J-A18027-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

L.S. IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellant 

v.

R.A.L. 

 Appellee No. 203 MDA 2014 

Appeal from the Order Entered December 11, 2013 

In the Court of Common Pleas of Luzerne County 

Civil Division at No.: 13285 of 2010 

BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 26, 2014 

 L.S. (“Mother”) appeals the December 11, 2013 order that awarded 

Mother and R.A.L. (“Father”) shared legal custody of Z.L. (“Child”) (born in 

August 2009), awarded primary physical custody of Child to Father, and 

awarded partial physical custody of Child to Mother. The trial court also 

denied Mother’s petition for relocation with Child to New Hampshire. We 

affirm. 

 Mother and Father were married in June 2008, and divorced in June 

2012. In addition to Child, each parent has two children from prior 

relationships. Mother and Father both live in Kingston, Luzerne County. 

Father works as a rabbi in the area. Mother is unemployed. 

 After separation, Father filed a petition for an expedited custody 

hearing, alleging that Mother had not allowed contact between Father and 
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Child. Pending a custody conference, on October 29, 2010, the trial court 

ordered that Father was allowed custody of Child in the marital residence on 

Monday, Wednesday, and Friday mornings. Father alleged, and Mother later 

admitted, that Mother monitored Father’s custodial time with Child in the 

marital residence by placing video cameras in the home. Notes of Testimony 

(“N.T.”), 12/4/2012, at 63-64.

On March 25, 2011, the trial court entered a custody order that 

awarded shared legal custody of Child, granted Mother primary physical 

custody, and provided Father partial physical custody every other weekend 

and every Wednesday morning. Following Father’s first overnight custody of 

Child, Mother filed a petition for a hearing in which she alleged that Child 

returned to Mother with a bruise on her neck and a rash on her buttocks. 

Mother further alleged that the rash was caused by Father’s neglect. 

On June 7, 2011, Mother filed a petition and notice for relocation, 

seeking to relocate with Child to Sunapee, New Hampshire. On June 30, 

2011, Father filed a counter-affidavit objecting to the proposed relocation. 

On June 7, 2011, Mother also filed a petition for enforcement, in which 

she sought a contempt finding against Father for failing to allow her phone 

contact with Child, for failing to communicate with Mother about issues 

involving Child, and for failing to provide Mother with information when 

Father took Child to visit Father’s family in New Jersey. Father denied these 

allegations and asserted that Mother was interfering with his custodial 

periods. 
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On July 19, 2011, the trial court selected Robert Tanenbaum, Ph.D., to 

perform a psychological evaluation on each parent and a comprehensive 

custody evaluation. Dr. Tanenbaum began the evaluations on August 11, 

2011, and completed the evaluations on June 17, 2012. Dr. Tanenbaum 

issued a report on June 19, 2012. 

On October 4, 2011, Mother filed another petition for enforcement, 

raising substantially the same issues as the first petition. On the same day, 

Mother filed a petition to modify the custody order, asserting that Father was 

unable to care for Child during his period of custody and had to use child 

care. Mother sought custody of Child during times when Father would be 

unable to care for Child. Mother also sought a restriction on the number of 

trips Father could make with Child to New Jersey, where his parents resided, 

and Vermont, where his other children resided. Mother also requested a 

provision requiring Father to introduce any significant other to Mother before 

introducing that other person to Child. Mother further alleged that Father 

was not feeding Child a kosher diet. Mother requested that Father inform 

Mother what Child was eating because Child allegedly was experiencing 

stomach problems and rashes. 

On October 27, 2011, Father filed a petition for contempt, alleging that 

Mother refused to allow Father his custodial time on three days because 

Child assertedly was sick. Father averred that Mother took Child to religious 

services and daycare on those days, demonstrating that Child was not too 

sick for Father to exercise custody. Father also filed a petition to modify the 
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custody order, seeking to enlarge his custodial periods. Father filed an 

additional petition for contempt, alleging that Mother had refused Father 

three more custodial periods with only one make-up weekend scheduled. 

In response to various petitions, the trial court held another custody 

hearing in December 2011 and filed another custody order on April 12, 

2012. That order extended Father’s physical custody to every other Friday 

through Monday and every Wednesday overnight. The court also denied 

Mother’s petitions for enforcement. 

 On February 9, 2012, Mother filed a petition for contempt in which she 

alleged that Father refused to communicate with Mother regarding Child’s 

rashes, stomach issues, and hygiene. Mother also claimed that Father did 

not respond to her email communication regarding Child’s medical issues, 

Child’s clothing that was not returned to Mother’s house, medication given to 

Child, and Father’s alleged refusal to cross a street with Child within the

designated crosswalk. Mother asserted that Child chipped a tooth while in 

Father’s custody. Mother also alleged that Father was not allowing Mother 

to have telephone contact with Child. On March 1, 2012, Father filed 

another contempt petition, alleging that Mother refused to allow Father to 

exercise custody of Child. On March 5, 2012, the court entered an order 

granting Father make-up periods of custody and dismissed the petitions for 

contempt without prejudice. 

 On March 23, 2012, Mother filed again for modification of the custody 

order. Mother alleged that Father was not available to supervise Child 
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during his custody periods, that Father ignored Child’s medical concerns, 

that Father took Child with him to “adult social functions,” and that Father 

was not communicating with Mother. On April 13, 2012, Father filed a 

petition for contempt alleging that Mother refused to allow Father custody of 

Child during Passover and that Mother was not cooperating with the custody 

evaluation. On April 25, 2012, Father filed another petition for contempt 

alleging that Mother shouted derogatory statements about Father in the 

presence of Child and others and that Mother did not permit Father custody 

of Child. On May 10, 2012, the trial court found Mother in contempt for 

making derogatory remarks in front of Child and for not permitting Father 

custody. The court did not find Mother in contempt for the issues raised in 

Father’s April 13 petition.

On June 29, 2012, Father filed a petition for primary physical custody 

of Child, seeking to modify the April 12, 2012 order. On that same day, 

Father also filed a petition for contempt, alleging that Mother would not 

schedule one of his make-up periods of custody. On July 30, 2012, Mother 

filed a petition for contempt alleging that Father did not allow Mother to 

have telephone contact with Child, that Father was not communicating 

information, including medical concerns, about Child to Mother, that Father 

had enrolled Child in pre-school without Mother’s consent, and that Father 

had not consented to Mother’s request to enroll Child in pre-school. 

 The trial court held hearings on the petitions on September 19, 2012, 

October 3, 2012, October 25, 2012, and December 4, 2012. At the 
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hearings, the trial court heard testimony from Father, Mother, Dr. 

Tanenbaum, Luzerne County Children and Youth intake supervisor John 

Kosloski, Child’s pediatrician Michael Harris, Jewish Community Center 

Executive Director Richard Evans, and United Hebrew Institute secretary 

Mary Lee Conway. 

 On February 11, 2013, Mother filed another petition for contempt 

alleging that Father was not permitting telephone contact with Child and that 

Father was ignoring email communication from Mother. On April 22, 2013, 

Mother filed an emergency petition for contempt, alleging that an unknown 

male was living with Father and that Father refused to provide information to 

Mother about that person. On April 24, 2013, Mother withdrew both her 

February 11 and April 22 petitions. 

 On September 25, 2013, Father filed a petition for contempt alleging 

that Mother refused Father his custodial time, that Mother informed Child’s 

pre-school that Father could not pick Child up from school despite a court 

order allowing such, that Mother told Child that Father was not to spend 

time with Child and told Child that Father was not caring for Child properly, 

and that Mother sends Father harassing emails. On September 26, 2013, 

Mother filed a petition for contempt alleging that Father permitted Child to 

sleep outside when it was too cold to do so, that Father did not provide 

proper hygienic care for Child, and that Father refused to communicate with 

Mother. On October 16, 2013, the trial court found Mother in contempt for 
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refusing Father his custodial time. The court also denied Mother’s petition 

for contempt. 

 On October 21, 2013, Father filed a petition for contempt. He alleged 

that Mother took Child to the emergency room, but refused to provide Father 

with any information about the nature of the medical problem. Father 

averred that Mother refused Father contact with Child during her stay at the 

hospital and that Mother had hospital security ask Father to leave. On 

November 19, 2013, Father filed a petition for emergency relief alleging that 

the parties could not agree to custody for the Thanksgiving holiday. On 

November 20, 2013, the court issued an order for Thanksgiving custody and 

an order finding Mother in contempt. 

On December 11, 2013, based upon the four-day custody hearing in 

2012, the trial court issued an opinion and order modifying the custody 

order, and awarding primary physical custody to Father and partial physical 

custody to Mother every other Friday through Monday and every Wednesday 

overnight. The trial court also denied Mother’s petition for relocation.

 Mother filed a timely notice of appeal on January 10, 2014. Mother 

also filed a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(a)(i) and (b) on the same date. On February 4, 2014, the 

trial court filed a statement pursuant to Pa.R.A.P. 1925(a) adopting its 

December 11, 2013 opinion and order. 

 On appeal, Mother raises three questions for our review: 
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1. Whether the Trial Court committed an error of law and/or 

abused its discretion in reversing the custody schedule of the 

parties considering the expert testimony of record and many 

favorable findings as they relate to the then existing physical 

custody arrangement with Mother? 

2. Whether the Trial Court committed an error of law and/or 

abused its discretion in failing to consider the parental duties 

performed by Mother on behalf of the Child and/or failing to 

give sufficient weighted consideration to the Child’s sibling 

relationships as they exist in Mother’s household?

3. Whether the Trial Court committed an error of law and/or 

abused its discretion in determining that inter-parental 

conflict was a reasonable basis to transfer primary physical 

custody to Father? 

Mother’s Brief at 4.

 Initially, we observe that, because the hearings were held in 2012, the 

Child Custody Act (“the Act”), 23 Pa.C.S.A. §§ 5321 et seq., is applicable to 

the instant case. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) 

(holding that, if the custody evidentiary proceeding commences on or after 

the January 24, 2011 effective date of the Act, the provisions of the Act 

apply). 

 In custody cases, our standard of review is as follows: 

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

and our standard is abuse of discretion. We must accept 

findings of the trial court that are supported by competent 

evidence of record, as our role does not include making

independent factual determinations. In addition, with regard to 

issues of credibility and weight of the evidence, we must defer to 

the presiding trial judge who viewed and assessed the witnesses 

first-hand. However, we are not bound by the trial court’s 

deductions or inferences from its factual findings. Ultimately, 

the test is whether the trial court’s conclusions are unreasonable 

as shown by the evidence of record. We may reject the 

conclusions of the trial court only if they involve an error of law, 
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or are unreasonable in light of the sustainable findings of the 

trial court. 

Id. at 443 (citation omitted). 

 We have stated: 

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

should be accorded the utmost respect, given the special nature 

of the proceeding and the lasting impact the result will have on 

the lives of the parties concerned. Indeed, the knowledge 

gained by a trial court in observing witnesses in a custody 

proceeding cannot adequately be imparted to an appellate court 

by a printed record. 

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

Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. Super. 2004)). 

 With any custody case decided under the Act, the paramount concern 

is the best interests of the child. M.J.M. v. M.L.G., 63 A.3d 331, 334 (Pa. 

Super. 2013). In determining the child’s best interests, the trial court must 

consider the following sixteen factors: 

§ 5328. Factors to consider when awarding custody 

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

determine the best interest of the child by considering all 

relevant factors, giving weighted consideration to those factors 

which affect the safety of the child, including the following: 

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

frequent and continuing contact between the child and 

another party. 

(2) The present and past abuse committed by a party or 

member of the party’s household, whether there is a 

continued risk of harm to the child or an abused party and 

which party can better provide adequate physical 

safeguards and supervision of the child. 
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(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. 

(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. 
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23 Pa.C.S. § 5328(a).1

 See also E.D. v. M.P., 33 A.3d 73, 79-80 (Pa. 

Super. 2011) (holding that “best interests of the child” analysis requires 

consideration of all of the section 5328(a) factors).2

 In its December 11, 2013 opinion and order, the trial court addressed 

all of the factors enumerated in 23 Pa.C.S.A. § 5328, and detailed the 

manner in which it arrived at its decision. The trial court thoroughly 

discussed all of the factors individually, including Child’s relationship with 

both Mother’s and Father’s other children and the inter-parental conflict that 

existed. 

 Mother first argues that the custody evaluator’s testimony did not 

support the change in custody. Mother contends that, because the custody 

evaluator did not recommend a switch in primary custody, the court acted 

unreasonably in ordering the change. Mother’s Brief at 8-11. Mother also 

argues that the court did not properly weigh certain of the custody factors, 

including Mother’s provision of Child’s daily needs and Child’s relationship 

with Mother’s two other children. Mother’s Brief at 12-14. Finally, Mother 

____________________________________________ 

1

 Effective January 1, 2014, the statute was amended to include an 

additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration 

of child abuse and involvement with child protective services). 

2

 Mother did not appeal the trial court’s decision to deny her petition to 

relocate. Therefore, we do not discuss the trial court’s relocation decision or 

consideration of the relocation factors pursuant to 23 Pa.C.S.A. § 5337(h). 
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argues that the court erred in premising its custody change upon the conflict 

between the parties. Mother’s Brief at 15-16.

 Mother first challenges the trial court’s consideration of Dr. 

Tanenbaum’s testimony. While the trial court is not required to accept the 

conclusions of an expert witness in a child custody case, it must at least 

consider them. If the trial court chooses not to follow the expert’s 

recommendations, its decision must be based on competent evidence of 

record. See King v. King, 889 A.2d 630, 632 (Pa. 2005); Nomland v. 

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

The custody evaluator’s testimony is not as clear-cut as Mother has 

alleged. In his report, Dr. Tanenbaum recognized that the level of conflict 

between the parties was high. N.T., 9/19/2012, at 67. The conflict was so 

great that Dr. Tanenbaum considered the option of reversing the custody 

schedule to reduce Child’s exposure to Mother’s “distress.” Id. at 67-68. 

However, Dr. Tanenbaum rejected that recommendation because “[i]t was 

not what [F]ather was seeking at the time evaluation began.”3

 Id. at 68. 

Instead, Dr. Tanenbaum recommended keeping the custody schedule the 

same, but with the option of Father receiving more time if Mother’s

allegations against Father continued. Id. However, at the time of the 

hearing, Dr. Tanenbaum testified that, if Mother’s allegations against Father 

____________________________________________ 

3

 Father filed his petition for primary custody shortly after the custody 

evaluation was completed. 
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were found to be “without merit,” it would be in Child’s best interest for 

Father to have primary custody. Id. at 150. 

Dr. Tanenbaum testified that Child was at risk of being alienated from 

Father based upon Mother’s actions, including Mother’s practice of peppering

the local children and youth agency with unsubstantiated reports of abuse. 

Id. at 47-51. Dr. Tanenbaum stated that Father was more likely to 

encourage and permit contact between Mother and Child. Id. at 145. In 

this case, the trial court considered Dr. Tanenbaum’s testimony and 

recommendations as required, as the court reviewed all competent evidence 

of record to arrive at its decision. We find no error or abuse of discretion. 

Mother next challenges the weight the trial court assigned to various 

factors. The trial court considered all factors, including Mother’s ability to 

provide and care for Child and Child’s relationship with her half-siblings. 

Trial Court Opinion and Order (“T.C.O.”), 12/11/2013, at 4-5. The trial court 

heard testimony that Child has a good relationship with all of her halfsiblings. N.T., 9/19/2012, at 188-90; N.T., 10/25/2012, at 135. The court 

also heard testimony that Mother is available to care for Child as a stay-athome parent while Father has work obligations in the evenings and on 

weekends. N.T., 10/25/2012, at 141-46. However, the trial court focused 

upon the fact that Mother’s actions were causing conflict and increasing 

Child’s risk for alienation, and the fact that Father was more likely to 

encourage contact between Child and Mother while Mother was more likely 

to limit Father’s access to Child. T.C.O. at 3, 5. Father testified about 
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Mother’s actions that interfered with or limited his custodial time with Child. 

N.T., 9/19/2012, at 192-98, 200, 202; N.T., 10/3/2012, at 64, 138-39. The 

trial court determined that it was required to change physical custody in 

order to minimize the conflict and its repercussions for Child. Id. at 6-7. 

The record amply supports these conclusions, and we defer to the trial court 

on issues of weight of the evidence. See C.R.F., 45 A.3d at 443. 

Finally, the record supports the trial court’s finding that there is a high 

level of conflict between the parties. T.C.O. at 6. Citing Dr. Tanenbaum’s 

report, the trial court stated that Child was “caught in the middle of intense 

and unrelenting inter-parental conflicts.” Id. The trial court appropriately 

considered this among the other factors in providing a custody arrangement 

calculated to suit Child’s best interests. Based upon our review of the 

record, we find no abuse of discretion. 

Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/26/2014