J-A25003-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.M. 

Appellant

v.

R.M.M.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 458 WDA 2021

Appeal from the Order Entered March 22, 2021,

in the Court of Common Pleas of Allegheny County,

Family Court at No(s): FD 16-004092-008.

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED: FEBRUARY 24, 2022

Appellant J.M. (Father) appeals the order of the Allegheny County Court 

of Common Pleas, which awarded R.M.M. (Mother) primary physical custody 

and sole legal custody of their three Children: 11-year-old daughter N.M.; and 

8-year-old twins, daughter E.M. and son B.M. The trial court reduced Father’s 

physical custody after determining the Children needed more structure during 

the school year. Mother’s sole legal custody award is limited to narrow 

decision-making powers regarding the Children’s mental health, after the 

court found that Father’s refusal to acknowledge N.M.’s needs had caused her

to be without necessary treatment. On appeal, Father challenges these

substantive custody awards on multiple grounds: that the court’s decision was 

based on improper gender preferences; that the decision was predicated upon 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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improper judicial notice; and that the court infringed on Father’s First 

Amendment right to free exercise. After careful review, we affirm.

The record discloses the following relevant factual and procedural 

history. The parties initially lived in Washington state prior to moving to 

Pittsburgh, Pennsylvania in 2011. The parties separated in 2016, and the 

marital home was sold. Mother and the Children moved to a new home in the 

same school district, while Father moved to a neighboring suburb. That same 

year, the parties entered into a custody consent order, which provided Father 

with shared legal custody and substantial partial physical custody –

approximately 6 out of every 14 overnights. 

However, litigation became frequent and increasingly acrimonious. In 

May 2018, the court issued an order forbidding Father from speaking with the 

Children about potential changes in the custody schedule. In November 2019, 

Father filed for shared custody, and Mother counterclaimed for primary 

custody and sole legal custody. In January 2021, Mother filed for contempt 

of the May 2018 order, and the contempt hearing was consolidated with the

instant custody trial.1

The trial court’s consolidated hearing spanned three dates: February 8, 

February 9, and February 24, 2021. A major focus of the custody dispute was 

the Children’s mental health, and the parents’ abilities to respond to the same. 

The court heard from both parties, personnel from the Children’s school

____________________________________________

1 The court ultimately held Father in contempt of the May 2018 order. Father’s 

appeal of that order is separately listed before this panel.
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district, as well as Dr. Jan Marlan, who conducted psychological evaluations. 

Dr. Marlan recommended the court award shared physical and legal custody, 

cautioning that a sole legal custody award would only increase the conflict 

between the parties. The court disagreed. After extensive testimony, the 

court determined inter alia that Mother was more likely to attend to the 

Children’s mental health needs, and that the parties’ inability to communicate 

and reach consensuses demonstrated the need for a sole decisionmaker – i.e., 

a sole legal custodian. See Order of Court, 3/22/21. The court awarded sole 

legal custody for this limited purpose. In all other aspects, the parties shared

legal custody.

The court also determined the Children needed more focus and stability

during the school week, and it reduced Father’s partial physical custody. 

Instead of Father exercising 6 out of 14 overnights, Father’s schedule was 

reduced to alternating weekends with a weekly Thursday overnight. However, 

the court awarded shared custody during the summer, on a week-on-weekoff basis. Id. 

The court also denied the parties’ respective claims for sole legal custody 

regarding the Children’s religious upbringing. In this respect, the trial court 

allowed the parents to direct the Children’s religious upbringing as they saw 

fit during their respective custody time; however, the order provided that 

Father “must continue to cooperate with the Children’s participation in the 

Jewish Faith[.]” Id. at ¶1.9(a).
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Father filed this timely appeal. He presents six issues for our review, 

which we re-order for ease of disposition:

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

by making a custody determination where a party 

received preference based upon gender in violation of 23 

Pa.C.S.A. § 5328(b)?

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

by making a custody determination that is not supported 

by the record and/or is based upon inappropriate judicial 

notice?

3. Whether the trial court committed an error of law and/or 

abused its discretion by making a custody determination 

that relies at least in part on inappropriate judicial notice 

and/or information outside the record with regard to 

Attention Deficit Disorder / Attention Deficit Disorder with 

Hyperactivity?

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

by entering an order that awarded Mother sole legal 

custody regarding the psychiatric treatment contrary to 

the best interest of the Children as set forth in 23 

Pa.C.S.A. § 5328(a)?

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

by entering an order that reduced Father’s physical 

custody contrary to the best interest of the Children as 

set forth in 23 Pa.C.S.A. § 5328(a)?

6. Whether the trial court committed an error of law and/or 

abused its discretion by failing to explicitly rule on the 

request for legal custody regarding the religion of the 

children and/or restricting Father’s ability to freely 

exercise his religion in violation of the First Amendment 

of the United States?

Father’s Brief at 21-22 (capitalization adjusted).2

____________________________________________

2 Father included a seventh issue in his concise statement of matters 

complained of on appeal, but he has chosen to forgo that issue on appeal.
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We begin our analysis by acknowledging the pertinent scope and 

standard of review:

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.

S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted).

Insofar as Father presents a question of law, however, we note that our 

scope and standard of review changes. As with all questions of law, the 

appellate standard of review is de novo and the appellate scope of review is 

plenary. E.C.S. v. M.C.S., 256 A.3d 449, 454 (Pa. Super 2021) (citations 

omitted).

On multiple occasions, both the Supreme Court of Pennsylvania and the 

Supreme Court of the United States have acknowledged that parents enjoy a 

fundamental constitutional right to raise their children as they deem fit. See, 

e.g., Interest of S.K.L.R., 256 A.3d 1108, 1126 (Pa. 2021); see also D.P. 

v. G.J.P., 146 A.3d 204 (Pa. 2016); and see Troxel v. Granville, 530 U.S. 

57 (2000) (recognizing the existence of a constitutionally protected right of 
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parents to make decisions concerning the care, custody, and control of their 

children) (citing U.S.C.A. Const. Amend. 14).

In Pennsylvania, custody disputes are governed by the Child Custody 

Act, 23 Pa.C.S.A. §§ 5321-5340. In ordering any form of custody, the court 

shall determine the best interest of the child by considering the sixteen

enumerated factors set forth in Section 5328(a). When – as was the case 

here – a party seeks to modify the type of custody award, the court must still 

conduct a Section 5328(a) analysis. See A.V. v. S.T., 87 A.3d 818, 824 n.4 

(Pa. Super. 2014) (emphasis added); see also 23 Pa.C.S.A. § 5338 

(“Modification of existing order.”); and see 23 Pa.C.S.A. § 5323(a) (“Award 

of custody.”); cf. M.O. v. J.T.R., 85 A.3d 1058, 1063 (Pa. Super. 2014)

(holding that a comprehensive Section 5328(a) analysis is not always 

necessary when a party merely seeks modification of “a discrete custodyrelated issue.”).

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

determine which factors are most salient and critical in each particular case.”

M.J.M. v. M.L.G., 63 A.3d 331, 339 (Pa. Super. 2013). However, we note 

that Section 5328(a) obligates the court to give weighted consideration to 

those factors affecting the safety of the child. Moreover, Section 5328(b) 

provides: “In making a determination under [the custody factor analysis], no 

party shall receive preference based upon gender in any award granted under 

this chapter.” 23 Pa.C.S.A. § 5328(b). After reaching a decision, the trial 

court must delineate its reasons for the award on the record in open court, or 
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in a written opinion or order near the time of the decision to allow a party to 

take an effective appeal. See 23 Pa.C.S.A. § 5323(d); see also M.O., 85 A.3d 

at 1064 n.5 (citations omitted).

With these principles in mind, we turn to Father’s first appellate issue. 

Father alleges the trial court violated the Child Custody Act’s prohibition on

gender preferences, because its decision was predicated upon the belief that 

women are better suited to respond to a child’s mental health. See Father’s 

Brief at 27. To explain, the court awarded Mother sole legal custody after it 

concluded that Father was not adequately responding to the Children’s needs

– specifically, N.M.’s need to be treated for Attention Deficit Hyperactivity 

Disorder (ADHD). The court reasoned in its Pa.R.A.P. 1925(a) opinion:

I found the majority of the problems moving forward with 

treatment for N.M. originated with Father, and his inability 

or refusal to face the facts about his daughter’s condition. 

Accordingly, since only one party could have legal custody 

over this discrete issue, I chose the parent who was more 

willing to listen to professionals and follow their advice.

Trial Court Opinion (T.C.O.), 6/2/21, at 11

Father claims the court’s findings were based on gender preferences. 

To support his argument, Father cites four separate excerpts from the hearing

transcript, during which the court spoke in generalities about men and fathers, 

and the fear of stigmas involving mental health treatment. See generally 

Father’s Brief at 27-31.
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 The first excerpt comes from the direct examination of Dr. Marlan, who 

conducted the psychological custody evaluation. The court asked the witness 

why Father resisted the idea of having N.M. seen by a child psychiatrist.

Dr. Marlan: I think he’s worried about seeing his 

daughter seen as having – as crazy.

The court: I had the conversation with [Father] also 

regarding the fact that in 15 years of doing 

this I’ve never had a woman take that 

position with this issue, never. It’s always 

a man, it’s always the dad. I actually 

consulted psychiatrists about this 

phenomena and it just isn’t true. I had that 

conversation, and in spite of that it still did 

not occur, still has not occurred.

Dr. Marlan: What do you mean? What hasn’t occurred?

The court: [N.M.] has not seen a psychiatrist.

Dr. Marlan: Oh, I see.

The court: Some people think it is less important than 

others, but she has significant difficulties 

with friends.

Dr. Marlan: I hope somebody would ask him exactly why 

he wants her medicated by a pediatrician 

versus – not medicated by, but the 

pediatrician to handle the medication.

The court: I think it is a negative answer. He doesn’t 

want her to go to a psychiatrist. In any 

event, the child is now eleven. It is over two 

years. She’s now into puberty and has been 

suffering with these problems untreated for 

years and years.

Dr. Marlan: Well, I do understand that some parents 

have objections to medicating their kids.
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The court: So do I.

Dr. Marlan: I have seen that many times. You know, 

there is a position on that that’s worth 

looking at, but in this particular case it seems 

so clear to know that it would help this kid, 

and she has to be on the right medication at 

the right level, and the one best able to do 

that is the child psychiatrist. And if it is 

[Father], [Father], let your kid see a child 

psychiatrist.

The court: Well, we had that conversation three years 

ago. That is why I’m concerned about your 

recommendation of shared legal [custody]. 

[The parents] have been fired by five 

psychiatrists who refused to treat the child 

because [the parents] couldn’t agree.

N.T., 2/8/21 (Day 1), 45-47 (emphasis added).

Later in the trial, the court again spoke in generalities about gender. 

Father’s parenting abilities had been questioned after Mother submitted 

pictures of the Children’s unkempt hair:

Father: I’m doing the best I can under the 

circumstances.

The court: Would you agree that your best is not doing 

a good job right now?

Father: I’m hoping things will get better when this 

trial is over, because I think a lot of things 

have been in preparation for this trial.

The court: Well, I would agree with your that - - let me 

ask you this question. Did mom and you ever 

have a conversation, like an e-mail – you 

don’t talk on the phone – like an e-mail 

regarding the children’s hair?
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Father: I don’t think she ever told me about it.

The court: I would agree with you certain things like 

that mom may have been (indicating), taking 

pictures of her hair so she could slam dunk it 

with you at trial. I agree with you on that. 

Maybe she will change my mind on direct 

[examination]. I found that not to be in the 

best interest of the children and kind of 

horrifying and humiliating. I would have 

come to you – I would have found a way to 

build, earn, and maintain enough trust in you 

in order to protect my child from a guy’s 

rendition of what’s okay with girls. I know 

that you didn’t know that because you 

were never a teenage girl. I know that 

because I was a teenage girl. I also 

know that sometimes I have to tell men 

that they don’t know things that ladies 

know. That is partly because [you] haven’t 

built, earned, maintained any trust with her, 

or vice versa. 

N.T. 2/9/21 (“Day 2”), 469-70 (emphasis added).

As Father’s case-in-chief wound down, the trial court provided its 

preliminary assessment. In a self-described “speech,” the court explained 

how the level of conflict between the parents – and their desire to be right, or 

to win an argument – was detrimental to the Children. The court offered an 

example of conflict avoidance from the trial judge’s own life, a time when she 

needlessly took issue with how one is supposed to put dirty dishes in the sink. 

The moral of the story was how partners must often decide whether to be 

happy or whether to be right; that perhaps it is more important to be “fun to 

live with,” than to be the winner of petty arguments. Id. at 471-72. The 
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court then circled back to the hair issue and Father’s alleged resistance to 

N.M.’s ADHD diagnosis:

The court: The fact you didn’t know about the hair is a 

typical guy kind of thing. What is worse 

is the fact that [Mother] didn’t talk to you 

about it is a horrible thing. It is horrible. I 

don’t know why it didn’t happen. I hope she 

addresses it [during her case-in-chief]. 

If you were a babysitter, I wouldn’t have 

allowed you to let my daughter’s hair go like 

that. But [Mother] is like, you did that and 

took pictures. I’m sure she will talk to me 

about why she didn’t talk to you about it. 

Maybe she did talk to you about it. I don’t 

know.

I’m trying to explain to you what is so much 

wronger with this case than my other cases. 

It’s not the facts. It’s not the ADHD. Half of 

my cases have ADHD. Almost 75 percent 

of those cases have a dad who refuses 

to admit that their child has anything 

wrong with them, or thinks that they are 

trying to label the child, and then I have 

to go through this whole nonsense and 

take legal custody away and all this 

stuff. 

Never once have I had a female, a mom, 

refuse to go to a psychologist or 

medicate a child, not once in 15 years. 

So think about that, how much fun are you 

to live with? As long as you’re no fun to live 

with, you’re going to lose with your kids 

because you’re not going to be able to make 

any progress. 

All right, re-cross [examination].

N.T. (Day 2), at 475-76. (emphasis added).
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Finally, Father cites the portion of the transcript when the trial court 

delineated its findings in open court, pursuant to Section 5323(d). The court 

addressed Factors 9 and 10 together. Section 5328(a)(9) inquires: “Which 

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

relationship with the child adequate for the child’s emotional needs.” 23 

Pa.C.S.A. § 5328(a)(9). Section 5328(a)(10) inquires: “Which party is more 

likely to attend to the daily physical, emotional, developmental, educational 

and special needs of the child.” 23 Pa.C.S.A. § 5328(a)(10).

The court began the delineation of its findings under these Subsections

by opining that Father’s parenting style was wrong for these Children:

The court: [Father’s] not wrong because he doesn’t love 

the Children. I believe he does love the 

Children. But he’s wrong because he has a 

narrative that he is running around inside of 

that doesn’t even look at the facts. One of 

the evidences of that is refusing to have 

[N.M.] tested for an IEP [(Individualized 

Education Program)], like that would be a 

harm for her. And that’s typical of men in 

my cases. 

In all of the cases I’ve had, I’ve never 

had a woman say that their child should 

not have an IEP or does not have ADD. 

Maybe it’s a social thing, that men are 

raised to believe certain things, I don’t 

know.

See N.T., 3/12/21 (“Findings of Fact.”), at 15 (emphasis added).
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The court ultimately found that Factors 9 and 10 favored Mother, 

because she was the parent more likely to follow the advice of medical and 

mental health professionals. Id. at 16.

On appeal, Father claims these passages evince the court’s gender 

preference, in direct violation of Section 5328(b). For support, Father cites 

our Supreme Court’s decision in Com. ex rel Spriggs v. Carson, 368 A.2d 

635 (Pa. 1977), which questioned the legitimacy of the “tender years 

doctrine”3 as being predicated upon the traditional or stereotypic roles of men 

and women in a marital union. Father also cites the United States Supreme 

Court’s momentous decision in Weinberger v. Wisenfeld, 420 U.S. 636, 652 

(1975), which noted that “a father, no less than a mother, has a 

constitutionally protected right to the companionship, care, custody, and 

management of the children he has sired and raised, which undeniably 

warrants deference and, absent a powerful countervailing interest, 

protection.” (Internal quotations and citation omitted).

In response, Mother argues the trial court’s comments were obiter 

dictum – that is, they were merely passing remarks. See Mother’s Brief at 9. 

Alternatively, Mother argues that the court’s error was harmless. Id. Father 

replied that the court’s comments could not be construed as obiter dictum, as 

they spoke directly to the custody matter at issue, nor could the error be 

construed as harmless. See Father’s Reply Brief at 7-9.

____________________________________________

3 The tender years doctrine was the now-disfavored theory that children 

should reside with their mother – or “the residential parent” (read: the stayat-home mother).
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In its Rule 1925(a) opinion the court explained what it meant by its 

statements:

In this particular case, Father was intractable for over two 

years in his refusal to medicate his daughter for her ADHD. 

Father first would not consent to the professionals who 

recommended that she be evaluated for ADHD, then he 

would not accept the diagnoses, and later, once he belatedly 

accepted the diagnoses, he would not consent to the 

medication repeatedly recommended. I pointed out that to 

Father that, in my years of experience on the bench, it tends 

to be fathers who refuse or are unable to acknowledge that 

their children require medication for a psychological 

condition, whereas mothers are willing to accept the 

recommendations of professionals and teachers.

Though that has been my actual experience, that 

experience is not what I depended on in reaching my 

decision in this case. I mentioned this experience during 

trial merely as an attempt to educate Father that he was, 

despite his training and education, not unique. I hoped to, 

perhaps, get him to examine his motivations and realize that 

his reluctance to medicate his daughter was misguided, was 

not in her best interests and had, in fact, caused a delay in 

treatment which was harmful to her.

My references to the behavior of other fathers who have 

appeared before me did not demonstrate any actual gender 

bias. Nor did I base my award of custody on a preference 

for Mother because of her gender. I preferred Mother as a 

primary custodian and sole legal custodian in some areas 

because her actions demonstrated that she put the needs of 

her Children first and, moreover, she is willing to follow the 

recommendation of the professionals with regard to the 

treatment of her Children.

T.C.O. at 12-13 (emphasis added).

After review, we conclude that the court’s remarks do not evince a 

gender preference under Section 5328(b). Perhaps the trial court’s 

aspersions, though cast in the context of the court’s previous cases, did more 
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harm than good. But these remarks alone do not merit reversal. As we have 

explained:

The appearance of bias or prejudice can be as damaging to 

public confidence in the administration of justice as the 

actual presence of bias or prejudice. However, simply 

because a judge rules against a party does not establish bias

on the part of the judge against that party. Along the same 

lines, a judge’s remark made during a hearing in 

exasperation at a party may be characterized as 

intemperate, but that remark alone does not establish bias 

or partiality.

Lewis v. Lewis, 234 A.3d 706, 722 (Pa. Super. 2020) (quoting 

Commonwealth v. McCauley, 199 A.3d 947, 950-51 (Pa. Super. 2018) 

(further citation omitted)). See also Interest of D.J.B., 230 A.3d 379, 386 

(Pa. Super. 2020) (holding that a judge’s remark contextualizing the juvenile’s 

delinquent act within the Me Too Movement did not establish bias or 

partiality).

The question we must decide is simply whether the trial court abused

its discretion in awarding custody to Mother. In practice, discretion is abused 

when the course pursued represents not merely an error of judgment, but 

where the record shows that the action is a result of partiality, prejudice, bias 

or ill-will. Lewis, 199 A.3d at 722 (citations omitted). At most, the trial 

court’s commentary could be viewed as an error of judgment. But even then, 

neither an error of judgment nor a remark made in exasperation constitutes 

an abuse of discretion when the record supports the court’s decision.

Here, the court heard testimony that N.M. was in need of treatment, 

that N.M. had gone without treatment because Father refused to give his 
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consent, and that Father’s resistance to N.M.’s treatment was due to his 

concern that the Child would be viewed as “crazy.” In other words, the court’s 

remarks did not come out of the ether. Moreover, the court stated that it 

shared parents’ hesitancy to medicate their children. Although the court 

mentioned to Father that he would not be the first man to voice skepticism 

about their children’s special needs, the court’s ultimate decision was not the 

result of a gender preference. Rather, the award was properly based on the 

application of the Section 5328(a) factor analysis, and the court’s individual 

factor determinations were, in turn, supported by competent evidence and 

legitimate credibility findings. Father’s first issue is without merit.

We turn next to Father’s second and third issues, which Father

addresses together. See Father’s Brief at 51-52. These issues also concern 

remarks the court made during its on-the-record delineation of Factors 9 and

10, supra. Specifically, Father alleges that the court erred by taking judicial 

notice of certain facts relating to ADHD, and then basing its custody decision 

on the same. 

During the delineation of the custody factors, the court determined that

Father’s inability to acknowledge N.M.’s special needs had caused her to go 

untreated for her ADHD. Although the court did not find Mother blameless, it 

determined that she was best suited to meet the Child’s needs because she 

was more inclined to follow professional advice. In addressing Father’s 

inability to tend to the Children’s needs, the court provided Father with an 

example – namely, his resistance to having N.M. evaluated for an IEP. The 
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court disapproved of Father’s resistance to the IEP evaluation, specifically 

because he pushed for N.M. to be evaluated for above-average intelligence –

i.e., “gifted.” The inference being, Father did not oppose an evaluation of 

N.M., so long as the evaluation was for something with a positive connotation. 

In that sense, the court likened Father’s preoccupation with the stigma 

associated with an IEP with his preoccupation with the stigma associated with 

psychiatric treatment. It was during this explanation that the court stated it 

was taking judicial notice.

The court: But it [(Father’s resistance to getting the 

Child evaluated for an IEP)] clearly didn’t 

help the child and she’s still - - we’re just not 

getting her help. We still do not have her 

with a psychiatrist. And she had pretty 

severe evidence of ADHD, but Dad, while he 

was insisting - - he refused to do that, and 

he wanted a gifted test.

And I can take judicial notice and 

personal notice, I have a gifted child and 

a non-gifted child, you can tell. It’s 

really easy to tell. Other people don’t tell 

you that. You know. And it’s very evident. 

And of course, the child does not evidence 

any gifted abilities. That doesn’t mean she’s 

stupid. She’s very bright. Of course, she’s 

bright. But now we know she’s not gifted.

Why do you [(Father)] even want – she 

wasn’t anywhere near the gifted cut off. I 

wouldn’t have had a problem with asking to 

have her referred to as gifted. I did have a 

problem with her not – with not saying she 

didn’t have ADHD just based [on] things 

people had told you.

N.T. (Findings of Fact) at 15-16 (emphasis added).
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On appeal, Father argues the court abused its discretion by taking 

judicial notice of information outside of the record. See Father’s Brief at 52. 

Father contends that the court projected its own beliefs about the best 

interests of a child with ADHD, instead of properly relying on the expert 

testimony of Dr. Marlan. Id. Father reasons that the record does not support 

the trial court’s finding that Father denied treatment for N.M.’s ADHD. He 

concludes that the trial court’s “imposition of judicial notice upon the parties 

played a significant part in the overall determination, as it resulted in an award 

of sole legal custody to Mother for all of the children’s psychiatric treatment 

and a reduction of Father’s custody time.” Id. at 54.

Initially, we question the accuracy of Father’s depiction of what the court 

judicially noticed. As far as we can tell from the record, the court’s statement 

about judicial notice referred to one’s ability to tell a gifted child from a nongifted child. The offending statements did not pertain to ADHD, at least not 

directly. The court explained that it did not have a problem with Father 

thinking N.M. was “gifted” when she was not, but that his refusal to 

acknowledge N.M’s special needs had caused the child to go without necessary 

treatment.

In response, Mother makes this exact argument. See Mother’s Brief at 

48. Mother reasons that the difference between a gifted and non-gifted child 

was not a fact the court was deciding in this case, nor was it at issue. Mother 

contends that none of the court’s custody determinations was based on that 

statement, and thus Father was not prejudiced. Mother concludes that the 
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statement was dicta, or in the alternative, the statement was harmless error. 

Id.

We are inclined to agree with Mother’s position. Curiously, however,

the court specifically admitted in its Rule 1925(a) opinion that it took judicial 

notice of the symptoms and treatment of ADHD. The court stated, in relevant 

part:

I did take judicial notice of the symptoms and 

treatment for ADHD, which is not inappropriate as 

these are, in fact, common knowledge. [...] Father 

takes issue, apparently, with comments I made regarding 

my personal experiences with the condition as well as my 

familiarity with literature on the subject. Father ignores the 

fact that a reading of my order in this matter demonstrates 

that my previous knowledge regarding ADHD did not 

impact my deliberation or weighing of the custody 

factors.

To the contrary, my decisions were based squarely on the 

often-inappropriate behavior of the parties, particularly 

Father, as they were faced with addressing N.M.’s ADHD and 

the impact that behavior has had on N.M. and their other 

Children. I found that Father’s neglectfulness, his 

intractability, his inconsistence, and his deceitfulness made 

it appropriate for Mother, who has her own less harmful 

shortcomings, to have more custody time in the school year 

as well as sole legal custody concerning psychiatric care.

T.C.O. at 13 (capitalization adjusted) (emphasis added).

The Pennsylvania Rules of Evidence provide the types of facts a court 

may take judicial notice: “The court may judicially notice a fact that is not 

subject to reasonable dispute because it: (1) is generally known within the 

trial court’s territorial jurisdiction; or (2) can be accurately and readily 

determined from sources whose accuracy cannot reasonably be questioned.” 
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Pa.R.E. 201(b)(1)-(2). “Thus, in deciding whether a trial court erred in taking 

judicial notice, we must determine whether the notice was of an indisputable 

fact, i.e., one which is so commonly known that it need not be supported with 

evidence[.]” In Interest of D.S., 622 A.2d 954, 960 (Pa. Super. 1993).

The symptoms and treatment for ADHD are not the sort of “indisputable 

facts” “so commonly known” that they can be supported without evidence. 

Indeed, the Children’s mental health and their treatment were a centerpiece

of the custody trial, as well as a focus of Dr. Marlan’s expert testimony. These 

facts were the most disputed. That the specifics of N.M.’s diagnosis and 

treatment were the subject of expert testimony only further demonstrates 

that these facts are not “commonly known,” regardless of whether the trial 

court had personal or professional experience with the matter. 

The question now becomes how to proceed in light of the court’s error. 

The harmless error doctrine is designed to advance judicial economy by 

obviating the necessity for a retrial. Commonwealth v. Allshouse, 36 A.3d 

163, 182 (Pa. 2012). Under the harmless error doctrine, the question is 

whether the party claiming error suffered prejudice from the mistake. See 

J.C. v. K.C., 179 A.3d 1124, 1129-1130 (citing Harman ex rel. Harman v. 

Borah, 756 A.2d 116, 1122 (Pa. 2000)).

Father argues that the court’s reliance on its own understanding of 

ADHD played a significant part in the overall custody determination. However, 

the court explained it was the parents’ behavior and their high degree of 

conflict that warranted the sole legal custody award. The court reasoned that 
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Mother was the more suitable custodian between the two, because she was 

more inclined to heed professional advice. Beyond N.M.’s need for ADHD 

treatment, the court determined Father’s parenting style left the Children in 

need of structure and stability during the school year. Most importantly, the 

court explicitly stated that its previous knowledge of ADHD did not impact its 

deliberation or weighing of the custody factors. Rather, the court explained 

that its basis for the award was the underlying testimony and evidence 

regarding N.M.’s need for treatment, and Father’s refusal to ensure the same. 

See T.C.O. at 12, 13. The record supports the court’s decision.

Furthermore, as we noted above, the cited instance of the court’s 

judicial notice was about one’s ability to distinguish gifted children from nongifted children. That the court mentioned this in passing demonstrates the 

tangential nature of the remarks. The court’s comments about gifted children 

are not much different than its aforementioned comments about gender –

imprudent perhaps, but not erroneously prejudicial. We therefore conclude 

that, insofar as the court improperly acknowledged it had personal experience 

regarding ADHD – or the ability to tell gifted children apart from non-gifted 

children – the court’s error was harmless. Father’s second and third issues 

merit no relief.

Having disposed of those issues ancillary to the substantive custody 

decision, we turn now to the crux of Father’s appeal – namely, the legal and 

physical custody awards. We begin with Father’s fourth issue. He argues the 

trial court erred when it awarded Mother sole legal custody to make mental 
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health decisions on behalf of the Children. See Father’s Brief at 31. According 

to Father, the error was the court’s misapplication of certain criteria which he 

claims must be analyzed when departing from a shared custody award. The

four additional factors are:

(1) whether both parents are fit, capable of making 

reasonable child rearing decisions, and willing and be 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; (4) whether a 

minimal degree of cooperation between the parents is 

possible.

See Yates v. Yates, 963 A.2d 535, 542 (Pa. Super. 2008)

(quoting Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998) (hereinafter “the 

Yates-Wiseman factors”). 

Immediately, we recognize that Father’s argument is predicated on 

decisions which have been superseded by the current iteration of the Child 

Custody Act. See P.J.P. v. M.M., 185 A.3d 413, 420 (Pa. Super. 2018); see 

also S.T., 192 A.3d at 1170.

In P.J.P., the appellant-father argued that the trial court erred when it 

denied his petition for shared physical custody without first considering the 

four Yates-Wiseman factors. We explained that Father’s reliance on 

Wiseman (and other progeny decisions applying the same four-factor rule) 

was misplaced, because those cases were decided before Section 5328(a) 

came into effect on January 1, 2011. We held that Section 5328(a)(1)-(16)
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now incorporates each of the four Yates-Wiseman factors. P.J.P., 185 A.3d 

at 420.

But this was not the most critical departure from Wiseman. We also

noted that Wiseman, by its terms, required the trial court “to make at least 

a minimal finding that the parties were able to cooperate before awarding 

shared custody.” P.J.P., 185 A.3d at 420 (citing Wiseman, 718 A.2d at 849). 

We concluded that this rule contradicted the plain language of the current 

iteration of the Child Custody Act. Unlike Wiseman, Section 5328(a) does 

not require certain threshold findings before a court may award shared 

custody. Under the current statute, courts must now consider all relevant 

factors, including the “ability of the parties to cooperate,” when making an 

award of any form of custody; poor cooperation would not be dispositive. 

P.J.P. at 420. Simply put, the enactment of Section 5328(a) rendered the 

Wiseman analysis obsolete. Id.

In S.T. v. R.W., supra, we reaffirmed P.J.P. and applied its holding to 

the legal custody analysis. The court may only consider those factors set

forth in Section 5328(a); the Yates-Wiseman factors have been assimilated. 

See S.T., 192 A.3d at 1170.4

____________________________________________

4 By contrast, we held that those additional factors unique to cases involving 

incarcerated parents – commonly referred to as the Etter facts – must still be 

considered in such a custody analysis under Section 5328(a)(16) (any other 

relevant factor). S.T. at 1166-67; see also M.G. v. L.D., 155 A.3d 1083, 

1093-94 (Pa. Super. 2017) (citing Etter v. Rose, 684 A.2d 1092, 1093 (Pa. 

Super. 1996) and D.R.C. v. J.A.Z., 31 A.3d 677, 678 (Pa. 2011)).
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Instantly, Father argues the court erred by divesting him of shared legal 

custody, because the record illustrated that the four Yates-Wiseman factors 

favored both parties equally. See Father’s Brief at 31-25. Thus, Father 

contends that the trial court misapplied the requisite threshold determination, 

as provided Wiseman. The trial court was also under the mistaken belief that 

legal custody must be decided in accordance with the Yates-Wiseman 

factors.

5

 Notably, Father does not argue the court erred for considering the 

Yates-Wiseman factors; rather, he argues that the Yates-Wiseman factors 

support his position. As we stated in P.J.P., and reaffirmed in S.T., the 

current iteration of the Child Custody Act does not require the court to make 

a threshold determination before awarding sole or primary custody. Thus, 

Father’s fourth issue merits no relief.6

In Father’s fifth issue, the focus shifts from legal custody to physical 

custody. Father argues that the “totality of the facts and evidence of record 

elicited at trial supported an award of shared physical custody[.]” See Father’s 

Brief at 35. He provides a litany of facts, corresponding with each Section 

5328(a) factor, which supports his position that shared physical custody was 

in the best interests of the Children. See generally id. at 37-51. Father adds 

that the trial court erroneously ignored the recommendation of the 

____________________________________________

5 Mother was similarly mistaken.

6 We note here, for the benefit of the parties and the trial court alike, that 

even if Father properly challenged the legal custody award, we would still 

conclude the legal award was supported by the record.
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psychological custody evaluator, Dr. Marlan, who recommended shared 

physical custody. Id. at 49.

Critically, Father misunderstands our appellate function. When 

reviewing a custody decision for an abuse of discretion, the question is not 

whether the record could have supported an alternative custody award – e.g., 

one advocated by the appellant – but whether the record supports the court’s 

decision. Quite often, the record will also support a contrary result. So much 

of a custody award depends upon the weight given to each factor, which in 

turn, depends upon the weight given to evidence and testimony. 

As we mentioned above, 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. M.J.M., 63 A.3d at 339. On issues of credibility and weight 

of the evidence, we defer to the findings of the trial court who has had the 

opportunity to observe the proceedings and demeanor of the witnesses. A.V. 

v. S.T., 87 A.2d 818, 820 (Pa. Super. 2014) (citation omitted). The parties 

cannot dictate the amount of weight the trial court places on evidence. Id. To 

that end, the trial court was not required to accept the expert evaluator’s 

recommendation. See Jacob v. Shultz-Jacob, 923 A.2d 473, 478-79 (Pa. 

Super. 2007). The ultimate test is whether the trial court’s conclusions are 

unreasonable as shown by the evidence of record. S.T., 192 A.3d at 1160.

With this standard in mind, we turn to the trial court’s rationale behind 

its award. First, the trial court explained how it weighed certain Section 

5328(a) factors:
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I found that Father also limited the Children’s 

communication with their Mother, and spoke disparagingly 

about her, resulting in Factor 1 favoring Mother. Overall, 

based on my factor analysis, particularly Factors 9 and 10 –

I found it was in the best interest of the Children that Mother 

have primary custody and that Father’s custody time be 

slightly curtailed during the school year. I also found that 

the Children were safer with Mother. While I found neither 

parent to be abusive under Factor 2, I found, as noted, that 

Father was often neglectful. Additionally, I placed a great 

deal of weight on Factor 13, the level of conflict between the 

parties, which my order should serve to reduce.

T.C.O. at 8 (capitalization adjusted) (citations to the record omitted).

We also observe the trial court found Father’s testimony to be 

problematic:

I also must note...that I often found Father’s testimony to be 

lacking in credibility, which had a significant impact on my 

findings. At times, I found statements Father made to be simply 

untrue. At other times, I found that Father sees his actions in a 

light which is simply unrealistic. Whether he was lying to this 

court, or to himself is immaterial to me. The relevance to me was 

that his judgment, whether purposefully or not, was implemented 

in a way which was harmful to his children, especially N.M.

Id. at 7 (footnote omitted).

The court also explained why it did not agree with Dr. Marlan’s 

assessment:

[Dr. Marlan] referred to Father’s parental style as “childcentered, permissive, and easy going.” “Free-range, but not 

irresponsible.” I did not agree with her assessment of 

Father’s “style” of parenting, which I found bordered on 

neglectful. While Mother, who [Dr. Marlan] referred to as 

“rule-setting,” may be hyper-vigilant to some degree, I 

determined that the Children needed more rules and 

stability than they receive with Father.

Id. at 7-8 (capitalization adjusted) (citations to the record omitted).
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The trial court concluded that, in this high-conflict case, its job was not

to award custody to the “best” parent as a prize, but to design a custody 

scheme which best serves the needs of the Children. Id. at 8. As these

conclusions are not unreasonable as shown by the evidence, we discern no 

abuse of discretion. Father’s fifth issue is without merit.

We turn to Father’s final issue, wherein he claims the trial court erred 

by “failing to explicitly rule on the request for legal custody regarding the 

religion of the children and/or restricting Father’s ability to freely exercise his 

religion.” See Father’s Brief at 54. Preliminarily, we observe that Father’s 

challenge presents a question of law, and thus our standard of review is now 

de novo and our scope of review in plenary. See E.C.S., 256 A.3d at 454.

Prior to the parties’ divorce, the family observed the Jewish faith. 

Indeed, the parties’ initial custody order awarded alternating custody during 

certain Jewish holidays. Recently, however, Father joined the Unitarian 

Universalist Church, and he had attended services with the Children. In 

Mother’s counterclaim for custody, Mother filed for sole legal custody 

regarding the Children’s religion. Mother stated: “Over [Mother’s] protest, 

[Father] is introducing, involving and enrolling the Children into a new religion 

which stands in stark contrast to the religion in which the parties agreed to 

raise the Children during the marriage[.]” See Mother’s counterclaim for 

primary physical and sole legal custody at ¶5(c). In Father’s amended petition 

to modify custody, Father also requested sole legal custody regarding the 

Children’s religion.
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The court did not grant either party sole legal custody regarding the 

Children’s religion. However, the court did include Paragraph 1.9(a), which 

provides:

Father must continue to cooperate with the Children’s 

participation in the Jewish Faith, as the parties agreed to 

this when married and enormous efforts have been 

expended by all.

Order of Court, 3/12/22, at ¶1.9(a).

Before we reach the merits of Father’s sixth appellate issue, we note our 

confusion as to what, precisely, Father seeks to challenge. Contrary to 

Father’s assertion, the trial court explicitly awarded shared legal custody to 

make religious decisions. Of course, the court included Paragraph 1.9(a), and 

Father requests this provision be stricken from the order. Id. at 57. Thus, 

we construe Father’s argument to mean that Paragraph 1.9(a) restricts his 

ability “to freely exercise his religion.” Id., at 54.

 In its Rule 1925(a) opinion, the trial court explains its order does not 

restrict Father’s free exercise of religion, but merely obligates him to 

cooperate with the Children’s participation in Judaism – the family’s observed 

religion before the parents separated. See T.C.O. at 13. The court reasoned 

that nothing in its order restricts Father from taking the Children to worship 

anywhere he pleases during his custody time. The trial court defended the 

inclusion of Paragraph 1.9(a), opining:

While I did not restrict Father’s right to practice whatever 

religion he pleases, I nonetheless felt it important to prevent 

him from interfering with the religious education of his 

Children to which Mother has been attending. Due to the 
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intractable nature of both parties, but particularly Father, I 

concluded that he had to be ordered to support their long 

practiced religious training in Judaism. 

Id. at 14.

Turning to our relevant precedents, we observe that parent’s right to 

raise a child in accordance with certain religious beliefs has often been referred 

to as a “hybrid” matter – one that exists at the intersection between the First 

and Fourteenth Amendments. See Shepp v. Shepp, 906 A.2d 1165, 1172 

(Pa. 2006) (citing Employment Div. Dep’t of Human Res. of Oregon v. 

Smith, 494 U.S. 872, 882 (1990) (reaffirming a higher level of scrutiny for 

cases involving a free exercise claim made in conjunction with our 

constitutional protections, such as the right of a parent to direct the upbringing 

and education of the child). Protections afforded by First Amendment are 

made applicable to the states through the Fourteenth Amendment. See, e.g., 

S.B. v. S.S., 342 A.3d 90, 104 (Pa. 2020). 

Under the Due Process Clause of the Fourteenth Amendment, a parent 

has a fundamental right “to make decisions concerning the care, custody, and 

control of the child.” D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016); and see Troxel 

v. Granville, 530 U.S. 57 (2000). Under the Free Exercise Clause of the First 

Amendment, an individual has a right to religious freedom. Zummo v. 

Zummo, 574 A.2d 1130, 1138 (Pa. Super. 1990); see also Wisconsin v. 

Yoder, 406 U.S. 205 (1972). Read together, parents have the constitutionally 

protected “right to direct the religious upbringing of their children.” Shepp, 

906 A.2d at 1169 (citing Yoder 406 U.S. at 233).
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Both the parties and the trial court rely on Zummo, supra. Although 

Zummo is particularly analogous to the instant case, we note its limited value. 

While a published opinion, Zummo was decided by a three-judge panel which 

included one concurring vote and one dissenting vote. See also Shepp, 906 

A.2d at 1178 n.6 (Justice Baer – Dissenting). Nevertheless, we find some of

its analysis persuasive, particularly that portion which relies on prior 

precedent, as we explain infra. 

In Zummo, the mother was raised Jewish and actively practiced her 

faith since childhood. The father was raised Roman Catholic, but he attended 

service sporadically. Prior to their marriage, they agreed that any children 

would be raised Jewish. During their marriage, the parties had three children 

and were active members in their synagogue and Jewish community. At the 

time of their separation, the oldest child was preparing for his bar mitzvah and 

was required to attend preparatory classes each week, to participate in 

Saturday services, and to attend Sunday school; the middle child was about 

to begin her formal Jewish education at Sunday school. After separation, the 

father refused to arrange for the oldest child’s religious obligations while 

exercising his partial custody time. The father also sought to take the children 

to the occasional Roman Catholic mass as he saw fit; at the time, the children 

had never been to any service outside of the Jewish faith. Zummo, 574 A.2d 

at 1141.

The trial court prohibited the father from taking the children to any 

service “contrary to the Jewish faith,” and it ordered the father to take the 
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children to Sunday school during his custody time. The trial court’s principal 

justification was the perceived risk of harm to the children arising from their 

exposure to a new religion, i.e., that the children would become disoriented 

or confused by the “contradictory” faiths. The father appealed, arguing that 

the trial court infringed upon his First Amendment right to free exercise when 

it prohibited him from instilling his religious beliefs in the children.

This Court agreed. First, we also noted that the parties’ prior, informal 

agreement to raise the children Jewish was irrelevant, as was the father’s 

relative devoutness. Id. at 1130, 1152 (citing JIRB v. Fink, 532 A.2d 369 

(Pa. 1987)). Next, we concluded that any “harm” which might befall the 

children if they were exposed to Catholicism was patently insufficient to justify 

government encroachment upon a parent’s constitutional rights. Id. at 1155.7 

Thus, we vacated the provision of the trial court’s order prohibiting the father 

from taking his children to Catholic mass.

____________________________________________

7 When our Supreme Court later decided a similar issue in Shepp, it clarified 

the “harm” that courts must consider when restricting a parent’s right to free 

exercise:

[A] court may prohibit a parent from advocating religious 

beliefs, which, if acted upon, would constitute a crime. 

However, pursuant to Yoder, it may do so only where it is 

established that advocating the prohibited conduct would 

jeopardize the physical or mental health or safety of the 

child, or have potential for significant social burdens.

Shepp, 906 A.2d at 1174 (citing Yoder, 406 U.S. at 233-34).
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However, we did not vacate that portion of the trial court’s order 

obligating the father to take the children to their Jewish religious classes every 

Sunday. We stated: “Both parents have rights to inculcate religious beliefs in 

their children. Accordingly, the trial court may constitutionally accommodate 

the mother’s rights with a directive of the type imposed here, which essentially 

carves out a time period each Sunday during which the mother had the right 

to custody and control of the children.” Id. at 1157 (citing Rinehimer v. 

Rinehimer, 485 A.2d 1166, 1186 (Pa. Super. 1984)). 

In Rinehimer, we upheld a similar custody order. There, the mother 

practiced Roman Catholicism and the father practiced Lutheranism. The trial 

court issued an order awarding the father partial custody every Wednesday 

and every Friday to Saturday. The father argued that this custody 

arrangement effectively prohibited him exposing the children to his faith, 

because he would hardly ever have custody during Sunday church service. 

Rinehimer, 485 A.2d at 1167-1168. In affirming the trial court’s custody 

order, we explained:

The [trial] court scrupulously avoided any comment which 

would result in one parent's religious beliefs being favored 

over the other. The court placed no prohibition upon either 

parent against taking the children to services of his or her 

faith, discussing religious beliefs, or in any other way 

exposing the boys to their respective faiths. Granted, [the 

father] is effectively prevented from taking his sons to 

Sunday morning services most of the year. But appellant 

himself stated that he agreed the boys should be raised [in 

the mother’s Catholic faith] until they were older. We find 

that the partial custody schedule for the father was not 

designed to frustrate his religious viewpoint, but was 
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designed solely in the best interests of the boys in 

establishing a stable schedule of partial custody.

Id. at 1168-69.

Returning to the instant case, Father argues that Paragraph 1.9(a) 

should be stricken, because Mother was awarded holiday custody time while

he was not. But if Father cites his lack of holiday custody time as a reason 

why he should not have to be burdened by the Paragraph 1.9(a) cooperation 

mandate, we find such an argument to be inapposite to the issue at hand. 

And as we noted in Rinehimer, a physical custody order might have the effect 

of preventing a parent from worshiping with their child, but the order will be 

upheld where there is no prohibition against their religious upbringing. See 

Rinehimer, 485 A.2d at 1168-69.

Ultimately, we read the Paragraph 1.9(a) of the custody order –

obligating Father to “cooperate with the Children’s participation” in Judaism –

to be akin to that lawful portion of the Zummo order directing the father to 

take the child to bar mitzvah classes. Although the trial court ordered Father 

to cooperate, the court did not prohibit Father from imparting his religious 

beliefs in the Children, nor did the court prohibit Father from taking the 

Children to his religious service during his custody time. See also

Rinehimer. Moreover, the trial court explained that its rationale behind 

Paragraph 1.9(a) had little to do with religion, and more to do with Father’s 

penchant for interfering with Mother’s exercise of custody. See T.C.O. at 14. 

Because we conclude the trial court did not restrict Father’s ability to inculcate 

the Children with his religious beliefs, we do not reach the question of whether 
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the restriction was constitutional. See Shepp, 906 A.2d at 1174 (citing 

Yoder, 406 U.S. at 233-34). Our analysis may end here. 

Still, we would be remiss not to address Father’s holiday argument in 

more detail, as the same was of particular focus in his Brief and Reply Brief. 

To the extent Father seeks to raise a separate claim – i.e., that the trial court 

erred when it denied his request for holiday custody but awarded Mother the 

same – we conclude this issue is waived for the following reasons.

Pennsylvania Rule of Appellate Procedure 2116(a) provides that “[t]he 

statement of the questions involved must state concisely the issues to be 

resolved, expressed in the terms and circumstances of the case but without 

unnecessary detail.” Pa.R.A.P. 2116(a). “No question will be considered 

unless it is stated in the statement of questions involved or is fairly suggested 

thereby.” Id. Although the formally stated question will be deemed to include 

every subsidiary question fairly comprised therein, we have said that this 

Court cannot conduct a meaningful review if it must guess what issues an 

appellant is appealing. C.H.L. v. W.D.L., 214 A.3d 1272, 1278 (Pa. Super. 

2019) (citing Pa.R.A.P. 2116(a)). 

The specific claim Father presents in this appeal is whether the trial 

court failed “to explicitly rule on the request for legal custody regarding the 

religion of the children and/or restricting Father’s ability to freely exercise his 

religion in violation of the First Amendment of the United States.” See 

Father’s Brief at 22. Father’s ultimate request is that Paragraph 1.9(a) be 
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stricken from the order and that shared legal custody regarding religion be 

granted to the parties. See id. at 56.

First, we do not construe the denial of Father’s holiday custody to be a 

subsidiary issue of whether the trial court failed to explicitly rule on legal 

custody. Section 5322 defines “legal custody” as “the right to make major 

decisions on behalf of the child, including, but not limited to, medical, 

religious, and educational decisions.” 23 Pa.C.S.A. § 5322 (emphasis 

added). Here, the court clearly awarded both parents shared legal custody to 

make religious decisions on behalf of the Children. Father’s request for holiday 

time was a request for “physical custody” – that is, “[t]he actual physical 

possession and control of a child.” Id. The question of physical custody is not 

“fairly suggested” by the question of legal custody. See Pa.R.A.P. 2116(a).

Second, we do not find the question of whether Father is entitled to his 

own holiday time to be a subsidiary question of whether the court may 

properly mandate Father’s cooperation in Children’s participation in Mother’s 

faith. Evidently, the trial court did not even think to address the holiday 

physical custody issue in its Rule 1925(a) opinion. There is no nexus between 

the court’s mandate that one parent cooperate in a child’s participation in a 

religious practice and the court’s denial of a request for holiday custody time.

Perhaps there is nexus between a First Amendment infringement claim 

and an award of holiday physical custody, but we decline to proclaim one 

based on Father’s ambiguous suggestion. In other words, we will not guess 

or speculate that this is what Father meant to argue. See C.H.L., supra. “It 
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is not the duty of this Court to act as appellant’s counsel, and we decline to 

do so.” C.H.L.., 214 A.3d at 1277. Moreover, “[i]t is not the prerogative of 

an intermediate appellate court to enunciate new precepts of law or to expand 

legal doctrines. Such is a province reserved to the Supreme Court.” Matter 

of M.P., 204 A.3d 976, 986 (Pa. Super. 2019) (citation omitted).

To be clear, we acknowledge Father’s argument concerning holiday time 

is tied to Zummo and not spun from whole cloth. The Zummo Court posited, 

in dicta, that a custody order which awards a Christian parent custody during 

Christian holidays, but does not award the Jewish parent custody during 

Jewish holidays might “constitute an impermissible restriction on religious and 

parental rights, and a violation of the Establishment Clause, albeit an indirect 

one.” Zummo, 574 A.2d at 1157-58. But the Zummo holding has limited 

precedential value (as we mentioned above), its dicta even less. Thus, 

contrary to Father’s characterization in his Brief, this Court has not forbidden 

a trial court from granting one parent’s request for religious holidays without 

acknowledging the other’s. See Father’s Brief at 56.

Absent further guidance from our Supreme Court, we are not entirely 

convinced the “hybrid” constitutional analysis is necessary in every custody 

dispute between parents. It certainly can be, as demonstrated in Shepp, 

supra. But there, the constitution was implicated because the trial court (i.e., 

the government) regulated the content of the parent’s speech, when it 

prohibited the father from speaking to the child about polygamy and Mormon 
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fundamentalism. See Shepp, 906 A.2d at 1174.8 Put another way, the law 

is not so developed on these matters, making it is obvious to us that the

holiday custody claim is “fairly suggested” by the explicit issue Father raised 

in his Brief. Thus, insofar as Father meant to raise a separate claim regarding 

his denied request for holiday time, we conclude Father circumvented 

Pa.R.A.P. 2116(a) and that the issue is waived.

To conclude: the trial court did not based its Section 5328(a) 

determinations on gender preferences; the trial court erred when it took 

judicial notice of the symptoms and treatment of ADHD, but the error was 

harmless; the trial court did not have to make a threshold determination 

before awarding sole legal shared custody, because the current iteration of 

the Child Custody Act has superseded the decisions in Yates and Wiseman; 

the trial court did not abuse its discretion as to its physical custody award, as 

its conclusions were not unreasonable in light of the record; the trial court did 

____________________________________________

8 But see id. at 1174-75 (Justice Eakin – Concurring) (“With parents in conflict 

concerning how [the] daughter should be raised in this regard and with each 

having an equivalent fundamental right to direct [the] daughter’s upbringing, 

I would conclude the fundamental rights of one parent are not superior to the 

fundamental rights of the other. For analytical purposes, they “cross-out” one 

another, leaving us with an analysis based on the best interests of the child –

the hallmark of every custody matter – without applying strict scrutiny. 

Applying strict scrutiny to the trial court’s order based upon [the] father’s First 

Amendment rights gives him a tremendous advantage in the custody dispute 

over whether [the] daughter should be taught about plural marriage, since 

the strict scrutiny test is rarely met.”).
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not infringe on his First Amendment right to free exercise when it ordered 

Father to cooperate with the Children’s participation in Judaism.9

Order affirmed. Application for further costs denied. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/24/2022 

____________________________________________

9 Mother has filed an application for further costs in which she takes issue with 

Father’s “willful failure” to include certain documents in his reproduced record, 

thereby forcing her to incur the costs of preparing and filing supplemental 

reproduced records. In his answer, Father denies Mother’s claim. This Court 

had requested and reviewed the certified record in this appeal. Mother’s 

application for further costs is denied.