In M.P.B. v. K.J., 2016 Pa. Super. Unpub. LEXIS 4334, 2016 WL 6946577 (Pa. Super. Ct. Nov. 28, 2016) a Father appealed a Court’s judgement in granting the Mother primary physical custody with shorter periods of shared custody provided to the Father. The Mother was committed to a mental health facility and had an extensive history of mental illness with multiple hospitalizations. Moreover, the Mother was on total psychiatric disability since 1993 and she has residual cognitive defects from a traumatic brain injury that she sustained in 1999. Based upon the latest hospitalization, Father filed a petition for emergency custody, which the Court granted, awarding him sole legal custody and primary physical custody of D.B. The order did not carve any specific periods of partial custody for Mother, but it permitted her to visit D.B. upon her release from the facility, so long as Father agreed. When the Mother got out of the facility, the Father limited Mother’s access to the child. As a result, she petitioned the trial court for modification of the emergency custody order. The trial court ordered Mother to undergo a mental health evaluation, and upon review of the evaluator’s findings, it reinstated the April 2009 custody arrangement making the Mother the primary custodian with a modification that enlarged Father’s periods of alternating weekend custody. Father sought reconsideration, which led to a series of countervailing petitions that ultimately culminated in the two-day custody trial that is the genesis of this appeal.
Father frames his assertions in four prolix questions, which we condense into two succinct issues: (1) whether the trial court’s best-interest analysis is contrary to the statutory directive to give weighted consideration to factors that affect the safety of the child; and (2) whether the trial court erred in weighing the second, seventh, fifteenth, and sixteenth custody factors pursuant to 23 Pa.C.S. § 5328(a). Father’s brief at 7-8.
In M.J.M. v. M.L.G., 2013 PA Super 40, 63 A.3d 331 (Pa.Super. 2013), we reiterated the applicable scope and standard of review as follows:
“In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is whether the trial court’s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.”
With any child custody case, the paramount concern is the best interests of the child. This standard requires a case-by-case assessment of all the factors that may legitimately affect the physical, intellectual, moral and spiritual well-being of the child. J.R.M. v. J.E.A., 2011 PA Super 263, 33 A.3d 647, 650 (Pa.Super. 2011)
, the Father felt the Mother’s past mental issue history constituted a danger to the child and felt that given this situation, the custody factors affected by the Mother’s condition should be more heavily weighted in the Court’s determination than the other factors. The Father felt that consideration of the factors should be weighted in favor of the factors affecting safety of the child. The appellate Court disagreed. Their reasoning fell on what they felt was an exaggerated assumption as to the safety concerns for the child. They noted that where there were issues involving safety, the Mother acted quickly to resolve those issues in favor of the child. Regarding the mental illness issues, a combination of two factors resolved the issue in the favor of the Mother. First a Court ordered psychiatrist examined the Mother and cleared her. Second, the Mother acted to obtain care for her conditions.
The take away here is that Courts seem to weigh all the custody factors in making a determination and that each case revolves around its own facts. Moreover, an important conclusion is that for safety to be an issue, it must be based upon a clear and present danger and that past propensity has less power to control than current issues. Track record is not determinative.