J-A10001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.T. AND M.R.T. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

L.S. F/K/A L.R.

Appellee No. 2072 MDA 2014

Appeal from the Order Entered November 6, 2014

In the Court of Common Pleas of York County

Civil Division at No(s): 2013-FC-001604-03

BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED MAY 28, 2015

Appellants, K.T. (“Paternal Grandmother”) and M.R.T. (“Paternal 

Grandfather”) (collectively, “Paternal Grandparents”), appeal from the order 

entered in the York County Court of Common Pleas, which denied their 

request for partial physical custody of their minor grandchildren, K.A.T. 

(born in September 2007) and K.W.R. (born in March 2009) (“Children”), in 

this custody action. We reverse and remand for further proceedings.

The certified record indicates the relevant facts and procedural history 

of this case as follows. Appellee, L.S. f/k/a L.R. (“Mother”), and D.T. 

(“Father”) are the natural parents of Children. Mother gave birth to K.A.T. 

while she was in high school and living with her mother (“Maternal 

Grandmother”). Maternal Grandmother would not permit Father to live with 

Mother because they were unmarried, so Mother moved in with Father in 
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Paternal Grandmother’s home in December 2007, when K.A.T. was 

approximately two months old.1 Mother and Father did not marry, but they 

maintained a relationship until early 2009. In January 2009, when Mother 

was pregnant with their second child, K.W.R., Mother and Father separated 

and Mother moved with K.A.T. out of Paternal Grandmother and W.B.’s 

home.2 At that time, Mother moved in with a co-worker for several months.

Beginning in January or February 2009, Mother and Father split 

custody of K.A.T. During Father’s periods of physical custody, Children 

resided with Father in Paternal Grandmother and W.B.’s home. Mother gave 

birth to K.W.R. in March 2009. Mother and Father subsequently split 

custody of K.W.R. as well. In April 2009, Mother met D.S. In May 2010, 

Mother married D.S. (“Mother’s Husband”) in Hawaii; Father and Mother 

agreed Father would take custody of Children while Mother was in Hawaii to 

marry. In the summer of 2010, Father anticipated imminent deployment to 

Iraq. Based on his expected deployment, Father agreed Mother could take 

____________________________________________

1

Paternal Grandparents were divorced in 1998. When Mother and K.A.T. 

moved in with Paternal Grandmother, Paternal Grandmother was living in 

Erie County with her long-term significant other, W.B., with whom she still 

resides. Paternal Grandfather also lives in Erie County with his significant 

other, D.D. 

2 The parties dispute whether Mother moved out of Paternal Grandmother 

and W.B.’s home in December 2008 or January 2009. When Mother moved 

out, Father was away in basic training for the United States Army since 

September 2008.
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Children to live in Hawaii with Mother’s Husband.3 Mother and Father agreed 

Father would have custody of Children during the summer months and 

holidays, and that Father could communicate with Children via phone calls 

and social media. Around August 2010, Mother and Mother’s Husband 

moved with Children to Hawaii. Mother obtained a new telephone number, 

but she did not disclose her new phone number to any of Father’s family 

members, including Paternal Grandparents, and limited Children’s telephone 

communication only to Father. After Mother had already moved to Hawaii 

with Children, Father learned his anticipated deployment would not occur, 

but he continued to permit Mother to live with Children in Hawaii. Mother 

and Father agreed that if Mother moved back to Erie County, they would 

again split physical custody of Children on an equal basis.

In November 2011, Mother and Mother’s Husband returned from 

Hawaii with Children and moved to Clymer, New York.4 The parties dispute 

whether Mother told Father she had moved back from Hawaii with Children. 

In August 2012, Mother and Children moved with Mother’s Husband to 

Wisconsin. Mother obtained a new phone number upon moving, which she 

did not give to Father or Paternal Grandparents. On February 17, 2013, 

while Mother and Children were still living in Wisconsin with Mother’s 

____________________________________________

3 Mother’s Husband was in the Army and stationed in Hawaii at that time.

4 Clymer, New York is approximately eight miles away from Corry, 

Pennsylvania (where Paternal Grandmother and W.B. live in Erie County). 
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Husband, Father died in an automobile accident. Mother and Children did 

not attend Father’s funeral. Around March 2013, Mother and Mother’s 

Husband moved with Children to York County, Pennsylvania, where they 

currently reside.

On September 6, 2013, Paternal Grandparents filed a joint petition in 

York County seeking partial physical custody of Children.5 At the time 

Paternal Grandparents filed their petition, Mother had denied them any 

access whatsoever to Children. By order dated October 4, 2013 and entered 

October 7, 2013, the court issued an interim custody order granting sole 

legal and primary physical custody of Children to Mother. The court awarded 

Paternal Grandparents the following periods of partial physical custody, 

beginning with a “phase-in” schedule:6(1) Friday, September 27, 2013, 

from 5:30-7:30 p.m., in York County, with Mother present; (2) Saturday, 

September 28, 2013, from 9:30 a.m. until 12:00 p.m., in York County, with 

Mother present; (3) December 27-29, 2013, at Paternal Grandmother’s 

home in Erie County, phasing out Mother’s presence during the scheduled 

visits; and (4) two weekends between January 1, 2014 and June 1, 2014, in 

____________________________________________

5

Paternal Grandparents previously filed a joint petition for partial custody in 

Erie County but withdrew that petition to refile in York County. Paternal 

Grandparents have standing to seek partial custody pursuant to 23 Pa.C.S.A. 

§ 5325(1) (stating where parent of child is deceased, parent or grandparent 

of deceased parent may file action of partial physical custody or supervised 

physical custody). 

6 The parties live approximately 51⁄2 hours away.
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York County. The interim custody order provided the following regular 

schedule of partial physical custody thereafter: (1) three weeks over the 

summer (one week in June, July, and August) in the summer of 2014 and 

each following summer; (2) two weekends each in the fall and spring to 

occur in York County; (3) four overnight periods during Children’s Christmas 

break, between December 27th through December 31st each year; and (4) 

any other times agreed to by the parties. The interim custody order also 

included a provision for Skype communication between Children and 

Paternal Grandparents to occur each Sunday at 7:00 p.m., beginning on 

October 6, 2013. 

After Paternal Grandparents commenced their custody action, Mother’s 

Husband started proceedings to adopt Children. The court initially granted 

the adoption, but Paternal Grandparents intervened on or around November 

4, 2013, when they learned of the proceedings. Because Mother and 

Mother’s Husband failed to notify Paternal Grandparents about the adoption 

proceedings, the court vacated the adoption decree.7

The court held a custody trial on February 10, 2014. At the start of 

trial, the court announced it was the first custody trial the court had presided 

over in approximately five years. The court expressed dissatisfaction with 

____________________________________________

7 At the time of trial, Mother’s Husband testified he planned to re-commence 

the adoption proceedings once the custody proceedings were resolved.
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the legislature’s enactment of the Custody Act since the court had last 

presided over a custody trial. The court stated: 

Frankly, I’m not sure how I want to do this. But since this 

is the first custody trial that I have to sit on—fortunately, 

the other cases assigned to me have been resolved by 

agreements.

That being so, I think it fair to counsel to advise them that 

I did sit and try and figure out when the last custody trial I 

had and I think it was about five years ago having other 

assignments in the interim.

And during that period of time, the legislature enacted a 

big comprehensive custody act, bunch of stuff that they 

did. They determined that they needed to help the courts 

in deciding these cases by telling them what factors they 

have to consider in determining what the best interest of 

the child or children is.

Honestly, I’ve taken a look at the statute. I have personal 

reservations as to whether the legislature can tell me how 

to make a decision. But I’m told that’s the way we do it. 

So counsel should be on the alert that I haven’t studied 

these things. I haven’t gone and looked and figured out 

whatever. So touch base on those things that you think 

are important to decide what is in the best interest[s] of 

these children.

(N.T. Trial, 2/10/14, at 11-12; R.R. at 9a). 

Paternal Grandmother testified, inter alia, as follows.8 Mother moved 

into her home when K.A.T. was approximately two months old. Paternal 

Grandmother and Mother had a nice relationship while Mother lived with her 

and W.B. During this time, Mother wrote Paternal Grandmother and W.B. a 

____________________________________________

8

(See id. at 14-74; R.R. at 10a-40a.) 
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“thank you” card expressing gratitude for their kindness and generosity, as 

well as a Valentine’s Day card.9 Mother also wrote Paternal Grandmother a 

“get well” card after Paternal Grandmother had surgery. On February 7, 

2008, Mother executed an “authorization for treatment of a minor” form, 

which gave Paternal Grandmother and W.B. authority to accompany K.A.T. 

to doctor’s appointments and to consent to K.A.T.’s medical examinations 

and/or treatment.

Mother moved out in January 2009. When Mother and Father split 

custody of Children, Father was living with Paternal Grandmother, so 

____________________________________________

9 The “thank you” card states:

I wanted to find a thank you card filled with all the words 

that I feel. But then I found this card & knew it was 

perfect [because] it’s in this card that I can write down my 

own feelings with all of my own words.

[Paternal Grandmother and W.B.,]

Everything you guys do and have done for me (& [K.A.T.]) 

is so appreciated. I hope that eventually I can help you 

the way that you’ve helped me. You’ve dealt with my 

bullshit and helped me on my feet—and for that I’m truly 

grateful. I’ve never met two other people who are so 

willing to help others. You’ve given me so much & much of 

that isn’t what money can buy. You’ve taught me lessons 

that I won’t forget & shown me love that I will always 

remember. I thank you both for all that you do. Thank 

you for everything.

[Mother].

(Paternal Grandparents’ Exhibit 3). 
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Children stayed at Paternal Grandmother and W.B.’s home during Father’s 

periods of physical custody. Paternal Grandmother testified Mother refused 

to let Paternal Grandparents communicate with Children when they lived in 

Hawaii. Paternal Grandmother explained Mother threatened Father while in 

Hawaii that if Father disclosed Mother’s phone number to Paternal 

Grandparents, or allowed anyone else on the phone line during Father’s 

phone calls with Children, that Mother would disconnect the call. Mother 

also “un-friended” Paternal Grandmother on Facebook.

Paternal Grandmother testified that Mother failed to tell Father when 

she moved from Hawaii to Clymer, New York. In February 2012, Father 

learned that Mother was in Clymer, and when Father confronted Mother 

about moving from Hawaii, Mother claimed she was back in town for a short 

time on vacation. Paternal Grandmother explained Mother agreed Father 

could visit Children once during this “vacation” period. Paternal 

Grandmother testified that Father visited Children again in July 2012, when 

Father discovered through Maternal Grandmother that Mother was still living 

with Children in Clymer. In August 2012, Father returned to Clymer to visit 

Children again, but Mother had already moved away. 

Following Father’s sudden death in February 2013, Paternal 

Grandmother hired a private investigator to locate Mother and Children. 

When the private investigator discovered Mother had an address in 

Wisconsin, Paternal Grandmother hired a second private investigator in 
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Wisconsin. Ultimately, Paternal Grandmother located Mother and Children in 

York County, Pennsylvania. Upon finding Mother and Children, Paternal 

Grandparents served Mother with the custody complaint. 

Paternal Grandmother testified that Mother was uncooperative with the 

terms of the interim custody order. With respect to the court-ordered Skype 

conversations, Paternal Grandmother said Mother claimed her camera was 

broken, so Paternal Grandparents could not actually see Children during the 

calls. Paternal Grandmother’s son, S.T. (“Children’s Uncle”), offered to fix 

Mother’s camera free-of-charge, but Mother refused the offer. Paternal 

Grandmother testified that if she called Mother to speak with Children

outside of the court-ordered Skype timeframe, Mother would not answer the 

phone or she would state it was not a good time or tell Paternal 

Grandmother to wait until the court-ordered timeframe to speak with 

Children. 

Paternal Grandmother testified that Paternal Grandparents’ first visit 

with Children under the interim custody order was a success. The visit took 

place at an arcade, and Children recognized Paternal Grandparents right 

away. Paternal Grandmother also spoke highly of Paternal Grandparents’ 

visit with Children over the Christmas holiday. Paternal Grandmother had a 

Christmas party at her home with Children’s extended family. Paternal 

Grandparents, their significant others, and Children’s paternal aunts, uncles, 

cousins, and other relatives attended. Children made glow bugs, balloons, 
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made a Christmas gift for Mother, and played with their cousins. Children 

also participated in a balloon launch to honor Father’s memory. Children’s 

great-aunt gave Children a memory box containing a small toy soldier and 

Father’s dog tags. Mother later discarded the toy soldier, claiming it 

promoted violence. 

While the interim custody order was in place, Paternal Grandmother 

sent Children Captain America and Superman action figures. Paternal 

Grandmother testified Mother also discarded these action figures as “too 

violent,” even though Mother permitted Children to dress-up as Superman 

and Batman for Halloween.

Paternal Grandmother admits she has rheumatoid arthritis. Paternal 

Grandmother denied having any health issues which would impede her 

ability to care for Children. Paternal Grandmother and W.B. both smoke 

cigarettes but do not smoke around Children. Paternal Grandmother 

admitted she was charged with passing a bad check in 2012 and with theft 

of services in 2009.10 Paternal Grandmother did not explain the details of 

these charges. 

Paternal Grandmother is currently employed with Interim Health Care 

for the past four years. Prior to her employment with Interim Health Care, 

____________________________________________

10 Counsel for Paternal Grandparents objected to the admission of testimony 

concerning these criminal charges. The court overruled the objection as 

relevant to Children’s best interests. Paternal Grandparents challenge this 

evidentiary ruling in their third issue on appeal.
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Paternal Grandmother owned a daycare which she operated out of her 

home. Children were enrolled in the daycare when Father was at work 

during his periods of physical custody (when Father and Mother had split 

custody). Father paid Paternal Grandmother approximately $14.00 or 

$15.00 each week as his “co-pay” for the daycare services. Paternal 

Grandmother said Father paid her to babysit K.A.T. even when Mother had 

been living with Paternal Grandmother and W.B.

Paternal Grandmother intervened with the adoption proceedings 

because she does not want Mother’s Husband to adopt Children. Paternal 

Grandmother said Mother’s Husband uses military-style discipline with 

Children. Paternal Grandmother also expressed concerns that Mother’s 

Husband is racist, based on his Facebook posts related to “racial stuff and 

Nazi stuff.”11 

Paternal Grandmother requested the court to enlarge Paternal 

Grandparents’ periods of partial physical custody under the interim custody 

order. Paternal Grandmother sought three weekends each in the fall and 

spring to occur in Erie County so that Children’s extended family can see 

Children. Paternal Grandmother suggested the parties could meet at a halfway point to exchange custody. Paternal Grandmother also sought two 

weeks’ custody in June, July, and August. Paternal Grandmother explained 

____________________________________________

11 The Facebook rants were keenly distressing to Paternal Grandmother 

because W.B. is African-American. 
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that she has an amicable relationship with Paternal Grandfather, and they 

agreed that during Paternal Grandparents’ periods of partial physical 

custody, Children will stay overnight at Paternal Grandmother and W.B.’s 

home; Paternal Grandfather will see Children during the daytime. 

Paternal Grandfather testified, inter alia, as follows.12 Paternal 

Grandfather has a good relationship with Paternal Grandmother. Paternal 

Grandfather goes to Paternal Grandmother’s house during the court-ordered 

timeframe for Skype calls with Children. Paternal Grandfather echoed 

Paternal Grandmother’s testimony regarding the successful first visit with 

Children under the interim custody order. Paternal Grandfather said 

Children remembered him when Paternal Grandfather first saw them at the 

arcade. Paternal Grandfather had a great interaction with Children at the 

Christmas visit as well. Children asked Paternal Grandfather to teach them 

guitar. Paternal Grandfather admitted he had a problem with alcohol abuse 

in the past that worsened after Father’s death. Paternal Grandfather 

currently attends Alcoholics Anonymous meetings twice each week and does 

not consume alcohol. Paternal Grandfather last consumed alcohol on 

December 21, 2013. When confronted with a recent picture of himself 

holding a beverage can, Paternal Grandfather described the beverage 

____________________________________________

12 (See N.T., 2/10/14, at 75-93; R.R. at 41a-50a.) 
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pictured as a “Genny NA”; the “NA” stands for non-alcoholic.13 Paternal 

Grandfather smokes cigarettes, but he does not do so in front of or around 

Children. 

Paternal Grandfather is unemployed due to a 1996 work-related oil 

field injury that required multiple surgeries. Paternal Grandfather currently 

collects social security disability and has no residual effects from the injury 

which would impair his ability to care for Children. Paternal Grandfather 

discussed a custody schedule with Paternal Grandmother and echoed 

Paternal Grandmother’s request for additional time with Children. Paternal 

Grandfather confirmed Paternal Grandmother’s statement that Children 

would sleep at Paternal Grandmother and W.B.’s home during Paternal 

Grandparents’ periods of partial physical custody. Paternal Grandfather 

indicated that he will travel with Paternal Grandmother to York County to 

visit Children if the court permits Paternal Grandparents to exercise partial 

physical custody; they will obtain separate rooms in the same hotel. 

Paternal Grandfather indicated he did not call Mother to speak with 

Children while they were in Hawaii because Mother threatened to disconnect 

her phone and disappear with Children if anyone from Father’s family 

contacted her. Paternal Grandfather said Father did not disclose Mother’s 

phone number to his family members in fear of losing Children. Paternal 

____________________________________________

13 The Genesee Brewing Company website confirms that “Genny NA” is a 

non-alcoholic beer. See http://www.geneseebeer.com/beer/genesee-na/. 
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Grandfather asked Maternal Grandmother for Mother’s address, but Maternal 

Grandmother would not disclose it. Maternal Grandmother gave Paternal 

Grandfather a ride home once. Maternal Grandmother asked where Father 

was and told Paternal Grandfather that she knew where Children were 

residing. Father happened to be at Paternal Grandfather’s home at that 

moment. Father then had a discussion with Maternal Grandmother outside 

of Paternal Grandfather’s presence, after which Father left Paternal 

Grandfather’s home with Maternal Grandmother to see Children.14

Laurie Rogan, the first private investigator Paternal Grandmother 

hired, testified via telephone, inter alia, as follows.15 Paternal Grandmother 

hired her in March 2013 to locate Mother and Children. Ms. Rogan’s initial 

investigation led her to believe Mother and Children were residing in 

Wisconsin. Paternal Grandmother subsequently hired a private investigator 

in Wisconsin, who determined that Mother and Children had lived there but 

moved. Ms. Rogan subsequently sent a United States Postal Service 

ancillary service request to obtain Mother’s forwarding address, which 

provided Mother’s current location in York County, Pennsylvania. 

____________________________________________

14 Paternal Grandfather did not elaborate on the details of this event, but 

additional testimony at trial indicated that Father’s interaction with Maternal 

Grandmother took place while Mother was living with Children in Clymer, 

New York, shortly before she moved to Wisconsin in August 2012. 

15 (See N.T., 2/10/14, at 94-105; R.R. at 51a-56a.) 
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Children’s Uncle testified, inter alia, as follows.16 Children’s Uncle 

offered to fix Mother’s computer for no charge so the Skype visual 

technology would work. During Children’s visit over the Christmas holiday, 

Children recognized Children’s Uncle and jumped into his arms. Children’s 

Uncle played guitar with Children, and they built toys. Children’s Uncle 

observed that Children seemed very happy during their visit with Father’s 

family over Christmas. Children’s Uncle did not contact Mother when she 

lived in Hawaii with Children because Father told him that if anyone from his 

family were to call Mother, she would hang up the phone. Children’s Uncle 

has attempted to contact Mother on Facebook in the past, but he cannot find 

her name; so Children’s Uncle believes Mother “blocked” him. 

W.B. testified, inter alia, as follows.17 W.B. is Paternal Grandmother’s 

significant other. W.B. has known Children since they were babies; Children 

call W.B. “poppy.” W.B. loves Children as if they are his biological 

grandchildren; W.B. gets along very well with Children. Mother lived with 

K.A.T. in Paternal Grandmother and W.B.’s home. W.B. and Mother were 

mostly friendly during that timeframe. 

In June 2010, the Commonwealth charged W.B. with harassment due 

____________________________________________

16 (See id. at 105-116; R.R. at 56a-61a.) 

17 (Id. at 116-135; R.R. at 61a-71a.) 
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to a physical altercation with a neighbor;18 the neighbor had pulled into 

W.B.’s driveway, continually revved his engine, and refused to exit W.B.’s 

property. The Commonwealth also charged the neighbor in relation to the 

incident. The neighbor no longer lives in W.B.’s neighborhood. W.B. did not 

recall a charge against him for trespass by a motor vehicle. 

W.B. is currently disabled due to multiple degenerative discs. W.B. 

receives social security disability. W.B. does not drink alcohol. 

W.B. attended the first visit between Paternal Grandparents and 

Children under the interim custody order. Children remembered W.B. and 

called him “poppy.” The second visit with Children under the interim 

custody order took place on September 28, 2013, at a park. W.B. also 

attended that visit and played tag with Children, at great physical cost. At 

the Christmas visit at Paternal Grandmother and W.B.’s home, Children were 

excited and appeared to have lots of fun. Children made Mother pictures of 

reindeer as a Christmas gift. 

W.B. denied he smoked marijuana in his home when Mother lived 

there. W.B. also denied driving by Mother’s place of employment after 

Mother had moved out of his home. Following W.B.’s testimony, Paternal 

Grandparents rested their case.

____________________________________________

18 Counsel for Paternal Grandparents objected to testimony concerning this 

harassment charge, but the court overruled the objection as relevant to 

Children’s best interests. 
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Mother testified, inter alia, as follows.19 Mother moved out of Maternal 

Grandmother’s home in December 2007 and moved into Paternal 

Grandmother and W.B.’s home at that time. Mother lived with Paternal 

Grandmother and W.B. with K.A.T. until December 2008. Mother’s 

relationship with Paternal Grandmother was good at first. Over the course 

of Mother’s stay at Paternal Grandmother and W.B.’s home, Mother’s 

relationship with Paternal Grandmother worsened. Mother felt like nothing 

she did was good enough while living in Paternal Grandmother’s home. 

Mother said Paternal Grandmother had strict rules. For example, Paternal 

Grandmother would not allow Mother to talk on the phone or go to the 

grocery store without Paternal Grandmother’s permission. Mother claimed 

Paternal Grandmother told Mother that if she wanted to move out, Mother 

would have to leave K.A.T. with Paternal Grandmother and W.B. 

Mother conceded that she let Paternal Grandmother watch K.A.T. while 

Mother worked; Mother enrolled K.A.T. in Paternal Grandmother’s home 

daycare. Mother said she paid Paternal Grandmother for her daycare 

services using government assistance. Mother paid Paternal Grandmother 

every other week; Father paid Paternal Grandmother on the alternating 

____________________________________________

19 (Id. at 136-209; R.R. at 71a-108a.) 
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weeks.20 Mother claimed Paternal Grandmother forced her to commit 

welfare fraud; Mother alleged she ultimately had to repay the government as 

a result.21 

Mother claimed she also had difficulties with W.B. while living in his 

home. Mother said she initially liked W.B. but is now “terrified” of him. 

Mother observed W.B. smoke marijuana in the home. Mother claimed she 

once overheard W.B. talking about a drug deal, and W.B. threatened to kill 

Mother if she told anyone what she had heard. Mother said she could not 

escape from Paternal Grandmother and W.B.’s home because they allegedly 

had video surveillance around the home and trained guard dogs. 

When confronted with the letters Mother wrote to Paternal 

Grandmother and W.B. while living in their home, Mother claimed she was 

grateful to have a roof over her head. Mother testified: “I know how to 

count my blessings regardless of how bad something can be, and I did not 

want to make [Paternal Grandmother and W.B.] mad.” (N.T., 2/10/14, at 

182; R.R. at 94a).

Mother said she had an okay relationship with Paternal Grandfather. 

According to Mother, Paternal Grandfather drank a lot. 

____________________________________________

20 Mother claimed she had receipts for each payment she made to Paternal 

Grandmother, but she did not present those receipts at trial.

21 Mother presented no evidence at trial to substantiate these allegations.
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Mother testified that she attempted to contact Father at basic training 

to inform him she planned to move out of Paternal Grandmother and W.B.’s 

home with K.A.T. Mother’s attempts to reach Father at basic training were 

unsuccessful. Mother left in the middle of the night in December 2008 and 

moved in with a co-worker with K.A.T.; Mother was pregnant with K.W.R. at 

that time. Father returned home from basic training for a break around 

January 2009. Mother met with Father at that time and brought K.A.T. to 

their meeting. Mother claimed Father “kidnapped” K.A.T. for a week and 

refused to return K.A.T. to Mother’s care until Mother’s relative threatened 

Father that he would lose his military career if he did not return K.A.T. 

Mother admitted she did not report the alleged kidnapping to any 

authorities. 

In early 2009, Mother and Father split physical custody of K.A.T. on a 

50/50 basis. Mother gave birth to K.W.R. in March 2009. Once K.W.R. 

reached six months’ old, Mother and Father split physical custody of K.W.R. 

on a 50/50 basis as well. Mother said Father did not utilize all of his 

custodial time with Children under the shared custody arrangement. Mother 

conceded that Paternal Grandparents might have spent time with Children 

during Father’s periods of physical custody, though she was uncertain where 

Father lived at this time. 

Mother began a relationship with D.S. in April 2009, and they married 

in May 2010. Mother admitted that Father took custody of Children for two 
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weeks while she was in Hawaii to marry.22 Mother and Father agreed that 

Mother could take Children to live in Hawaii with Mother and Mother’s 

Husband if Mother agreed to release Father from his child support obligation. 

The agreement provided that Father would get custody of Children during 

the summertime, holidays, and have unlimited communication with Children 

through phone calls and social media. Mother also agreed the custody 

arrangement would revert to 50/50 custody if Mother moved back to Erie 

County. 

Mother moved with Children and Mother’s Husband to Hawaii in 

September 2010. Mother said Father called only once every four to six 

months while she lived in Hawaii with Children. Father did not send Children 

cards while they lived in Hawaii. Mother admitted she told Father not to 

disclose her phone number to others, but she did not recall threatening to 

run away with Children if Father gave out her number. Mother said Father 

did not utilize all of his custody time with Children in the summer because 

Father anticipated deployment overseas. 

Mother, Children, and Mother’s Husband relocated from Hawaii to 

Clymer, New York in November 2011. Mother stayed in New York until 

August 2012, when she moved with Children and Mother’s Husband to 

____________________________________________

22 Counsel for Paternal Grandparents suggested that Father took custody of 

Children for six weeks while Mother was in Hawaii to marry; Mother denied 

this proposition.
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Wisconsin.23 Mother claimed she told Father about her return to New York, 

and she permitted Father to see Children. Mother said her stay in New York 

was only temporary, to use up Mother’s Husband’s vacation time from the 

Army. Mother admitted she told Husband she was only in New York on 

vacation. Mother conceded she did not immediately tell Father she was back 

from Hawaii for good. Mother denied that she was hiding from Father or 

Father’s family while she moved around the country. 

Mother, Children, and Mother’s Husband moved to Wisconsin in August 

2012, when Mother’s Husband started school. After the move to Wisconsin, 

Mother claimed she had problems with her phone which necessitated a new 

phone number. Mother did not tell Father her new phone number. Mother 

____________________________________________

23 Mother admitted she was angry with Maternal Grandmother for bringing 

Father to see Children in New York the night before Mother and Children 

moved to Wisconsin. Counsel for Paternal Grandparents had the following 

exchange with Mother regarding this incident:

[Counsel]: [I]f I ask [Maternal Grandmother] whether 

she brought [Father] to Clymer, New York, because she 

thought it was wrong for you to be hiding these kids from 

him, she’s going to tell me that I’m full of crap and that 

didn’t happen?

[Mother]: Good luck. My mom is a pistol. Good luck.

[Counsel]: You were angry with your mother, weren’t 

you, because of what she did?

[Mother]: Yeah.

(N.T., 2/10/14, at 192; R.R. at 99a).
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claimed Father still could have contacted Mother through Facebook, if he 

wanted to reach her. When Father died in the automobile accident in 

February 2013, Mother was living with Children and Mother’s Husband in 

Wisconsin. Mother did not attend the funeral because of the cost of travel. 

Additionally, Mother claimed Children did not really know Father and 

regarded Father as the “guy with the cool tattoo.” After Father’s death, 

some of his family reached out to Mother’s Husband through Facebook, 

asking to see Children. Mother denied their request, stating Father’s family 

had not previously made any effort to see Children. Paternal Grandmother 

tried to contact Mother to discuss Father’s life insurance policy, but Mother 

did not want to work with Paternal Grandmother. 

Mother testified that Children’s behavior has changed since entry of 

the interim custody order. Mother claimed Children now need counseling 

because they are wetting the bed and having nightmares. Mother insisted 

Children’s emotional issues did not begin until after entry of the interim 

custody order. Mother said Children hate the Skype calls, and the calls are 

terrible. Mother contended Children have nightmares because of the Skype 

calls. Mother tried to fix her phone to allow use of the visual technology, but 

her efforts were unsuccessful. Mother testified that Children’s first visit with 

Paternal Grandparents under the interim custody order was terrible. 

Children did not recognize Paternal Grandparents and Children hid behind 
J-A10001-15

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Mother’s leg when they saw Paternal Grandparents. Mother claimed she had 

bruises on her leg from Children squeezing her so tight. 

Mother would not permit Children to play with the action figure toys 

Paternal Grandparents sent Children because Mother said that the toys 

promote violence. Mother threw away candy Paternal Grandparents sent 

Children because Mother thinks candy is bad for Children. Mother 

complained Children returned home, from the Christmas visit with Paternal 

Grandparents, smelling like cigarettes and were sick and exhausted after 

this visit.

Mother denied Paternal Grandmother’s request to speak with Children 

on the phone outside of the court-ordered Skype timeframe because Mother 

said Children are too busy. Children participate in martial arts classes two to 

four days each week. Mother does not want Paternal Grandparents to have 

any custody of Children whatsoever because she thinks Paternal 

Grandparents are horrible people. Mother admitted that she once filed an 

abuse report against Paternal Grandmother, which Children and Youth 

Services ruled “unfounded.” 

Mother’s Husband testified, inter alia, as follows.24 Mother’s Husband 

has a good relationship with Children. Prior to Father’s death, Mother’s 

Husband was on good terms with Father. Mother’s Husband gave his phone 

____________________________________________

24 (Id. at 210-229; R.R. at 108a-118a.) 
J-A10001-15

- 24 -

number to Father in case Father was unable to reach Mother. Mother’s 

Husband said Father did not exercise his holiday time with Children while 

they lived in Hawaii. Father called Children only five or six times while they 

were in Hawaii. 

Mother’s Husband said that during Children’s first visit with Paternal 

Grandparents under the interim custody order, Children seemed 

uncomfortable. Mother’s Husband denied that Children ran into Paternal 

Grandparents’ arms at the first visit. Children called Paternal Grandmother 

“nana” only after she repeated that word to Children multiple times. 

Children are not excited to participate in the Skype calls. Mother’s Husband 

has tried to fix the visual technology for the Skype calls but to no avail. 

Mother’s Husband initially denied posting racist and Nazi-type 

comments on Facebook. Mother’s Husband said he is not a racist or a Nazi. 

Upon further questioning, Mother’s Husband admitted he posted a response 

to a friend’s comment on Facebook on August 11, 2011, stating: “We need 

to start a fucking chapter of the KKK or Nazi or something. I refuse to live 

in a town with anything but whites.” (Id. at 227; R.R. at 117a.) Mother’s 

Husband said this post “was a joke because [my friend was talking] about all 

of the niggers moving here because there is lots of them.” (Id. at 227-28; 

R.R. at 117a.) Mother’s Husband said he was not serious. Mother’s 

Husband admitted he had a conversation with a friend on Facebook on 

February 15, 2013, in which Mother’s Husband said: “I want to go nigger 
J-A10001-15

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hunting.” (Id. at 224; R.R. at 115a.) Mother’s Husband defended this 

comment as follows: “...I was angry. But nigger by definition is an ignorant 

person. It does not mean anybody of color.” (Id. at 228; R.R. at 117a.)

Mother’s Husband said he has African-American friends. Mother’s 

Husband could not recall posting a picture of Hitler to his Facebook page, 

stating: “Hail to Hitler. We should all be like him.” (Id.) Mother’s Husband 

explained that when he was in the Army he would shave his head and people 

would call him Hitler because his last name is German, so if Mother’s 

Husband did post a picture of Hitler, it was meant as a joke. Mother’s 

Husband conceded that on October 18, 2013, he posted: “...I won’t stop until 

they get nothing because that’s what they deserve[,]” in reference to 

Paternal Grandparents and the current custody action. (Id. at 226; R.R. at 

116a.) Mother’s Husband’s Facebook post referencing Paternal 

Grandparents continued that during Paternal Grandparents’ last visit with 

Children, Mother’s Husband believed Paternal Grandparents were high on 

pain pills. 

Mother’s Husband said he disciplines Children using exercise. Mother’s 

Husband makes Children do squats, leg lifts, and other forms of exercise as 

punishment. Children learn a similar discipline in their Hapkido marital arts 

classes. Mother’s Husband said Mother did not throw away the action figure 

toys Paternal Grandparents sent Children; Mother stored the action figures 

in the laundry room because Mother and Mother’s Husband do not allow 
J-A10001-15

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Children to play with toys that promote violence. Mother’s Husband said 

Children’s behavior has changed since the start of the custody proceedings. 

Children sleep in Mother and Mother’s Husband bed more frequently and 

have nightmares. Children are currently in counseling. 

Mother’s Husband tried to adopt Children. Paternal Grandparents 

intervened, which caused the court to vacate the adoption decree. Mother’s 

Husband still plans to adopt Children after these custody proceedings are 

resolved. 

Mr. Dennis Lagan is a private investigator whom Mother hired for 

purposes of the custody proceedings. Mr. Lagan testified, inter alia, as 

follows.25 Mother hired Mr. Lagan to conduct background investigations on 

Paternal Grandparents, W.B., and any other relatives with whom Children 

might have contact.26 Mr. Lagan discovered the following criminal records. 

In October 2009, the Commonwealth charged Paternal Grandmother with 

theft of services; Paternal Grandmother pled guilty in November 2009, paid 

a fine, $250.00 in restitution, and costs. In 2012, Paternal Grandmother 

pled guilty to a traffic violation. Later in 2012, the Commonwealth charged 

____________________________________________

25 (Id. at 229-241; R.R. at 118a-124a.)

26 Counsel for Paternal Grandparents objected to testimony/evidence 

concerning criminal records, but the court overruled the objection as 

relevant to Children’s best interests. 
J-A10001-15

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Paternal Grandmother with bad checks; the disposition was guilty.27 Also in 

2012, the Commonwealth charged Paternal Grandmother with operating a 

vehicle without required financial responsibility; that charge was dismissed. 

In 2013, Paternal Grandmother pled guilty to speeding (71 mph in a 55 mph 

zone).

Mr. Lagan did not discover any criminal history, bankruptcies, tax 

liens, or judgments against Paternal Grandfather. Mr. Lagan found one child 

support action against Paternal Grandfather from 1998.

Mr. Lagan discovered that the Commonwealth charged W.B. with 

trespass by a motor vehicle in 2008; W.B. pled guilty to this offense and 

paid a fine and costs. In 2010, the Commonwealth charged W.B. with 

harassment due to a physical altercation; W.B. pled guilty to this offense in 

July 2010 and paid a fine and costs. 

____________________________________________

27 Mr. Lagan shared no factual basis for the theft of services, traffic violation, 

and bad checks convictions. Mr. Lagan also could not determine whether 

the convictions were summary offenses or misdemeanor offenses. 

Additionally, counsel for Paternal Grandparents confronted Mr. Lagan with a 

print-out from the Pennsylvania State Police dated May 15, 2012, which 

showed that Paternal Grandmother had no criminal record. Mr. Lagan 

explained that the Pennsylvania State Police records are generally based on 

fingerprinting; Mr. Lagan suggested Paternal Grandmother might not have 

been fingerprinted for her crimes. Mr. Lagan indicated that the Pennsylvania 

State Police records might be different than the records accessed through 

the Unified Judicial System Portal. Neither the Pennsylvania State Police 

record nor the Unified Judicial System Portal record pertaining to Paternal 

Grandmother’s convictions is part of the certified record on appeal. 
J-A10001-15

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Maternal Grandmother testified, inter alia, as follows.28 Maternal 

Grandmother’s relationship with Mother is currently fine, though they have 

had their “ups and downs” over the years. Maternal Grandmother would not 

permit Mother and Father to live together when Mother gave birth to K.A.T. 

because they were unmarried, so Mother moved in with Father at Paternal 

Grandmother and W.B.’s home. Mother became distraught living with 

Paternal Grandmother and W.B., so Mother moved out. 

When Mother and Father shared custody of Children, Maternal 

Grandmother described the custodial arrangement as “horrible.” Maternal 

Grandmother said Children had no set routine because they were always 

back and forth between homes. Maternal Grandmother said Father did not 

always show up for his periods of physical custody. 

Maternal Grandmother said she drove Father to see Children in New 

York on March 20, 2012, but Father did not get out of the car. Maternal 

Grandmother indicated Father already knew Mother was living with Children 

in New York when this incident took place. Maternal Grandmother admitted 

Mother was upset that Maternal Grandmother brought him to see Children 

on this date. Maternal Grandmother said she spoke to Father again on 

August 18, 2012 and informed Father that Mother and Mother’s Husband 

planned to move to Wisconsin with Children. Maternal Grandmother told 

____________________________________________

28 (Id. at 241-257; R.R. at 124a-132a.)
J-A10001-15

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Father it might be the last opportunity to see Children for a while, but Father 

said he did not want to see Children.29 Maternal Grandmother denied that 

anyone from Father’s family had ever contacted her, asking for Mother’s 

phone number or address. Maternal Grandmother believes Mother’s 

Husband is a great man who is good with Children and is giving Children a 

good life. 

Mr. Wilson L. Richardson teaches Children Hapkido,30 a martial arts 

class, two to three days each week. Mr. Richardson testified, inter alia, as 

follows.31 Mr. Richardson said Mother and Mother’s Husband attend the 

classes and watch Children more frequently than most parents do. Children 

are doing well in the class.

Keiton Lyle Westfall testified, inter alia, as follows.32 Mr. Westfall is 

Father’s second cousin. Mr. Westfall and Father did not spend much time 

together, but they always conversed when they saw each other. In speaking 

____________________________________________

29 There is some inconsistency in the testimony as to whether Maternal 

Grandmother drove Father to see Children on March 20, 2012, or on August 

18, 2012, shortly before Mother and Children moved to Wisconsin with 

Mother’s Husband. 

30 Hapkido is a self-defense based curriculum that also teaches Children the 

discipline of exercise. 

31 (Id. at 257-261; R.R. at 132a-134a.) 

32 (Id. at 262-265; R.R. at 134a-136a.)
J-A10001-15

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with Father, Mr. Westfall did not recall Father ever being distraught about 

Children or discussing a search for Children. 

After Mr. Westfall’s testimony, Mother rested her case. The court 

instructed counsel to address in closing arguments the statutory factors 

relating to grandparent custodial rights as well as the two or three year 

period in which Paternal Grandparents had no contact with Children. 

Regarding the lack of contact, the court stated: “And, of course, the effect 

of—assuming parent withholds the children from grandparents, and frankly it 

makes no difference whether it is hiding them or just simply saying you can’t 

see them, it is the time lag that I’m concerned about.” (Id. at 267; R.R. at 

137a.) The court explained that it planned to make a decision immediately 

following closing arguments so that the parties could leave the courtroom 

informed of the result.

Following closing argument, the court explained its custody decision as 

follows:

Now, before we had this most recent legislation, the test 

was actually pretty direct and somewhat simple. Upon the 

death of a child, the parents of the deceased child may 

seek reasonable partial custody to an unmarried child upon 

a finding that partial custody would be in the best interest 

of the child and would not interfere with the parent-child 

relationship.

Court decisions instruct that the court must consider the 

amount of personal contact between the parents, the 

grandparents, and the child or children.

The purpose of allowing partial custody under this is not to 

replace a parent with a grandparent as a primary 
J-A10001-15

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caregiver. And essentially what the cases were saying is 

natural biological parent trumps grandparent for primary 

physical custody, period.

But as it relates to partial physical custody, that was to 

continue a healthy relationship with grandparents if that 

was in the child’s best interest and would not interfere with 

the parent’s relationship. And the statute was then 

apparently replaced by this new one with these factors.

And I’m sorry. I have to say this. When I started 

reviewing the code when I got this assignment, my first 

reaction was the legislature has embarked upon an 

unconstitutional encroachment of the court’s authority. 

They are telling us what we must consider to make a 

decision.

I’m not sure—the example came to mind is for example if 

the legislature said we’re going to control fat people. So 

anybody who makes a personal injury claim in an 

automobile accident case, you’ve got to consider whether 

they are fat or not. Now what the heck does that have to 

do with somebody’s injuries? And some of the factors, I’m 

sorry, that I have reviewed I’m shaking my head saying 

what the heck does this have to do with the best interest

of the children? Oh, it controls the conduct of the adults 

because the adults can’t act like adults. So we’ll dictate 

how the adults will act and call it in the best interest of the 

children.

I’m tempted to just rule, [Paternal Grandparents’ counsel], 

because I know you are a competent, qualified, good 

practitioner in the area of family law that this is all 

unconstitutional because it infringes upon my authority to 

make a decision. Any I may find the case that I will do 

that.

But nevertheless, the legislature has enacted these factors. 

You addressed them. Now, as [Mother’s counsel] pointed 

out, there is no testimony on some of the stuff because it 

doesn’t exist. All right. So we pass over those and we 

look at the factors and we do so with the understanding 

that grandparents have the burden of proof in these areas.
J-A10001-15

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There is a curious circumstance that comes to mind. If a 

biological parent—I’m not saying that’s the case here. But 

if a biological parent intentionally creates conflict and 

estrangement with that biological parent’s former in-laws, 

do they get punished for what they did by saying we’re 

going to ignore the conflict because biological parent 

created it and we’re still going to give partial physical 

custody to grandparents knowing there is an irreconcilable 

conflict and then say you live with it? I don’t think that is 

in the best interest of the children.

Which brings me back to finally all well and good, here are 

the factors you[,] that you consider. How do you consider 

them? Who caused what? That is part of the equation. 

That is part of the discussion. I guess as I get more 

educated in this area, I’ll answer that question for myself.

But the facts are that I would find from the testimony 

there is contact between [Paternal Grandmother] and 

there has been literally no contact with [Paternal 

Grandfather]. And he’s—I don’t mean to be disrespectful 

to you. You’re sort of the passenger sitting in the car and 

your former wife is driving it. And in whichever direction 

she ends, that’s where you’re going. That’s another 

circumstance.

We have divorced grandparents involved with significant 

others living in separate households, both of them are 

Plaintiffs. And yet they solved the apparent problem of 

splitting time with them by their own agreement that if 

they get partial physical custody, the kids are going to stay 

overnight with [P]aternal [G]randmother and [P]aternal 

[G]randfather will come and pick them up and be with 

them during the day while [Paternal Grandmother] works. 

That doesn’t sound like it has...much court supervision at 

all, but nobody is asking me to get involved in that 

because they’ve agreed. So I don’t have the dilemma of 

saying let me figure out...how to split time with 

grandfather, grandmother, Skype calls. He goes over to 

her place, and they participate in these Skype calls.

That’s another thing. I’m sorry. This micromanaging 

contacts over the phone and Skype and all that stuff, you 

just can’t be all things to all people. And from the 
J-A10001-15

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evidence, I do accept [M]other’s testimony that these 

Skype calls are upsetting. They are an interruption of their 

routine. And I can appreciate that.

How do you have a conversation with a 4-year-old? Hi. 

How are you? Tell me what you did today. What do you 

think of the Middle East situation? Four-year-olds don’t 

have conversations with people in most instances. They 

report. I played. I like the puzzle. I like my bat. I like 

the ball. I watched the Muppets. They are not on [TV] 

anymore or whatever, whoever.

But 6-year-olds are starting to have conversations. They 

are going to school. They are in kindergarten, first grade. 

This Skype technology, I heard the evidence. And I heard, 

oh yeah, we’ll get you the right device and this will all 

work. Mom refused that. But then she doesn’t apparently 

know how to use her phone to make it work. But then I 

heard testimony that it doesn’t work for group calls with 

phones.

And I will tell you what my concern was when I heard all of 

that testimony and there was I believe you said you could 

get up to ten people on a call if you’re on a computer. 

Ma’am, in my judgment, that is overload. You get ten 

people yammering at a 4-year-old, all visual, all seeing, all 

that. To me, I can’t comprehend how that would impact a 

4-year-old.[33] 

All right. Where am I? Well, I’m analyzing the evidence in 

front of me. There is no question there is a conflict 

between the two. I’m calling them households even 

though I know [Paternal Grandparents have] two 

households. Conflict between the households.

One thing that I will tell you struck me and was concerning 

to me, [M]other’s current husband has been described as a 

____________________________________________

33 No testimony established that Paternal Grandparents placed or intended 

to place ten people on the Skype calls while the interim custody order was in 

effect. Rather, testimony explained that the “group call” function on Skype 

allows up to ten people to participate on a call.
J-A10001-15

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good father, doing a good job, accepting of these children. 

And he stepped up to adopt these children and apparently, 

according to evidence, had got an order allowing him to 

adopt the children. And [Paternal G]randparents couldn’t 

just let that go. They had to go in and undo that to get it 

vacated. To what end?

And my reaction was real simple to that. They stuck their 

nose in that situation and probably they should have 

stayed the hell out of it. Their—I can’t say daughter-inlaw but their son’s paramour and their grandchildren are in 

a stable family, legally married, doing the right thing to 

adopt these boys. And [Mother’s Husband] steps up and 

for whatever reasons, you undid it. I don’t believe that 

could possibly be considered a best interest for your 

grandchildren in any way, shape, or form.

Yes, I read the section. One notation. I do agree 

[Mother’s counsel] referred [to] grandparent 

considerations under the 5328 subsection, but you said as 

well as the other general factors.

If I am compelled to use the factors that the legislature set 

up, I’m not looking beyond what the statute says.

And the statute says grandparents factors. Fine. If I’m 

told I have to use those factors, I’m not going back and 

looking at general factors because I don’t think I should 

anyway be compelled to.

But the bottom line is this. There is a conflict between 

[Paternal G]randmother and [M]other. Who created it? 

Even if I say [M]other, still is a fact. Now I don’t 

necessarily believe that [M]other created the conflict.

And even if she did and her perception is wrong, what is 

the old saying[,] perception becomes reality[,] is reality. 

Now, what am I to do with that, say [M]other you have got 

to make it up with your former paramour’s mother? Gee, 

I’m sure that will work. Wait a minute, counseling. We’ll 

make you spend money for counseling to heal this rift. 

Well, [Paternal G]randmother is in Erie. Excuse me. 

[Corry], close to Erie.—
J-A10001-15

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* * *

Corry. And [Mother] is in Hanover. How is that going to 

work? Oh, let’s make everybody drive three hours to get 

at a middle point and find some counselor to talk to these 

people for an hour and send them back on their way. That 

will give them a lot of time to think while they are driving 

back and forth. That is not going to work.

So bottom line is this. Right or wrongly, I don’t believe 

that the conflict between [M]other and [P]aternal 

[G]randmother can be fixed. And I don’t think, therefore, 

it is in the best interest to trump [M]other’s decision not to 

give access to grandparents simply because grandparents 

want to establish a relationship with their grandchildren. I 

don’t see any need. Mother needs no help. She has a new 

husband. He’s doing good by her. They are stable, adding 

to their family.[34] So I’m not going to interfere with her 

decision. 

She is [C]hildren’s mother. And I don’t see any reason, 

even considering all of these factors that I’m supposed to 

think about, to conclude that [C]hildren would be better or 

it would be in their best interest to be compelled to spend 

regulated time with grandparents, nor for that matter have 

dictated times for contact on the phone. 

So having said all of that, the bottom line order is this. 

ORDER

AND NOW, to wit, this 10th day of February, 2014, the 

complaint for custody filed by [Paternal Grandparents] is 

dismissed. We will enter no order of partial physical 

custody. 

* * *

____________________________________________

34 Mother was pregnant at the time of the custody trial.
J-A10001-15

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(Id. at 289-298; R.R. at 148a-152a.)35 

On March 7, 2014, Paternal Grandparents timely filed a notice of 

appeal and concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(a)(2)(i). Paternal Grandparents raised four issues in their 

concise statement challenging: (1) the court’s decision to sever all ties 

between Children and their Paternal Grandparents’ ancestry; (2) the court’s 

admission of evidence of criminal and motor vehicle offenses; (3) the court’s 

failure to consider the Custody Act’s statutory factors and to conduct a 

detailed analysis; and (4) the court’s exclusive focus on the conflict between 

Mother and Paternal Grandparents. On March 24, 2014, the court issued a 

responsive Pa.R.A.P. 1925(a) opinion. In its opinion, the court stated: 

We have reviewed our Decision and feel no need presently 

to elaborate further. As the issues are styled, we would 

take the opportunity to offer some generalized comments 

and observations. Simply put, this Judge believes that the 

legislature has unduly encroached upon the judiciary and 

the way Judges are to perform their responsibilities. To 

state the issues of error as failing to conduct a detailed 

child custody analysis as required misdirects the focus 

away from the sole question of what is in the best interests 

of children. ...

Since it is unlikely a litigant would directly challenge “the 

factors” (23 Pa.C.S. 5328), in the context of the issues 

____________________________________________

35 Prior to trial, the parties had filed motions for contempt. Mother filed for 

contempt, alleging Paternal Grandparents had smoked in front of Children. 

Paternal Grandparents filed for contempt based on Mother’s alleged 

interference with the visual capabilities of the Skype calls. The court denied 

both petitions for contempt at the conclusion of trial, finding insufficient 

evidence to substantiate either claim. 
J-A10001-15

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styled, it is hoped this appeal may address the threshold 

question[:] can the legislature do what this law purports to 

do? The development of custody law, as is so with the 

common-law, was unquestionably within the province of 

the judiciary. An absolute preclusion from primary custody 

when a parent moved in the paramour[,] evolved to a 

more precise consideration of what is the effect of such a 

meretricious relationship on children. While the judiciary 

may have struggled with shifting social [mores], the 

Courts never lost focus that the paramount question was 

and always will be[,] what is in the best interest of 

children. 

* * *

This is not a new challenge for the Courts. When called 

upon, it has been decided by the Superior Court that 

legislation is not the end all be all. In considering a 

natural parent’s petition to resume custody of his or her 

children, the best interest of the child standard was 

applicable rather than the clear necessity standard as set 

out in the Juvenile Act (42 Pa.C.S.A. 6301 et seq.). 

Perhaps in hindsight, this Judge should have declared 

outright in this case that “the factors” would not be 

considered and thus pre[v]ented the precise question 

being asked now. What we did do is consider the evidence 

and arguments presented by the litigants and to the best 

of our human ability decide what was in the best interest 

of these two boys. We do not think we were wrong in the 

result or how we got there.

(Rule 1925(a) Opinion, filed March 24, 2014, at 2-5) (some internal citations 

omitted). 

On September 16, 2014, this Court vacated and remanded the matter, 

based on the trial court’s failure to utilize the requisite statutory factors in 

making its determination. Specifically, this Court instructed the trial court to 

consider upon remand the sixteen general statutory “best interest” factors 
J-A10001-15

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applicable when making any order of custody (see 23 Pa.C.S.A. § 5328(a)) 

and the three statutory custody factors pertaining to grandparents and 

great-grandparents (see 23 Pa.C.S.A. § 5328(c)(1)). Based on its 

disposition, this Court declined to address the merits of any of Paternal 

Grandparents’ issues.

On November 6, 2014, the trial court issued its remand decision. The 

trial court’s remand decision provides no facts or procedural history of the 

case. The remand decision initially references the closing arguments of 

counsel and incorporates by reference the court’s on-the-record discussion 

at the conclusion of the custody trial. The court’s remand decision 

continues, in its entirety and without any discussion of legal authority

whatsoever, as follows:

We then reference the grandparents’ factors in Section 

5328(c)(1) of the Child Custody Act. We consider the 

three subsections as follows: (i) none for approximately 3 

years; (ii) interference would result to the parent/child 

relationship as it did when grandparents intervened in a 

finalized adoption by Mother’s current husband resulting in 

the adoption being undone and still pending at the time of 

this custody trial; (iii) awarding custody to grandparents 

would not be in the best interest of the children. The 

analysis however, does not end there and we continue to 

consider the 16 factors set forth at pages 4-6 of the 

Superior Court Opinion. We will address each factor ad 

seriatum.

Factor 1: Neither party is more likely to encourage 

and promote frequent and continuing contact.

Factor 2: There exists no risk of physical harm to the 

children, though efforts to influence a child’s thinking may 

possibly create emotional stress.
J-A10001-15

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Factor 3: Grandparents have performed no parental 

duties for at least three years, while Mother has.

Factor 4: Grandparents are unnecessary to provide 

stability and continuity in [Children’s] education, family life 

and community life as circumstances present at trial. 

Mother provides for those.

Factor 5: Grandparents (and others) are the extended 

family, 51⁄2 travel hours away. Mother’s current husband 

completes the traditional family unit of husband and wife 

and children. There is no evidence they need help from 

any outside source.

Factor 6: There is no reason to believe [C]hildren’s 

relationship is anything but good and at the time of trial a 

third sibling was expected. We fail to see how 

grandparents add anything to the sibling relationships.

Factor 7: There was no evidence presented as to the 

well-reasoned preference of [C]hildren.

Factor 8: Not applicable.

Factor 9: Mother is more likely to maintain a loving, 

stable, consistent and nurturing relationship “adequate” for 

[C]hildren’s emotional needs.

Factor 10: Mother is more likely to attend to the daily, 

physical, emotional, developmental, educational and 

special needs of [C]hildren. Need it be stated, 

Grandparents are 51⁄2 hours away.

Factor 11: The parties [live] at least 51⁄2 travel hours 

apart.

Factor 12: While each party may have the ability to 

make appropriate child-care arrangements and be 

“available,” as written, we do not believe this subsection 

permits us to rewrite the statute to address quality of care. 

However, see factor 9.
J-A10001-15

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Factor 13: There exists a high level of conflict between 

the parties, more so with [Paternal Grandmother] than 

with [Paternal Grandfather]. While the parties may state a 

willingness to cooperate, we are unpersuaded that there 

exists the ability to cooperate.

Factor 14: While there was evidence presented about 

past drug and alcohol use/abuse, adequate evidence of 

present circumstances is lacking.

Factor 15: While [Paternal G]randfather may have 

some difficulties getting around, there is no evidence that 

any party or household member is mentally impaired or 

physically incapable.

Factor 16: No other relevant factors exist of 

significance. 

Following then the directive to properly consider 

[Children’s] best interest in light of the statutory factors, 

we have done so. To answer this question we have 

balanced each factor singularly and in toto in each to the 

other and as each may apply to the underlying 

circumstances presented. Considering then the evidence 

presented as to the subject matter of each factor and 

further considering the arguments of counsel, we do 

conclude that it is not in the best interests of these 

children to be compelled by court order to spend times of 

partial physical custody with [Paternal] Grandparents. An 

appropriate Order dismissing [Paternal G]randparents’ 

complaint follows hereinafter.

(Remand Decision, filed November 6, 2014, at 1-4). Paternal Grandparents 

timely filed a notice of appeal and Rule 1925(a)(2)(i) statement on 

December 5, 2014. On December 17, 2014, the trial court issued a 

supplemental opinion, commenting only on its evidentiary rulings concerning 

the criminal offenses of Paternal Grandmother and W.B. (See Supplemental 

Rule 1925(a) Opinion, filed December 17, 2014, at 1-2.) 
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Paternal Grandparents raise the following issues for our review:

WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF 

DISCRETION OR AN ERROR OF LAW BY FAILING TO 

PROPERLY ANALYZE THE CUSTODY FACTORS SET FORTH 

IN 23 PA.C.S. § 5328(a) AND (c) OF THE CUSTODY ACT, 

AS AMENDED, ON REMAND, AS DIRECTED BY THE 

SUPERIOR COURT OF PENNSYLVANIA WHEN THE TRIAL 

COURT MERELY ENGAGED IN A CURSORY AND 

PERFUNCTORY ANALYSIS RATHER THAN THOROUGHLY 

EXAMINING AND CONSIDERING ALL FACTORS AS SET 

FORTH IN § 5328(a) AND (c), AND IN ACCORDANCE WITH 

THE STANDARD OF WHAT IS IN CHILDREN’S BEST 

INTERESTS? 

WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF 

DISCRETION OR AN ERROR OF LAW IN FAILING TO GRANT 

PATERNAL GRANDPARENTS ANY RIGHTS OF PARTIAL 

PHYSICAL CUSTODY, WHICH, IN EFFECT, CUTS CHILDREN 

OFF FROM THEIR PATERNAL ANCESTRY AND IS CONTRARY 

TO THE BEST INTEREST[S] OF CHILDREN AND IS IN 

CONTRAVENTION OF WELL-SETTLED CASE LAW AND THE 

PURPOSE OF 23 PA.C.S. § 5325? 

WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF 

DISCRETION OR AN ERROR OF LAW BY REPEATEDLY 

ALLOWING THE ADMISSION OF EVIDENCE (OVER 

OBJECTIONS) OF CRIMINAL AND MOTOR VEHICLE 

OFFENSES NOT ENUMERATED IN 23 PA.C.S. § 5329 AND 

WHICH WERE NOT OTHERWISE ADMISSIBLE UNDER THE 

RULES OF EVIDENCE? 

(Paternal Grandparents’ Brief at 4).

For purposes of disposition, we combine Paternal Grandparents’ first 

and second issues. Paternal Grandparents argue the legislature recognized 

a beneficial relationship between children and their grandparents when it 

gave grandparents standing under 23 Pa.C.S.A. § 5325, in the event of a 

parent’s death. Paternal Grandparents assert the trial court wholly ignored 
J-A10001-15

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the importance of their role in Children’s lives. Paternal Grandparents 

contend the court’s custody decision effectively severed all ancestral ties 

between Children and Father’s family because Mother and Mother’s Husband 

have made clear they will not permit Paternal Grandparents to have any 

contact or communication with Children in the future.

Paternal Grandparents also argue that the court’s decision following 

remand fails to set forth a detailed analysis to support the court’s decision to 

deny Paternal Grandparents any contact with Children. With respect to the 

trial court’s initial consideration of the grandparent factors (see 23 Pa.C.S.A. 

§ 5328(c)(1)), under Section 5328(c)(1)(i) (amount of contact between child 

and grandparent prior to filing of custody action), Paternal Grandparents 

assert the court merely stated Paternal Grandparents have not had contact 

with Children for approximately three years. Paternal Grandparents aver the 

court ignored their substantial contact with Children prior to the custody 

action, where K.A.T. resided with Paternal Grandmother and W.B. for one 

year and Paternal Grandparents provided care for both Children when 

Mother and Father shared physical custody after their separation in 2009. 

Paternal Grandparents claim their lack of contact with Children in recent 

years stemmed from Mother’s repeated moves and refusal to inform Paternal 

Grandparents of her contact information and whereabouts. Paternal 

Grandparents stress how they needed to hire a private investigator to locate 

Mother and Children after Father’s death. 
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Under Section 5328(c)(1)(ii) (whether custody award interferes with 

parent-child relationship), Paternal Grandparents complain the trial court 

improperly focused on Paternal Grandparents’ intervention with the adoption 

proceedings by Mother’s Husband. Paternal Grandparents insist the trial 

court blamed them for asserting their rights under the adoption statute to 

provide testimony regarding whether Mother’s Husband would be an 

appropriate adoptive parent. Paternal Grandparents maintain that Mother’s 

and Mother’s Husband’s failure to notify Paternal Grandparents about the 

adoption proceedings (which resulted in the court vacating the adoption 

decree) deprived Paternal Grandparents of an opportunity to participate in 

the determination of whether adoption by Mother’s Husband would serve 

Children’s best interests. Paternal Grandparents suggest their intervention 

in the adoption proceedings was especially necessary in light of Mother’s 

Husband’s inflammatory racist comments on Facebook. 

Regarding Section 5328(c)(1)(iii) (whether custody award is in best 

interest of child), Paternal Grandparents recite the court’s entire analysis of 

this factor as follows: “awarding custody to grandparents would not be in the 

best interest of children.” Paternal Grandparents contend the “best interest 

of the child” determination is the polestar criterion in custody cases, and the 

court’s bare assertion is woefully inadequate.

Paternal Grandparents proclaim the court was also required to analyze 

all of the sixteen statutory custody factors under Section 5328(a). Paternal 
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Grandparents highlight the trial court’s initial remarks on the record that it 

would not consider the sixteen custody factors and would consider only the 

three factors related to grandparents seeking custody. When compelled to 

do so by this Court, the trial court mentioned the sixteen factors in its 

remand decision but provided no detail or analysis of the factors, and no 

references to the record. Paternal Grandparents maintain the court’s 

decision after remand falls far short of a thorough analysis. 

Paternal Grandparents further suggest the record does not support the 

court’s conclusory statements as to certain factors.36 For example, Paternal 

Grandparents suggest that factor one (which party is more likely to 

encourage and permit frequent and continuing contact between child and 

another party) actually favors Paternal Grandparents, as Mother admitted 

she will not permit Paternal Grandparents to see Children; the court 

erroneously concluded this factor favored neither party. Regarding factor 

three (parental duties performed by each party on behalf of child), the court 

concluded Paternal Grandparents performed no parental duties for three 

years, but Paternal Grandparents maintain the court ignored Mother’s 

____________________________________________

36 The court determined there was no evidence presented relevant to the 

court’s analysis of factor 2 (present and past abuse committed by party or 

member of party’s household), factor 7 (well-reasoned preference of child), 

factor 14 (history of drug or alcohol abuse of party or member of party’s 

household), and factor 15 (mental and physical condition of party or 

member of party’s household). The court did not mention factor 2.1 (related 

to child abuse and involvement with protective services) in its decision 

following remand. 
J-A10001-15

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repeated moves and efforts to exclude Paternal Grandparents from 

Children’s lives as well as Paternal Grandparents’ efforts to locate Mother 

and Children. As to factor four (need for stability and continuity in child’s 

education, family life and community life), the court said Paternal 

Grandparents were “unnecessary” for Children’s stability and continuity. 

Paternal Grandparents aver the amount of custodial time awarded to 

Paternal Grandparents under the interim custody order does not disrupt 

Children’s lives, and the court failed to consider any benefit to Paternal 

Grandparents’ involvement in Children’s lives. 

Paternal Grandparents contend the court also ignored evidence of 

Children’s extended family on Father’s side, who reside in Erie County 

(relative to factor five), when the court simply concluded: “Mother’s current 

husband completes the traditional family unit of husband and wife and 

children. There is no evidence they need help from any outside source.” 

Paternal Grandparents explain the court indicated that Paternal 

Grandparents add nothing to Children’s sibling relationships (relative to 

factor six); Paternal Grandparents submit this factor is inapplicable in the 

context of a case where grandparents seek only partial physical custody. 

Regarding factor eight (attempts of parent to turn child against other 

parent), the court concluded this factor was inapplicable, but Paternal 

Grandparents suggest the record is replete with examples of Mother’s efforts 

to turn Children against them by excluding Paternal Grandparents from 
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Children’s lives. With respect to factor nine (which party is more likely to 

maintain loving, stable, consistent and nurturing relationship with child 

adequate for child’s emotional needs), Paternal Grandparents contend both 

parties demonstrated adequate parenting skills, but the court inexplicitly 

determined factor nine favored Mother, without consideration of Paternal 

Grandparents’ loving relationship with Children. In deliberation of factor ten 

(which party is more likely to attend to daily physical, emotional, 

developmental, educational and special needs of child), Paternal 

Grandparents complain the court failed to consider Paternal Grandparents’ 

ability to care for Children during their periods of partial physical custody. 

Instead, the court focused on the distance between the parties. Paternal 

Grandparents claim the trial court impermissibly relied primarily on the 

distance between the parties in its discussion of three of the sixteen 

factors,37 when distance is relevant only to factor eleven. Even as to factor 

eleven (proximity of residences of parties), Paternal Grandparents insist 

their request for partial physical custody as dictated under the interim 

custody order is reasonable in light of the distance between the parties.

Concerning factor twelve (each party’s availability to care for child or 

ability to make appropriate child-care arrangements), Paternal Grandparents 

claim this factor is neutral because Paternal Grandparents will be available to 

____________________________________________

37 The court mentioned the distance between the parties’ residences in its 

consideration of factors five, ten, and eleven. 
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care for Children during their periods of partial physical custody and have 

already agreed to a joint schedule during those periods.38 Paternal 

Grandparents aver the court erroneously concluded that no party to this 

custody action has the ability to cooperate (relative to factor thirteen). To 

the contrary, Paternal Grandparents declare that they have been cooperative 

with Mother, but Mother remains uncooperative with Paternal Grandparents, 

in an effort to keep them away from Children.

Regarding factor sixteen (any other relevant factor), the court said no 

other relevant factors of significance exist. Paternal Grandparents submit 

the court ignored, inter alia, Mother’s unsubstantiated allegations that 

Paternal Grandparents’ conduct during the interim custody order caused 

Children to suffer emotional harm and behavioral issues, Mother’s and 

Mother’s Husband’s outright refusal to permit Paternal Grandparents any 

contact with Children whatsoever, Mother’s efforts to exclude Paternal 

Grandparents from Children’s lives over the years preceding the current 

custody action, and Mother’s Husband’s racially derogatory comments on 

Facebook. Paternal Grandparents conclude the trial court’s remand decision 

is severely deficient and unsupported by the record, and this Court must 

reverse the trial court’s custody decision and award Paternal Grandparents 

____________________________________________

38 The trial court conceded that both parties might have the ability to make 

appropriate child-care arrangements and be “available,” but then the court 

referred back to its analysis of factor nine, favoring Mother. (See Remand 

Decision, filed November 6, 2014, at 3.)
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partial custody in accordance with the terms of the interim custody order.39 

We agree. 

In custody cases, the relevant scope and standard of review are as 

follows:

[T]he appellate court is not bound by the deductions or 

inferences made by the trial court from its findings of fact, 

nor must the reviewing court accept a finding that has no 

competent evidence to support it.... However, this broad 

scope of review does not vest in the reviewing court the 

duty or the privilege of making its own independent 

determination.... Thus, an appellate court is empowered to 

determine whether the trial court’s incontrovertible factual 

findings support its factual conclusions, but it may not 

interfere with those conclusions unless they are 

unreasonable in view of the trial court’s factual findings; 

and thus, represent a gross abuse of discretion. 

R.M.G., Jr. v. F.M.G., 986 A.2d 1234, 1237 (Pa.Super. 2009) (quoting 

Bovard v. Baker, 775 A.2d 835, 838 (Pa.Super. 2001)). “On 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.” R.M.G., Jr., supra. 

The parties cannot dictate the amount of weight the trial 

court places on the 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. 

____________________________________________

39 At the custody trial, Paternal Grandparents asked for additional custodial 

time with Children, but on appeal they seek only the custodial time awarded 

under the interim custody order. (See Paternal Grandparents’ Brief at 65.) 
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Id. (quoting S.M. v. J.M., 811 A.2d 621, 623 (Pa.Super. 2002)). “Indeed, 

our admittedly circumscribed standard of review does not preclude this Court 

from finding that a trial court abused its discretion in fashioning a custody

order. While prudence dictates that we exercise our authority sparingly, we 

are not powerless to rectify a manifestly unreasonable custody order.” V.B. 

v. J.E.B., 55 A.3d 1193, 1200 (Pa.Super. 2012). “Ultimately, the test is 

‘whether the trial court’s conclusions are unreasonable as shown by the 

evidence of record.’” Ketterer v. Seifert, 902 A.2d 533, 539 (Pa.Super. 

2006) (quoting Dranko v. Dranko, 824 A.2d 1215, 1219 (Pa.Super. 

2003)). 

The statutory presumption favoring an award of custody to parents 

over third-parties is not applicable to the current case because Paternal 

Grandparents seek only partial physical custody of Children. See 23 

Pa.C.S.A. § 5327(b) (setting forth presumption in cases concerning primary 

physical custody). The Child Custody Act (“Act”) provides:

§ 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. 
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(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) 

(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 
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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. 

* * *

(c) Grandparents and great-grandparents.—

(1) In ordering partial physical custody or supervised 

physical custody to a party who has standing under 

section 5325(1) or (2) (relating to standing for partial 

physical custody and supervised physical custody), the 

court shall consider the following:

(i) the amount of personal contact between the 

child and the party prior to the filing of the action; 

(ii) whether the award interferes with any 

parent-child relationship; and 

(iii) whether the award is in the best interest of 

the child.

* * *

23 Pa.C.S.A. § 5328(a), (c)(1). Thus, when deciding an award of custody, 

the court must conduct a thorough analysis of the best interests of the child 

based on the factors set forth in the Act. E.D. v. M.P., 33 A.3d 73 

(Pa.Super. 2011). “All of the factors listed in [S]ection 5328(a) are required 

to be considered by the trial court when entering a custody order.” J.R.M. 

v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011) (emphasis in original). 
J-A10001-15

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Nevertheless, “there is no required amount of detail for the trial court’s 

explanation; all that is required is that the enumerated factors are 

considered and that the custody decision is based on those considerations.” 

M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa.Super. 2013), appeal denied, 620 

Pa. 710, 68 A.3d 909 (2013). 

Further, “in the recent past, grandparents have assumed increased 

roles in their grandchildren’s lives and our cumulative experience 

demonstrates the many potential benefits of strong inter-generational ties.” 

Hiller v. Fausey, 588 Pa. 342, 360, 902 A.2d 875, 886 (2006), cert. 

denied, 549 U.S. 1304, 127 S.Ct. 1876, 167 L.Ed.2d 363 (2007). Thus:

While acknowledging the general benefits of these 

relationships, we cannot conclude that such a benefit 

always accrues in cases where grandparents force their 

way into grandchildren’s lives through the courts, contrary 

to the decision of a fit parent. In contrast, however, we 

refuse to close our minds to the possibility that in 

some instances a court may overturn even the 

decision of a fit parent to exclude a grandparent

from a grandchild’s life, especially where the 

grandparent’s child is deceased and the grandparent

relationship is longstanding and significant to the 

grandchild. 

Id. at 360, 904 A.2d at 886-87 (internal footnote omitted) (emphasis 

added). See also Commonwealth ex. rel. Goodman v. Dratch, 159 A.2d 

70, 71 (Pa.Super. 1960) (stating: “Unless there [is] some compelling 

reason, we do not believe that a grandchild should be denied visitation to his 

grandparents”). 
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Additionally, in the context of custody proceedings, “[h]ostilities 

between the [parties] are relevant only insofar as they constitute a threat to 

the child or affect the child’s welfare.” Nancy E.M. v. Kenneth D.M., 462 

A.2d 1386, 1388 (Pa.Super. 1983). Importantly:

A custodial parent’s suspicion of or animosity towards 

another parent or third party seeking visitation should not 

alone warrant denial of visitation; otherwise the custodial 

parent could always effectively deny visitation simply by 

testifying to suspicion or animosity. Instead of deferring to 

suspicion or animosity, the hearing judge must try to 

determine whether there is any basis for these feelings. 

Stated more broadly, the judge must appraise whether 

the relationship between the disputing parties has 

an adverse effect on the child.

* * *

Except under unusual circumstances, no child should be 

cut off entirely from one side of [his or her] family. 

[V]isits with a grandparent are often a precious part of a 

child’s experience and there are benefits which devolve 

upon the grandchild from the relationship with his 

grandparents which he cannot derive from any other 

relationship. If animosities continue between the parties, 

and result in adverse [e]ffects on [the child]..., a 

visitation order may be revised, even to the extent of 

retracting visitation.

Commonwealth ex. rel. Williams v. Miller, 385 A.2d 992, 995 (Pa.Super. 

1978) (internal citations omitted) (emphasis added) (reversing trial court 

order denying maternal grandmother visitation with grandchild following 

mother’s death; maternal grandmother offered sufficient reasons why 

visitation with child for one weekend each month would serve child’s best 

interests; record did not support trial court’s finding that maternal 
J-A10001-15

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grandmother abandoned mother; father’s “mistrust” of maternal 

grandmother was not valid reason for denying her visitation; trial court 

failed to provide sufficient consideration to unusual facts of case; and if 

enforcing visitation away from child’s home presents harmful effects on 

child, then trial court may specify place and conditions of visitation). See 

also Johnson v. Diesinger, 589 A.2d 1160 (Pa.Super. 1991) (explaining 

how rivalry between parents and grandparents for child’s affection can be 

devastating; when animosity exists, appropriate inquiry is not where to place 

blame, but how does animosity affect best interests of children).

Instantly, the court announced at the start of the custody trial that it 

had not presided over a custody trial in the past five years, and the court 

was dissatisfied with the legislature’s enactment of the Act since the court 

had last presided over a custody trial. (See N.T., 2/10/12, at 12; R.R. at 

9a) (stating: “I have personal reservations as to whether the legislature can 

tell me how to make a decision”). Following the conclusion of closing 

arguments, the court again expressed disdain with the Act. (See id. at 290-

91; R.R. at 148a-149a) (stating: “I’m tempted to just rule...that this is all 

unconstitutional because it infringes upon my authority to make a decision”). 

During the court’s on-the-record remarks, the court acknowledged the 

existence of the statutory factors at Sections 5328(a) and 5328(c)(1), but

went on to state that it would consider only the statutory factors pertaining 

to grandparents’ rights. (Id. at 295; R.R. at 151a) (stating: “If I am 
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compelled to use the factors that the legislature set up, I’m not looking 

beyond what the statute says. And the statute says grandparents factors. 

Fine. If I’m told I have to use those factors, I’m not going back and looking 

at general factors because I don’t think I should anyway be compelled to”). 

At the conclusion of trial, the court dismissed Paternal Grandparents’ 

custody complaint, awarding them no periods of partial physical custody.

After Paternal Grandparents filed their notice of appeal, the trial court 

issued a Rule 1925(a) opinion, once again expressing contempt with the Act 

as “unduly encroach[ing] upon the judiciary and the way [j]udges are to 

perform their responsibilities.” (Rule 1925(a) Opinion at 2). In its opinion, 

the trial court declined to analyze any of the factors set forth in Section 

5328(a) or Section 5328(c)(1). Instead, the court simply concluded: “What 

we did do is consider the evidence and arguments presented by the litigants 

and to the best of our human ability decide what was in the best interest of 

these two boys. We do not think we were wrong in the result or how we got

there.” (Id. at 5). 

On September 16, 2014, this Court vacated and remanded the matter, 

based on the trial court’s failure to utilize the requisite statutory factors in 

making its determination. Specifically, this Court instructed the trial court to 

consider upon remand the general statutory “best interest” custody factors 

set forth at Section 5328(a) and the three statutory custody factors 

pertaining to grandparents at Section 5328(c)(1). 
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On November 6, 2014, the trial court issued its decision after remand. 

Significantly, the trial court’s remand decision provides no facts or 

procedural history of the case. (See Remand Decision at 1-4.) Similarly 

absent from the court’s decision after remand are any express credibility 

determinations.40 The court also supplies no law whatsoever. (See Remand 

Decision at 1-4.) Rather, the court issues mere conclusory statements as to 

each factor under Section 5328(a) and Section 5328(c)(1). (See id.) Our 

review of the court’s decision after remand leaves questionable whether the 

court engaged in a thoughtful analysis of, and gave due consideration to, 

each relevant factor, where the court offered no facts of record or analysis to 

support its conclusions. See M.J.M., supra; J.R.M., supra; E.D., supra. 

The court’s decision after remand appears to pay mere lip service to this 

Court’s remand directive. Under these circumstances, the trial court’s 

remand decision is deficient. See M.J.M., supra; J.R.M., supra; E.D., 

supra.

More importantly, many of the trial court’s conclusory statements do 

not accurately reflect the evidence presented at trial. For example, the 

court’s bald statement regarding Section 5328(c)(1)(i), that Paternal 

Grandparents have had no contact with Children for approximately three 

____________________________________________

40 The sole reference to a party’s credibility determination appears in the 

midst of the court’s on-the-record remarks at the conclusion of trial, where 

the court accepted as true Mother’s testimony that the Skype calls were 

upsetting to Children. (See N.T., 2/10/14, at 293; R.R. at 150a.) 
J-A10001-15

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years (see Remand Decision at 1), lacks necessary context. Specifically, the 

court ignores, inter alia, the following evidence: (1) Mother and K.A.T. lived 

with Paternal Grandmother and W.B. for one year; (2) Paternal 

Grandparents spent substantial time with Children when Mother and Father 

shared physical custody; (3) Mother repeatedly moved around the country 

and refused to disclose (or to permit Father to disclose) her contact 

information to Paternal Grandparents; and (4) Paternal Grandparents had to 

hire a private investigator to locate Mother and Children in the aftermath of 

Father’s death. The court similarly ignores this evidence concerning its 

finding at Section 5328(a)(3) (parental duties performed by each party on 

behalf of child), where the court simply states: “Grandparents have 

performed no parental duties for at least three years, while Mother has.” 

(Remand Decision at 2). 

Under Section 5328(a)(1) (which party is more likely to encourage and 

permit frequent and continuing contact between child and another party), 

the trial court found this factor favored neither party. (See Remand 

Decision at 2.) Nevertheless, the record discloses that this factor favors 

Paternal Grandparents, as the evidence presented at trial shows they have 

made efforts to cooperate with Mother during the pendency of the interim 

custody order. Conversely, Mother and Mother’s Husband demonstrated 

their opinion that Paternal Grandparents are “horrible,” and testified that 
J-A10001-15

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they will not permit Paternal Grandparents to have any contact with Children 

in the future (presumably, unless compelled to do so by court order). 

Regarding Section 5328(a)(9) (which party is more likely to maintain 

loving, stable, consistent and nurturing relationship with child adequate for 

child’s emotional needs), Section 5328(a)(10) (which party is more likely to 

attend to daily physical, emotional, developmental, educational and special 

needs of child), and Section 5328(a)(12) (each party’s availability to care for 

child or ability to make appropriate child-care arrangements), the trial court 

announced, with little or no explanation, that each of these factors favored 

Mother. (See Remand Decision at 3.) Significantly, the trial court made no 

factual findings concerning Paternal Grandparents’ ability to care for and 

support Children during their periods of partial physical custody. (See id.) 

Nothing in the record suggests Paternal Grandparents are unable to or would 

have difficulty providing care for Children. Paternal Grandmother and 

Paternal Grandfather want to be part of Children’s lives and have amicably 

worked out a schedule regarding the care for Children during their periods of 

partial physical custody.

Further, the court’s decision following remand focuses on certain 

factors, to the detriment of other relevant factors. For example, the court 

placed great emphasis on the distance between the parties, which the court 

mentioned in its consideration of factors five, ten, and eleven. (Id. at 2-3.) 

We fail to see how proximity is relevant to factor five (availability of 
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extended family) and factor ten (which party is more likely to attend to daily 

physical, emotional, developmental, educational and special needs of child), 

in the context of Paternal Grandparents’ request for limited partial physical 

custody of Children.41 Compare Durning v. Balent/Kurdilla, 19 A.3d 

1125 (Pa.Super. 2011) (explaining that award of shared physical custody of 

school-aged child of parents who do not live in geographical proximity to 

each other is contrary to child’s need for continuity at home and at school). 

As well, the court relied heavily on the conflict between the parties, 

determining the conflict could not be resolved. (See N.T., 2/10/14, at 295-

97; R.R. at 151a-152a) (stating: “So bottom line is this. Right or wrongly, I 

don’t believe that the conflict between [M]other and [P]aternal 

[G]randmother can be fixed”); (see also Remand Decision at 3) (regarding 

analysis of Section 5328(a)(13), stating: “While the parties may state a 

willingness to cooperate, we are unpersuaded that there exists the ability to 

cooperate”). Absent from the court’s remarks, however, is an appropriate 

analysis of why the conflict exists and why it adversely affects Children. See 

Johnson, supra; Nancy E.M., supra; Miller, supra. 

The court also seemed to base its decision largely on Paternal 

Grandparents’ unwelcome intervention with the adoption proceedings. (See

N.T., 2/10/14, at 294-95; R.R. at 150a-151a) (stating: “And my reaction 

____________________________________________

41 Maternal Grandmother also lives in Erie County, Pennsylvania. 
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was real simple to that. They stuck their nose in that situation and probably 

they should have stayed the hell out of it”); (see also Remand Decision at 

1) (regarding analysis of Section 5328(c)(1)(ii), stating: “interference would 

result to the parent/child relationship as it did when grandparents intervened 

in a finalized adoption by Mother’s current husband resulting in the adoption 

being undone and still pending at the time of this custody trial”). The court’s 

comments are shocking in light of some of the disturbing testimony about 

Mother’s Husband’s gravely inappropriate posts on Facebook (which he 

admitted writing), especially where W.B. is African-American. 

The court failed to consider, however, the important contribution 

Paternal Grandparents can make in Children’s lives, particularly since their 

Father’s death. With respect to Section 5328(a)(4) (need for stability and 

continuity in child’s education, family life and community life), the court 

coldly stated: “Grandparents are unnecessary to provide stability and 

continuity in the child’s education, family life and community life as 

circumstances present at trial. Mother provides for those.” (Id. at 2.) 

Concerning Section 5328(a)(5) (availability of extended family), the court 

explained: “Grandparents (and others) are the extended family, 51⁄2 travel 

hours away. Mother’s current husband completes the traditional family unit 

of husband and wife and children. There is no evidence they need help from 

any outside source.” (Id.) The court’s conclusory statements discount the 

significant benefits Children can reap from Paternal Grandparents, who can 
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provide Children ties to their deceased Father. See Hiller, supra; Nancy 

E.M., supra. Additionally, the court disregarded evidence of Father’s 

extended family living near Paternal Grandparents; Children could interact 

with Father’s relatives during Paternal Grandparents’ periods of partial 

physical custody. 

Based on this record, we cannot agree that the court made a reasoned 

decision based on the evidence presented, particularly in light of 

Pennsylvania’s strong public policy favoring grandparent involvement in a 

child’s life. See Hiller, supra; Miller, supra; Dratch, supra. See also 

V.B., supra; Ketterer, supra. Therefore, we are compelled to reverse the 

trial court’s decision to deny Paternal Grandparents’ request for partial 

physical custody of Children, and remand for the court to enter the interim 

custody order dated October 4, 2013 and entered October 7, 2013, as a final 

order. 

In their third issue, Paternal Grandparents acknowledge that in making 

a custody determination, a court must consider whether a party seeking 

custody poses a threat of harm to the child based on certain enumerated 

prior criminal convictions. Paternal Grandparents explain that 23 Pa.C.S.A. 

§ 5329(a) lists thirty-two enumerated offenses for the court to consider 

when making this assessment. Paternal Grandparents emphasize that the 

statute enumerates only misdemeanor and felony offenses and does not list 

any summary offenses. Paternal Grandparents maintain that under Section 
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5330, one party who has obtained information about a criminal charge filed 

against the other party may move for a temporary custody order or 

modification of an existing custody order (pending a hearing), but only 

where the other party has been charged with an offense under Section 

5329(a). Read together, Paternal Grandparents contend the legislature 

limited the relevance of criminal convictions to only those offenses 

enumerated in Section 5329(a), in awarding custody. Paternal 

Grandparents argue that, even where a party seeking custody has a criminal 

conviction for an enumerated offense, the court is not precluded from 

granting that party custody; instead, the court shall consider the party’s 

conduct relative to the offense to determine whether the party poses a 

threat of harm to the child. Only when a parent has been convicted of 

murder of the other parent can the court deny custody without considering 

threat of harm (see 23 Pa.C.S.A. § 5329(b)). 

Paternal Grandparents stress that none of the offenses considered by 

the court are enumerated offenses under Section 5329(a). Paternal 

Grandparents submit the court improperly allowed testimony (over their 

objections) concerning Paternal Grandmother’s and W.B.’s respective 

criminal histories, absent any prior convictions under Section 5329(a). 

Paternal Grandparents acknowledge that the court stated in its supplemental 

opinion that if it erred in admitting such testimony, the error was harmless. 

Paternal Grandparents suggest the court’s improper admission of prior 
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offenses played a part in the court’s determination as to the high level of 

conflict between the parties, where the record shows Mother used Paternal 

Grandmother’s and W.B.’s respective criminal histories to bolster Mother’s 

position that the court should deny Paternal Grandparents any custodial time 

with Children. Paternal Grandparents conclude the court’s evidentiary ruling 

was erroneous. We agree.

Generally, our standard of review concerning evidentiary rulings is as 

follows: 

The admission or exclusion of evidence is within the sound 

discretion of the trial court, and in reviewing a challenge to 

the admissibility of evidence, we will only reverse a ruling 

by the trial court upon a showing that it abused its 

discretion or committed an error of law A trial court has 

wide discretion in ruling on the relevancy of evidence and 

its ruling will not be reversed absent an abuse of 

discretion.

B.K. v. J.K., 823 A.2d 987, 991-92 (Pa.Super. 2003) (internal citations 

omitted). 

Section 5329 of the Act provides, in pertinent part:

§ 5329. Consideration of criminal conviction

(a) Offenses.−Where a party seeks any form of custody, 

the court shall consider whether that party or member of 

that party’s household has been convicted of or has 

pleaded guilty or no contest to any of the offenses in this 

section or an offense in another jurisdiction substantially 

equivalent to any of the offenses in this section. The court 

shall consider such conduct and determine that the party 

does not pose a threat of harm to the child before making 

any order of custody to that parent when considering the 

following offenses:
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18 Pa.C.S. Ch. 25 (relating to criminal homicide).

18 Pa.C.S. § 2702 (relating to aggravated assault).

18 Pa.C.S. § 2706 (relating to terroristic threats).

18 Pa.C.S. § 2709.1 (relating to stalking).

18 Pa.C.S. § 2901 (relating to kidnapping).

18 Pa.C.S. § 2902 (relating to unlawful restraint).

18 Pa.C.S. § 2903 (relating to false imprisonment).

18 Pa.C.S. § 2910 (relating to luring a child into a motor 

vehicle or structure).

18 Pa.C.S. § 3121 (relating to rape).

18 Pa.C.S. § 3122.1 (relating to statutory sexual assault).

18 Pa.C.S. § 3123 (relating to involuntary deviate sexual 

intercourse).

18 Pa.C.S. § 3124.1 (relating to sexual assault).

18 Pa.C.S. § 3125 (relating to aggravated indecent 

assault).

18 Pa.C.S. § 3126 (relating to indecent assault).

18 Pa.C.S. § 3127 (relating to indecent exposure).

18 Pa.C.S. § 3129 (relating to sexual intercourse with 

animal).

18 Pa.C.S. § 3130 (relating to conduct relating to sex 

offenders).

18 Pa.C.S. § 3301 (relating to arson and related offenses).

18 Pa.C.S. § 4302 (relating to incest).

18 Pa.C.S. § 4303 (relating to concealing death of child).
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18 Pa.C.S. § 4304 (relating to endangering welfare of 

children).

18 Pa.C.S. § 4305 (relating to dealing in infant children).

18 Pa.C.S. § 5902(b) (relating to prostitution and related 

offenses).

18 Pa.C.S. § 5903(c) or (d) (relating to obscene and other 

sexual materials and performances).

18 Pa.C.S. § 6301 (relating to corruption of minors).

18 Pa.C.S. § 6312 (relating to sexual abuse of children).

18 Pa.C.S. § 6318 (relating to unlawful contact with 

minor).

18 Pa.C.S. § 6320 (relating to sexual exploitation of 

children).

Section 6114 (relating to contempt for violation of order or 

agreement). 

The former 75 Pa.C.S. § 3731 (relating to driving under 

influence of alcohol or controlled substance).

75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol 

or utilizing drugs).

Section 13(a)(1) of the act of April 14, 1972 (P.L. 233, No. 

64), known as The Controlled Substance, Drug, Device and 

Cosmetic Act, to the extent that it prohibits the 

manufacture, sale or delivery, holding, offering for sale or 

possession of any controlled substance or other drug or 

device.

(b) Parent convicted of murder.—No court shall award 

custody, partial custody or supervised physical custody to 

a parent who has been convicted of murder under 18 

Pa.C.S. § 2502(a) (relating to murder) of the other parent 

of the child who is the subject of the order unless the child 

is of suitable age and consents to the order.
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(c) Initial evaluation.—At the initial in-person contact 

with the court, the judge, conference officer or other 

appointed individual shall perform an initial evaluation to 

determine whether the party or household member who 

committed an offense under subsection (a) poses a threat 

to the child and whether counseling is necessary. The 

initial evaluation shall not be conducted by a mental health 

professional. After the initial evaluation, the court may 

order further evaluation or counseling by a mental health 

professional if the court determines it is necessary.

* * *

23 Pa.C.S.A. § 5329(a)-(c) (internal footnote omitted). Section 5330 of the 

Act states:

§ 5330. Consideration of criminal charge

(a) Expedited hearing.—A party who has obtained 

information under 42 Pa.C.S. § 1904 (relating to 

availability of criminal charge information in child custody 

proceedings) or otherwise about a charge filed against the 

other party for an offense listed under section 5329(a) 

(relating to consideration of criminal conviction) may move 

for a temporary custody order or modification of an 

existing custody order. The court shall hold the hearing 

under this subsection in an expeditious manner.

(b) Risk of harm.—In evaluating any request under 

subsection(a), the court shall consider whether the party 

who is or has been charged with an offense set forth in 

section 5329(a) poses a risk of physical, emotional or 

psychological harm to the child.

(c) No prejudice.—Failure to either apply for 

information under 42 Pa.C.S. § 1904 or act under this 

section shall not prejudice any party in a custody 

proceeding.

23 Pa.C.S.A. § 5330. “The plain language of the statute reveals the obvious 

intent of the Legislature to ensure that custody is not being provided to a 
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[party] whose past criminal behavior presents a present threat of harm to 

the child.” Ramer v. Ramer, 914 A.2d 894, 900-01 (Pa.Super. 2006).42 

Instantly, during Paternal Grandmother’s cross-examination, Mother’s 

counsel sought to elicit testimony from Paternal Grandmother concerning a 

bad check charge in 2012 and a theft of services charge in 2009. Counsel 

for Paternal Grandparents objected. (See N.T., 2/10/14, at 69-70; R.R. at 

38a.) Mother’s counsel responded: “[W]e are looking at what is in the best 

interest of the children. And [Paternal Grandmother] is up here basically 

indicating that she is a wonderful grandparent and we’re just showing her 

history.” (Id. at 70; R.R. at 38a.) Mother’s counsel further stated that the 

testimony was relevant under Section 5328(a)(16) (any other relevant 

factor). (Id.) The court overruled Paternal Grandparents’ objection on this 

basis. (Id.) During W.B.’s cross-examination, Mother’s counsel sought to 

elicit testimony from W.B. concerning a harassment charge in 2010. (Id. at 

129; R.R. at 68a.) Counsel for Paternal Grandparents objected, specifically 

stating that harassment is not an enumerated offense under Section 5329, 

____________________________________________

42 This Court decided Ramer in the context of 23 Pa.C.S.A. § 5303(b) 

(repealed by 2010, Nov. 23, P.L. 1106, No. 112, § 1, effective January 24, 

2011; re-codified at 23 Pa.C.S.A. § 5323, 5328-5330). Section 5303(b) 

provided similar language to the current Section 5329(a), stating: “If a 

parent has been convicted of or has pleaded guilty or no contest to an 

offense as set forth below, the court shall consider such criminal conduct and 

determine that the parent does not pose a threat of harm to the child before 

making an order of custody, partial custody or visitation to that parent[.]” 

23 Pa.C.S.A. § 5303(b) (repealed). That statute listed only fourteen 

relevant convictions. See id. 
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and is therefore irrelevant to the custody proceeding. (Id.) Mother’s 

counsel responded: “It is absolutely relevant. We’re talking about the best 

interest of these children. These children will be in the home where this 

gentleman lives. Absolutely.” (Id.) Mother’s counsel conceded Mother was 

not seeking an evaluation under Section 5329, but “[w]e’re just talking 

about his character. It is about what is in the best interest of the children 

and the people around the children, Your Honor.” (Id. at 130; R.R. at 68a.) 

The court overruled Paternal Grandparents’ objection. 

During Mr. Lagan’s direct-examination, Mother’s counsel sought to 

elicit testimony concerning Mr. Lagan’s background investigations on 

Paternal Grandparents and W.B. (Id. at 230; R.R. at 118a.) Counsel for 

Paternal Grandparents again objected, explaining that Sections 5329 and 

5330 specifically enumerate and discuss criminal convictions which are 

relevant in a custody proceeding; counsel also stated any criminal 

convictions pertaining to Paternal Grandparents or W.B., which are not 

enumerated under the statute, are irrelevant. (Id.) Mother’s counsel 

responded as follows: “This matter is what is in the best interest of the 

children which includes what each party has in their background, what they 

do every day, what type of person they are, and whether or not they should 

be around children. It is absolutely relevant.” (Id.) The court then had the 

following exchange with Mother’s counsel:
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[THE COURT]: But isn’t it limited by the 

legislature moving into this area by defining certain 

specific offenses?

[MOTHER’S COUNSEL]: Your Honor, I believe the 5329 

section as well as 5330 is to determine who should have 

an evaluation to see if they are at risk of harm to the 

children to be able to have any custody at all. We’re 

certainly not representing that [Mr. Lagan’s] going to give 

us information to say that [Paternal Grandmother] has any 

5329 offenses. 

She has other offenses. We’re not saying that she should 

have—well, she should have no contact at all just based on 

these offenses.

We’re not asking that she receive an evaluation. We’re 

just simply speaking to the type of person who [is] around 

the children.

[THE COURT]: Are you saying this to me, for 

example, if a criminal background check reveals a person 

who has retail thefts, bad checks, forgeries, that somehow 

may impact on their character?

[MOTHER’S COUNSEL]: Essentially, Your Honor, yes. 

However, not to prove they will...commit those offenses 

again but whether or not they should be around children. 

[THE COURT]: The children.

[MOTHER’S COUNSEL]: Correct. 

[THE COURT]: I’ll allow it. Objection is 

overruled.

(Id. at 231-233; R.R. at 119a-120a.) Subsequently, Mr. Lagan testified that 

he discovered Paternal Grandmother pled guilty to theft of services in 

October 2009, a traffic violation in 2012, and speeding in 2013. Mr. Lagan 

said Paternal Grandmother had another conviction for bad checks in 2012 
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with a disposition of guilty.43 Mr. Lagan also found that W.B. pled guilty to 

trespass by motor vehicle in 2008, and harassment in 2010. (Id. at 233-

35; R.R. at 120a-121a.) Mr. Lagan provided little to no detail concerning 

the factual bases for any of these offenses. Mr. Lagan also did not indicate 

the grading of any of the offenses.44 (Id.) 

Section 5329 makes clear the type of criminal convictions the 

legislature deemed relevant for purposes of making an award of custody, by 

specifically enumerating only those crimes which evidence a threat of harm 

to the child. See 23 Pa.C.S.A. § 5329(a); Ramer, supra. The parties 

agree that none of Paternal Grandmother’s or W.B.’s prior criminal 

convictions or motor vehicle offenses are listed in Section 5329(a). The 

record is unclear whether any of the offenses at issue were graded higher 

than summary offenses. In an effort to circumvent Section 5329, Mother’s 

counsel attempted to obtain admission of the criminal offenses as relevant 

generally to Section 5328(a)(16), which permits the court to consider “any 

other relevant factor,” and the over-arching “best interests” analysis. We 

cannot agree that the court’s admission of evidence concerning Paternal 

Grandmother’s and W.B.’s criminal histories was proper under 

____________________________________________

43 Mr. Lagan also indicated Paternal Grandmother was charged with 

operating a vehicle without required financial responsibility in 2012, but that 

charge was dismissed. 

44 The investigatory report(s) on which Mr. Lagan relied at trial are not 

included in the certified record. 
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subsection(a)(16), where the Act expressly delineates those criminal 

convictions which are relevant to a custody determination, and the offenses 

at issue are not among those listed. See 23 Pa.C.S.A. § 5329(a). See also

Pa.R.E. 401 (explaining evidence is relevant if it has any tendency to make 

fact more or less probable than it would be without evidence; and fact is of 

consequence in determining action); Johns v. Cioci, 865 A.2d 931 

(Pa.Super. 2004) (explaining that unless it is shown that parent’s conduct 

has had harmful effect on child, that conduct should be given little weight in 

custody determinations); Vicki N. v. Josephine N., 649 A.2d 709 

(Pa.Super. 1994) (stating party’s past conduct is not relevant to custody 

proceeding unless it will produce ongoing negative effect on child’s welfare); 

Commonwealth ex rel. Gorto v. Gorto, 444 A.2d 1299 (Pa.Super. 1982) 

(stating primary concern in custody matters lies not with past but with 

present and future; facts as of time of trial are foundation for court’s 

determination; past conduct is not relevant unless it will produce ongoing 

negative effect on child’s welfare). 

Moreover, under the doctrine of ejusdem generis, the court cannot 

consider other criminal offenses under the general language of Section 

5328(a)(16), where the Act expressly delineates those criminal convictions 

which the legislature deemed relevant to a custody determination, and the 

offenses at issue are not among those listed. See generally McClellan v. 

Health Maintenance Organization of Pennsylvania, 546 Pa. 463, 473, 
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686 A.2d 801, 806 (1996) (explaining: “[u]nder our statutory construction 

doctrine [of] ejusdem generis (“of the same kind or class”), where general 

words follow the enumeration of particular classes of persons or things, the 

general words will be construed as applicable only to persons or things of the 

same general nature or class as those enumerated. When the opposite 

sequence is found, i.e., specific words follow general ones,...the doctrine is 

equally applicable, and restricts application of the general term to things 

that are similar to those enumerated”). Mother cites no law to the 

contrary.45 Therefore, the court erred by admitting into evidence Paternal 

Grandmother and W.B.’s previous offenses, which fell outside of Section 

5329.46 See B.K., supra. 

Accordingly, we reverse the trial court’s decision to deny Paternal

Grandparents’ request for partial physical custody and remand for the trial 

court to enter immediately as a final order, the interim custody order dated 

October 4, 2013 and entered October 7, 2013. Mother must fix the Skype 

feature on her cell phone or home computer to allow visual capabilities 

____________________________________________

45 Instead, Mother relies on generic legal principles stating that criminal 

convictions are reasonably probative as to the reputation of an individual 

and have impact upon assessing a person’s character. (See Mother’s Brief 

at 51-54.) 

46 In its supplemental trial court opinion, the court indicated that to the 

extent the court improperly admitted the evidence at issue, the error was 

harmless. (See Supplemental Rule 1925(a) Opinion at 1-2.) In the event 

that this matter might proceed to a new custody trial at some point in the 

future, the trial court’s harmless error analysis would be immaterial. 
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within thirty (30) days of this disposition. Alternatively, the parties could 

consider using FaceTime to communicate.

Order reversed; case remanded with instructions. Jurisdiction is 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/28/2015