OPINION BY LAZARUS, J.:
W.C.F. ("Father") appeals from the order entered in the Court of Common Pleas of Philadelphia County granting M.G. ("Mother") primary custody of the parties' two-year old daughter ("Child"), granting the parties shared legal custody, and granting Father partial custody (six days every two weeks). After our review, we vacate and remand. Despite multiple findings that point to an award of primary custody to Father, the trial court awarded Mother primary physical custody and Father partial custody. After our review of the parties' briefs, the record, and the lower court opinions, we conclude that the court's determination that Mother be awarded primary physical custody is unreasonable in light of its own factual findings which are amply supported in the record. See S.W.D. v. S.A.R., 96 A.3d 396 (Pa.Super.2014) (this Court may reject trial court's conclusions in child custody matter only if they involve error of law or are unreasonable in light of factual findings).
Mother and Father were married in 2010. Their only child was born in 2012. Father is Assistant Director of Technology at the Mastery Charter High School in Germantown. Mother is a Senior Manager of Technical Accounting at Comcast.
Father is a U.S. citizen; he was raised in Florida. Mother is a native of Malaysia and moved to the United States after meeting Father. Mother became a naturalized
Since Child's birth, Maternal Grandmother has been the primary caretaker for the parties' child. As a result of Father's belief that Mother's family, in particular Maternal Grandmother, was blocking his attempts to bond with Child, the parties agreed that Maternal Grandparents would move out of the parties' apartment and obtain their own residence. As it turned out, however, Mother and Child left along with Maternal Grandparents on January 23, 2013.
The next day, Father filed a complaint for shared legal and physical custody of Child. Mother filed for divorce and sought to confirm her legal and primary physical custody in that complaint. Since separation, Mother has resided with her sister and her parents on the 700 block of South Street in Philadelphia. Mother's brother resides there on occasion as well. Father resides in an apartment in Ardmore, where a separate bedroom is set up for Child.
On February 8, 2012, the court entered an interim order preserving the "status quo." Notably, Mother created that status when she took Child out of the marital home and moved in with her parents. The interim order provided Mother with primary physical custody and Father with partial physical custody every Monday, Wednesday and Friday from 6:30 p.m. until 8:30 p.m., and on Sunday from 11:00 a.m. to 6:00 p.m. The court scheduled a protracted hearing, which included psychological evaluations, and the court heard testimony on August 9, 2013 and on February 5, 2014.
On August 23, 2013, Father filed an amended complaint for custody, seeking sole legal and primary physical custody of Child with supervised visitation or partial custody to Mother. Following the custody hearing, the trial court, on June 17, 2014, entered the current custody order and filed a Summary Opinion dated June 18, 2014. The order grants Mother primary physical custody and grants Father partial physical custody on a repeating two-week basis, as follows:
Father filed a timely notice of appeal and a concise statement of matters complained of on appeal on July 16, 2014. The trial court filed a Pa.R.A.P. 1925(a) opinion on August 20, 2014. Father raises the following issues for our review:
Appellant's Brief, at 7.
We begin with our scope and standard of review: We review a trial court's determination in a custody case for an abuse of discretion, and our scope of review is broad. M.P. v. M.P., 54 A.3d 950, 953 (Pa.Super.2012). Because we cannot make independent factual determinations, we must accept the findings of the trial court that are supported by the evidence. Id. We defer to the trial judge regarding credibility and the weight of the evidence. Id. The trial judge's deductions or inferences from its factual findings, however, do not bind this Court. Id. We may reject the trial court's conclusions, but only if they involve an error of law or are unreasonable in light of its factual findings. Id. See also J.R.M. v. J.E.A., 33 A.3d 647 (Pa.Super.2011); Hanson v. Hanson, 878 A.2d 127, 129 (Pa.Super.2005); Landis v. Landis, 869 A.2d 1003, 1011 (Pa.Super.2005).
When a trial court orders a form of custody, the best interest of the child is paramount. J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super.2011). To determine the child's best interest, the trial court must consider the following factors when "ordering any form of custody." 23 Pa.C.S. § 5328(a). Those factors are:
23 Pa.C.S. § 5328(a).
Moreover, on issues of credibility and weight of the evidence, we defer to the findings of the trial court, which has had the opportunity to observe the proceedings and demeanor of the witnesses. R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super.2009). The parties cannot dictate the amount of weight the trial court places on evidence. Rather, the paramount concern of the trial court is the best interest of the child. Appellate interference is unwarranted if the trial court's consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion. Id. The test is whether the evidence of record supports the trial court's conclusions. Ketterer v. Seifert, 902 A.2d 533, 539 (Pa.Super.2006).
At the custody hearing, the court heard testimony from Mother and Father, as well as Paternal Grandmother. Robert L. Tanenbaum, Ph.D., submitted a court-ordered custody evaluation report; this report was entered into evidence without Dr. Tanenbaum's testimony, by agreement of the parties. Doctor Tanenbaum concluded:
Psychological Custody Evaluation, 5/13/14, at 20 (emphasis in original). Additionally, Dr. Tanenbaum noted in his evaluation the December 19, 2013 findings of Child's pediatrician, Dr. Sammaritano:
Id. at 17.
Following the hearing and review of the custody evaluation report, the trial court considered the mandatory statutory factors pursuant to 23 Pa.C.S. § 5328. See M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa.Super.2013) (holding that while Custody Act requires trial court to articulate reasons for its decision prior to filing of notice of appeal, there is no required amount of detail; "all that is required is that the enumerated factors are considered and that the custody decision is based on those considerations"). After considering the
The court's order expanded Father's time with Child, as compared to the interim order of 13 hours per week. However, as previously noted, the interim order simply maintained the status quo, which was set by Mother when she left Father, taking Child with her and maternal grandparents. The fact that Father's time with Child has increased relative to that interim order is not a useful gauge, and it is not necessarily fair or reasonable in these circumstances. More significantly, it is not clear to this Court that the award is in Child's best interests. In its explanation as to why primary custody was awarded to Mother despite its findings, the trial court stated:
Summary Opinion, at 17 (emphasis added). In its Pa.R.A.P. 1925(a) Opinion, filed after Father's appeal, the trial court again acknowledges that it concluded after review of the statutory factors that the findings favored Father more than Mother, and the court explained its justifications once more. See Pa.R.A.P. 1925(a) Opinion, 8/20/14, at 2-7. We do not find any of these three justifications valid.
Initially, we point out that the fact that Father has not been primary custodian to date is, first, a function of Mother's unilateral unreasonable decisions, and second, not a basis for denying him primary custody where all factors point otherwise. Further, the "primary caretaker doctrine" was intended to be an additional consideration that would tip the scales in favor of the primary caretaker in a situation where the trial court deemed both parents to be fit to act as a primary custodian. Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 448 A.2d 1113 (1982). Such is not the case here. The court's findings do not point to the conclusion that both Mother and Father are equally fit to act as primary custodian. The court expressed its concerns about Mother's allegations of abuse by Father, as well as her "rigid" parenting style, which obscured a "wholesome, rational approached to child-rearing." Summary Opinion, at 14. The court contrasted Mother's parenting style with Father's, characterizing Father's as "more natural." Id. at 12. Furthermore, under the Child Custody Act, 23 Pa.C.S. § 5321 et seq., "the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child[.]" See 23 Pa.C.S. § 5328(a) (emphasis added). In M.J.M., this Court stated:
63 A.3d at 338 (emphasis added).
Changes in custody schedules will invariably disrupt a child's routine. The parties, however, can minimize disruption by committing to a spirit of cooperation.
From this we conclude that, geographically and financially, the parties are in a position to at least share custody equally, if not give father primary physical custody. A graduated schedule making progress toward this end would be in Child's best interests. We emphasize that Child is young enough to benefit from improvement in the family dynamic; however, due to the lack of cooperation cited by the trial court, awarding primary physical custody to father might be of significant benefit to Child at this time, and might make mother realize that her lack of cooperation and attempts at alienation will not be rewarded by this Court.
Second, Father did file an amended complaint for primary physical custody on August 23, 2013. In its Pa.R.A.P. 1925(a) opinion the trial court acknowledged its error in stating otherwise, which further underscores the unreasonableness of the trial court's conclusion. See 1925(a) Opinion, 8/20/14, at 2.
And finally, the trial court was satisfied that Father would obtain appropriate child care, noted that Maternal Grandmother provided child care when Mother was at work, and concluded that it "will be beneficial for the child to be in contact with other children on a regular basis and to be among adults other than Mother's family members[.]" Id. at 16 (emphasis added). The trial court acknowledged this would aid in "the child's development." Id.
Thus, in determining Child's best interests, the court's consideration of the statutory factors weighed heavily in favor of granting Father primary custody. J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super.2011) (when trial court orders form of custody, best interest of child is paramount). Where a court makes findings consistently in favor of custody in one party, and then awards custody to the other party, it must provide valid reasoning to support that decision. Especially with respect to Mother's allegations of abuse, which the court specifically found not credible, we cannot, in good conscience, sanction this unexplained about-face. Although the court's findings are supported in the record, its conclusions are unreasonable in light of these findings. See S.W.D. v. S.A.R., 96 A.3d 396 (Pa.Super. 2014). Because the majority of the statutory best interest factors favor Father, we conclude that the court's order was not based on a reasoned consideration of those factors. Parental alienation was a critical issue here. The court noted that Father was more likely to promote Child's relationship with Mother than Mother would with Father, in fact stating, "Mother is not likely to encourage or permit frequent and continuing
After careful review and reflection, we conclude that the court's order awarding Mother primary physical custody is unreasonable in light of its factual findings. M.P., supra. We, therefore, vacate and remand for an order consistent with the trial court's findings and this Court's decision.
Vacated and remanded. Jurisdiction relinquished.
Judge WECHT joins this Opinion.
Judge STRASSBURGER files a Dissenting Opinion.
DISSENTING OPINION BY STRASSBURGER, J.
Because I believe the trial court's order granting a gradual change in custody is in the child's best interest, reasonable in light of the trial court's findings, and supported by the record, I respectfully dissent.
The trial court herein found persuasive the custody evaluator's recommendation. Accordingly, the trial court indicated that its order was designed to expand Father's time with the child while allowing her to remain in a familiar environment due, in large part, to her age. Trial Court Opinion, 8/20/2014. The learned Majority concludes that the order is contrary to the trial court's determination that the majority of the custody factors are in Father's favor. Citing to M.J.M. v. M.L.G., 63 A.3d 331 (Pa.Super. 2013), the Majority holds that the only factors to be given weighted consideration are those concerning the health and safety of the child. While M.J.M. says that, it is not what the words of the statute say, nor would it be a reasonable interpretation. The statute provides that courts shall give weighted consideration to factors which affect the safety of the child, not that weighted consideration may be given
One of these can be the primary caretaker factor. M.J.M. has sometimes been cited as holding that the primary caretaker doctrine has been abolished. That is a misreading of the case. "The considerations embraced by the primary caretaker doctrine have been woven into the statutory factors, such that they have become part and parcel of the mandatory inquiry." M.J.M., 63 A.3d at 339. Those are factors 3, "[t]he parental duties performed by each party on behalf of the child," and 4, "[t]he need for stability and continuity in the child's education, family life and community life." 23 Pa.C.S. § 5328(a). If the primary caretaker doctrine ever were applicable only where it would "tip the scales" where both parents are fit,
Relevant to the case at bar, at this juncture, due in large part to the child's age, Mother's ability to meet the child's daily needs and the child's need for stability and continuity weigh in favor of a gradual increase in custody. The trial judge's holding to this effect is not an abuse of discretion. Accordingly, I would affirm the order of the trial court.
1 Pa.C.S. § 1921. When the General Assembly enacted the amendments to the Child Custody Act, it did not specifically preclude a trial court from giving weighted consideration to factors other than those that affected the safety of the child. "Finally, it is presumed that the legislature did not intend an absurd or unreasonable result. In this regard, we . . . are permitted to examine the practical consequences of a particular interpretation." C.B. v. J.B., 65 A.3d 946, 951 (Pa. Super. 2013) (citation omitted) (holding, inter alia, that an interpretation of the Custody Act that did not require the trial court to address the 16 statutory factors contemporaneously with its custody order would render the plain language of the statute a nullity, an unreasonable and absurd result clearly not intended by the General Assembly). See also In re Adoption of R.B.F., 569 Pa. 269, 803 A.2d 1195, 1202-03 (2002) (holding that "[t]here is no language in the Adoption Act precluding two unmarried same-sex partners (or unmarried heterosexual partners) from adopting a child who had no legal parents. It is therefore absurd to prohibit their adoptions merely because their children were either the biological or adopted children of one of the partners prior to the filing of the adoption petition.").
M.J.M., 63 A.3d at 338 n. 9. See also S.J.S. v. M.J.S., 76 A.3d 541, 551 (Pa.Super. 2013) (holding that the trial court gave proper weight to Mother's role as primary caretaker of children but that this factor "did not out-weigh other factors in the best interest analysis."). Unlike the Majority, I believe these cases were correctly decided.