J-A07037-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.H.

v.

J.H.

APPEAL OF: R.H.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1356 MDA 2017

Appeal from the Order Entered August 1, 2017

in the Court of Common Pleas of Luzerne County Civil Division at No(s): 

11038-2014

BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 27, 2018

Appellant, R.H. (“Father”), files this appeal from the order dated July

28, 2017, and entered August 1, 2017,1in the Luzerne County Court of 

Common Pleas, awarding him shared legal and shared physical custody of his

minor sons M.H., born in July 2004, and J.H., born in April 2006 (collectively, 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 The subject decree was dated July 28, 2017. However, the clerk did not 

provide notice pursuant to Pa.R.C.P. 236(b) until August 1, 2017. Our 

appellate rules designate the date of entry of an order as “the day on which 

the clerk makes the notation in the docket that notice of entry of the order 

has been given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further, 

our Supreme Court has held that “an order is not appealable until it is entered 

on the docket with the required notation that appropriate notice has been 

given.” Frazier v. City of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 

115 (1999).
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“the Children”) with J.H. (“Mother”). After review, we affirm the learned trial 

court’s order.

The court conducted a custody trial on July 14, 2017, at which time both 

Father and Mother, represented by counsel, testified on their own behalf. 

Mother and Father were married in 1998. N.T. Custody Trial, 7/14/17, at 74. 

While Father filed a Complaint for Divorce in 2014, which included a count for 

custody, the parties and the Children continued to reside together until the 

spring of 2016.2 N.T. at 8, 57. Father additionally filed a Complaint in Custody 

in January 2016. Pursuant to an interim order by agreement dated March 2, 

2016, and entered March 3, 2016, after a conciliation conference, the parties 

were awarded shared legal custody. Order, 3/3/16; N.T. at 4. Thereafter, by 

order entered March 17, 2016 by agreement, Mother was granted exclusive 

possession of the marital home, located in Benton, Pennsylvania, where she 

remained with the Children. Father moved to Shickshinny, Pennsylvania, 

approximately twenty-five minutes away. Order, 3/17/16; N.T. at 6, 8. 

The parties began following a physical custody schedule, which was not 

the result of a court order, whereby Father exercised physical custody of the 

Children every other weekend from Friday after school until Sunday at 7:00 

p.m., every Tuesday overnight, and every other Thursday after school until 

____________________________________________

2 Mother and Father were still officially married at the time of the hearing. 

N.T. at 8.
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7:00 p.m.3 N.T. at 13; Joint Exhibit 1 at 3. During the summer, Father had 

additional physical custody on every other Thursday night until Friday at 3:00 

or 4:00 p.m. and Sunday night until Monday until 3:00 or 4:00 p.m. Joint 

Exhibit 1 at 3; Joint Exhibit 2. Subsequently, pursuant to an order dated 

January 17, 2017, and entered on January 18, 2017, the parties were to 

attempt to agree to increased custodial time for Father pending trial. Order, 

1/18/17. In January 2017, Father began keeping the Children overnight on 

Thursday nights and Sunday nights, without consultation with Mother or the 

Children. N.T. at 30-32, 62, 65. 

 Father presented the testimony of two acquaintances, D.K. and R.D.

at the custody trial. Further, the parties offered and stipulated to the entry of 

four joint exhibits, including the reports of the guardian ad litem, Gene M. 

Molino, Esquire, and counselor, Matthew DiBiase, M.S., N.C.C., L.C., 

Cornerstone Counseling and Consulting Specialist, LLC.

4

 N.T. at 3-4. Mr. 

Molino’s report is dated November 21, 2016. Mr. DiBiase’s report is undated, 

but was recent in time to the hearing. N.T. at 3-4. The parties agreed not to 

have the [C]hildren interviewed by the court in camera. Id. at 89-90.

____________________________________________

3 Despite some prior disparity as to Father’s Thursday custody and its 

frequency, Father testified at trial that he exercised custody every other 

Thursday. N.T. at 13.

4 Notably, Mr. Molino was appointed by the trial court pursuant to order dated 

May 12, 2016, and entered May 13, 2016. Order, 5/13/16. Further, the court 

ordered counseling pursuant to order dated January 17, 2017, and entered 

January 18, 2017. Order, 1/18/17. 
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Following trial, by order dated July 28, 2017, and entered August 1, 

2017, the trial court awarded the parties shared legal and shared physical 

custody of the Children. Specifically, the court awarded physical custody on 

an alternating weekly basis during the summer. During the school year, the 

court granted Father physical custody on alternate weekends from Friday after 

school until Monday return to school, alternate Tuesdays (preceding Father’s

weekend) after school until 8:00 p.m., and alternate Thursdays (after Father’s 

weekend) after school until Friday return to school. The court additionally 

issued a holiday and vacation schedule. 

On August 28, 2017, Father filed a notice of appeal along with a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(a)(2)(i) and (b). In an order dated September 1, 2017, and entered 

September 5, 2017, the court directed Father to file a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Father re-filed 

his concise statement on September 14, 2017. Thereafter, the trial court 

prepared its Supplemental Memorandum Issued Pursuant to Pa.R.A.P. 

1925(a), dated October 12, 2017 and entered October 16, 2017, analyzing 

each of the custody factors pursuant to 23 Pa.C.S.A. § 5328(a). 

On appeal, Father raises the following issues for our review:

1. Did the trial court abuse its discretion or commit an error of law 

in its July 28, 2017 Order in that it awards, grants and orders both

parties to have shared legal and shared physical custody of their

minor children, M.H. and J.H., but denies the [ ] [Father] actual 

shared physical custody of the minor children in terms of time 

spent with each parent?
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2. Did the trial court abuse its discretion or commit an error of 

law, based upon the testimony of record below, in limiting the [ ] 

Father's physical custody of his minor children without any 

evidence or testimony that the [Father’s] time with his minor

children should be restricted or unequal to that of the [ ] Mother?

3. Did the trial court abuse its discretion or commit an error of 

law, based upon the testimony of record below, in failing to follow 

the mandates of 23 [Pa.C.S.A. § 5328(a)(10)] that the [c]ourt 

must consider which party is more likely to attend to the daily 

physical, emotional, developmental and special needs of the 

children? Did the lower [c]ourt erred [sic] in not considering which 

parent has the most flexible schedule and would be best able to 

provide transportation and support to the children in attending 

school and therefore erred [sic] in failing to find in favor of the [ ] 

Father [ ]?

4. Did the trial court abuse its discretion or commit an error of 

law, based upon the testimony of record below, in failing to find 

that as [ ] Father resides in the same school district, owns his own 

business, sets his own schedule, and that he would be able to

transport the [C]hildren to and from school each day, without

requiring them to be transported by school bus?

5. Did the trial court abuse its discretion or commit an error of 

law, in failing to give to give appropriate weight to the testimony 

of the Guardian Ad Litem in this case, Attorney Gene Molino, who 

stated that the [C]hildren are not seeing [ ] Father enough, and 

that the custody schedule should be modified to provide [ ] Father 

with additional periods of custody?

6. Were the trial court’s conclusions unreasonable as shown by 

the evidence of record?

7. Did the trial court abuse its discretion or commit an error of law 

by failing to enter a custody order that is in the best interest of 

the children?

Father’s Brief at 4-5.

5

____________________________________________

5 We observe that Father states his issues somewhat differently than in his 

Rule 1925(b) statement. We, nevertheless, find that Father has preserved his

challenges to the trial court’s custody order. 
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In custody cases under the Child Custody Act, (“the Act”), 23 Pa.C.S.A. 

§§ 5321-5340, our standard of review is as follows:

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

and our standard is abuse of discretion. We must accept findings 

of the trial court that are supported by competent evidence of 

record, as our role does not include making independent factual 

determinations. In addition, with regard to issues of credibility 

and weight of the evidence, we must defer to the presiding trial 

judge who viewed and assessed the witnesses first-hand. 

However, we are not bound by the trial court’s deductions or 

inferences from its factual findings. Ultimately, the test is whether 

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

evidence of record. We may reject the conclusions of the trial 

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

light of the sustainable findings of the trial court.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa.Super. 2012) (citation omitted); see 

also E.R. v. J.N.B., 129 A.3d 521, 527 (Pa.Super. 2015) appeal denied, 635 

Pa. 754, 135 A.3d 586 (2016).

This Court consistently has held:

[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 addition,

[a]lthough 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 
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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.

M.A.T. v. G.S.T., 989 A.2d 11, 18-19 (Pa.Super. 2010) (en banc) (citations 

omitted).

The paramount concern in any custody case decided under the Act is 

the best interests of the child. See 23 Pa.C.S.A. §§ 5328, 5338. 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 is 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 5328(a) sets forth the best interest factors that the trial court 

must consider. See E.D. v. M.P., 33 A.3d 73, 79-80 n.2 (Pa.Super. 2011). 

Specifically, Section 5328(a) of the Act provides as follows:

§ 5328. Factors to consider when awarding custody
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(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).

Further, with regard to the custody, we have stated as follows:

. . . “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). . . . The record must be clear on appeal that the trial 

court considered all the factors. Id.

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, 

“[S]ection 5323(d) requires the trial court to set forth its 

mandatory assessment of the sixteen [Section 5328(a) 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, [620 Pa. 727], 70 A.3d 808 (2013). . . .
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In expressing the reasons for its decision, “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). A court’s explanation of reasons 

for its decision, which adequately addresses the relevant factors, 

complies with Section 5323(d). Id.

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa.Super. 2014) (emphasis in original).

We address Father’s issues raised on appeal together as they are related

and Father discusses them collectively in his appellate brief.

6

 Father 

challenges the trial court’s order as it failed to award equally shared physical 

custody. Father’s Brief at 17-18, 22. He asserts the trial court erred and or 

abused its discretion as its findings are unreasonable and not in the Children’s 

best interests. Id. at 16-17, 19, 21-22. Father points to the guardian ad 

litem’s opinion that the Children should spend more time with Father and that 

Father has a flexible schedule and ability to drive the Children to school and 

avoid an unnecessary, burdensome, and lengthy bus ride.

7

 Id. at 17-18, 21-

____________________________________________

6 Father enumerated seven issues on appeal, but the argument portion of his

brief contains no subheadings or separation. We remind counsel such is in 

violation of Pa.R.A.P. 2119(a) (“The argument shall be divided into as many 

parts as there are questions to be argued; and shall have at the head of each 

part—in distinctive type or in type distinctively displayed—the particular point 

treated therein, followed by such discussion and citation of authorities as are 

deemed pertinent.”). Rather, Father titles the section “Argument for the 

Appellant Father” and under that heading presents a combined discussion of 

his issues raised. Father’s Brief at 11-22. As we find Father’s issues are

interrelated, we do not find this defect to be substantial. 

7 Notably, Father fails to recognize that Mr. Molino, while recommending 

additional custodial time for Father, opines that “[t]he amount of said 
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22. In this regard, Father maintains that Section 5328(a)(10), pertaining to

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

developmental and special needs of the child, should encompass a 

consideration of flexibility and the ability to provide transportation to school. 

Id. at 21. Specifically, Father asserts:

. . . In the instant case, the lower [c]ourt . . . ignored factors 

that would support [] Father’s case for equal primary physical 

custody, and further ignored [] Father’s ability to transport the 

[C]hildren to and from school, without the need of burdensome 

and time-consuming school busing, which is not inconsequential. 

In so doing, it ignored the best interests of the children.

. . .

For the reasons given below, the [ ] Father argues that [ ] 

Mother did not meet her burden of proof, but that he has met his 

burden of proof. [] Father further argues that the [c]ourt below 

did not sufficiently consider and analyze all of the testimony, and 

that the lower court drew conclusions that are either not based 

on, or are controverted by the testimony. It is the position of []

Father that there was insufficient information in the record to 

support the lower [c]ourt’s decision to provide for unequal 

physical custody of the [C]hildren and require the [C]hildren to 

undergo unnecessary and lengthy school busing for nearly 10 

months a year. The [t]rial [c]ourt’s conclusions were 

unreasonable as shown by the evidence of record. The [t]rial 

[c]ourt abused its discretion and/or committed an error of law by 

failing to enter a custody order that is in the best interest of the 

children. . . .

____________________________________________

expansion and whether or not it should be a truly ‘shared’ physical custody 

schedule will be for the [c]ourt to determine.” Joint Exhibit 1 at 4. Further, 

in 2018, both of the Children will attend school in the same building in which 

Mother works and she will be available to transport them to school, if they 

desire. N.T. at 72. Also, despite Father’s bald assertions, no evidence was 

presented to suggest any adverse consequences pertaining to school bus 

transportation. 
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. . .

Pennsylvania law specifically alludes to a child’s physical 

well-being as one of the factors to be considered in making a 

custody award based on the child’s best interests. 23 [Pa.C.S.A. 

§ 5328(a)(10)] mandates the court to consider which party is 

more likely to attend to the daily physical, emotional, 

developmental and special needs of the children. This should 

include which parent has the most flexible schedule and would be 

best able to provide transportation and support to the [C]hildren 

in attending school.

. . .

From the [t]rial [c]ourt’s Order, ignoring almost entirely the 

Guardian Ad Litem’s report and the wishes of the children, and 

further ignoring the fact that the [C]hildren will be required to 

undergo unnecessary and lengthy school busing for nearly 10 

months a year, it is clear that the record does not provide a basis 

for the assumptions made by the lower [c]ourt. It is clear that 

the [t]rial [c]ourt’s conclusions are unreasonable as shown by the 

evidence of record. It is clear that the [t]rial [c]ourt abused its 

discretion and committed errors of law by failing to enter a 

custody order that is in the best interest of the children. It was 

error for the lower [c]ourt to deny the actual and equal shared 

physical custody of the [C]hildren, and constituted an abuse of 

discretion.

Id. at 16-17, 19-22.

In its opinion in support of its order, the trial court carefully analyzed 

and addressed each factor pursuant to Section 5328(a) and the Children’s 

best interests as follows:

The [c]ourt enters its order in consideration of the applicable 

and relevant factors contained in 23 Pa.C.S.[A. §] 5328[,] which 

are listed as follows:

1. Which party is more likely to encourage and permit 

frequent and continuing contact between the child and 

another party[.]
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As previously mentioned, the parties had been functioning 

without a custody order. As indicated, [] Father took it upon 

himself to change the mutually accepted agreement in January, 

2017 whereby he kept the [C]hildren on alternating Thursday and 

Sunday evenings where previously he had been returning the 

[C]hildren to the mother without an overnight visit. [] Father 

admitted that he did not discuss this change with the [C]hildren. 

[] Mother confirmed that [] Father started taking the overnights 

without letting her know. Apparently, [] Mother did not object but 

it is obvious from [] Father’s conduct that he is solely concerned 

with the amount of time he spends with the [C]hildren and doesn’t 

feel that it is necessary to discuss this issue with [] Mother.

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[.]

The [c]ourt does not find that the [C]hildren have suffered 

from any past or present physical abuse.[8]

3. The parental duties performed by each party on 

behalf of the children.

Both parties testified that during the initial 5 years of 

marriage, [] Father worked and [] Mother stayed home with the 

[C]hildren. She was responsible for taking the [C]hildren to 

medical appointments and [] Father indicated that he may have 

gone with the [C]hildren on some occasions. [] Father indicated 

that they presently share the responsibility of taking the 

[C]hildren to doctors and dentists appointments as well as 

appointments with the school. After becoming self-employed, []

Father was able to take the [C]hildren to the doctors and the 

dentist.

[] Mother testified that she is responsible for signing up the

[C]hildren for their activities, taking the [C]hildren to church and 

participating with them in various activities. She indicated that 

____________________________________________

8 The trial court did not separately address Section 5328(a)(2.1). However, 

there was no evidence presented during the custody hearing which related 

to this factor.
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she has always been the primary care giver. The [c]ourt 

concludes that each parent is fully capable of performing the 

parental duties required of a parent taking care of children of their 

age.

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

education, family life and community life[.]

[] Mother testified that she thinks that the [C]hildren need 

structure in their lives. She further indicated that she knows that 

[F]ather checks their homework but there have been many 

occasions where she looks at one of the children’s homework and 

it is done, but it is done wrong. This occurs on a regular basis.

Her concern is with the youngest child and she feels that he needs 

to be monitored when he comes home from school with his 

homework to make sure that it’s done and that it’s there. She has 

noticed a decline in the youngest child’s grades since [] Father 

changed the custody schedule without telling her. When in []

Father’s custody, the oldest child missed two Sundays when he 

was scheduled to serve at church. As a result, she has been taking 

them to church. She also indicated that during school she feels 

that the [C]hildren need to wake up in the morning in the same 

place. When the Father was asked whether he had taken the 

children to two R-[r]ated movies he indicated that he did not 

know. He indicated that he did not know the name of a movie that

he had taken them to and did not seem concerned about the 

ratings of movies that he had gone to with the [C]hildren. When 

asked about taking the [C]hildren to a movie that contained binge 

drinking, drug use, crude sexual situations, strong language, 

violence and sexual related scenes, he was asked if that sounded 

like an appropriate movie to take an 11 and 12 year old child to. 

He answered by saying “I don't know. You tell me what's 

appropriate?[”] When asked again about taking the [C]hildren to 

such a movie, he did not respond. He further went on to say that 

he doesn't really pay attention to the movies and takes them to a 

movie that they request. He further indicated that he thought 

children can be taken to an R-rated movie if they are with an adult.

He further presumed that it was OK when the theater sold him 

tickets to a movie and they knew that there were 2 kids and an 

adult. He concluded by saying that an R-rated movie, if they're 

with and adult, according to that rating, “they can go see the 

movie.” He did not seem concerned about the contents of an Rrated movie.
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5. The availability of extended family[.]

[] Mother testified that she lives in Benton and has three 

siblings in the area all of which have children. They live relatively 

close, within 15 to 20 minutes as well as the [C]hildren’s maternal 

grandmother. The [C]hildren get to see the extended family 

members on a weekly basis and even more so in the summer. 

The family does many things together including cooking, reading, 

watching movies, gardening, playing baseball and vacationing 

together. 

[] Father indicated that he lives in Shickshinny. He stated 

that his mother lives in Wapwallopen which is 8 miles away and 

that there are unidentified cousins living a mile from his mother. 

He did not indicate what activities the [C]hildren share with his 

relatives. 

Based upon the testimony of the parties, it appears that the 

[C]hildren have a close relationship with [] Mother’s relatives 

living in the area of her home. The relationship of the minor 

children with [] Father’s relatives is unknown.

6. The child’s sibling relationships[.]

Both parties indicated that the two children are very close to one

another.

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

on the

child’s maturity and judgment[.]

The parties indicated that they did not want the [C]hildren 

to be interviewed by the [c]ourt. However, there was evidence of 

the [C]hildren’s preference on certain issues. The parties agreed 

that there would be 4 joint exhibits, one of which was the report 

of the guardian ad litem dated November 21, 2016. During his 

testimony, the father read from that report which indicated that 

both children stated that they want to maintain the current 

schedule but the younger child indicated that he would like to 

spend more time with his dad during the summer months. The 

[c]ourt has taken the [C]hildren’s comments into consideration.

8. The attempts of a parent to turn the child against 

the other parent, except in cases of domestic violence
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where reasonable safety measures are necessary to 

protect the child from harm;

It is the [c]ourt’s opinion that neither parent has attempted 

to turn either child against the other parent.

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[.]

The testimony indicates that both parents love the 

[C]hildren and they satisfy the emotional needs of each child.

10. Which party is more likely to attend to the daily 

physical,

emotional, developmental, educational and special needs 

of the child[.]

[] Father testified that he has his own business allowing him 

to create his own schedule which allows him to transport the 

[C]hildren to and from their schools. [] Mother testified that she 

works for the school district in which the [C]hildren are enrolled 

and has a flexible schedule. She can take them to school or lets 

them ride on the bus, which ever method they prefer. Beginning 

in 2018, both children will be enrolled in the same school in which 

she works.

She was asked when the boys have a problem and they are 

crying about something and they come to you, do you both react 

in the same way and she said no. She indicated that she listens 

to what they have to say and she has seen the Father say things 

like “Don’t be a baby” or “Like there’s no crying here[.”] The 

guardian ad litem indicated that [] Mother had concerns about []

Father’s patience and his ability to assist the [C]hildren with their 

school work claiming that the [C]hildren often state “Daddy 

doesn’t understand math[.”] She also discussed the Father’s lack 

of cooperation in taking the [C]hildren to church on Sunday. The 

guardian ad litem also stated that he believed that [] Mother had 

legitimate concerns and was not feigning concern about the 

[C]hildren spending more time with their father. In fact, he 

indicated that both parents should ensure that the [C]hildren 

attend church on a regular basis.

11. The proximity of the residences of the parties[.]
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While the marital home is located in Benton, it is [F]ather 

who has chosen to live in Shickshinny. The municipalities are 

approximately 14 miles apart.

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

ability to make appropriate child-care arrangements[.]

Both parties are available to care for the [C]hildren and 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[.]

While generally speaking it appears that both parents are 

able to cooperate to a certain extent, [] Father has acted in a 

unilateral manner. The prime example is his change of the

previously agreed upon custody schedule to provide him with 

additional overnight visits without consulting the [C]hildren or 

[M]other.

14. The history of drug or alcohol abuse of a party or 

member of a party’s household[.]

There is no evidence of drug or alcohol abuse by either 

party.

15. The mental and physical condition of a party or 

member of a party’s household.

There is no evidence of a mental or physical condition of 

either [p]arent.

16. Any other relevant factor.

The [c]ourt has taken into consideration the report of Gene 

Molino, Esq., Guardian Ad Litem, which is dated November 21, 

2016 as well as the undated report of Matthew DeBiase, counselor 

who met with the parents and the [C]hildren on several occasions. 

The reports are similar and report no concerns by the guardian ad 

litem or the counselor. Mr. DeBiase indicated that he had no 
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concerns for either child’s safety or emotional well-being and they 

had indicated they felt that the summer schedule stay exactly as 

is. However, he did recommend that the [C]hildren have an extra 

day with mom on Thursday or Sunday to help with their homework 

and be returned home on the evening of those days. The report 

of the guardian ad litem recommended that the custody schedule 

be modified by giving [] Father additional periods of custody. He 

further indicated that “the amount of said expansion and whether 

or not it should be a truly shared physical custody schedule will 

be for the [c]ourt to determine[.”] While a trial court is not 

required to accept the conclusions of an expert witness in a child 

custody case, this court found the counselor and guardian ad 

litem’s input instructive considering the fact that both parties 

stipulated to the admission of the reports of the counselor and 

guardian a[d] litem. M.A.T. v. G.S.T, 989 A.2d 11 (Pa.Super. 

2010)[.]

The [c]ourt has considered all of the relevant factors in the 

case at hand and taking into consideration the paramount concern 

in a child custody case, i.e., the best interests of the children, the 

court has determined to increase the amount of time that the 

father will have with the [C]hildren and has awarded shared legal 

custody to both parents.

T.C.O., 10/16/17, at 7-17 (citations to record omitted).

In further support of its findings, the court reasoned:

Further, it is the [c]ourt’s opinion that issues two, three, 

four, five, and six are in effect the same issue, that is, that the 

[c]ourt’s failure to direct that the parties shall have an equal 

amount of time with both children is an error in law and abuse of 

discretion. It is the [c]ourt’s opinion that [Father] believes that 

shared custody means equal custody. Clearly, that is not true. . 

. .

. . .

With respect to the eighth issue raised on appeal, [] Father

claims that this [c]ourt has not considered factor No. 10 which 

deals with which party is more likely to attend to the daily 

physical, emotional, developmental and special needs of the 

children. Primarily, which parent has the most flexible schedule 

and would be able to provide transportation and support to the 
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children in attending school. To the contrary, the [c]ourt has 

considered all factors, including number ten as addressed herein.

In his ninth issue, [] Father raised a similar issue directed 

at the fact that [] Father owns his own business, sets his own 

schedule and would be able to transport the [C]hildren to and from 

school each day, without requiring them to be transported by 

school bus. To the contrary, the [c]ourt did consider this issue 

and also concluded that [] Mother’s schedule would be very 

flexible especially considering the fact that she would be employed 

in the same school district and school in which both children were 

attending. Further, she indicated that it was her preference to let 

the decision as to whether or not the [C]hildren should be 

transported by the parents or by taking the school bus be left up 

to the [C]hildren.

In the tenth issue raised on appeal, [] Father claimed that 

the [c]ourt erred in law and abused its discretion in failing to give 

appropriate weight to the testimony of the guardian ad litem in 

this case who indicated the [C]hildren are not seeing [] Father 

enough and that the custody schedule should be modified to 

provide [] Father with additional periods of custody.

As previously mentioned, the guardian ad litem did indicate 

that he felt that [] Father should be given additional periods of 

custody also indicating that the additional period of time and 

whether or not it should be a truly shared physical custody 

schedule would be up to the [c]ourt to determine. The [c]ourt has 

determined that the schedule should be greater but not equal. In 

reaching its conclusion, the [c]ourt has given consideration inter

alia, to the reports of the guardian, as well as the counselor who 

referred to the desires of the [C]hildren. 

It should be noted that the [c]ourt did not hear directly from 

the guardian ad litem, the counselor from Cornerstone Counseling 

and Consulting Specialists, LLC and the two children. The two 

experts did not testify but their reports were jointly admitted into 

evidence. Further, both parties agreed that the [C]hildren would 

not testify.

The [c]ourt enters its order in consideration of the applicable 

and relevant factors contained in 23 Pa.C.S.[A. §] 5328 which are 

listed.
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Id. at 18-21 (citations to record omitted).

This Court has stated that the trial court is required to consider all of 

the Section 5328(a) factors in entering a custody order. J.R.M. v. J.E.A., 33 

A.3d 647, 652 (Pa.Super. 2011). Although the court is required to give 

“weighted consideration to those factors which affect the safety of the child” 

pursuant to 23 Pa.C.S.A. § 5328(a), we have acknowledged that the amount 

of weight a court gives any one factor is almost entirely discretionary. 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). Critically, as we stated in M.J.M.:

It is within the trial court’s purview as the finder of fact to 

determine which factors are most salient and critical in 

each particular case. See A.D. v. M.A.B., 989 A.2d 32, 35-36 

(Pa.Super. 2010) (“In reviewing a custody order ... 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.”). Our decision here does 

not change that.

Id. (emphasis added). Further, we have also noted that while the primary 

caretaker doctrine is no longer viable, a court may still consider a parent’s role 

as primary caretaker in its consideration of the custody factors. 

We hasten to add that this conclusion does not mean that a trial 

court cannot consider a parent’s role as the primary caretaker 

when engaging in the statutorily-guided inquiry. As discussed 

above, a trial court will necessarily consider a parent’s status as a 

primary caretaker implicitly as it considers the [S]ection 5328(a) 

factors, and to the extent the trial court finds it necessary to 

explicitly consider one parent’s role as the primary caretaker, it is 

free to do so under subsection (a)(16).

Id.
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Father’s claims on appeal essentially dispute the trial court’s findings of 

fact and determinations regarding credibility and weight of the evidence, 

particularly as they pertain to the issue of which party is in a better position 

to transport the children to school. His appellate brief is comprised primarily 

of general allegations of error in which Father questions the trial court’s 

conclusions and assessments and seeks this court to re-find facts, re-weigh

evidence, and/or re-assess credibility to his view of the evidence; this we 

cannot do. 

Under the aforementioned standard of review applicable in custody 

matters, the trial court’s findings of fact and determinations regarding 

credibility and weight of the evidence are not disturbed absent an abuse of 

discretion. See C.R.F., 45 A.3d at 443; see also E.R., 129 A.3d at 527. 

As we stated in King v. King, 889 A.2d 630, 632 (Pa.Super. 2005):

It is not this Court’s function to determine whether the trial court 

reached the “right” decision; rather, we must consider whether, 

“based on the evidence presented, given [sic] due deference to 

the trial court’s weight and credibility determinations,” the trial 

court erred or abused its discretion in awarding custody to the 

prevailing party. 

(quoting Hanson v. Hanson, 878 A.2d 127, 129 (Pa.Super. 2005)). After a 

thorough review of the record, we find no abuse of discretion. Further, to the 

extent Father challenges the weight attributed to any factor by the trial court, 

we likewise find no abuse of discretion, as the amount of weight that a trial 

court gives to any one factor is almost entirely within its discretion. See 

M.J.M., 63 A.3d at 339.
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In the case sub judice, the trial court exhaustively and reasonably 

analyzed and addressed each factor under Section 5328(a). See T.C.O. at 7-

17. After careful review of the record, we determine that the trial court’s 

findings and determinations regarding the custody factors set forth in Section 

5328(a) are supported by competent evidence in the record, and we will not 

disturb them. See C.R.F., 45 A.3d at 443; see also E.R., 129 A.3d at 527. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/27/18