M.S.E. v. H.A.M.

245 A.3d 1050 (Table)

M.S.E., Appellant v. H.A.M.

No. 659 MDA 2020

Superior Court of Pennsylvania.

Filed December 8, 2020

MEMORANDUM BY BOWES, J.:

M.S.E. ("Father") appeals pro se from the March 30, 2020 custody order that awarded H.A.M. ("Mother") primary physical custody of their son, O.M.S., born in November 2016, and awarded Father periods of physical custody. ¹ We affirm.

Mother and Father are the biological parents of O.M.S. N.T., 3/11/20, at 108. Both are Egyptian citizens, but at the time of the trial, Father was in the process of obtaining his Canadian citizenship. Id . at 18. O.M.S. has dual United States and Egyptian citizenship. Id . at 141. As the parties' quarrelsome history is relevant to our review, we summarize it at the outset.

Mother and Father married in Egypt during November 2015, and subsequently moved to the United States and Canada, respectively. Father worked as a marine engineer based in Canada and Mother resided in New York with her father and her then-five-year-old daughter from a previous marriage. In July 2016, Mother, then pregnant with O.M.S., moved with her daughter to Canada to join Father. Id . at 27-28, 117-19. The following month, she returned to the United States, where she gave birth to O.M.S. in November 2016. Id . at 15, 120. Mother alleged that her return to the United States was prompted by Father's emotional abuse and threatening behavior toward her and her daughter. Id . at 119. Due to multiple passport issues, Father was not able to travel to the United States, and did not see O.M.S. until the child was nine months old. Id . at 17, 31, 83, 120-21.

In November 2017, the nuclear family traveled together to Egypt to visit the paternal grandmother, and to attend the wedding of a maternal aunt. Id . at 84, 122, 126. The marital relationship dissolved after approximately ten days in Egypt. Again, Mother claimed Father was abusive. She filed a police report and ultimately filed for divorce in Egypt during February 2018. Id . at 126-29. Acting under Egyptian authority, Father responded by imposing a travel ban on Mother and O.M.S that prohibited them from leaving the country without his permission. Father also obtained a visitation order in Egypt before he returned to Canada, but he rarely exercised visitation even though he traveled between Canada and Egypt in 2018. Id . at 86, 89, 133.

In April 2019, Father met with the maternal grandfather and agreed to lift the travel ban upon Mother's acquiescence to an informal agreement that provided him, inter alia , sole authority over their child. Id . at 54-55, 138-39, 157. It is unclear whether the parties reached an accord, but Mother and O.M.S. returned to the United States the following month, reunited with her daughter, and resided with Mother's sister and brother-in-law, O.M.S.'s maternal aunt and uncle, in Carlisle, Cumberland County, Pennsylvania. Id . at 55. During Father's subsequent visit with Mother on May 19, 2019, his first since their return, Father sought the assistance of the local child protective services agency and the maternal grandfather, alleging intimidation and abuse against Mother's brother-in-law. Approximately one week later, Father filed a complaint for custody.

Subsequent to a fruitless conciliation hearing, the custody court issued a temporary custody order that the parties followed pending the custody trial that occurred on March 11, 2020. Father appeared pro se , testified on his own behalf, and presented the testimony of the maternal grandfather. Mother, represented by counsel, testified, and called as witnesses the maternal aunt and uncle and a neighbor, M.H.

On March 30, 2020, the trial court entered a custody order awarding Father and Mother shared legal custody and awarding Mother primary physical custody of O.M.S. Father, who still resides in Canada, was granted physical custody in the United States from Friday at 4 p.m. to Sunday at 4 p.m. "as his work schedule, visa status, and COVID-19 pandemic restrictions allow him to travel." Order, 3/30/20, at ¶2b. The court provided that O.M.S. was not to be taken outside of the United States without prior court approval. Id . at ¶2a. Among other things, the court additionally provided that either parent may request drug testing. Id . at ¶¶ 3a, 4b.

Father obtained counsel, who timely filed notice of appeal and a contemporaneous concise statement of errors complained of an appeal. ² On June 12, 2020, counsel filed a praecipe to withdraw while Father simultaneously filed a praecipe to enter his appearance pro se in the trial court. Similarly, on June 30, 2020, counsel for Mother filed in this Court a motion to withdraw, which we denied as moot given that the trial court permitted counsel to withdraw on June 1, 2020. Accordingly, both parties are proceeding pro se in this appeal.

Father presents the following issues for our review:

1. Did the trial court abuse its discretion when it established a custody schedule that is not in the child's best interest, creates significant travel costs and travel time for Father and promotes the parental alienation by Mother against Father despite finding Mother in contempt for physical assault of [F]ather during child exchange, denying him access and failing to share her phone number with Father when Mother's past conduct included preventing Father from seeing his son until he was 9 months old and then moving to Egypt where he was denied access for another year and half?

2. Did the [t]rial [c]ourt abuse its discretion by denying Father his fundamental procedural and substantive due process rights afforded to him under the United States Constitution and the Pennsylvania Constitution when he was prevented from further cross[-]examination of Mother and denied the admission of his exhibits?

3. Did the [t]rial [c]ourt abuse its discretion in the March 30, 2020 Order when the transcript and audio file would show that the [t]rial [c]ourt: (a) yelling "YOU ARE ABUSING ME" to Father and (b) yelling "ANSWER HIM" during Father [sic] Objection and (c) expressed multiple other animosity towards Father?

4 Did the [t]rial [c]ourt abuse its discretion in directing periodic drug testing when its own Order and Opinion at Page 14, 1114 states "none reported" under "history of drug and alcohol abuse of parent or members of a party's household["]?

Father's brief at 17-18 (suggested answers omitted).

Our standard of review is 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.

C.R.F. v. S.E.F. , 45 A.3d 441, 443 (Pa.Super. 2012) (cleaned up).

The paramount concern in any custody dispute is the best interests of the child. See 23 Pa.C.S. § 5328. The Child Custody Law sets forth the relevant factors that the trial court must consider in determining the child's best interest. Id . Section 5328(a) provides as follows:

§ 5328. Factors to consider when awarding custody

(a) Factors. —In ordering any form of custody, 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, including the following:

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

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

(2.1) The information set forth in section 5329.1(a)(1) and (2) (relating to consideration of child abuse and involvement with protective services).

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

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

(5) The availability of extended family.

(6) The child's sibling relationships.

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

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

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

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

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

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

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

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

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

(16) Any other relevant factor.

23 Pa.C.S. § 5328(a).

Father's first issue challenges the custody schedule...