M.J.N. v. J.K., 169 A.3d 108

Background

Parents share a child born June 2009. They had a 2012 stipulation providing shared legal custody and alternating physical custody on a roughly 50/50, two-week rotation.
Father filed a Petition for Contempt and Modification (June 21, 2016) alleging Mother withheld the child during exchanges, interfered with phone contact, and coached the child.
The custody trial occurred December 1–2, 2016, including an in camera interview of the child; the court issued a December 23, 2016 order awarding joint legal custody, primary physical custody to Mother, and reduced/modified physical custody to Father; Mother was held in contempt for violating the prior order.
The trial court analyzed all 23 Pa.C.S. § 5328(a) factors, weighing some in Mother’s favor (stability, daily care, proximity, sibling relationship), some in Father’s favor (abuse history toward Father, conflict), and treating some as neutral; it ordered mental health evaluations for both parents.
Father appealed, arguing (inter alia) the court erred in (1) declining to award him primary physical custody, (2) imposing a schedule that creates long in-person gaps, (3) denying right-of-first-refusal / additional summer time, (4) improperly weighing factors and admitting the child’s testimony.
The appellate court found several of the trial court’s factor weightings unsupported or unreasonable, vacated the custody order in part, affirmed the contempt finding, and remanded to re-impose the prior 50/50 shared-physical-custody order and reconsider Father’s requested modifications.

Issues

Issue	Father’s Argument	Mother’s Argument	Held
Whether trial court should have awarded Father primary physical custody	Father: evidence under §5328 favors him (Mother’s conduct overemphasized; Father’s caregiving, travel manageable)	Mother: child’s attachment to household, school/proximity, and routine support primary-custody award	Appellate court: trial court’s factor weightings were in part unreasonable; vacated custody order and directed reinstatement of prior 50/50 physical custody (remand)
Whether new schedule unreasonably deprived Father of regular in-person contact	Father: schedule creates up to 10-day in-person gaps and phone contact is unreliable given Mother’s interference	Mother: schedule preserves contact and permits daily phone communication	Held: appellate court agreed schedule was unreasonable in context and ordered re-imposition of prior shared schedule; remand to consider modification requests
Whether trial court erred by not including right-of-first-refusal / more summer time	Father: should get right-of-first-refusal and extra summer/court-ordered makeup time to offset lost custodial time	Mother: existing schedule and makeup remedies sufficient	Held: appellate court remanded and directed trial court to consider Father’s request to allow any responsible adult to retrieve child on Father’s behalf and to consider modifications (including summer time)
Whether denial of motion to preclude child’s in camera testimony was error	Father: child was coached/biased by Mother; testimony should have been excluded or given little weight	Mother: child’s wishes are admissible and relevant; in camera interview appropriate	Held: appellate court held denial was not error—child’s preference is a proper factor—but criticized the trial court for overemphasizing the child’s preference (half-brother relationship) to the exclusion of other factors

Key Cases Cited

E.D. v. M.P., 33 A.3d 73 (Pa. Super. 2011) (scope and standard of review in custody appeals)
A.D. v. M.A.B., 989 A.2d 32 (Pa. Super. 2010) (appellate review principles and custody standards)
Saintz v. Rinker, 902 A.2d 509 (Pa. Super. 2006) (best-interest standard encompasses child’s physical, intellectual, moral, and spiritual well-being)
Arnold v. Arnold, 847 A.2d 674 (Pa. Super. 2004) (best-interest analysis guidance)
McMillen v. McMillen, 602 A.2d 845 (Pa. 1992) (child’s expressed wishes are important though not controlling)
M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (appellate court may substitute its judgment where record is sufficiently developed)