J-A10002-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.S.F. 

Appellant

v.

D.A.G.

Appellee

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 3841 EDA 2017

Appeal from the Order Entered October 30, 2017

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2011-02449

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 22, 2018

Appellant, R.S.F. (“Father”), appeals from the order entered in the 

Montgomery County Court of Common Pleas, which denied his petition to 

modify custody and granted the petition of Appellee, D.A.G. (“Mother”), to 

modify custody of the parties’ minor son, A.T.F.G. (“Child”) (born in 2011).1 

We affirm. 

In its opinions, the trial court accurately set forth the relevant facts and 

procedural history of this case. Therefore, we have no reason to restate them. 

Father raises three issues for our review:

DID THE TRIAL COURT ERR OR ABUSE ITS DISCRETION IN 

HOLDING FATHER TO A BURDEN OF PROOF BASED ON THE 

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1 Father’s petition to modify custody sought primary physical custody of Child 

in Virginia. Mother’s petition to modify custody sought to reduce Father’s 

periods of partial physical custody during the school year so not to disrupt 

Child’s schooling in Pennsylvania. 
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PREPONDERANCE OF THE EVIDENCE?

DID THE TRIAL COURT ERR OR ABUSE ITS DISCRETION IN 

RELYING ON PRIOR REPORTS PREPARED BY DR. GERALD 

COOKE WHICH ARE NOT PART OF THE RECORD IN THIS 

CASE?

DID THE TRIAL COURT ERR OR ABUSE ITS DISCRETION BY 

NOT PROPERLY CONSIDERING DR. COOKE’S JULY 22, 2017 

CUSTODY EVALUATION AND THE SALIENT POINTS RAISED 

THEREIN, INSTEAD CHERRY-PICKING QUOTATIONS AND 

FINDINGS OUT OF CONTEXT?

(Father’s Brief at 9).2

In reviewing a child custody order:

[O]ur scope is of the broadest type and our standard is 

abuse of discretion. This Court must accept findings of the 

trial court that are supported by competent evidence of 

record, as our role does not include making independent 

factual determinations. In addition, with regard to issues of 

credibility and weight of the evidence, this Court must defer 

to the trial judge who presided over the proceedings and 

thus viewed the witnesses first hand. However, we are not 

bound by the trial court’s deductions or inferences from its 

factual findings. Ultimately, the test is whether the trial 

court’s conclusions are unreasonable as shown by the 

evidence of record. We may reject the conclusions of the 

trial court only if they involve an error of law, or are 

unreasonable in light of the sustainable findings of the trial 

court.

S.J.S. v. M.J.S., 76 A.3d 541, 547-48 (Pa.Super. 2013) (internal citation 

omitted). “With any child custody case, the paramount concern is the best 

interests of the child. This standard requires a case-by-case assessment of 

all the factors that may legitimately affect the physical, intellectual, moral and 

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2 For purposes of disposition, we have reordered Father’s issues.
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spiritual well-being of the child.” A.D. v. M.A.B., 989 A.2d 32, 36 (Pa.Super. 

2010). 

When deciding whether to modify an existing custody order, the trial 

court must consider all of the factors set forth at 23 Pa.C.S.A. § 5328(a). 

J.R.M. v. J.E.A., 33 A.3d 647 (Pa.Super. 2011). 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. 

(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. 
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(7) The well-reasoned preference of the child, based 

on the child’s maturity and judgment. 

(8) The attempts of a parent to turn the child against 

the other parent, except in cases of domestic violence 

where reasonable safety measures are necessary to 

protect the child from harm. 

(9) Which party is more likely to maintain a loving, 

stable, consistent and nurturing relationship with the 

child adequate for the child’s emotional needs. 

(10) Which party is more likely to attend to the daily 

physical, emotional, developmental, educational and 

special needs of the child. 

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

(12) Each party’s availability to care for the child or 

ability to make appropriate child-care arrangements. 

(13) The level of conflict between the parties and the 

willingness and ability of the parties to cooperate with 

one another. A party’s effort to protect a child from 

abuse by another party is not evidence of unwillingness 

or inability to cooperate with that party. 

(14) The history of drug or alcohol abuse of a party or 

member of a party’s household. 

(15) The mental and physical condition of a party or 

member of a party’s household. 

(16) Any other relevant factor. 

23 Pa.C.S.A. § 5328(a). The amount of weight a trial court gives to any one 

factor is largely within the court’s discretion. M.J.M. v. M.L.G., 63 A.3d 331, 

339 (Pa.Super. 2013), appeal denied, 620 Pa. 710, 68 A.3d 909 (2013) 

(explaining trial court’s purview, as finder of fact, is to determine which factors 

are most salient and critical in each particular case). 
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Further, the trial court is not required to accept the conclusions of a 

custody evaluator in a child custody case. M.A.T. v. G.S.T., 989 A.2d 11 

(Pa.Super. 2010) (en banc). “It is an abuse of discretion, however, for a trial 

court to dismiss as unpersuasive, and to totally discount, uncontradicted 

expert testimony.” Id. at 19. Thus, the trial court must consider a custody 

evaluator’s conclusions, “and if the trial court chooses not to follow the 

expert’s recommendations, its independent decision must be supported by 

competent evidence of record.” Id. at 20. 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinions of the Honorable Patricia E. 

Coonahan, we conclude Father’s issues merit no relief. The trial court opinions 

comprehensively discuss and properly dispose of the questions presented. 

(See Custody Order and Opinion, filed October 30, 2017, at 3-11) (examining 

each relevant factor under Act and concluding that continued primary physical 

custody of Child with Mother is in Child’s best interest)3 and (Trial Court 

Opinion, filed December 19, 2017, at 7-12) (finding: (1) at outset of custody 

hearing, before court heard testimony and evidence, court viewed both parties 

on “equal footing”; following hearing, court thoughtfully and meticulously 

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3 Under the holiday schedule in the custody order, the court inadvertently 

states both Mother and Father shall have custody of Child over the 

Thanksgiving holiday in odd years. We direct the court to clarify the 

Thanksgiving holiday schedule in an amended custody order to avoid further 

litigation surrounding this issue. 
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analyzed testimony and evidence in light of sixteen custody factors; court 

rendered custody decision in best interests of Child only after court conducted 

detailed analysis of evidence and testimony in relation to custody factors; 

court did not abuse its discretion in methodology used to make custody 

decision;4 (2) court considered Dr. Cooke’s June 22, 2017 follow-up custody 

evaluation report; court also considered July 27, 2017 video deposition of Dr. 

Cooke; in footnote one of custody order, court stated it also considered Dr. 

Cooke’s earlier July 25, 2011 and November 4, 2015 reports because most 

recent June 22, 2017 report was follow-up to those initial evaluations; court 

discussed each of Dr. Cooke’s reports in its analysis of custody factor sixteen

(any other relevant factor); court spent only two paragraphs discussing Dr. 

Cooke’s prior reports compared to four pages court used to discuss Dr. Cooke’s 

most recent report, because most recent report was “follow-up” evaluation, 

and it was necessary for court to review Dr. Cooke’s earlier reports for 

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4 We depart from the court’s references in its opinions to a “preponderance of 

the evidence” burden of proof as erroneous. See 23 Pa.C.S.A. § 5327(a) 

(stating in any action regarding custody of child between parents of child, 

there shall be no presumption that custody should be awarded to particular 

parent); M.A.T., supra (clarifying that in custody dispute between parents, 

no one has burden of proof; no presumption may be resorted to; instead, 

court must determine according to evidence in particular case what will serve 

child’s best interests); J.R.M., supra (explaining in custody dispute, parents 

stand on equal footing and only burden of either parent is to establish what is 

in best interests of child). Notwithstanding the court’s mistaken references, 

a close reading of the trial court’s opinions, in their entireties, confirms the 

court did not subject Father to any burden other than to establish what was 

in Child’s best interests. 
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purposes of clarity and completeness; court can take judicial notice of entire 

docket as this information is generally known within trial court’s territorial 

jurisdiction, can be accurately and readily determined without question, and 

is part of record in this case;

5 (3) trial court is not obligated to accept custody 

evaluator’s recommendation so long as record supports court’s independent 

decision; Father’s comment, that court “cherry-picked” quotes from Dr. 

Cooke’s most recent report, is unprofessional; court takes very seriously its 

obligation to review testimony and recommendations of custody evaluator; 

court gave proper and thorough consideration to Dr. Cooke’s custody 

evaluation report and deposition, and devoted several pages in its custody 

order to discussion of Dr. Cooke’s recommendations; court did not “cherrypick” quotes; rather, court analyzed testimony and evidence as stated on 

record and included specific page citations in custody order to Dr. Cooke’s 

reports and deposition testimony). Accordingly, we affirm on the basis of the 

trial court’s opinions.

Order affirmed.

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5 Contrary to Father’s assertions, Dr. Cooke’s July 25, 2011 and November 4, 

2015 reports are included in the certified record. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/22/18