J-A13015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.A.F., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

R.A.F.,

Appellee No. 1994 WDA 2015

Appeal from the Order entered November 23, 2015, 

in the Court of Common Pleas of Erie County, 

Domestic Relations, at No(s): 12741-2004

BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 20, 2016

M.A.F. (“Mother”) appeals from the order dated and entered on 

November 23, 2015, that awarded R.A.F. (“Father”) legal and physical 

custody of the parties’ two minor, male children, P.F. (born in March 2001), 

and B.F. (born in July 2002) (“the Children”).1 The order did not provide for 

Mother to have holiday visitation, outside of her regularly-scheduled 

visitation days.2 We affirm.

 

1 The parties’ oldest child, C.F., a female born in April 1998, is not part of 

this appeal.

2 Although the trial court’s order provided that Father has “full” legal and 

physical custody, and Mother has visitation, the Child Custody Act, (the 

“Act”), 23 Pa.C.S.A. § 5323(a), does not provide for “full” custody or 

visitation. Thus, we treat the trial court’s order as awarding Father “sole 

legal custody,” “primary physical custody,” and Mother “partial physical 

custody,” as those terms are set forth and defined in that section of the Act. 

 
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The trial court set forth the factual background and procedural history 

of this appeal, as follows.

Mother filed a [c]omplaint for [c]ustody in November 2012. An 

[o]rder was entered in February 2013 giving the parents shared 

physical and legal custody of the Children. Since the time of the 

original order, multiple filings for [s]pecial [r]elief and other 

emergency petitions were filed by both parties. Many of the 

petitions filed by Father addressed his concerns regarding 

Mother’s treatment of the oldest child, [C.F.], and the middle 

child, [P.F.].

The parties were first before th[e trial] court to resolve custody 

and visitation disputes in 2015. In May 2015, a temporary order 

was entered giving Father full physical and legal custody of the 

minor children. The oldest child, [C.F.], was permitted to stay 

with [] Father and make her own decision regarding if and when 

visitation with [] Mother would take place. The middle and 

youngest children were to have supervised visits with [] Mother. 

Additionally, the parents were ordered to undergo a 

psychological evaluation. Mother was not permitted to contact 

the two youngest children by phone, text, or email while in 

Father’s care without Father's permission. The matter was 

schedule for a [90-]day review.

Before the review hearing was held, problems continued to 

surface. In June 2015, Father filed an emergency petition 

alleging [] Mother disregarded the order’s no-contact provision 

by engaging in an exchange of picture and text messaging via

social media with [P.F.]. Mother filed a counter-petition, alleging 

Father was in contempt of court for unilaterally ceasing [P.F. and 

B.F.’s] supervised visits with [] Mother. At the end of this 

hearing, th[e trial] court entered a temporary order, pending 

another review hearing in [90] days. The final hearing took 

place on November 20, 2015. Findings of fact regarding the 

statutory best interests factors were reduced to writing and filed 

on the same day a final order was entered. This appeal 

followed.

Facts

The crux of the dispute between Mother and Father stems from 

custody and visitation with the middle child, [P.F.], and the 
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youngest child, [B.F.]. Custody and visitation with the oldest 

child, [C.F.], was not an issue. [N.T. Custody Trial, 8/26/15, at 

6]. The emotional and mental well-being of the middle child, 

[P.F.], was the greatest concern to the trial court at the time of 

the review hearing in May 2015, and the most recent trial in 

November 2015. Among those who testified at the hearing in 

August were Dr. Anthony DeMarco, Mother’s court-ordered 

psychological evaluator[;] [] Father[;] the Children in camera[;] 

and [] Mother. Several exhibits showing the social media 

contact between [] Mother and [P.F.] were also admitted.

The testimony of Dr. DeMarco showed [] Mother currently suffers 

from generalized anxiety disorder. [Id. at 22]. He 

recommended continued treatment with her current therapist 

and psychiatrist. According to the doctor, the diagnosis of 

generalized anxiety disorder would not, in and of itself, prevent 

Mother from being a good parent. Many other factors needed to 

be considered outside the scope of his evaluation to make this 

determination. [Id. at 23 and 26].

However, further testimony showed Mother’s mental health and 

its effect on [P.F.], called into doubt her ability to successfully 

parent. 

There is no question Mother had contact with [P.F.] after the 

court’s no contact order and that the contact adversely affected 

him. Father testified he became concerned about [P.F.] when 

[P.F.] started to uncharacteristically lash out at his brother and 

sister. [Id. at 49-50]. [C.F.] confirmed [P.F.’s] outbursts. She 

reported [P.F.] had frequent meltdowns, cried inconsolably and 

without warning, and also had trouble sleeping. [Id. at 146 and 

148]. She further reported that after living full time with their 

father, [P.F.] was doing much better. He [was not] picking 

fights, “freaking out” as much, and was sleeping better. [Id. at

146].

Soon after the initial outbursts began, Father and step[-]mother 

accessed [P.F.’s] iPod and discovered [P.F.] had contact with his 

mother via the social media platforms of [Snapchat] and 

Instagram. Much of this contact occurred after the trial court 

issued its order prohibiting [] Mother from contacting the 

Children while in [] Father’s care. [Id. at 51]. Father and stepmother took “screen shots” of these messages, which were 

admitted into evidence. This [c]ourt also viewed some of the 
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messages directly from [P.F.’s] iPod and determined many were 

sent subsequent to the entry of the no-contact order. [Id. at 

114, 117, and 153].

Not only were the messages sent in violation of a court order, 

their content was inappropriate. The Instagram photographs 

depicted [] Mother wearing a variety of different wigs and makeup. Additional pictures illustrated Mother with her eyes closed, 

and were captioned “dreaming of getting my boys back.” 

Another photograph depicted [] Mother as partially nude and 

pregnant captioned “Me carrying my second baby who I thought 

I would never have. . . .” Numerous other messages targeted to 

the child discussed parental alienation. Many of these 

photographs were accessed, viewed by, and “liked” by [P.F.].

Mother’s testimony, though vague and evasive, confirms she 

directed [P.F.] to access much of this media. In response to a 

question asking her whether she contacted [P.F.] via social 

media after the May 2015 court order, she responded “I think I 

did[,]” despite clear evidence she contacted [P.F.] dozens of 

times. [Id. at 108]. She also then went on to deny and then 

quickly admit her attempts to contact [P.F.] via the Instagram 

messaging system. [Id. at 113]. Later, Mother also confirmed 

she encouraged [P.F.] to “like” or view pictures she posted. [Id.

at 114]. At one point, Mother attempted to back pedal and 

explain away her actions by testifying she meant “I posted these 

pictures, but you [P.F.] haven’t said you liked them. It’s up to 

you if you want to put hearts or not. It’s not that he didn’t like 

the pictures. He may not have seen them.” [Id. at 116]. Much 

of Mother’s testimony proceeded in this way. She conveniently 

only remembered what she wanted. [Id. at 154].

A barrage of text messages recovered by Father and stepmother showed another facet of Mother’s consistent attempts to 

contact [P.F.]. In several instances, [P.F.’s] account contained 

numerous rapid[-]fire messages from [] Mother, without a 

response from him. [C.F.] explained when [P.F.] was at his 

worst emotionally, she believed it was because “he felt really 

nervous because he knew he shouldn’t have been doing it, 

[messaging the mother] but he felt bad because she told him 

that he should be doing it, but he knew that he shouldn’t.” [Id.

at 144]. This notion is corroborated by [P.F.’s] responses in his 

correspondence with [] Mother. Many times, when [P.F.] did 

respond, it was to warn [] Mother that “they” knew the two of 
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them were texting, that he didn’t want them to get caught and 

for her to get in trouble, and that she needed to act “normal” in 

court so they could see each other again.

[P.F.’s] testimony showed that though he is a bright, articulate, 

and sensitive child, he is also very troubled because he has been 

placed in the middle of his parents’ bitter dispute. He clearly 

loves his mother and, at minimum, given a choice, would want 

to go back to 50/50 custody. [Id. at 136]. Though he said he 

missed his mother and wanted to be with her, he also said much 

of it stemmed from wanting to be there for her because 

sometimes she “doesn’t know what she’s doing” and that she 

needs help. [Id. at 129-130 and 135]. He was obviously very 

conflicted. [P.F.] testified he still participates in counseling 

frequently and is on medication for anxiety. [Id. at 131-132]. 

He also admitted to having initiated some of the contact with [] 

Mother via contact [in] Instagram and [Snapchat]. [Id. at 129].

At the final hearing in November [2015], oral and written 

findings of fact[,] analyzing the best interest factors required by 

23 Pa.C.S.A. § 5323[,] were entered concurrent with the final 

order which is the subject of this appeal. 

Trial Court Opinion, 1/19/16, at 1-6 (some internal capitalization omitted).

On November 23, 2015, the trial court entered the order that awarded 

Father legal and physical custody of P.F. and B.F. The custody order did not 

provide for Mother to have holiday visitation, outside of her regularlyscheduled visitation days. On November 23, 2015, the trial court also 

entered a separate order making findings of fact pursuant to 23 Pa.C.S.A. 

§ 5328(a), prepared following the hearing on November 20, 2015, which we 

incorporate herein. On December 18, 2015, Mother timely filed a notice of 

appeal and concise statement of errors complained of on appeal. 

In her brief on appeal, Mother raises the following issues:
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A. Whether the trial court erred and/or abused its discretion 

when it failed to consider the Children’s best interest in 

fashioning a holiday schedule for [Mother]? 

B. Whether the trial court erred and/or abused its discretion 

when it found that Mother suffered from a mental health 

condition that impacted her ability to care for the Children? 

C. Whether the trial court erred and/or abused its discretion 

when it gave little weight to the Children’s preference? 

D. Whether the trial court erred and/or abused its discretion 

when it granted Father full legal custody of the Children? 

E. Whether the trial court erred and/or abused its discretion 

when it found Mother attempted to turn Children against Father? 

F. Whether the trial court abused its discretion as its findings 

were against the weight and not supported by the evidence 

supported [sic] at trial? 

Mother’s Brief at 8.

As the custody trial in this matter was held in August and November of 

2015, the Act, 23 Pa.C.S.A. §§ 5321-5340, is applicable. C.R.F. v. S.E.F., 

45 A.3d 441, 445 (Pa. Super. 2012) (holding that, if the custody evidentiary 

proceeding commences on or after the effective date of the Act, i.e., January 

24, 2011, the provisions of the Act apply).

In custody cases, our standard of review is as follows:

In reviewing a custody order, our scope is of the broadest type 

and our standard is abuse of discretion. We must accept 

findings of the trial court that are supported by competent 

evidence of record, as our role does not include making 

independent factual determinations. In addition, with regard to 

issues of credibility and weight of the evidence, we must defer to 

the presiding trial judge who viewed and assessed the witnesses 

first-hand. However, we are not bound by the trial court’s 

deductions or inferences from its factual findings. Ultimately, 
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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.

Id. at 443 (internal citations omitted).

We have stated: 

[t]he discretion that a trial court employs in custody matters 

should be accorded the utmost respect, given the special nature 

of the proceeding and the lasting impact the result will have on 

the lives of the parties concerned. Indeed, the knowledge 

gained by a trial court in observing witnesses in a custody 

proceeding cannot adequately be imparted to an appellate court 

by a printed record. 

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (quoting

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)).

In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), we 

stated the following regarding an abuse of discretion standard.

Although we are given a broad power of review, we are 

constrained by an abuse of discretion standard when evaluating 

the court’s order. An abuse of discretion is not merely an error 

of judgment, but if the court’s judgment is manifestly 

unreasonable as shown by the evidence of record, discretion is 

abused. An abuse of discretion is also made out where it 

appears from a review of the record that there is no evidence to 

support the court’s findings or that there is a capricious disbelief 

of evidence.

Id. at 18-19 (internal quotations and citations omitted).

With any custody case decided under the Act, the paramount concern 

is the best interests of the child. See 23 Pa.C.S.A. §§ 5328 and 5338. 

Section 5338 of the Act provides that, upon petition, a trial court may 
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modify a custody order if it serves the best interests of the child. 23 

Pa.C.S.A. § 5338. Section 5328(a) of the Act, 23 Pa.C.S.A. § 5328(a), sets 

forth the best interest factors that the trial court must consider. See E.D. v. 

M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super. 2011).

Section 5323 of the Act provides for the following types of awards:

(a) Types of award.—After considering the factors set forth in 

section 5328 (relating to factors to consider when awarding 

custody), the court may award any of the following types of 

custody if it in the best interest of the child:

(1) Shared physical custody.

(2) Primary physical custody.

(3) Partial physical custody.

(4) Sole physical custody.

(5) Supervised physical custody.

(6) Shared legal custody.

(7) Sole legal custody.

23 Pa.C.S.A. § 5323(a).

Section 5323(d) provides that the court shall delineate the reasons for 

its decision on the record in open court or in a written opinion or order. 23 

Pa.C.S.A. § 5323(d). 

Section 5322 of the Act defines the relevant forms of custody as 

follows:

§ 5322. Definitions
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(a) This chapter.— The following words and phrases when 

used in this chapter shall have the meanings given to them in 

this subsection unless the context clearly indicates otherwise:

. . . 

“Legal custody.” The right to make major decisions on behalf 

of the child, including, but not limited to, medical, religious and 

educational decisions.

. . . 

“Partial physical custody.” The right to assume physical 

custody of the child for less than a majority of the time.”

“Physical custody.” The actual physical possession and 

control of a child.

“Primary physical custody.” The right to assume physical 

custody of the child for the majority of time.

. . .

“Shared legal custody.” The right of more than one individual 

to legal custody of the child.

“Shared physical custody.” The right of more than one 

individual to assume physical custody of the child, each having 

significant periods of physical custodial time with the child.

“Sole legal custody.” The right of one individual to exclusive 

legal custody of the child.

“Sole physical custody.” The right of one individual to 

exclusive physical custody of the child.

23 Pa.C.S.A. § 5322.

When awarding any form of custody, Section 5328(a) of the Act 

provides an enumerated list of factors a trial court must consider in 

determining the best interests of a child:
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§ 5328. Factors to consider when awarding custody.

(a) Factors. – In ordering any form of custody, the court shall 

determine the best interest of the child by considering all 

relevant factors, giving weighted consideration to those factors 

which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit 

frequent and continuing contact between the child and 

another party.

(2) The present and past abuse committed by a party or 

member of the party’s household, whether there is a 

continued risk of harm to the child or an abused party and 

which party can better provide adequate physical 

safeguards and supervision of the child.

(2.1) The information set forth in section 5329.1(a)(1) and 

(2) (relating to consideration of child abuse and 

involvement with protective services).

 

(3) The parental duties performed by each party on behalf 

of the child.

(4) The need for stability and continuity in the child’s 

education, family life and community life.

(5) The availability of extended family.

(6) The child’s sibling relationships.

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

child's maturity and judgment.

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

other parent, except in cases of domestic violence where 

reasonable safety measures are necessary to protect the 

child from harm.

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

consistent and nurturing relationship with the child 

adequate for the child's emotional needs.
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(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).

This Court has stated that “[a]ll of the factors listed in section 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) (internal 

emphasis omitted). Further,

Section 5323(d) provides that a trial court “shall delineate the 

reasons for its decision on the record in open court or in a 

written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally, 

“section 5323(d) requires the trial court to set forth its 

mandatory assessment of the sixteen [Section 5328 custody] 

factors prior to the deadline by which a litigant must file a notice 

of appeal.” C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), 

appeal denied, 70 A.3d 808 (Pa. 2013). . . . 

In expressing the reasons for its decision, “there is no required 

amount of detail for the trial court’s explanation; all that is 
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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,

68 A.3d 909 (Pa. 2013). A court’s explanation of reasons for its 

decision, which adequately addresses the relevant factors, 

complies with Section 5323(d). Id.

A.V., 87 A.3d at 822-823. With these standards in mind, we turn to the 

merits of this appeal.

In its Rule 1925(a) opinion, the trial court analyzed Mother’s issues as 

follows:

APPLICABLE LAW AND STANDARD OF REVIEW:

When custody is at issue, the paramount concern is the best 

interests of the child[ren]. Consequently, 23 Pa.C.S.A. § 5328 

requires this [c]ourt to assess sixteen (16) specific factors as a 

framework for determining the best interest of the child[ren]. 

The statute further requires this [c]ourt to “delineate the reasons 

for its decision on the record in open court or in a written opinion 

or order.” 23 Pa.C.S.A. § 5323(d).

[]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.[]

T.B. v. L.R.M., 874 A.2d 34, 37 (Pa. Super. 2005) (citing

Liebner v. Simcox, 834 A.2d 606, 609 (Pa. Super. 2003). The 

standard of review of a visitation order is the same as that for a 

custody order. Id.

DISCUSSION

At the time of the final review hearing, the trial court made 

findings of fact pursuant to 23 Pa.C.S.A. § 5328 and reduced 

these findings to writing. Of the factors listed in the statute, 

several are either inapplicable or favor neither party. Those 

factors are 23 Pa.C.S.A. § 5328(a)(3), ability to perform parental 
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duties; 23 Pa.C.S.A. § 5328(a)(5), sibling relationships; 23 

Pa.C.S.A. § 5328(a)(6), availability of extended family; 23 

Pa.C.S.A. § 5328(a)(11), proximity of the parties to one 

another; 23 Pa.C.S.A. § 5328(a)(12), regarding child-care 

arrangements; and 23 Pa.C.S.A. § 5328(a)(14), regarding drug 

and/or alcohol abuse.

Each parent was able to feed and clothe the boys properly while 

in their care. Both Mother and Father had extended family living 

in the area to support them and the [C]hildren if necessary. The 

boys got along well with their siblings, and had a good 

relationship with each regardless of [in] which home they 

stayed. The parties live in close proximity to one another; 

transportation and associated costs are therefore inapplicable. 

Neither party had a drug or alcohol problem. The boys, ages 

[13] and [14], were old enough that ability to make child-care 

arrangements was not at issue.

Mother[] first contends that despite the remaining findings of 

fact, the trial court failed to consider the [C]hildren’s best 

interest when it refused to fashion a holiday visitation schedule 

and gave little weight to the [C]hildren’s preferences. The other 

facet of Mother’s appeal claims the trial court abused its 

discretion making findings of facts that concern[ed] Mother’s 

mental health, her ability to care for the [C]hildren, and whether 

Mother attempted to turn the Children against [] Father. Each of 

Mother’s contentions are without merit.

There is no doubt both parents want to see their children. 

However, in light of the contents of the Instagram and 

[Snapchat] messages, and Father’s unilateral decision to 

terminate [P.F.’s] and [B.F.’s] visitation with [] Mother in June, it 

is clear neither parent is likely to encourage or permit frequent 

and continuing contact between the boys and the other parent 

so long as Mother’s mental health and conduct remain a concern.

Much of Father's decision to keep the boys from [] Mother 

stemmed from concern for [P.F.’s] emotional well-being due to 

Mother’s actions. A great deal of testimony was presented 

showing Mother attempted to influence the boys, especially 

[P.F.], in an unhealthy way. Messages and pictures displayed for 

[P.F.] to see related were all calculated to alienate him from his 

father. The first and eighth factors outlined in 23 Pa.C.S.A. 

§ 5328(a)(1) and (8) favor [] Father.
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Emotional abuse on behalf of [] Mother remains a critical part of 

this case and poses a continued risk of harm to the two youngest 

children. Mother’s constant messaging and contact with [P.F.] 

after the trial court issued its no contact order demonstrates 

Mother’s predisposition for defiance and inability to think of 

others before herself. Mother’s contact with [P.F.] clearly causes 

[P.F.] severe emotional trauma, as evidenced by his tearful 

demeanor when interviewed in chambers, and his responses to 

[] Mother via social media platforms where he urged her to “act 

normal” and stated he was afraid he would get his iPod taken 

away if “they” knew they were talking. The second factor, as 

outlined in 23 Pa.C.S.A. §5328(a)(2), favors [] Father.

The record shows Father is best able to provide a stable 

environment conducive to meeting the boys’ needs. [] Father 

leads a healthier lifestyle, both physically[] and emotionally, 

than Mother. Mother’s diagnosis of generalized anxiety, though 

treated with numerous medications, is not enough, standing by 

itself, to conclude she could not successfully parent, but is still 

problematic, given her actions.

[P.F.’s] constant exposure to Mother’s insecurities and 

disobedience to the court order places him [] squarely in the 

middle of his [parents’] dispute and has not afforded him the 

stable environment he needs in order to flourish. While Mother 

may be able to tend to the boys’ educational and physical needs, 

she falls short of providing for their emotional, developmental, 

and special needs. In many ways, Mother’s behavior leads [P.F.] 

to feel he needs to take care of her, be there for her, and remind 

her that her actions could get them in trouble.

No evidence was presented [that] Father attempted to involve 

[P.F.] or [B.F.] in the dispute in any way, nor was evidence 

presented Father suffered from any mental or physical defect. 

To the contrary, all testimony presented tended to show [P.F.] 

has flourished in the stability of [F]ather’s care. 

Though the boys’ condition has improved while living with 

[F]ather full time, they still have a long road to travel with 

therapy. [P.F.] requires anxiety medication and frequent 

counseling. Given the boys progress in [] Father’s home, 

despite Mother’s damaging contact, this evidence 

overwhelmingly demonstrates it [is] in the boys’ best interests to 

maintain stability during the week, whether a holiday falls on a 

weekday or not. [] Mother was not denied any of her weekend 
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visits; she was merely denied holiday contact if that contact fell 

outside the regular visitation schedule thereby upsetting the 

status quo.

The fourth, ninth, tenth, and fifteenth factors outlined in 23 

Pa.C.S.A. § 5328(a)(4), (9), (10) and (15) favor [] Father and 

offer additional insight into how the best interests of [P.F.] and 

[B.F.] would be served by Father continuing to have full legal 

and physical custody.

Th[e trial] court did not give great weight to [P.F.’s] testimony. 

Given the high level of conflict between his parents and its effect 

on him, his emotional demeanor and his well-documented need 

for counseling, th[e trial] court was not convinced [that] 

reverting back to any type of shared custody arrangement was 

in his best interests, even if it was what he preferred. Th[e trial] 

court was especially concerned with the contact Mother had with 

[P.F.] by way of social media and other messaging systems and 

the content of these items. [P.F.’s] internal conflict called into 

question his ability to give a well-reasoned opinion regarding his 

wishes, and whether he was candid with the court, or slanted his 

answers to protect [M]other. For these reasons, [P.F.’s] 

testimony was not given great weight.

[B.F.], on the other hand, gave the impression he was happygo-lucky and care[-]free. He had no preference regarding 

custody or visitation. Nor did he seem as outwardly traumatized 

as his older brother by their living situation. He reported things 

were going well in [F]ather’s home, but that he missed [M]other. 

However, no evidence was presented he was targeted by [] 

Mother in a way similar to his brother. See 23 Pa.C.S.A. 

§ 5328(a)(7).

An extremely high level of conflict exists between the parties. 

The Children are paying the price for it. However, while in 

[F]ather’s care, the testimony shows the [C]hildren do much 

better. The thirteenth factor, as outlined in 23 Pa.C.S.A. 

§ 5328(a)(13), favors [] Father.

No other relevant factors were applicable to this case. See 23 

Pa.C.S.A. § 5328(a)(16).

Trial Court Opinion, 1/19/16, at 6-11 (some internal citations and 

capitalization omitted). 
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In her first claim on appeal, Mother argues that the trial court failed to 

recognize or provide her with a specific holiday schedule in the custody 

order. Mother asserts that, prior to the entry of the order, the Children had 

enjoyed holidays with her. She contends that, in Erie County, it is common, 

if not universal, for custody orders to include a special provision for major 

holidays so that the parents may see their children. Mother complains that 

the trial court advised her counsel, on the record at the November 20, 2015 

hearing, that it would be “a recipe for disaster” to allow her holiday visits 

with the Children. N.T. Hearing, 11/20/15, at 22. The trial court found that 

continuity and stability were of paramount importance to the well-being of 

the Children, especially, P.F. We find the trial court’s decision not to provide 

Mother with a specific holiday schedule in the custody order challenged on 

appeal is reasonable, given the facts of this case, as found by the trial court.

In her second issue, Mother contends that, in the November 20, 2015 

order, the trial court made several findings that she suffered from a mental 

health condition that precluded her from effectively parenting the Children. 

Mother states that she complied with the trial court’s previous direction to 

undergo a psychological evaluation. Mother alleges that the uncontroverted 

psychological expert testimony of Dr. DeMarco demonstrated that her 

diagnosis is generalized anxiety disorder, and that she is appropriately 

receiving treatment for that disorder.
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A court is not obligated to accept the recommendations of experts, so 

long as there is competent evidence to support the court’s conclusions in the 

record. Masser v. Miller, 913 A.2d 912 (Pa. Super. 2006); Nomland v. 

Nomland, 813 A.2d 850 (Pa. Super. 2002). As there is competent evidence 

in the record in this matter to support the trial court’s decision, we find no 

merit to Mother’s second argument.

In her third issue, Mother asserts that both P.F. and B.F. expressed 

their preference to reside primarily with Mother, and that the trial court 

improperly disregarded their testimony. Our case law has long held that a 

child’s preference is “an important factor that must be carefully considered 

in determining the child’s best interest.” Ketterer v. Seifert, 902 A.2d 533, 

540 (Pa. Super. 2006). “The weight to be accorded the child’s preference 

varies with the age, maturity and intelligence of the child and the reasons 

given for the preference.” Grieb v. Driban, 458 A.2d 1006, 1007 (Pa. 

Super. 1983). Moreover, we have stated that, “[a]s children grow older, 

more weight must be given to the preference of the child.” Id.; see also 

Johns v. Cioci, 865 A.2d 931, 944 (Pa. Super. 2004) (holding that the trial 

court abused its discretion by giving only limited weight to the preference of 

an intelligent and articulate 12-year-old child). 

Here, the trial court explained the rationale for its decision. In 

addition, in its opinion pursuant to Pa.R.A.P. 1925(a), the trial court 

considered the requisite section 5328(a) factors. See Trial Court Opinion, 
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1/19/16, at 6-11. Based on these findings, in addition to the Children’s 

ages, and especially P.F.’s reasons for wanting to spend more time with 

Mother, including helping to protect her from her own actions, the trial 

court’s decision to place less weight on the Children’s preference is 

reasonable.

In her fourth issue, Mother argues that the trial court awarded Father 

sole legal custody of the Children without specifically articulating any 

reasons for so doing in its November 20, 2015 findings of fact. In support of 

her argument, Mother relies on Yates v. Yates, 963 A.2d 535, 542 (Pa. 

Super. 2008), for the factors to be considered in deciding whether to award 

shared legal custody. Those factors are as follows: 1) whether both parents 

are fit, capable of making reasonable child-rearing decisions, and willing and 

able to provide love and care for their children; 2) whether both parents 

evidence a continuing desire for active involvement in the child’s life; 3) 

whether the child recognizes both parents as a source of security and love; 

and 4) whether a minimal degree of cooperation between the parents is 

possible. Id. Mother asserts that the trial court did not specifically address 

or articulate its reasons for awarding sole legal custody to Father. She urges 

that any evidence presented that she is in any way unfit or unable to make 

child-rearing decisions was discredited by the testimony of her therapist, 

Bobbi Cullers, Dr. DeMarco, and the subsequent expungement of the 
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indicated finding of the Erie County Office of Children, Youth and Families 

(“OCY”) that she had committed emotional abuse with regard to C.F.

The trial court clearly found lacking the first, third, and fourth prongs 

of the Yates test, i.e., whether both parents are fit and capable of childrearing; whether the Children find that both parents are a source of love and 

security, and whether a minimal degree of cooperation between the parents 

is possible. The trial court stated the following at the hearing on November 

20, 2015:

THE COURT: . . . This is horribly, horribly sad. I mean, [P.F.’s] 

14 years old, and he’s very bright, very, very sensitive, and he is 

going to need help from Dr. Baumgratz for a long time, in my 

view. And I’m not going to compound that and risk making it 

worse. I’m going to do the best I can to bring some semblance 

of continuity and stability, even if he doesn’t like it.

So my original order of August 26[, 2015] will stand. Custody is 

to remain with the father. Mother gets visitation every other 

weekend. 

N.T. Hearing, 11/20/16, at 22.

Moreover, the trial court did look at the custody factors set forth in 

section 5328 of the Act and considered whether those factors weighed in 

favor of giving Father sole legal custody or giving Mother and Father shared 

legal custody. Upon consideration of the factors, the trial court determined 

that giving Father sole legal custody was in the Children’s best interest. 

With regard to factor 5328(a)(1), the trial court found that although 

both parents want to see the Children, Mother does try to influence them in 

an unhealthy way, so that factor 5328(a)(1) favors Father. N.T. Hearing, 
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11/20/15, at 24-25. With regard to factor 5328(a)(2), the trial court found 

that, although Mother’s emotional abuse of P.F. had been “indicated,” and 

that the finding was under appeal, it was evidence of abuse by Mother of 

P.F. Id. at 25-26. The trial court stated that it would not give the finding of 

abuse any weight until there was a decision on the appeal. Id. at 25-26. 

Regarding factor 5328(a)(4), the trial court found that Father provides the 

Children with more stability and continuity in their education, family life, and 

community life. Id. at 26. The trial court found that Father is more stable 

physically and mentally, and provides the Children with a better 

environment. Id. The trial court found that Mother still had serious issues 

that she needs to address. Id. 

In regard to factor 5328(a)(8), (9), (10),and (15), the trial court found 

that Mother had attempted to turn the Children against Father; that Father 

was more stable emotionally and that Mother had mental health issues to 

address; that Father was more likely to attend to the Children’s daily 

physical, emotional, developmental, educational, and special needs; and, 

that Mother has mental conditions that make it difficult for her to 

successfully parent the Children. Id. at 28-31. Additionally, regarding 

factor 5328(a)(13), the level of conflict between the parties and willingness 

and ability to cooperate, the trial court found as follows:

THE COURT: If I were to rate the level of conflict between 

them on a scale of one to ten, I would rate it as a fifteen. It’s 

just – just not good. And unfortunately, the [C]hildren are 

paying the price for it. They cannot cooperate. They have not 
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been able to cooperate. And I’m not placing blame, it’s just the 

way it’s been. So given that, I have to step in and do what I 

think is best.

N.T. Hearing, 11/20/15, at 30. 

In the conclusion of its Rule 1925(a) opinion, the trial court responded 

to Mother’s contention that it improperly awarded Father sole legal custody 

by explaining why it determined that she could not successfully co-parent 

with Father. The court emphasized that Mother could not cooperate or 

comply with court orders regarding custody. The trial court stated, as 

follows: 

Mother has proved time and time again she is unable to 

cooperate or comply with court orders, to the detriment of her 

children. The best interests of the boys are best served by 

maintaining stability and continuity in [] Father’s home with 

regular weekend visits with [] Mother until her mental health 

stabilizes and she realizes her children should have a relationship 

with their father, despite the negative feelings she may have 

towards him.

It is therefore respectfully requested the Superior Court affirm 

the trial court’s Order. 

Trial Court Opinion, 1/19/16, at 11. 

We find no merit to Mother’s argument concerning the trial court’s 

failure to consider shared legal custody, as the trial court, in fact, thoroughly 

considered shared legal custody. We remind the parties that they must 

“isolate their personal conflicts from their roles as parents and that the 

children be spared whatever resentments and rancor the parents may 

harbor.” In re Wesley J.K., 445 A.2d at 1249. 
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In her fifth issue, Mother contends that the trial court ignored Father’s 

conduct and instead focused solely on her behavior, concluding that she 

attempted to turn the Children against Father. Citing 23 Pa.C.S.A. 

§ 5328(a)(8), Mother asserts that the trial court unduly focused on her 

conduct in posting matters to social media, and either ignored or excused 

the conduct of Father. Mother alleges that the trial court failed to rule on 

her contempt petition against Father that had raised several allegations 

regarding Father, and his attempts to obstruct Mother’s involvement with 

the Children. 

We do not agree with Mother’s argument. The trial court appropriately 

found from the competent evidence in the record that Mother engaged in 

behavior that was impacting the Children in a negative way, especially P.F., 

and that Father was attempting to protect them from her behavior by 

providing them stability in an environment in which they have flourished. 

Further, the trial court found that there was no evidence that Father 

attempted to involve P.F. or B.F. in the dispute between the parents in any 

way, nor was evidence presented that Father suffered from any mental or 

physical defect. The competent evidence in the record supported the trial 

court’s conclusion that Mother was attempting to turn the Children away 

from Father, and that her behavior was causing P.F. stress and anxiety. 

In her sixth issue, Mother claims that it is clear from a consideration of 

the evidence presented, as a whole, from the commencement of the 
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hearings through the final hearing on November 20, 2015, that the trial 

court’s custody order is contrary to the Children’s best interests. 

Specifically, Mother argues as follows:

Mother’s custody rights were suspended on allegations that she 

emotionally abused the parties’ oldest child. Once these 

allegations were negated and the indicated finding was 

expunged, efforts turned to the middle child[, P.F.]. Mother was 

indicated for emotional abuse that named [P.F.] as the subject 

child. The record shows instance after instance of Father 

[s]tonewalling Mother’s efforts to be a part of her children’s 

lives. Father’s conduct was ignored. Mother became the focus 

for the trial court and only her conduct was considered by the 

trial court. Despite Mother providing evidence that she was not 

emotionally abusing the [C]hildren, that she did not suffer from 

a significant mental health diagnosis and that both she and the 

[C]hildren wanted to have increased contact, the trial court 

awarded Father full legal and physical custody of the [C]hildren, 

which was an abuse of discretion.

Mother’s Brief at 15 (internal footnote omitted). Mother, thus, contends that 

the trial court’s decision was against the weight of the evidence.

As stated above, with regard to issues of credibility and weight of the 

evidence, we must defer to the trial judge, who viewed and assessed the 

witnesses first-hand. The trial court explained the rationale for its decision, 

and considered the requisite section 5328(a) factors in its Rule 1925(a) 

opinion. The weight that it placed on the testimony is supported by the 

competent evidence in the record, and is not unreasonable.

Mother appears to be requesting that this Court make new factual 

findings and/or re-weigh the evidence. The trial court’s conclusions, in light 

of the trial court’s sustainable findings on each of the custody best interest 
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factors, are not unreasonable, nor did the trial court commit an error of law. 

C.R.F., 45 A.3d at 443. 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.” Id. After a careful 

review of the record in this matter, we find no merit to Mother’s argument. 

We, therefore, affirm the trial court’s custody order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/20/2016