J-A14038-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KIMBERLY L. HORN, N/K/A 

KIMBERLY L. ZAPERT,

v.

WILLIAM A. HORN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 172 MDA 2022

Appeal from the Order Entered December 30, 2021

In the Court of Common Pleas of Tioga County Civil Division at No(s): 

0085-FS-2018

BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: JULY 5, 2022

Appellant/Father William A. Horn appeals from the Custody Order 

entered in the Court of Common Pleas of Tioga County on December 30, 2021, 

following a custody trial granting Appellee/Mother Kimberly L. Horn, N/K/A 

Kimberly L. Zapert primary physical custody and Father periods of supervised 

physical custody of the parties’ three minor children: M.H. (born 2005); B.H. 

(born 2008); and A.H. (born 2011) (collectively referred to herein as “Minor 

Children”). The parties also were awarded shared legal custody of the Minor 

Children and required to participate in reunification therapy.

Recognizing that while there appears to be no physical risk of harm to 

the Minor Children if supervised visits were discontinued but also recognizing 

testimony indicates there remains a mental and emotional risk of harm to the 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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older children if supervised visits were discontinued, following a careful 

review, we affirm the Custody Order and the well-reasoned opinion of the 

Honorable George W. Wheeler. 

The instant appeal arises from the latest proceeding in an acrimonious

and litigious custody matter between Mother and Father. The parties were 

married on August 1, 2006, and a divorce decree was entered on October 13, 

2020. Relevant to the instant appeal, Mother filed a Petition for Protection 

from Abuse (“PFA”) on April 18, 2018, wherein she sought a protective order 

for herself and the Minor Children, and a temporary PFA order was entered 

that day. 

A hearing on the PFA was scheduled for August 3, 2018, and on that 

date the parties entered into a stipulation which, inter alia: vacated the 

temporary PFA order; dismissed the PFA; provided Mother and Father shared 

legal custody of the Minor Children; and provided Mother with primary physical 

and Father partial, supervised custody of the Minor Children, with the caveat 

that M.H. and B.H. may choose not attend the supervised periods of custody. 

On September 12, 2018, Father filed a Petition for Modification of 

Custody wherein he averred that supervision of his custody visits was no 

longer needed and requested that he be granted primary physical custody of 

the Minor Children. On November 29, 2018, the parties entered into a 

Temporary Agreement and Order wherein the parties would share legal 

custody, with Mother having primary physical custody. The Order further 

provided that Father would receive supervised partial custody with no set 
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schedule but specified that all three Minor Children were required to attend 

the custodial periods unless their counselors were to indicate in writing that it 

would be therapeutically harmful for any or all of them to attend such 

visitation. 

On January 11, 2019, a guardian ad litem was appointed for all three 

Minor Children. Several motions filed by both Mother and Father and custody 

conferences were held thereafter, and additional Temporary Agreements and 

Orders followed. 

Ultimately, a custody trial commended on September 15, 2021, and the 

trial court entered its Custody Order and Opinion on December 30, 2021. 

Therein, the trial court made the following findings in support of its 

determination regarding custody of the Minor Children: 

1 . Both parties exhibit an extreme level of distrust and animosity 

toward each other. The conflict is of such a degree that it is likely 

neither parent, if permitted, would support continuing physical

contact with the other. Father is adamant and focused in his belief 

that all issues between the parties and the challenges that those 

problems present for the children are the result of a designed and

Intentional effort by Mother to remove him entirely from the 

children’s lives. Father seems to suggest that the proper remedy 

would simply be to grant him complete custody and exclude 

further interference by mother. Mother has maintained custody of 

the children for a period of nearly three (3) years. The children 

have only participated in supervised visitation sessions with 

Father during that time, Mother's conduct and demeanor towards 

Father strongly suggests that she wishes to minimize and control 

Father's contact to the maximum extent possible. It is noted that 

Mother is as adamant in her position that Father is entirely 

responsible for all current challenges as Father is in his counter

position. Mother has suggested that contact between the children 
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and Father should be entirely supervised and perhaps avoided 

entirely until “the children are older.”

2. There is no evidence that Mother has engaged in physical abuse 

of any of the children. There is evidence, in the form of testimony 

from Mother, and B.H., that Father, prior to the parties’ separation 

in 2018, struck at least one (1) of the children, B.H. Father does 

not dispute that he struck the child but testified that he did so in 

the form of spanking as a form of discipline and not as abuse.

Father was charged with harassment as a result of the incident 

and was found not guilty. Mother has repeatedly asserted in this 

proceeding, in contact with the GAL and with others. that Father 

struck B.H. so violently during this episode that he suffered a 

separated tailbone. According to mother, the child was seen at 

Geisinger Hospital in Danville for a previously scheduled

appointment the following day, despite this no evidence in the 

form of medical testimony or record has been presented in any

proceeding, nor, according to her report, to the GAL, to support 

this serious allegation. This matter, and several others, have been 

the subject of investigations all of which were determined to be

unfounded.

There is testimony that at least the two (2) older children 

observed Father strike Mother prior to separation. Father denies 

this. Additionally, Mother and the children have reported that 

Father is loud and demeaning towards them at times including the 

use of threating language, inappropriate names and sarcasm.

There is no evidence to suggest any acts of abuse by Father postseparation. Rather, evidence demonstrates that the numerous 

supervised visits between Father and the children have gone quite

well. While an allegation of abuse regarding an event during a visit 

was investigated, it was ultimately. deemed unfounded. The 

supervision reports and the testimony of the custody supervisor

make clear that physical safety has not been a concern during 

Father's, custody periods.

3. Post-separation, Mother has performed all parental duties on 

behalf of the children. Prior to separation, the evidence suggests 

that Father was active and that both parents actively participated 

in and shared parental duties, including assistance with school 

work, meals, transportation, and discipline.

4. All three (3) children are currently enrolled in the Wellsboro 

Area School District (WASD) and have been for at least a year and 

a half The children have developed friendships and connections 
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within their respective schools and are generally content. The 

children have expressed a desire to remain within the WASD and

Wellsboro community. There have been academic struggles for

the two (2) older children, which are being appropriately 

addressed. Additionally, at least B.H. receives additional support 

services through his school. Similarly, they are connected to and 

engaged in the Wellsboro community. The children have 

progressed socially and emotionally during their time in Wellsboro

5. Evidence related to extended family revealed that Father has a 

twin brother who resides within Tioga County and is known to the 

children. Father has a sister who resides in Pennsylvania several 

hours away, and Paternal Grandmother resides with her.

Mother's extended family includes her two (2) adult 

children, from a prior marriage, who reside outside of 

Pennsylvania. Her husband resides with her and the children in 

Wellsboro.

6. The children are clearly bonded with each other and express a 

desire to remain, together. They currently reside together with 

their mother, and Father's periods of supervised custody are

scheduled to occur together.

7. Each child clearly expressed a desire to continue to reside with 

Mother. The two (2) older children have both requested the ability 

to “opt-out” of scheduled periods of custody with Father. Both 

currently do so at times, with the oldest, M.H., declining most 

opportunities for time with her father.

M.H. has, expressed fear of and anger and frustration with 

her Father. She feels Father refuses to accept or acknowledge any 

of his, past behaviors, which include allegations of abuse. She also 

feels Father minimizes the impact that the events occurring in the 

home have had on her and her sibling [sic]. Additionally, she 

expresses concern that Father has not “done his work” to address 

his anger and to work toward reunification. Also, she is aware that 

Father dismisses the appropriateness or necessity of her therapy. 

Further, M.H. is very aware of each of her parent’s disdain of the 

other. M.H. at one point suggested that she would be content to 

have no contact with Father if she could so, choose but later made 

clear she is willing to see her father but would like to maintain a 

substantial amount of control over the same. M.H. is a bright, 

articulate young lady who seems to express herself comfortably, 

this observation is consistent with: the reports of others including 

therapists and the GAL. It is clear M.H. has thought extensively 
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about her relationship with her father and wants it to be better

but feels that will require investment in the relationship and 

changes by her father.

B.H. also expressed some fear of and frustration with his 

father. B.H. as discussed above, is alleged, by Mother, to have 

suffered physical and verbal abuse by Father. B.H. reports these

allegations to be true. Similar to his older sister, B.H. is frustrated 

that Father does not acknowledge any past conduct or a need for 

any change to be made by Father. B.H. likes the current custody

arrangement whereby he sees his father for periods of supervised 

custody. He would like to have the option to refuse his Father's 

periods of custody. While B.H. is younger than his sister he is also 

well versed, likely too much so, in the hostility between his

parents.

A.H., the youngest child, expresses that she wants to 

continue seeing her father, but does not want to live with him or 

stay at “his house”. She does not express any fear of her Father 

or spending time with him.

8. Father insists that his children have been intentionally alienated 

from him by Mother's conduct since the parties separated. Father 

adamantly denies that he committed any acts of abuse toward any 

of the children or Mother. Father essentially suggests that none of 

the services provided to the children are necessary but rather are 

part of the “plan” being executed by Mother. Mother insists that 

Father is dangerous and, that all actions she has taken have been 

in response to her fears for her safety and that of the children. 

The children have clearly adopted this position. As noted 

elsewhere, the children are all aware of the hostilities and 

accusations each parent have and continue to make against the 

other. It is clear that during the time since the parties separated, 

the children, despite the security of a home with their mother, 

limitations on father's contact and access to services continue to

struggle with fears related to their father and their relationship 

with him.

9. Father's current attitude and conduct strongly suggests that he 

would at times struggle, as the circumstances currently exist, to 

maintain a stable, consistent and nurturing relationship with the

children, particularly M.H. and B.H. Specifically, Father insists that 

he has never perpetrated any abuse but rather is the victim of 

Mother's conduct. M.H. and B.H. are equally insistent that Father 

did engage in abuse and refuses to acknowledge doing so or take 

any steps to remediate it. Father clearly discounts the children 
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participating in individualized counseling and views it as 

unnecessary, whereas the children (particularly M.H. and B.H.) 

view it as vital to their well-being. Additionally, the older children 

both clearly indicated that Father says and does things which 

make them feel disregarded. B.H. recounted incidents where 

Father has mocked, stereotyped or otherwise belittled persons 

based upon their physical appearance or physical or mental 

limitation. B.H. reports Father continued to do this even when 

advised by B.H. that he did not believe it was appropriate and 

asked him to stop. M.H. recounted a recent visit when, after 

choosing to not to attend several periods of custody, she

approached Father and he refused to acknowledge or speak to 

her. On a later visit, Father minimized M.H.'s excitement regarding 

her orthodontic braces which had just been placed.

10. Mother has demonstrated both the ability and willingness to 

attend to the physical, emotional, developmental, educational, 

and special needs of the children. Father similarly has

demonstrated, prior to separation, the ability and willingness to 

meet the needs of his children. Subsequent to the separation, 

Father has struggled to engage with the service providers who 

have attempted to assist the family and the children individually. 

Father attributes this failure to others, noting that providers will

not listen to him, that services being provided are not necessary, 

that providers misunderstand or misinterpret his conduct as 

hostile rather than frustration or that providers are not qualified 

to provide the services. Father demonstrates a complete refusal 

acknowledge any need of his, Children, absent an enthusiastic and 

unqualified acceptance, of his position that all of the experiences 

they have had, emotions they possess and the challenges they 

face are the sole result of Mother's alienation efforts. Father’s 

hostility toward the appropriateness or need for services of any

kind is concerning as it would likely have a significant impact on 

particularly to two oldest children.

11. The parties currently reside fifteen (15) to eighteen (18)

minutes apart within Tioga County. Both maintain residences 

which are physically adequate to meet the needs of the children.

While the parties reside in different school districts, both have

adequate resources to provide any transportation to ensure 

custody can be, exercised as ordered.

12. Father operates, with his twin brother, a bushiness which 

produces glass tools. The primary physical facility is located in 
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Tioga Borough, Tioga County. Father testified that he has

substantial flexibility to take time away from work to care for the 

children. Father reports he previously regularly transported the 

children to school and adjusted his schedule as necessary to meet

the needs of the children. Mother works from home on a limited 

basis and reports she has availability to meet any childcare needs. 

Mother has, since separation, met all childcare needs for the 

children, including transportation to and attendance at medical 

and other appointments.

13. There is an extremely high level of conflict between the 

parties. Father attributes total responsibility for the parties

separation to Mother, Further, he insists that Mother has 

deliberately alienated the children from him. Mother is equally 

insistent that all of her actions are intended to protect the safety 

of and advance the well-being of the children. This extreme level 

of conflict is known to the children and has been a significant 

impediment to their well being and the relationship they have with 

Father.

14. There is no evidence of drug or alcohol abuse by either party 

or any member of either household.

15. Neither party is limited as to their ability to care for the 

children by any physical or mental limitation. Mother suffers from 

Ehlers-Danlos Syndrome, as do two (2) of the children, but this 

does not substantially limit her ability to perform parental duties. 

Both parties underwent psychological evaluations which revealed 

no mental health condition that would prevent them from

parenting the children.

16. Need for reunification therapy; Father retained Dr. Stanley 

Clawar to support to support his claim of parental alienation. 

Mother agreed to the use of Dr. Clawar and participated in the 

process. Dr. Clawar produced an extensive written report which 

was admitted at trial. He also testified for nearly a full day at trial. 

In considering the best interests of the children, which clearly

includes maintaining and, if possible, strengthening the 

relationship between Father and each of the children, it is clear 

that an effort must be made at reunification. This determination 

is not an adoption by the Court of Father's espoused position that 

Mother has intentionally engaged in alienation, but rather is an 

acknowledgement of the reality that M.H. and B.H. are, in fact, 

significantly estranged from Father and likely will remain so 
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without a significant intervention. While A.H. is not yet similarly

estranged, she is at risk to become so. This reality necessitates 

an attempt, through appropriate reunification therapy, to reunify 

the children and Father. The focus of this effort is not on the past 

but rather on the future. More importantly, it is not to be used as 

a process for fixing blame or accessing guilt or exacting a 

punishment or revenge, but instead to be a process to support the 

needs and interests of the children in restoring their relationship 

with Father. It is emphasized that both parents will be ordered to 

cooperate in the process, including any treatment recommended 

by the provider. Simply repeating or even screaming that 

alienation is at the root of all that is wrong between Father and 

the children will not be acceptable, nor may Mother, despite past 

attempts or failures in the effort, decline to participate. In an effort 

to maximize the potential for success, Father will be responsible 

for the initial selection of a qualified reunification therapist, he 

shall immediately notify Mother and the GAL of his selection.

Physical safety of the children. Substantial testimony was 

presented regarding concerns about the physical safety of the 

children in Father's care. Father has been accused of engaging in 

physical abuse of Mother and at least one of the children. 

Additional allegations have been made that Father has threated a 

neighbor and strangers in the driveway of the family home, has

irresponsibly stored firearms with in the home, holds racist and/or 

white supremacist beliefs, has tortured animals, may have 

exposed the children, to pornography and other allegations. While 

the undersigned is well aware that many acts of abuse occur in 

private and are intended to be unobserved, it is of note that in this 

matter, despite the length of time to prepare for trial, the volume 

of material presented at trial and the serious nature of some of 

the allegations, little, other that her own testimony has been 

presented to support most of the allegations. For example, Mother 

has repeated that on at least two occasions, Father threatened 

others with a firearm on the property, including a neighbor, yet

no one was presented to testify to either event. Further, as 

discussed above, Mother accuses Father of striking B. H. so 

violently that he suffered a separated tailbone yet no medical 

evidence has ever been presented to support the claim, despite 

the child being seen the very next day at Geisinger Hospital for a 

prescheduled appointment. Further, Mother testified to 

photographs she had taken, according to her testimony at the 

direction of Haven, to document the irresponsible storage of 

firearms within the home, however no such photos were 

presented. These allegations can not [sic] be merely disregarded 
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but must be balanced against the fact that Father has been 

repeatedly investigated for alleged abuse against the children and 

that all were determined to be unfounded. Additionally, there have 

been a significant number of supervised periods of custody and 

nothing from them suggests a threat to the physical safety of the 

children. What is clear is that the older two children have said they 

are uncomfortable with unsupervised visits at this time and this 

must also be considered. On consideration, visits will continue to 

be supervised at this time for M.H. and B.H. and they will be 

scheduled for alternating Mondays. A.IH. will have a supervised 

visit each Monday. On Mondays on which the visits are not

scheduled to include M.H. and B.H., the visits with A.H. shall be in 

a public place within Wellsboro but shall not require supervision. 

M.H. and/or B.H. may at their sole discretion attend any of A.H.'s

visits however their presence will be with the understanding that 

it will not otherwise change the conditions of the visit. 

Trial Court Opinion, filed 12/30/21 at 1-9.1 

____________________________________________

1 “The Pennsylvania Child Custody Act (“the Custody Act”), 23 Pa.C.S.A. §§ 

5321–5340, governs all custody proceedings commenced after January 24, 

2011. E.D. v. M.P., 33 A.3d 73, 77 (Pa.Super. 2011). The Custody Act 

requires a trial court to consider all of the Section 5328(a) best interest factors 

when “ordering any form of custody.” 23 Pa.C.S. § 5328(a).

Soon after the current iteration of the Custody Act was enacted in 2011, 

this Court was tasked with interpreting Section 5323(d),“Reasons for award,”

and held that the trial court must delineate its reasons for its custody award 

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

appeal. See C.B. v. J.B., 65 A.3d 946, 954 (Pa.Super. 2013), appeal denied, 

620 Pa. 727 (Pa. 2013). We reasoned that if the litigant were forced to take 

an appeal without the benefit of the trial court’s rationale, then the litigant 

would be in an untenable position of having “to guess as to which information 

the trial court found pertinent, and how the evidence informed the court's 

analysis of the Act’s sixteen custody factors.” Id. at 955. 

It is noteworthy that the trial court herein did not specifically cite to the 

sixteen, enumerated factors of Section 5328(a) in its December 30, 2021, 

Opinion and Order. Indeed, the court did not reference the Custody Act at all 

therein and instead merely refers to “the various factors set forth in the 

statute.” See Opinion, filed 12/21/30, at 1. However, the trial court’s decision 

to include sixteen (16) individually numbered paragraphs in its Opinion 

suggests an intent to mirror the sixteen subsections of Section 5328(a). 
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Father filed a timely notice of appeal on January 28, 2022. On that 

same date, Father filed a concise statement of matters complained of on 

appeal pursuant to Pa.R.A.P. 1925(b) wherein he presented sixteen (16) 

claims of error. The trial court entered its Supplemental Opinion Pursuant to 

Pa.R.A.P. 1925 on March 3, 2022. 

In his appellate brief, Father raises the following Statement of Questions 

Involved for this Court’s review: 

A. Whether the Trial Court erred or abused its discretion by 

continuing to impose upon Father a restrictive supervised 

visitation schedule in its final order when the Trial Court confirmed 

there was no evidence of record substantiating abuse or an 

ongoing risk of harm to the Minor Children?

B. Whether the Trial Court erred and abused its discretion by 

issuing a final order based on the unreasonable and tainted 

preference of the Minor Children?

C. Whether the Trial Court erred and abused its discretion by not

considering and addressing the uncontroverted evidence of 

alienation on the part of Mother and its impact on the Minor 

Children’s best interests?

D. Whether the Trial Court erred and abused its discretion by 

issuing a final order based on the testimony of the guardian ad 

litem when the guardian ad litem’s report was not filed and she 

failed to conduct a proper investigation?

Brief for Father at 4.

2

 

____________________________________________

2 Mother failed to file a timely appellate brief and, therefore, was precluded 

from participating in oral argument. The guardian ad litem was available at 

oral argument and responded to questions posed by the three-judge panel. 
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As Father’s issues are interrelated, we will consider them together. In 

doing so, we begin with our 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.

With any child custody case, the paramount concern is the 

best interests of the child. This standard requires a case-by-case 

assessment of all the factors that may legitimately affect the 

physical, intellectual, moral and spiritual well-being of the child. 

J.R.M. v. J.E.A., 33 A.3d 647, 650 (Pa.Super.2011) (citation 

omitted).

M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa.Super. 2013).

It is well-settled that in any custody case decided under the Custody 

Act, the paramount concern is the best interest of the child. See 23 Pa.C.S.A. 

§§ 5328 and 5338. Section 5328(a) of the Act sets forth the best interest 

factors that a court must consider in awarding custody. See E.D. v. M.P., 33 

A.3d 73, 79-80 n.2 (Pa.Super. 2011). Specifically, Section 5328(a) provides:

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

determine the best interest of the child by considering all relevant 

factors, giving weighted consideration to those factors which 

affect the safety of the child, including the following:

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

and continuing contact between the child and another party.
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(2) The present and past abuse committed by a party or member 

of the party's household, whether there is a continued risk of harm 

to the child or an abused party and which party can better provide 

adequate physical safeguards and supervision of the child.

(2.1) The information set forth in section 5329.1(a) (relating to 

consideration of child abuse and involvement with protective 

services).

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

child.

(4) The need for stability and continuity in the child's education, 

family life and community life.

(5) The availability of extended family.

(6) The child's sibling relationships.

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

maturity and judgment.

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

parent, except in cases of domestic violence where reasonable 

safety measures are necessary to protect the child from harm.

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

consistent and nurturing relationship with the child adequate for 

the child's emotional needs.

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

emotional, developmental, educational and special needs of the 

child.

(11) The proximity of the residences of the parties.

(12) Each party's availability to care for the child or ability to make 

appropriate child-care arrangements.

(13) The level of conflict between the parties and the willingness 

and ability of the parties to cooperate with one another. A party's 

effort to protect a child from abuse by another party is not 

evidence of unwillingness or inability to cooperate with that party.
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(14) The history of drug or alcohol abuse of a party or member of 

a party's household.

(15) The mental and physical condition of a party or member of a 

party's household.

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328(a).

It is also axiomatic that:

The record on appeal must clearly demonstrate that the trial 

court considered all of the factors listed in section

5328(a). J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa.Super. 2011).

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. Additionally, section 5323(d) requires the trial 

court to set forth its mandatory assessment of the sixteen section 

5328(a) custody factors prior to the deadline by which a litigant 

must file a notice of appeal. ...

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) (internal citations, 

quotation marks, and brackets omitted). 

In addition to being aware of our deference to the trial court's credibility 

and weight of the evidence determinations, we are mindful that it is within the 

trial court's purview as finder of fact to determine which factors are most 

salient and critical in each particular case. See M.J.M. v. M.L.G., 63 A.3d at 

339. However, we will find error “where the trial court listed the Section 
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5328(a) factors but failed to apply them.” C.A.J. v. D.S.M., 136 A.3d 504, 

510 (Pa. Super. 2016) (citations omitted).

Section 5323 of the Custody Act provides for the following types of 

awards:

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

in section 5328 (relating to factors to consider when awarding 

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

custody if it in the best interest of the child:

(1) Shared physical custody.

(2) Primary physical custody.

(3) Partial physical custody.

(4) Sole physical custody.

(5) Supervised physical custody.

(6) Shared legal custody.

(7) Sole legal custody.

23 Pa.C.S.A. § 5323(a).

Supervised physical custody is defined as “[c]ustodial time during which 

an agency or an adult designated by the court or agreed upon by the parties 

monitors the interaction between the child and the individual with those 

rights.” 23 Pa.C.S.A. § 5322. 

In circumstances where trial courts determine safety restrictions in a 

custody order are warranted: 

[i]t is important for courts to impose restrictions 

sparingly. See Ferencak v. Moore, 300 Pa.Super. 28, 445 A.2d 
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1282 (1982). Courts ought not to impose restrictions which 

unnecessarily shield children from the true nature of their parents 

unless it can be shown that some detrimental impact will flow from 

the specific behavior of the parent. The process of children's 

maturation requires that they view and evaluate their parents in 

the bright light of reality. Children who learn their parents' 

weaknesses and strengths may be able better to shape lifelong 

relationships with them.

 Once a court concludes that the imposition of a restriction is 

necessary, it must phrase the restriction in the least intrusive 

language reasonably needed to safeguard the child. Somers v.

Somers, 326 Pa.Super. 556, 474 A.2d 630 (1984); Dile v.

Dile, 294 Pa.Super. 459, 426 A.2d 137 (1981); Morris v.

Morris, 271 Pa.Super. 19, 412 A.2d 139 (1979). Broad or 

nonspecific restrictions will be invalidated in favor of narrowly 

focused, precise restrictions that are directed toward the child's 

welfare. Somers; Dile. This principle underscores the policy that 

it is preferable for parent-child relationships to be defined by and 

developed according to the personalities and character of the child 

and parent, unhampered, to the extent possible, by restrictions 

imposed by the court.

Fatemi v. Fatemi, 489 A.2d 798, 801–02 (Pa.Super. 1985).

Furthermore, this Court has stated:

Although the express wishes of a child are not controlling in 

custody decisions, such wishes do constitute an important factor 

that must be carefully considered in determining the child's best 

interest. The weight to be attributed to a child's testimony can 

best be determined by the judge before whom the child appears. 

The child's preference must be based upon good reasons and his 

or her maturity and intelligence must also be considered.

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

and quotations omitted).

In his first two claims, Father avers the trial court erred when it imposed 

supervised visitation upon him in contradiction of its own findings and the

record evidence. Father stresses the trial court found Father did not commit 
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any acts of abuse upon, nor did he pose any potential risk of harm to, the 

Minor Children. 

Father argues that the trial court’s Custody Order provides Father with 

several hours of physical custody of the Minor Children on Father’s Day and 

other holidays and explicitly states that these custodial periods shall not be 

supervised. The court also excused supervised visitation with M.H. and B.H. 

in those instances when they to choose to attend a custodial session with 

Father and A.H. See Order, 12/30/21, at ¶ 3-4. 

Father opines that:

When assuming the false premise that Father is a safety risk, 

there is no apparent or logical reason as to why the presence of 

A.H. or the occurrence of a holiday dissipates the need to protect 

the safety of the two oldest Minor Children. The Order terms show 

there is no rationale for the safety provisions that are related to 

abuse or potential harm to the minor children. It appears from 

the Opinion that the only reason the [t]rial [c]ourt continued 

supervised visitation was because of the Minor Children feeling 

uncomfortable: What is clear is that the older two children have 

said they are uncomfortable with unsupervised visits at this time 

and this must also be considered. On consideration, visits will 

continue to be supervised at this time. . .” 

Brief for Appellant at 22-23. 

Father also posits the trial court failed to consider evidence of Mother’s 

historic alienation of him from the Minor Children and erred in basing its final 

Custody Order on the guardian ad litem’s trial testimony, because she had not 

filed a written report prior to testifying at trial. 

In its Opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court 

reiterates it “did not find that either party committed acts of physical abuse.” 
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Supplemental Opinion Pursuant to Pa.R.A.P. 1925, filed 3/2/22, at 1. 

However, the court clarifies its decision to grant father supervised periods of 

physical custody of the Minor Children and its granting M.H. and B.H. the 

discretion to “opt out” of these custodial periods as follows: 

The court also granted the older children, who consistently and 

credibly express a fear of Appellant, great latitude in attending or 

not attending visits with their father. The testimony of these 

children indicates, credibly, that Appellant dismisses or ignores 

their expressed fears and concerns as well as, at least in the case 

of the oldest child, her very presence at some periods of custody. 

As discussed below, attendance at and participation in 

reunification therapy is not optional for the children nor either 

parent. The length, frequency and conditions of Appellant's 

periods of custody would all be subject to modification as progress 

is made in the reunification process.

Supplemental Opinion Pursuant to Pa.R.A.P. 1925(a) at 2 (unnumbered). 

An award of partial custody generally does not contain any 

restrictions. Fatemi v. Fatemi, 339 Pa.Super. 590, 489 A.2d 79

8, 801 (1985). “A restriction will be imposed if the parties have

agreed to a restriction or if the party requesting a restriction

shows that without it, partial custody will have a detrimental

impact on the child.” Id.; see also 23 Pa.C.S.A. § 5323(e) (“[I]f 

the court finds that there is an ongoing risk of harm to the child 

or an abused party and awards any form of custody to a party who 

committed the abuse or who has a household member who 

committed the abuse, the court shall include in the custody order 

safety conditions designed to protect the child or the abused 

party.”

J.R.M. v. J.E.A., 33 A.3d 647, 653 (Pa.Super. 2011).

Herein, Father’s expert Dr. Stanley Clawar testified at the custody trial 

that based on his observations and interviews, while Father has work to do 

with professionals to help him “rethink a lot of his dialogue with the children,” 

including active participation in reunification therapy, the continuation of 
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supervised visitation does not allow of Father’s physical contact with the Minor 

Children to “normalize” and should not be a part of any future reunification 

plans. N.T., 11/18/21, at 194, 197, 222-223. Dr. Clawar explained that 

unsupervised visitation is: 

Often done in conjunction, in phases, and bigger blocks of time. 

So I’ve had work here where I’ve done a reunification session and 

then gone to the home with the father or mother, and the children. 

And so, it was a sequence into going out to dinner with or without, 

you know, somebody present and supervising. The question is, 

you know, does this person need supervision? What, to have 

dinner and then take the child home? Supervision to go to the 

arcade? So, I just raise questions about where and if, you know, 

supervision takes place. He’s had three years of supervision, so 

you’re looking for normalizing the relationship as much as you 

can. Will the reports be perfect? Probably not. Will kids come 

home and say: You know, Mom’s annoying as hell or Dad was 

annoying at dinner? But is that abuse? No, it’s not, it’s the 

dialogue between the parent and the child where the kid just 

doesn’t like something that was said. So, the goal here is to get 

rid of the microscope and to normalize it. 

Id. at 223. 

In addition, Attorney Patricia Shipman, the guardian ad litem for the 

Minor Children, testified extensively regarding her custody recommendation.

N.T., 12/3/21, at 1-70. Attorney Shipman recommended continued 

supervised physical custody for Father of all three Minor Children, although 

she did not believe A.H.’s custody visits needed to be closely supervised. She 

explained that M.H. and B.H. would “benefit, very much, from having control 

over whether or not they see Father.” Id. at 16. Attorney Shipman explained: 

I think B.F.H., in particular, likes to have the close 

supervision because of comments that Father makes that bother 

him. And I think M.J.H. does as well. Although I think M.J.H.’s 
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more emotionally able to handle those comments than maybe 

B.F.H. is. So, as far as physical, I would recommend that B.F.H. 

and M.J.H. get to choose when they want to go and that time 

continue with A.E.H. with kind of a looser supervision.” 

Id. at 17. 

In making her recommendation, Attorney Shipman highlighted that 

while he is “amazing” and has improved greatly in the time she has known 

him, B.H. had been in a Partial Hospital Program, has gone to trauma therapy, 

receives medication, and sees both a psychiatrist and a psychologist. Id. at 

27-28. She also was aware that B.H. had threatened suicide “at least once.” 

Id. at 28. Attorney Shipman explained:

He has-he has times with his dad that are very, very good and he 

enjoys them very much. But there are times when his father says 

or does things that just upset him, and he is not able to- I think, 

initially, he wasn’t able to even respond to that, now he has the 

insight to be able to say something to Dad. You know, this is- you 

say this or you do this and it upsets me, but Dad’s response is not 

to accept that, and learn from it, and make changes. And so, he’s 

still in the same place he was three years ago when I met him, 

which is he desperately wants to have a relationship with his 

father, and the relationship with his father is, is rocky- it’s up and 

down- and his father continues to disappoint him. 

Id. at 30. 

With regard to M.H., Attorney Shipman expressed similar concerns of 

mental harm in support of her recommendation for supervised custody while 

at the same time recognizing that she desires to have a positive relationship 

with Father: 

M.J.H. is incredibly depressed and anxious. Her entire body andobviously, I haven’t asked her to strip down-but her legs and her

arms, like in the summertime when you can see that, are- her 
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entire body is covered in sores that she’s self-inflicted, due to her 

anxiety and she’s picked at them. She’s created them and she’s 

continued to pick at them. I don’t know that she’ll eve not- but 

they’re always going to be visible because they’re scarred so badly 

from that. She has a lot, a lot of dark feelings and hatred towards 

her father. . . . But, I, like, B.F.H., I’ve seen her grow and mature 

a lot. She’s been able to work through a lot of those emotions 

and recognize them, understand them, talk her way through 

them, and control them. . . And, and I would say that despite- I 

think, actually, she wants a relationship with her father more than 

she would let on because even though she has not- she’s had the 

freedom not to go to visits, where in six months she’s chosen to 

go to a couple of them. . . . 

-so, so her anger- her anger, from what I can tell, stems primarily 

from Father and her relationship with him, and her perception that

she has been emotionally and verbally abused by him; and also 

probably witnessing him do the same to her mom and her brother, 

and treat her sister completely different. 

Id. at 35-37. 

Attorney Shipmen also noted: 

They’re very sensitive, sweet children, and Father can be 

very sarcastic, and I don’t think they respond well to that. And 

they don’t respond- they’re not happy when they try to tell him 

things that’s- they’re not happy when they try to tell him things 

like, you know, that comment upsets me, and he just, you know, 

basically, laughs at them, or ridicules them, for being upset by 

that. 

Id. at 38. 

At the conclusion of her direct testimony, she stated that “unless and 

until” Father decides “to do the work that Mother and the children have done 

to move forward” she did not “see a lot of change in the physical custody 

schedule.” Id. at 18. Attorney Shipman expressed her desire to see the 
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supervised visits transition to less “artificial interactions” going forward. 

Importantly, after noting Mother’s displeasure with Dr. Clawar’s report, 

Attorney Shipman looked favorably upon Dr. Clawar’s recommendations for 

Mother and Father in general and specifically his recommendation for 

reunification therapy. Id. at 19. 

However, Attorney Shipman also explained that eliminating the 

requirement of supervision for Father’s custody visits at this juncture would 

be a “double-edge[d] sword:

One is, I don’t-I don’t think that A.E.H. is unsafe with Father, 

I just don’t. I think that- I don’t think that the supervision, 

necessarily, provides her safety. But, I also think that A.E.H. feels 

safer with a supervisor, and that-and that if Dad is not doing the 

work that the children are doing and that Mom is doing, that going 

to unsupervised or lesser supervised is kind of going to- I don’t 

know-let him get off without doing that work and not making any 

improvements, other than just having less supervision. 

Id. at 46-47. 

Following Attorney Shipman’s direct and cross-examination, the trial 

court asked her if there were anything she did not believe had been addressed 

by counsel of which the court should be made aware. Attorney Shipman 

proceeded to give examples of the ways in which Father’s testimony had been 

“full of a lot of lies and inconsistencies.” Id. at 67. 

Attorney Shipman also expressed her belief that the Minor Children want 

“very much to have a relationship with their father that makes them happy, 

that they feel safe with, and they have done everything that they feel like 

they’ve been encouraged to do for that to happen. And he has not.” Id. at 
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69. She cited Father’s refusal to move forward and instead focus on Mother’s 

past alienation or behavior as the primary reason that little has changed in his 

relationship with the Minor Children for three years. Id. at 69-70. 

Attorney Shipman stated the fact the Minor Children have precisely the 

same feelings and positions as they did when she met them three years prior 

proved to her that the children have not been coached or encouraged to say 

certain things due to some outside influence. She concluded by stressing that:

And, I think, they’ve told you pretty much what they want 

and how they feel- and they’ve been thinking about that for three 

years at this point in time. And I respect their wishes, and I think 

that they should be taken into great consideration.

Id. at 70. 

Although a trial court is not required to accept the conclusions of an 

expert witness in a child custody case, it must consider them, and, if 

the trial court chooses not to follow the expert's recommendations, its 

independent decision must be supported by competent evidence of record.

Nomland v. Nomland, 813 A.2d 850, 854 (Pa.Super.2002) (citations 

omitted). Herein, Father’s arguments to the contrary, the trial court accepted

Dr. Clawar’s recommendation that the family needs to participate in 

reunification therapy and imposed restrictions on Father’s periods of partial 

custody based not only upon the trial testimony of the guardian ad litem, but 

also upon its consideration of the custody factors. Specifically, the trial court 

observed: 
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[Father] assigns various related errors in the grant of 

primary physical custody to [Mother], the weight afforded to the 

preferences of the children and the limits on his periods of 

custody. [Father] asserts the court found none of the custody 

factors to be in [Mother’s] favor. Several of the custody factors, 

including numbers (1), (3), (5) and (11) through (15) favor 

neither party. These factors either reflect equally unfavorably on 

each party, as is the case with factors (1) and (13), are equally

balanced, as is the case with factors (11) and (12) or are not 

applicable to either party as is the case with factors (14) and (15). 

Other factors, specifically (2) and (2.1) were the subject of 

extensive testimony.

The court did not find that either party committed acts of 

physical abuse. In doing so the court considered and noted the 

results of the various allegations against [F]ather including the 

summary harassment charge (of which he was acquitted) and the 

Child Protective Services (which were ultimately unfounded). 

Several other factors, for reasons presented in the Opinion, clearly 

favored [Mother] having primary physical custody, these included 

factors (4), (6), (7), (9) and (10). These particular factors were 

also given the greatest weight due to the significance they have 

in supporting both the immediate and long-term best interests of 

the children. Specifically, as to factors (9) and (10) [Father] 

entirely dismisses any possible need for mental health services for 

the children despite the testimony of professionals and the stated 

desire for the same by the older two children. [Father] expressed 

the same disdain and disregard for educational services provided 

for the children, despite his limited involvement in the same 

during the last several years. Perhaps more importantly for his 

immediate relationship and care of the children [Father] totally 

rejects any responsibility for the clearly expressed fear his 

children have of him and instead attributes everything to 

[Mother]. In considering the entirety of the evidence the court 

finds this assertion is simply not credible. [Father] asserts error 

to the weight given to the preference of the children. The 

testimony of each child reflects the clear preference of each to 

reside with their mother. As stated in its opinion, the court gave 

considerable weight, particularly as to the two older children, to 

this preference for the reasons given. The court also granted the 

older children, who consistently and credibly express a fear of 

[Father], great latitude in attending or not attending visits with 

their father. The testimony of these children indicates, credibly, 

that [Father] dismisses or ignores their expressed fears and 

concerns as well as, at least in the case of the oldest child, her 
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very presence at some periods of custody. As discussed below, 

attendance at and participation in reunification therapy is not 

optional for the children nor either parent. The length, frequency 

and conditions of [Father’s] periods of custody would all be subject 

to modification as progress is made in the reunification process.

[Father] asserts various errors related to the evaluation and 

testimony of Dr. Stanley Clawar. The first of these errors is that 

the court erred in “not properly considering, weighing or adopting 

the uncontroverted evidence or recommendations provided by the 

case’s only expert, Dr. Stanley Clawar.” This broad allegation of 

error does not identify any specific findings or recommendations 

allegedly not considered or adopted. There have been assertions 

presented that Dr. Clawar was a neutral evaluator or witness. The 

record simply does not support this, Dr. Clawar was sought out, 

retained and paid by [Father]. Dr. Clawar testified at length 

regarding his evaluation and the process and carefully

distinguished that he conducted a forensic evaluation and was not 

a clinical provider to any of children or either party. The court 

did in fact adopt what it determined to be the most 

important recommendation by requiring the parties and 

children engage in immediate reunification therapy. The

court further directed that [Father] was authorized to 

select a qualified professional and that [Mother] was 

required to cooperate and participate.

***

[Father] further asserts as error the court “making no 

finding and supplying no remedy or sanction regarding Mother's 

alienation and undermining of Father's relationship with the 

children.” [Father] is correct that the court made no specific 

finding of alienation, however, the court did find that both parents 

had failed to meaningfully support the relation of the other parent. 

The court found and noted that [Father’s] relationship with the 

children had been negatively impacted and that [M]other was, in 

part, responsible for the eroded relationship. [Father] however is 

also, in part, at fault for the present condition of his relationship 

with the children. The court noted and adopted as a remedy a

requirement that the parties and children immediately begin 

reunification therapy. This remedy was suggested and deemed 

essential by Dr. Clawar. This requirement is foundational to the 

preservation and strengthening of the relationship between 

[Father] and his children. [Father] is further correct that the court 

imposed no sanction upon Mother. A primary focus and purpose 
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in a custody trial is to address the best interests of the children at 

the center of it. A custody trial is not intended to be a mechanism 

by which one parent, through the court, punishes or exacts 

retribution upon the other parent. Should [Mother] refuse to 

participate and cooperate or require the children to participate and

cooperate in reunification therapy or any other way disregard the 

Order, [Father] may, of course, seek enforcement through means 

including contempt. 

***

[Father] presents two allegations of error related to the 

guardian ad litem. Specifically, it is noted that the report of the 

guardian ad litem was not filed. A review of the docket reveals this 

is factually correct, while a report was prepared and circulated it 

was never made part of the record. The guardian ad litem was 

present for the entire trial and testified. The second allegation of 

error asserts “[t]he trial court erred and abused its discretion by 

deferring to, considering or adopting a recommendation or 

position of the guardian ad litem given the evidence of record and 

the failure of the guardian ad litem to conduct a proper 

investigation and interviews.” This allegation identifies no

recommendation or position nor specific failure by the guardian 

ad litem during her appointment. As noted above, the guardian ad 

litem testified during the custody trial and the court considered 

this along with all other evidence presented in making the 

determinations it did.

Supplemental Opinion Pursuant to Pa.R.A.P. 1925, filed 3/2/22, at 1-4 

(unnumbered) (emphasis added). 

Upon our review of the record, aware of and applying the deference this 

Court must give to the credibility determinations of the trial court, we accept

the trial court’s conclusion that Father’s custody must remain supervised and

that B.H. and M.H. have the ability to opt out of custodial time with him until 

such time as progress is made in the reunification process. While the record 

does not point to specific acts of physical harm which may result if the custody 

arrangement for B.H. and M.H. is changed prior to the time the family 
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completes reunification therapy, it does suggest that the fragile mental health 

of these children may be adversely affected if they do not continue to have 

periods of supervised physical custody which they may opt out of with Father. 

As mentioned above, the law does not require a certain amount of detail 

for a trial court's explanation to be sufficient, only that the court's decision is 

based on the enumerated custody factors. D.Q. v. K.K., 241 A.3d 1112, 

1118 (Pa.Super. 2020). Appellate interference is unwarranted so long as the 

trial court's considerations were careful and thorough. A.V., 87 A.3d 818, 

820 (Pa.Super. 2014). 

We are cognizant that the Section 5328(a) analysis should not be 

viewed as a scorecard, for a party does not prevail simply because the trial 

court determines a majority of its factors favors him or her. In theory, any 

single factor be dispositive given the circumstances, so long as the record 

supports such a determination. M.J.M. v. M.L.G., 63 A.3d at 339. (“It is 

within the trial court's purview as the finder of fact to determine which factors 

are the most salient and critical in each particular case.”) (citation omitted). 

The weight that a trial court attaches to the factors is critical, and the 

trial court’s delineation of its reasons in support of its Custody Order herein 

evinces the manner in which it weighed those factors to lead it to limit Father 

to supervised physical custody of which B.H. and M.H. may opt out until, as 

per Dr. Clawar’s recommendation, the parties cooperate and participate in 
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reunification therapy. Accordingly, we affirm the Custody Order of the trial 

court. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/05/2022