J-A01036-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.V.

v.

K.K. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2128 EDA 2019

Appeal from the Order Entered June 26, 2019

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): No. 2014-28624

BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED FEBRUARY 12, 2020

K.K. (Father) appeals from the June 26, 2019 Modification of Custody 

Order filed in the Court of Common Pleas of Montgomery County, by the 

Honorable Kelly C. Wall. After careful review, we affirm.

Father and A.V. (Mother) are the parents of two minor children, I.K., a 

girl, who was five years old in May 2019, and N.J.K., a boy, who was then 

three years old. N.J.K. is on the autism spectrum and receives various 

services provided by therapists who come to Father’s home on a weekly basis. 

The parties have shared custody since the children’s birth; custody was 

formalized in the form of an order entered on October 13, 2017.1 Mother’s 

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* Retired Senior Judge assigned to the Superior Court.

1 The October 31, 2017 order provided for shared legal and primary physical 

custody to Father from Sunday at 7 pm through Friday at 4 pm and every 
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son from a prior relationship, D.Y., lives with his paternal grandparents during 

the week, but lives with Mother on weekends. Mother also has an eighteenyear old daughter, K.S., from another relationship.

In May 2018, Father filed an emergency petition to modify custody, 

alleging that I.K. had reported to him that D.Y., who was then 12, had inflicted 

minor bruises and cuts on both I.K. and N.K.J., and that D.Y. had poked I.K. 

in her vagina with his finger and with small toys. An Interim Custody 

Agreement, pending the outcome of investigations by the police and by the 

Office of Children and Youth (OCY), was entered on July 18, 2018 pursuant to 

which the parties agreed that during Mother’s custodial periods with the 

parties’ children, D.Y. would not be around them at any time.

Following a full hearing on May 30, 2019, the trial court issued its June 

26, 2019 order. The order maintained the legal and physical custody

arrangements set forth in the 2017 order, but altered the transportation 

arrangements to require Father to pick up the children at Mother’s residence 

on the days that she has the children until 7 pm. In addition, the June 26, 

2019 order specified the following with regard to supervision:

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other Saturday at 9 am through his regular weekday schedule, which extends 

through Friday. Mother also has partial custody on Monday, Tuesday, and 

Thursday from 4 pm until 7 pm and every Friday at 4 pm until Saturday at 9

am, except every other weekend when she has them through Sunday at 7

pm. The order further prohibited the parties’ children from entering the homes 

of the “Y” family (the home of D.Y., Sr., the father of D.Y.), and D.Y., Sr.’s 

extended family was prohibited from providing childcare for the parties’ 

children.
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Mother’s son, D.Y. is permitted to be present in Mother’s 

home and at any activities and events when the parties’

children are present and in her custody. HOWEVER, Mother 

must be physically present during any such times, ensure 

that D.Y. is never left alone with the minor children and must 

be aware of any contact between the children and D.Y. In 

the event an accident does occur involving D.Y., Mother shall 

immediately notify Father or risk an adverse change in 

custody.

6/26/19 Modification of Custody Order ¶ 3.C.a. The order further specified 

that the parties’ children shall not be allowed in D.Y.’s bedroom alone with 

him or to sleep in the same bed with D.Y. at any time; that they are not 

allowed to be at or near the homes of the “Y” family; that the parties establish 

an “OurFamilyWizard” account to communicate regarding the children’s 

schedules; and that I.K. shall continue in therapy, with the parties 

participating in the counseling as recommended by the therapist. Id. at ¶¶ 

3.C.d.-e., 3.D.-E. Father filed a notice of appeal.2

Father raises the following issues before this Court:

I. Did the trial court abuse its discretion when the court 

disregarded substantial evidence of physical and 

sexual abuse and denied 

Father’s petition to modify custody, and instead made 

only minor modifications to the existing custody order 

that did not address the factors that had placed the 

victims at risk when in Mother’s care?

II. Did the trial court abuse its discretion when it kept the 

physical custody schedule the same and permitted Mother 

to exercise custody of her 13-year-old son, D.Y., at the 

same time she had care of the parties’ 5-year-old 

daughter and 2-year-old son, without evidence that the 

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2 On July 22, 2019, Father filed a concise statement of errors complained of 

on appeal, and on August 22, 2019, the trial court issued its opinion.
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order was sufficient to provide adequate protection to the 

younger children?

Father’s Brief at 9.

In reviewing Father’s issues, we are “empowered to determine whether 

the trial court’s incontrovertible factual findings support its factual 

conclusions,” but “we may not interfere with those conclusions unless they are 

unreasonable in view of the trial court’s actual findings; and thus, represent a 

gross abuse of discretion.” C.M. v. M.M., 215 A.3d 588, 591 (Pa. Super. 

2019)(internal citations omitted). Furthermore, on issues of credibility and 

weight of the evidence:

[W]e defer to the findings of the trial court, who has 

had the opportunity to observe the proceedings and 

demeanor of the witnesses.

The parties cannot dictate the amount of weight the 

trial court places on evidence. Rather, the paramount 

concern of the trial court is the best interest of the 

child. Appellate interference is unwarranted if the trial 

court’s consideration of the best interest of the child 

was careful and thorough, and we are unable to find 

any abuse of discretion.

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

citations omitted). 

 Father’s two issues are intertwined: he asserts that the trial court 

abused its discretion because its modified order disregarded substantial 

evidence of inappropriate sexual contact, and does not therefore adequately 

protect I.K. and N.J.K. from D.Y. Father posits that I.K. and N.J.K. would not 

need the protections incorporated into the modified order if something had 
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not happened between them and D.Y., and that Mother is incapable of 

supervising the children as ordered, especially since she does not acknowledge 

that any abuse could have occurred. Father asks the trial court to prohibit 

D.Y. from any interaction with I.K. and N.J.K.

In its 1925(a) Opinion, the trial court set forth relevant factual 

background:

As a result of a large settlement due to an injury to 

his foot, Father has significantly more resources than 

Mother does. He owns a large home, does not work 

due to his injury and can devote all his time to the 

children. Mother, on the other, has two (2) older 

children, along with the parties’ two (2) young 

children, and is very busy taking care of all of them 

and providing for their financial support. She is a 

school bus driver and works irregular hours 

throughout the weekdays.

Her work schedule has created a challenge in affording 

her significant custodial time with the children. Mother 

realizes this and although she would like a “9 to 5” 

job, she is making the best of her current situation 

and has scheduled her custody around her job to 

ensure that she maximizes her time with 

them. Mother gets the children on alternate 

weekends and in the afternoon and evenings a few 

days per week. She does not have weekday 

overnights because her bus run begins too early in the 

morning. These factors have worked to Father’s 

advantage in regard to the custodial arrangement 

between the parties.

Finally, there have been issues between Father and 

the father of D.Y. in the past. Because of these issues, 

Father required that a provision be placed in the 

parties’ original Custody Order issued on October 1, 

2017, keeping D.Y.’s father and other family members 

away from the parties’ children. Father made abuse 
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allegations against Mother’s current boyfriend a few 

years ago and paid to have him take a lie detector test 

that came back negative.

Trial Court 1925(a) Opinion at 9-10 (citations to N.T. omitted).

In making a determination as to custody, the court must make a 

determination as to the best interests of the child. 23 Pa.C.S. § 5232. Section 

5328 of the Custody Act provides an enumerated list of sixteen factors a trial 

court must consider in determining the best interests of the child, and the 

court is to give “weighted consideration” to those factors that affect the safety 

of the child. 23 Pa.C.S. Section 5328. In Findings of Facts issued following 

the hearing, the trial court fully addressed all of those factors, listed in Section

5328(a); regarding factor #2, “[t]he 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 trial court 

offered a full history of the allegations of abuse and its related findings 

thereon. 

In late April of 2018, Father testified that I.K. told him 

that D.Y. had poked her genitals with his finger, a 

broccoli toy and a puzzle letter. Father also found I.K. 

making humping gestures...and when asked why she 

did this, I.K. told him that D.Y. [tells her to do this] 

when he is “poking” her...[Father] took I.K. to CHOP 

[Children’s Hospital of Philadelphia] where she 

repeated this information to the health care providers. 

CHOP referred Father to Mission Kids to have the child 

interviewed. After the Mission Kids interview, there 

was no follow-up by OCY [Office of Children and 

Youth] and no criminal charges were filed. This Court 
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reviewed a video of the interview and had concerns

after viewing the same.

Trial Court Findings of Fact (F.F.), Custody Factors at 2 (emphasis supplied). 

However, in its 1925(a) opinion, the trial court stated “[w]hile this Court did 

have concerns after viewing the Mission Kids interview, this is but one factor 

that the Court had to take into consideration in determining what would be in 

the best interests of the parties’ children to protect their safety and wellbeing.” 1925(a) Opinion at 6. In its findings of facts, the trial court set forth 

a detailed description of I.K.’s counseling sessions, noting that it questioned

“the appropriateness of Father being present during [two sessions] wherein 

he told [the therapist], apparently in front of I.K., about the alleged abuse by 

D.Y.” and “it was after Father related the information regarding the “bed 

sharing” that [the therapist] made a report to OCY.” Id. at 7. The trial court 

further found that after this report, and a subsequent investigation, the 

information was determined to be “unfounded,” and after 14 subsequent 

therapy sessions, the therapist never made another report to OCY. Id. The 

trial court found “as the counseling sessions continued with I.K., [the 

therapist] entered a note on her report...stating that she was concerned that 

both parents talk negatively about the other in front of I.K., causing [I.K.] to 

have a skewed view of each parent” and further noted that the therapist 

expressed confusion as to which parent was telling her the truth about various 

scenarios related to her by each one; the trial court found these assessments 

to be significant factor underlying the issues in this case. Id. at 8.
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In its analysis under Section 5328(a), custody factor #2, the trial court 

found, regarding sleeping arrangements, that prior to October 2018, Mother 

had been living in a two-bedroom apartment with her sister, her sister’s 

boyfriend, her oldest daughter, and D.Y., when he was there on weekends. 

F.F., Custody Factors at 4. However, in October 2018, Mother moved into her 

boyfriend’s three-bedroom townhouse, wherein Mother and her boyfriend 

have a bedroom, her boyfriend’s daughter has a bedroom, N.J.K. has his own 

bedroom when he is there, and Mother’s daughter, K.S., sleeps in the finished 

basement, where I.K. also sleeps when she is with Mother. D.Y. sleeps on the

couch or in the room of the boyfriend’s daughter when she is not there. Id. 

The trial court also noted Mother’s vehement denial that any physical 

and/or sexual abuse has taken place, or would ever take place against the 

parties’ children by D.Y. F.F., Custody Factors at 5. Mother describes D.Y. 

as a good student, a talented athlete and a typical teenager, who is more 

interested in sports and playing video games than in spending time with his 

half-siblings. Id. Mother believes that Father is coaxing I.K. to make false 

accusations because he does not like D.Y., and one of the reasons the parties 

separated was due to Father’s poor treatment of D.Y. Id. 

The trial court found, in its analysis of custody factor #9, “which party 

is more likely to maintain a loving, stable, consistent and nurturing 

relationship with the child adequate for the child’s emotional need,” that:

[Mother] testified that she is always present when 

D.Y. is with the children and that she looks after all of 

her children. Mother appears to be a kind and loving 
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parent who genuinely has the best interest of all of 

her children at heart. She credibly refutes the 

allegations made against D.Y. and the claims that she 

does not properly supervise and protect the parties’ 

children. The Court believes that Mother does 

supervise the children when D.Y. is present and she 

does not permit them to be around the [“Y”] family, 

unless it is at a sporting event where D.Y. is 

participating...The Court feels comfortable from 

Mother’s testimony that she keeps the parties’ 

children safe, even though some safeguards are 

necessary to ensure their continued well-being.

F.F., Custody Factors at 8. In its findings of fact, the trial court concluded that 

“despite some of the reasonable concerns raised by Father, this Court finds 

Mother to be a loving parent who will do whatever is necessary to protect all

of her children.” F.F., Conclusion at 11 (emphasis in original). The trial court 

denied Father’s request, but stated that “[w]hile Mother may have the best 

intentions in protecting her children and although there has been no 

finding of abuse by her son against the children, it will benefit everyone 

involved to make sure that there is no opportunity for any further potential 

allegations to be made.” F.F., Custody Factors at 12 (emphasis supplied). 

 In its 1925(a) opinion, the trial court acknowledged that it had stated 

at the May 30, 2019 hearing that I.K. appeared “truthful in her description of 

what occurred with D.Y.” 1925(a) Opinion at 5 (citing May 30, 2019 N.T. at 

5). However, the trial court further stated that it soon became apparent that 

Father’s credibility and motivation for bringing the case may have influenced 

both I.K. and I.K.’s therapist. 1925(a) Opinion at 5. The trial court concluded 
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that no credible evidence had been presented that D.Y. had inappropriately 

touched or abused I.K., stating:

It is the responsibility of this Court to assess the risk 

of harm and to determine if the children are safe in 

Mother’s care. Allegations of inappropriate touching 

and abuse of a young child must be investigated by 

the proper professionals. Father did this by calling the 

child’s pediatrician, who then sent them to [Children’s 

Hospital of Philadelphia]. An OCY investigation was 

opened and the child was interviewed by Mission Kids. 

After interviewing all of the parties involved, the OCY 

investigation came back “unfounded.” Upon reviewing 

the Mission Kids interview, the District Attorney’s 

Office did not find grounds for any criminal 

charges. There has been no validation by an agency 

or professional of the allegations of abuse of I.K. by 

D.Y. While Father contends that there is “credible” 

evidence that I.K. was inappropriately touched and 

abused by D.Y., no such evidence was presented to 

this Court.

1925(a) Opinion at 8 (citations to N.T. omitted). The trial court explained that 

although there was “no proof that D.Y. has abused either of the parties’ 

children,” such claims necessarily raise concerns in and of themselves, and 

found that such concerns needed to be addressed not only to ensure the 

childrens’ safety, but “also to protect D.Y. from future allegations.” Id. at 11. 

According to the trial court, while it believes that Mother would supervise D.Y. 

while in the presence of the parties’ children even in the absence of the Court’s 

direction, its order serves to enforce the need to do so, and provides legal 

recourse if the directive is not complied with by Mother. Id. at 14.

We find that the trial court engaged in a detailed, thoughtful analysis 

of the Section 5328(a) custody factors, and specifically of factor #2, regarding 
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assessment of risk of harm to the parties’ children and the provision of 

adequate safeguards and supervision for them. We discern no abuse of 

discretion, and deem the trial court’s conclusion to be reasonable in light of 

the record evidence. Accordingly, we affirm the June 26, 2019 custody order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/12/20