J-A08008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.S.K., MOTHER

v.

R.A.J., FATHER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3844 EDA 2017

Appeal from the Order Entered November 3, 2017

In the Court of Common Pleas of Lehigh County 

Civil Division at No(s): No. 2017-FC-0464

BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, J. FILED MAY 15, 2018

Appellant, R.A.J. (“Father”), files this appeal from the order entered 

November 3, 2017,1in the Lehigh County Court of Common Pleas, awarding

T.S.K. (“Mother”) primary physical custody and Father partial physical custody 

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 While the docket reflects that the order was dated and filed November 2, 

2017, review of the order indicates a date of October 2, 2017. The date on 

the order is typewritten in part and handwritten in part. 

 The lower court prothonotary did not provide notice pursuant to Pa.R.C.P. 

236(b) until November 3, 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, 735 A.2d 113, 115 (Pa. 1999). We have corrected the appeals 

statement of the caption accordingly.
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of their minor son, W.J., born in January 2010 (“Child”). The court additionally 

awarded the parties shared legal custody. We affirm.

Child was born to Mother and Father, who were not married, in January 

2010. Although Mother and Father, who had been engaged, separated in

September 2016, Father continued to reside with Mother and Child until March 

2017. On March 30, 2017, Mother filed a petition under the Protection from 

Abuse Act (“PFAA”), 23 Pa.C.S.A. § 6101, et seq., and was granted a 

temporary ex parte order, which evicted Father from the home. Upon being 

served with the order on March 31, 2017, Father absconded with Child for five

days.2 After a hearing, on April 6, 2017, a final order was entered against 

Father for a period of eighteen months.

3

Mother additionally filed a Complaint for Custody on March 31, 2017.4 

Subsequent to a custody conference, on May 10, 2017, an interim order was 

entered by agreement pending further order. Pursuant to this order, Mother 

was granted primary physical custody and Father partial physical custody of 

Child. Notably, Father was granted physical custody on alternate weekends 

____________________________________________

2 Father testified that, as he was home alone with Child when served, he had 

no other choice but to take Child with him. He further stated that he advised 

the police of his location when contacted the following day. 

3 Father admitted that he was found to be in contempt of this order on two 

occasions. 

4 Mother also filed a Petition for Emergency/Special Relief on March 31, 2017 

because of Father absconding with Child, which resulted in an interim order 

entered on April 21, 2017. 
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from Friday after school until Sunday at 6:00 p.m., alternate Fridays after 

school until 8:00 p.m., and alternate Mondays after school until 7:00 p.m.

The trial court conducted hearings on August 17, 2017, and September 

5, 2017.5 Mother and Father, represented by counsel, each testified on their 

own behalf. In addition, Mother presented the testimony of her mother, D.H.; 

her stepfather, H.H.; and her friend, D.R. Father presented the testimony of 

Mother’s sisters, M.B. and C.M.; Mother’s ex-husband, J.K., Sr.; and his 

friends M.D., V.P., L.P., and K.B. 

Pursuant to an order entered November 3, 2017, the court awarded the 

parties shared legal custody and Mother primary physical custody of the child. 

The court further awarded Father partial physical custody the first three full 

weekends of every month from Friday at 9:00 a.m. to Sunday at 7:00 p.m. 

In addition, the court established a holiday and vacation schedule.

Father, through counsel,6filed a notice of appeal. Thereafter, on 

December 8, 2017, Father filed a concise statement of errors complained of 

on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).7 The trial court issued 

____________________________________________

5

In the interim, Father filed numerous petitions for contempt. 

6 New counsel represents Father on appeal.

7 As Father filed a statement just over one week after he filed his notice of 

appeal and there is no assertion of any prejudice, we decline to deem his 

issues waived. See In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009) 

(holding that the appellant’s failure to comply strictly with Pa.R.A.P. 

1925(a)(2)(i) did not warrant waiver of her claims, as there was no prejudice 

to any party).
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a Statement of Reasons Pursuant to Pennsylvania Rule of Appellate Procedure 

1925(a), directing attention to its Analysis of Factors in its November 3 order. 

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

A. Whether the trial court abused its discretion in 

awarding primary physical custody of the minor child to Mother?

B. Whether the trial court erred in finding that Mother 

had met burden pursuant to the factors set forth in 23 Pa.C.S.[]

§ 5328(a)?

Father’s Brief, at 4.8

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).

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

should be accorded the utmost respect, given the special nature 

____________________________________________

8 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 as set forth here from the

Statement of Questions Involved section of his brief. 
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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) (citation omitted). 

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 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. §§ 5328, 5338. Section 5323(a)

of the Act provides for the types of custody awards. And § 5328(a)(1)-(16)

sets forth the best interest factors that the trial court must consider in doing 

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

Further, with regard to the custody, 

All of the factors listed in section 5328(a) are required to be 

considered by the trial court when entering a custody order. . . . 

The record must be clear on appeal that the trial court considered 

all the factors. 

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(a) custody] factors prior 
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to the deadline by which a litigant must file a notice of appeal. 

. . .

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. A court’s 

explanation of reasons for its decision, which adequately 

addresses the relevant factors, complies with Section 5323(d). 

A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014) (some internal citations 

and quotation marks omitted; brackets in orignal).

In its order, the trial court carefully analyzed and addressed each 

custody factor and the Child’s best interests as follows:

ANALYSIS OF FACTORS

. . .

1. Which party is more likely to encourage and permit frequent 

and continuing contact between the [c]hild and another party.

Both parties seem to fall short in the application of this factor. 

They both seem to think they are being generous with the other 

parent and the child’s time, but the evidence does not seem to 

support this feeling. According to Mother, on March 31st Dad took 

off with [C]hild for 5 days after being served with a PFA order. He 

would let [C]hild call the Mother but instructed the child not to say 

where they were. When Father calls [Child] at Mother’s, the calls 

are not always successful. Mother claims [Child] refuses to speak 

to Father at times. Mother says she attempts to cooperate with 

Father in his rescheduling requests and says that Dad threatened 

to keep son away from her. Father also says that the child refuses 

to speak to him when the child is with his maternal grandparents, 

and that Mother and her parents play games.

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 [c]hild or an abused party and which party can better 

provide adequate physical safeguards and supervision of the 

[c]hild. . . .
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Both parties had hints and allegations of the abusive nature of the 

other party. Mother did obtain a PFA order against Father after a 

hearing on April 6, 2017, which pertained only to Mother and was 

ordered for the period of 1 1/2 years. Mother claims that Father

has continually violated the PFA. He has been found in contempt 

of the PFA order twice. Mother says that things have now 

improved. Father had slim evidence of abuse by Mother.He 

claimed there was an incident in the [s]ummer of 2015 where she 

drank alcohol and then drove with [Child] in the car. He claims in 

Christmas of 2016, Mother struck her own mother at a family 

party, an incident which was denied by [M]other’s loyal family 

members. There is no evidence of either party being physically 

abusive to the child.[9]

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

[c]hild. . . .

Mother claims she was the primary caregiver. Father claims he 

picked the child up from school every day but one last year. It 

appears that the parties did share in the child’s care while they 

lived together.

4. The need for stability and continuity in the [c]hild’s education, 

family life and community life. . . .

[Child] was born in 2010 and has lived in the family home all his 

life. [Child] is starting second grade. Father objects to [M]aternal 

[G]randparents doing babysitting. He claims mother drinks, 

smokes, uses Facebook excessively and is unstable. Father has

repeatedly asked for variations in temporary custody order, and 

filed repeated petitions for contempt. Also[,] [F]ather has made a 

spurious claim that [M]aternal [G]randfather was sexually abusing 

the child.

5. The availability of extended family.

Mother has a larger and more accessible extended family.

6. The children’s sibling relationships.

Mother has a son, [J.M.], with another man. The child is 16 years 

old, and lives primarily with his [f]ather. While it is nice to have 

____________________________________________

9 The court combines factors 2 and 2.1. 
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siblings, the vast age difference and the fact that [J.M.] doesn’t 

reside with this child’s [m]other, does not particularly influence a 

custodial decision in this case.

7. The well-reasoned preference of the [c]hild, based on the 

[c]hild’s maturity and judgment.

I did not interview the child.[10]

8. The attempts of a parent to turn the [c]hild against the other 

parent (except in cases of domestic violence where reasonable 

safety measures are necessary to protect the [c]hild from harm). 

Dad is objecting to Maternal Grandparents being with the child. 

He claims they “entice” him into basement with candy. 

Apparently, two years ago, Father saw [M]aternal [G]randfather 

greet the child with a kiss on the lips. It was only during their 

custody litigation that this became an issue, with Father filing it 

as a reason for a petition for emergency custody. Father is openly 

critical of Mother to the child. We suspect Mother is likewise critical 

of Father, although perhaps not so openly.

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

consistent and nurturing relationship with [the c]hild adequate for 

the [c]hild’s emotional needs[.]

Mother says Father is angry, negative, and antisocial. Maternal 

step grandfather reports Dad is short-tempered with child, and 

demeaning to Mother in front of the child. Father called Mother[’s]

two sisters to testify that Mother is short tempered, but they were 

____________________________________________

10 In his brief, Father additionally argues that the trial court abused its 

discretion for failure to interview Child. See Father’s Brief at 17-18. Father 

raises this argument for the first time on appeal. See Pa.R.A.P. 302(a) 

(“Issues not raised in the lower court are waived and cannot be raised for the 

first time on appeal.”)

 In any event, we find Father’s argument is without merit. Pennsylvania Rule 

of Civil Procedure 1915.11(b) is discretionary and does not mandate that a 

trial court interview a child in a custody matter. Pa.R.C.P. 1915.11(b)

(stating, in part, “The court may interview a child, whether or not the child is 

the subject of the action. . . .”) Also, we observe that testimony as to Child’s 

preference was offered by each of the parties. See N.T., 8/17/17, at 81; N.T., 

10/6/17, at 23-24.
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not very forthcoming. Mother’s ex-husband, and the father of their 

16[-]year[-]old son[,] [J.], testified that their mutual son can visit 

her any time he wants. [V.P.], a friend, says Dad is dependable, 

never angry with his son. There were several more witnesses on

both sides, who vouched for the goodness of their particular 

candidate. We tend to believe all and none of these witnesses. We 

do not doubt that both parents are loving toward the child, but we 

also do not doubt that Mother has an impulsive streak and Father 

has an impatient streak. It was evident in their courtroom 

demeanor, and the history of this case.

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

emotional, developmental, educational and special needs of the 

[c]hild[]. . . [.]

We think both parents are equally capable of this.

11. The proximity of the residences of the parties.

Father and Mother live 1/2 mile from each other. Both reside in 

the Catasauqua School District.

12. Each party’s availability to care for the [c]hild or ability to 

make appropriate childcare arrangements.

Mom drives for special needs children and works hours 7:00 a.m. 

to 4:00 p.m. Father is an installer and works 9:00 a.m. to 2:00 

p.m.

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[.] . . .

The level of conflict is extremely high and each parent blames the 

other for the high conflict. Both parents are correct. They are both 

immature and want complete possession of the child. There was 

little testimony about the child’s nature and needs. The testimony 

as a whole presented a picture of two parents trying to exclude 

the other.

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

a party’s household. 
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Other than bald accusations, there is no reliable evidence of the 

parties abusing drugs or alcohol.

15. The mental and physical condition of a party or a member of 

a party’s household. . . .

Mother was diagnosed with bipolar disorder in 2002, and has been 

compliant with treatment. However, there is much in the 

testimony for the court to believe that her treatment of this illness 

is not completely successful. Father is just plain mean and nasty

about Mother. He views her with contempt and makes no effort to 

hide it. Poor [Child].

We believe that both parents are capable of raising [Child] and 

providing him with all the love and attention he needs with one 

exception. Neither one seems willing or able to allow him to like, 

love, or trust, the other parent. It doesn’t much matter what 

parent tucks him in, or cooks his meals, or helps him with his 

homework, if that parent is going to be constantly exposing the 

child to disdain for the other parent. 

In this instance, we feel that Father has been the aggressor in 

trying to win possession of [Child] by taking him following a PFA 

order, by telling the child to ask Mommy for 50-50 custody, by 

exaggerating maternal grandfather’s behavior to [Child] and by 

violating the PFA order. On the whole, it might be best for [Child] 

ultimately to go to shared physical custody, because both of these 

parents have rather finite views of what it means to parent. But 

we cannot do that at this time, until Father has proven that he can 

accept the authority of the court, and that he can bow to the 

necessity of treating Mother with some respect.

Order, 11/3/17, at 7-13.

Turning to Father’s issues raised on appeal, Father first asserts that the 

trial court erred or abused its discretion in disregarding competent and 

credible evidence of record in its award of primary physical custody to Mother. 

Father argues, “Careful review of the record shows that the [t]rial [c]ourt 

simply ignored or mischaracterized voluminous and credible evidence in order 

to reach this conclusion. Moreover, the conclusion completely disregards the 
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best interest of the child.” Father’s Brief, at 7. Father challenges the trial 

court’s assessment of the evidence, including weight and credibility, in favor 

of an appraisal more sympathetic to him. He references evidence as to 

Mother’s emotional instability and alleged alcohol abuse. And he points to 

evidence as to his positive relationship with Child and his good character, as 

well as offers context as to his concerns with Mother’s mother and stepfather.

Relatedly, Father next contends that the trial court improperly 

considered the factors set forth in § 5328(a). In so arguing, Father reviews 

thirteen of the sixteen factors, which he maintains the court “failed to address 

and or failed to analyze properly in light of the evidence of record.” Id., at 18-

25. Father again challenges the trial court’s assessment of the evidence, 

including weight and credibility, with regard to these factors.

As mentioned, the court is required to consider all of the § 5328(a) 

factors in entering a custody order. Although the court is required to give 

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

pursuant to § 5328(a), the amount of weight a court gives any one factor is 

almost entirely discretionary. See M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa.

Super. 2013). Critically, as 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.”). 
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Id. (emphasis added). 

As we construe Father’s claims on appeal, we interpret the issues raised 

at their core as disputes to the trial court’s findings of fact and determinations 

regarding credibility and weight of the evidence. Father, in essence, 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. As we stated:

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, giv[ing] 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.

King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (citation and some 

internal quotation marks omitted). See also M.J.M., 63 A.3d at 339.

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. The court reasonably 

analyzed and addressed each factor under § 5328(a). See Order, 11/3/17, at 

13. The trial court’s findings and determinations regarding the custody factors 
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set forth in § 5328(a) are supported by competent evidence in the record, and 

we will not disturb them.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/15/18