his his

child support child support motion motion when when he he learned learned that Court was that the Court was going to increase his going to support support payments his support payments payments

Instead of decreasing instead of Instead decreasing them. them. After After the the child child support support hearing, Father Father confronted confronted Mother Mother on on thepublic on the public the public

street about street the support about the support payments. payments. An agreed PFA An agreed PFA Order Order was was filed filed after after this this confrontation, confrontation, confrontation, without without without

any factual admissions. either party making any admissions. That That PFA Order expired on agreement expired on agreement by agreement by the by the parties. the parties. parties. At the child At At child custody custody trial, Father's testimony that his his objective objective in continuing continuing to continuing to pursue pursue the pursue the child the chit chit

custody litigation was to custody to gain one more day gain one day of of physical custody of the minor custody of child struck minor child struck the Court struck the the Court Court

as odd since Father alleged as alleged that he was was seeking primary physical seeking primary primary custody physical custody of the custody of the minor minor child in child minor child in his in his his

This led the pre-trial filings. This the Court Court to consider consider whether Father had ulterior motives motives in motives in continuing in continuing continuing this matter. to litigate this

after observing and after After hearing this testimony, and demeanor of observing the demeanor of both both parties, the Court the parties, the parties, Court Court

made a finding on aa factual finding that one on the record that one of of Father's motivations motivations in pursuing pursuing this pursuing this child child custody custody custody was because of litigation was of the the recent recent increase in his child child support support payments. payments. Father payments. Father pursued pursued child pursued chit chit

custody custody litigation litigation in in an effort to an effort to decrease his payments decrease his so that payments so that he could pursue he could pursue his pursue his plan his of building of plan of plan building building aa house. a house. While the Court While the Court noted that it noted that it was admirable for was admirable Father to for Father to build build aaanew new house house for house for himself, for himself himself

minor child, the minor child, and their their family, family, the Court Court did did not think it was fair to think it to take take physical custody away physical custody physical custody away away

from Mother under these from these circumstances. circumstances.

Despite Father's Despite Father's contention, contention, the the Court Court properly reviewed each properly reviewed each of of the sixteen §$$ 5328 the sixteen factors 5328 factors

on the record, as on as summarized above. above. Factor above. Factor ((15) Factor (15) 0f 15) 0f allows the of $§ 5328 allows the Count Count to consider Court consider "( consider 16) Any "(16) "(16) Any Any

other relevant other relevant factor" factor" when making its determination determination on on child child custody. The Court custody. The custody. Court believes that that

efforts to obtain Father's motivation in continuing his efforts obtain primary of the minor custody of primary custody minor child child is is

given that his motivation appears to not concem relevant, given concem the actual concern actual best interests of of the minor minor

own interest in obtaining child but to his own obtaining aaadecrease decrease in child support in his child support payments. payments payments

In addition, the Court did not base its custody decision solely custody decision on its solely on its finding finding that Father Father had had

in pursuing child ulterior motives in child custody custody litigation. litigation. The litigation. The Court heard two days days of testimony testimony in testimony

this case. It heard this case. heard the testimony of both testimony of both parties, and examined parties, and examined the evidence and the evidence and exhibits exhibits presented presented presented

trial. at trial. at The Court The Court carefully carefully reviewed the §$$ 5328 reviewed the 5328 factors factors and and applied to the them to applied them the factual

circumstances of circumstances of this case before this case before making its child making its child custody determination. The Court custody determination. Court determined determined

that the current that the child custody current child arrangement was custody arrangement was working both parties, for both working for parties, even even though though the though current the current

order still order still benefits benefits Father over Mother, Father over Mother, since since it accommodates his it accommodates his work schedule but work schedule but not hers. hers.

Even if the Court Even Court did did not consider consider Father's Father's motivation in Father's in continuing continuing to pursue pursue primary primary custody of custody of custody

chiid, the minor chiid, the Court's child, the Court's analysis analysis and and application application of the §$$ 5328 of the 5328 factors would would not change. not change change

of Father's motivations Regardless of motivations behind behind continuing continuing to pursue primary custody, proper custody, primary custody, proper proper

application application of the §$$ 5328 of the the 5328 factors shows that factors shows shared custody that shared custody is is in in L.J.R.'s L.J.R.'s best interest. Both best interest. Both parents parents parents

are good are good parents parents with with good homes. Both good homes. homes. have extended Both have extended family available for childcare. family available childcare. Even Even

though more of though the §$$ 5328 factors favor Mother, the of the the the Court Court finds that that shared custody custody of L.J.R. custody of L.JR. is L.JR. is in in

the best interests of the of the the child child in in this case. Therefore, Therefore, Father's second second claim claim on on appeal appeal is appeal is without without

menit. merit. menit.

20 20

•1 R

CONCLUSION

For the reasons stated in Opinion and in the foregoing Opinion and the reasons stated stated during Court's during the Court's

review of review the $§$ 5328 factors on of the the on the record as as captured captured by by the D.A.R. recording system on January system on recording system January January

2024, the Court 2, 2024, Court humbly humbly asks asks the Superior Court Court to affirm affirm its child child custody custody decision, and/or custody decision, to and/or to

appeal due to his failure to have the dismiss Father's appeal the record of of the the proceedings transcribed. proceedings transcribed. proceedings

BY THE COURT: COURT-

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