J-A04045-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MORGAN LOMBARD

v.

MATTHEW STROUSE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1322 MDA 2022

Appeal from the Order Entered August 23, 2022

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

No(s): FC-2019-20324-CU

BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: APRIL 13, 2023

Matthew Strouse (Father) appeals from the order entered in the Court 

of Common Pleas of Lycoming County, awarding Morgan Lombard (Mother) 

primary physical custody, Father partial physical custody, and both parties’

shared legal custody with respect to their minor son, E.S. (Child), born in 

November 2016. After careful review, we affirm.

The record reveals that Father and Mother (collectively, Parents) were 

never married. After birth, Parents and Child lived together in a home Father 

owns, but separated in February 2019, when Child was two years old. N.T., 

8/4/22, at 4; N.T., 8/18/22, at 79-81. 

Mother resides in Jersey Shore, Pennsylvania, with her husband, Fred 

Lombard, M.D. (Stepfather), her two daughters with Stepfather, aged sixteen 

months and two months at the time of the hearings, and Child. N.T., 8/4/22, 

at 3-4. Mother was a registered nurse but stopped working in December 2020. 
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Id. at 3. She and Stepfather were married on January 10, 2020, and he is 

employed as a primary care physician in Williamsport, Pennsylvania. Id. at 

4.

Father resides in Montoursville, Pennsylvania, with his fiancé, her 

daughter from another relationship, and Child. N.T., 8/18/22, at 78-79. 

Father has lived on the same property since 2010. Id. at 79. He currently 

works for a heavy machinery company as the general manager.1 Id. at 80;

N.T., 8/4/22, at 18.

After their separation, Parents verbally agreed to a two, two, three 

custody arrangement.2 N.T., 8/4/22, at 7; N.T., 8/18/22, at 84. 

Nevertheless, Mother initiated the underlying custody action in April 2019. On 

July 3, 2019, the trial court entered an interim order awarding Parents shared 

legal and physical custody. See Order, 7/3/19. Subsequently, the trial court 

appointed a guardian ad litem (GAL) for Child. The GAL interviewed the 

parties and various individuals close to the parties, and filed a report with the 

court prior to the initial custody trial. See Report of Guardian Ad Litem, 

11/25/19. By agreed-upon order dated December 3, 2019, the trial court 

directed, inter alia, that Parents would share legal and physical custody of 

____________________________________________

1 Father’s family previously owned the business, but the family sold it in 

August 2021. N.T., 8/18/22, at 80. When his family owned the business, 

Father was the vice president and general manager. Id.

2 A two, two, three custody arrangement involves a two-week, repeating 

schedule wherein the child spends two days with one parent, the next two 

days with the other parent, then three days with the first parent. The schedule 

switches the following week and repeats thereafter.
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Child on a two-week, repeating schedule.

3

 See Order, 12/3/19, at 1-3 

(unpaginated).

Approximately one year later, on January 28, 2021, Mother filed a 

petition to modify custody and requested primary physical custody of Child. 

See Mother’s Petition for Modification of Custody, 1/28/21. Prior to trial, on 

March 19, 2021, Mother filed a petition for a psychological custody evaluation. 

The parties agreed to have the evaluation performed by Penelope J. Miller, 

Ph.D., a licensed clinical psychologist. Dr. Miller performed the evaluation on 

June 3, 2021, and provided a report to the court. The court scheduled trial 

for December 20, 2021, but the case was continued to February 7, 2022,

because Dr. Miller would be out of the country on that date. 

Thereafter, on January 31, 2022, Father filed a counter petition seeking 

primary physical custody of Child.4 See Father’s Petition for Modification of 

Custody/Petition for Special Relief, 1/31/22, at 1 (unpaginated). The next 

day, Father requested a continuance because Mother filed a proposed order 

asking for sole legal custody, which she did not initially request in her petition 

for modification. The parties agreed to continue the trial to July 2022. See

Order 2/8/22. Subsequently, the court entered an order on April 8, 2022, 

____________________________________________

3 The custody order implemented a similar pattern to the two, two, three 

custody arrangement.

4 Father also requested the court enter an order directing that Child be enrolled 

in one of two schools for the start of kindergarten that fall. See Father’s 

Petition for Modification of Custody/Petition for Special Relief at 1-2 

(unpaginated).
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directing that Eric Bernstein, Psy.D., perform a custody evaluation. See

Order, 4/8/22.5 Dr. Bernstein subsequently provided the court with his 

custody evaluation report dated June 26, 2022.

Meanwhile, on June 29, 2022, Mother filed an amended petition to 

modify custody to request both primary physical and sole legal custody of 

Child. See Mother’s Amended Petition for Modification of Custody, 6/29/22, 

at 1 (unpaginated). The trial court, once again, rescheduled the trial for 

August 2022.

On August 4, 16, and 18, 2022, the court held a trial on the competing 

modification petitions. Mother testified on her own behalf and presented the 

following witnesses: (1) Courtney Weidler, Mother’s friend and neighbor; (2) 

Benjamin Weidler, Mother’s neighbor; (3) Stepfather; and (4) Jeannine Renee 

Sheddy, maternal grandmother. Father testified on his own behalf and 

presented testimony from: (1) Julie Route, Father’s sister; (2) Joseph 

Strouse, paternal grandfather; (3) Claire Strouse, paternal grandmother; (4) 

Marissa Moore, mother of one of Child’s friends; (5) Melissa Hamm, director 

of the Early Childhood Learning Center, where Child attends daycare; and (6) 

Elizabeth Sauers, Father’s fiancé. Further, the parties stipulated to the 

admission of four reports: (1) the 2019 GAL report; (2) the 

psychological/custody evaluation by Dr. Miller; (3) the custody evaluation by 

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5 The court noted that the parties agreed “they would benefit from having a 

custody evaluator, however, could not agree on who that evaluator would be.” 

Order, 3/25/22. The court then chose Dr. Bernstein from a list of qualified 

evaluators the parties provided. See id.
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Dr. Bernstein; and (4) the Bruce Chambers, Ph.D., critique of Dr. Bernstein’s 

custody evaluation.6, 7 See N.T., 11/18/22, at 196. Following arguments at 

the August 18, 2022, hearing, the court placed its ruling on the record in 

Mother’s favor. See N.T., 8/18/22, at 224-39. Thereafter, on August 23, 

2023, the court issued a custody order awarding Mother primary physical 

custody during the school year, and Father partial physical custody every 

other weekend and every Wednesday from after school until 6:30 p.m. See

Order, 8/23/22, at 2-3 (unpaginated). The court awarded shared physical 

custody, one week on/one week off, during the summer. Id. at 3. The court 

also directed the parties share legal custody.8 Id. at 1-2.

____________________________________________

6 The parties additionally presented, and the court admitted, numerous 

exhibits. Because most were not included in the certified record, including, 

but not limited to, all of the expert reports and the GAL report, this Court 

informally requested that the Lycoming County Court of Common Pleas 

provide the exhibits in a supplemental record, and the trial court complied. 

We remind counsel, however, that “[i]t is an appellant’s duty to insure that 

the certified record contains all documents necessary for appellate review.” 

In re O'Brien, 898 A.2d 1075, 1082 (Pa. Super. 2006) (footnote omitted); 

see also Pa.R.A.P. 1921 Note (stating, “Ultimate responsibility for a complete 

record rests with the party raising an issue that requires appellate court access 

to record materials.”) (citation omitted).

7 Father retained Dr. Chambers to rebut the custody evaluation report 

provided by Dr. Bernstein. See Chambers’ Review Critique of Dr. Bernstein’s 

Custody Evaluation, 7/4/22.

8 While the parties share legal custody in most respects, the order specifies 

that Mother has sole legal custody regarding Child’s medical and dental 

treatment while Father has sole legal custody regarding Child’s extracurricular 

activities. See Order, 8/23/22, at 1-2 (unpaginated).
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On September 15, 2022, Father timely filed a notice of appeal.9 The 

trial court filed a Rule 1925(a) opinion on October 12, 2022.

Father presents the one issue for review:

Whether the court improperly weighed the custody factors in 

reaching its decision[?]

Father’s Brief at 410 (unnecessary capitalization omitted).

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9 We note that Father failed to concurrently file a concise statement of errors 

complained of on appeal with his notice of appeal pursuant to Pa.R.A.P. 

1925(a)(i) and (b). See In Re K.T.E.L, 983 A.2d 745, 747 (Pa. Super. 2009) 

(holding that the failure to file a concise statement of errors complained of on 

appeal with the notice of appeal will result in a defective notice of appeal, to 

be disposed of on a case-by-case basis). However, approximately one week 

later, on September 23, 2022, Father filed the Rule 1925(b) statement. Since 

the delay was not prejudicial to any of the parties and did not impede the trial 

court’s ability to issue a thorough opinion, we conclude the procedural error 

was harmless. See Graves v. Graves, 265 A.3d 688, 692 n.7 (Pa. Super. 

2021) (mother’s filing of Rule 1925(b) statement more than one month after 

notice of appeal was not prejudicial to the parties, and court issued opinion 

addressing claims presented in Rule 1925(b) statement).

10 We note that Father listed the following four redundant, but similarly vague, 

issues in his Pa.R.A.P. 1925(b) statement:

1. Whether the [c]ourt improperly applied the custody factors in 

reaching its decision[?]

2. Whether the [c]ourt improperly weighed the custody factors in 

reaching its decision[?]

3. Whether the [c]ourt’s decision was against the weight of the 

evidence presented at trial[?]

4. Whether the [c]ourt erred in granting Mother primary physical 

custody of the child when the weight of the evidence presented 

was against a decision of that nature[?] 

Father’s 1925(b) Concise Statement of Matters Complained of on Appeal, 

9/23/22.
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Our scope and standard of review related to Father’s claim is wellsettled: 

[T]he appellate court is not bound by the deductions or 

inferences made by the trial court from its findings of fact, 

nor must the reviewing court accept a finding that has no 

competent evidence to support it. . . . However, this broad 

scope of review does not vest in the reviewing court the duty 

or the privilege of making its own independent 

determination. . . . Thus, an appellate court is empowered 

to determine whether the trial court’s incontrovertible 

factual findings support its factual conclusions, but it may 

not interfere with those conclusions unless they are 

unreasonable in view of the trial court’s factual findings; and 

thus, represent a gross abuse of discretion. 

[O]n 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.

The parties cannot dictate the amount of weight the trial 

court places on evidence. Rather, the paramount concern 

of the trial court is the best interest of the child. Appellate 

interference is unwarranted if the trial court’s consideration 

of the best interest of the child was careful and thorough, 

and we are unable to find any abuse of discretion.

The test is whether the evidence of record supports the trial 

court’s conclusions. 

A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (citations omitted). 

The primary concern in custody cases is the best interests of the child. 

“The best-interests standard, decided on a case-by-case basis, considers all 

factors that legitimately affect the child’s physical, intellectual, moral, and 

spiritual well-being.” B.S.G. v. D.M.C., 255 A.3d 528, 533 (Pa. Super. 2021). 
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Child custody actions are governed by the Child Custody Act (“Act”), 23 

Pa.C.S. §§ 5321-5340. When determining an award of custody, a trial court 

is required to consider the 16 custody factors set forth in the Act:

§ 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.

(2.1) The information set forth in section 5329.1(a)(1) 

and (2) (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.
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 (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.

23 Pa.C.S. § 5328(a).

This Court has emphasized that the trial court, as the finder of fact,

determines “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) (citation omitted). 

Further, we have explained that Section 5323(d) “requires the trial court to 

set forth its mandatory assessment of the [16] factors prior to the deadline 

by which a litigant must file a notice of appeal.” A.V., 87 A.3d at 823 (citation

& quotation marks omitted). However:

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 
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explanation of reasons for its decision, which adequately 

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

Id. (citations & quotation marks omitted).

The trial court placed its findings with respect to the Section 5328(a) 

custody factors on the record in open court. See N.T., 8/18/2022, at 227-32. 

Instantly, the trial court weighed factors (1), (8), and (13) in Mother’s favor, 

but determined factors (3), (4), (5), (6), (9), (10), and (12) were neutral 

between the parties. Further, the court found factors (2), (7), (11), (14), 

(15), and (16) inapplicable in the present case. Notably, the trial court found 

factors (1) and (8) particularly determinative because the court concluded 

Mother was credible in “every regard” and that Father’s testimony was not

credible “because it was evasive, . . . he repeatedly said I don’t know or I 

don’t remember, and [he] wouldn’t give straight answers to simple questions.” 

N.T., 8/18/22, at 227, 230. 

Turning to the merits of this appeal, Father baldly asserts that the trial 

court abused its discretion in fashioning the custody order. Father’s Brief at 

18. He emphasizes that although a majority of the custody factors either 

favored both him and Mother equally, or were inapplicable to the present case, 

the court disregarded those factors and focused solely on the three factors it 

found favored Mother. Id. at 18, 21. Rather, he argues, it was in Child’s best 

interest to “maintain[ ] the status [quo] and continu[e] the shared physical 

custody of” Child. Id. at 22. 

In support, Father cites W.C.F. v. M.G., 115 A.3d 323 (Pa. Super. 

2015). In that case, this Court reversed a trial court’s order awarding primary 
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physical custody to the mother where the court concluded that “the statutory 

factors weighed heavily in favor of granting [the f]ather primary custody.”11

Id. at 331. Father’s reliance on W.C.F. is misplaced here, however, because

the court found none of the Section 5328(a) factors weighed in Father’s favor 

and fashioned a reasonable custody order in light of its findings. 

Primarily, Father is not entitled to relief on this claim because the trial 

court thoroughly considered all of the Section 5328(a) factors. The law is 

well-settled that the trial court determines which factors are most salient, 

weighs the evidence, and makes credibility findings. M.J.M., 63 A.3d at 339. 

Here, the court made credibility findings for Mother and against Father. 

Accordingly, we discern no abuse of discretion.

Father specifically challenges the court’s findings with respect to factors 

(1), (8), and (13). We begin with factor (8) ─ the attempts of a parent to turn 

the child against the other parent ─ since the court found this the most salient 

and critical factor. See N.T., 8/18/22, at 230. Father argues that the trial 

court incorrectly believed he was making statements to Child about Mother 

____________________________________________

11 In W.C.F., the trial court stated that while the Section 5328(a) factors

favored the father more than the mother, it would not change primary custody 

because: (1) the father had not been the primary custodian previously; (2) 

the father did not request primary custody in his complaint; (3) the change 

would be “disruptive for the child;” and (4) the child would be in childcare 

rather than with a family member during the week. W.C.F., 115 A.3d at 329-

30 (citation omitted). On appeal, however, this Court determined the trial 

court’s decision was “manifestly unreasonable[,]” considering its findings that 

the mother refused to cooperate with the father and was responsible for 

parental alienation. See id. at 331-32. Moreover, this Court also noted that 

the father had requested primary custody in an amended complaint. See id.

at 330 n.2.
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and Stepfather because the only evidence to support this proposition was from 

Mother and no other evidence supported her contention. Father’s Brief at 19. 

Father contends the trial court dismissed the testimony by him and his family 

regarding statements reported to them by Child, and therefore, the court’s 

findings were biased and unsupported in the record. Id. at 19-20.

Father merely questions the trial court’s credibility determinations and 

the weight the trial court attributed to the evidence presented. This we cannot 

do. See A.V., 87 A.3d at 820; M.J.M., 63 A.3d at 339.

Regarding Section 5328(a)(8), the trial court stated the following:

I am absolutely convinced that [Father attempts to turn 

Child against Mother and Stepfather]. The remarks that [Child] 

makes to both [Mother and Stepfather] make clear that’s what’s 

going on here and Father’s response to it is to simply say, Mother’s 

the one who is doing it. So everything he’s doing, he denies and 

says it’s all her. I don’t believe it and I don’t find Father’s 

testimony credible as to that or almost anything he said because 

it was evasive, because he repeatedly said I don’t know or I don’t 

remember, and wouldn’t give straight answers to simple 

questions. And the fact that he would acknowledge that he plays 

games with the [c]ourt’s orders by parsing the language makes 

clear that’s . . . exactly the kind of game playing he’s been playing 

with [Mother] since [they] separated.

N.T., 8/18/22, at 230-31.

We discern no error. Significantly, the trial court emphasized specific 

analysis provided in the reports admitted into evidence. Regarding the GAL 

report, the trial court highlighted the following:

“I am concerned that Father is engaged in a pattern of 

behavior intended to annoy Mother and is not always acting in 

[C]hild’s best interest. So far I do not think he has done anything 

that has turned [C]hild away from Mother but Father’s attitude 
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towards Mother is troubling and could end up being harmful to 

[C]hild as he gets older.” Turned out to be prophetic because I 

think that’s exactly what we are now dealing with.

N.T., 8/18/22, at 224, quoting GAL Report, 11/25/19, at 10. Regarding Dr. 

Miller’s report, the trial court agreed that Father is “incapable of coparenting” 

and that it appears Father is “‘quite angry at [Mother] and wants to win at any 

cost.’” N.T., 8/18/22, at 225, quoting Dr. Miller’s Psychological/Custody

Evaluation, 6/3/21, at 5. The trial court also highlighted excerpts of Dr. 

Bernstein’s report, quoting the following, inter alia:

I, too, question [Father’s] motives as he appears more 

competitive and possessive of custody than focused on [Child’s] 

needs. He appears to focus more on gaining advantage and 

encouraging [Mother’s] struggle with [Child] than supporting her 

as a coparent.

* * *

When comparing their efforts, [Father] appears more focused on 

competitionand gaining advantage. While [Mother] may be overly 

controlling and micromanaging [Father’s] parenting, unlike with 

[Father’s] apparent motive, she seeks to support him and his 

needs.

* * *

By [Mother’s] report [Father] inappropriately coaches [Child] 

against [Stepfather] and his family, he exposes [Child] to adult 

issues. While [Father] similarly would accuse [Mother] of such 

actions, [Child’s] show of rejection against [Mother’s] authority 

tips the scales in favor of [Mother’s] report as more persuasive.

N.T., 8/18/

22, at 225-27, quoting Dr. Bernstein’s Custody Evaluation, 6/26/22, at 17-18. 

The court concluded “Dr. Bernstein’s concerns are this [c]ourt’s concerns. . . 

.” N.T., 8/18/22, at 227. Finally, the court considered the report of Dr. 

Chambers, Father’s expert, but determined the following:
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Dr. Chambers’ report really is a several page critique of Dr. 

Bernstein’s opinion, but Dr. Chambers was not asked to, and did 

not meet with any of the parties or with [Child] and the [c]ourt 

gives Dr. Chambers’ opinion little weight in light of the fact that 

Dr. Bernstein’s report is consistent with Dr. Miller’s findings as well 

as the GAL’s report from 2019 and this [c]ourt’s own conclusions 

after sitting through two and a half days of testimony.

Id.

The trial court’s findings are also supported by the trial testimony. 

Mother testified on direct examination that Child says bizarre things he could 

only learn from an adult:

Q. And do you observe things with [Child] that lead you to 

believe he is struggling?

[Mother]. I do, yes.

Q. And what kind of things do you see with [Child]?

[Mother]. Well, he still doesn’t always enjoy going with 

[Father]. He says a lot of things that are just bizarre and off the 

wall that he would never know exist unless somebody is, you know 

telling him that. He is ─ he acts out almost every exchange day 

he’ll act out with me. He doesn’t have to listen at my house. I 

used to follow [Father’s] rules but now I don’t. I follow my rules 

but he doesn’t have to follow my rules. Stuff like that. . . .

[Child] is questioning now who his family is, you know. He’s 

saying [S]tepfather is just a random person in his family and we 

just found that odd because he didn’t say random. I mean, it was 

just a bizarre thing to say.

He is struggling, like, the other thing when he asked if our 

dog could have the last name Strouse because when his . . . oldest 

younger sister was being born he was told he was going to be the 

only Strouse in our house so he wanted the dog to be a Strouse 

as well so he wasn’t the only one living there. There [are] things 

like that.

N.T., 8/4/22, at 21-22. Mother also testified that Child has expressed concern 

about being taken away:
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Q. [Does] he still express concern about being taken away?

[Mother]. He does. He still will say that. He says, “I’m not 

allowed to tell anyone I want to live with you or I’ll never see 

[Father] again, the [j]udge will take me away.” . . . I don’t know 

if he thinks the [j]udge is coming to my house or [Father’s] house 

or where the judge is coming.

Id. at 23. 

Stepfather also testified regarding his concerns with Child’s behavior 

and statements:

Q. Do you see any things with [Child] that cause you 

concern?

[Stepfather]. I have more recently . . . . I’ve seen more 

things that are concerning to me. . . . [H]e’s been probably a little 

bit more, you know, defiant at times and . . . it’s part of the reason 

why we wanted to pursue, out of an abundance of caution, some 

counseling just to make sure there wasn’t anything that we 

needed to be worried about. So we have all the resources for him 

that he would need just in case. 

But I’ve seen him . . . struggle to sort of communicate with 

us about things that were clearly bothering him . . . and things 

that he would say that could only come from an adult and not from 

a five-year-old’s imagination.

Q. And what do you mean by that?

[Stepfather]. [M]ost recently . . . I was playing with him in 

the basement and I was kind of commenting on all the cool toys 

he had and how much . . . fun our basement is, and then out of 

nowhere he would say, well, that’s because [Father] gives you 

guys money . . . to buy me toys here. And I was just kind of like 

taken back by that. I was kind of like where could he possibly 

come up with that, you know. . . .

N.T., 8/16/22, at 134-35. 
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Additionally, during cross-examination, the court chastised Father for 

his “refusal or inability” to answer clear questions and his questioning the 

instructions of an order: 

Q. And so since we were in court in February of 2022, it’s 

one, two, three ─ six activities counting swimming lessons twice 

that you signed him up for, right?

[Father]. I don’t count it as six but okay.

Q. You count it as five?

[Father]. Sure.

Q. Okay.

[Father]. I don’t count [vacation bible school] as an activity 

either.

Q. Well the order was pretty clear it was one [activity] per 

season, right?

[Father]. What’s a season? A T-ball season? A soccer 

season? A swim season? A summer, fall, winter, spring? Are we 

doing solstice?

THE COURT: [Father], your refusal or inability to answer 

clear questions is not helping you.

[Father]: I’m sorry, Your Honor. I’ll try to answer them 

more clearly. I need clear direction as well.

THE COURT: The question was isn’t an order clear that says 

one activity per season, isn’t such an order clear? And apparently 

that’s not clear to you because you don’t understand what could 

possibly be meant by season. Do we mean fall? Winter? Spring? 

Summer? Do we mean the soccer season? Seriously? Is that ─

[Father]: It deserves interpretation.

THE COURT: Do we seriously game every order we issue? 

Is that what this is about? . . .

N.T., 8/18/22, at 184-85. 
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Accordingly, because we conclude the documentary and testimonial 

evidence supports the trial court’s finding that the Section 5328(a)(8) factor 

favors Mother, we discern no abuse of discretion.

Regarding Section 5328(a)(1) ─ which party is more likely to encourage 

and permit continuing contact between the child and other party ─ Father 

contends that the trial court also erred in determining that this factor favored 

Mother. Father’s Brief at 18. Father argues that the court incorrectly 

concluded that he engaged in acts to undermine Mother’s authority and 

disparaged her in front of Child. Id. He insists that this conclusion is not 

relevant to this factor and is not supported by the record. Id. He further 

asserts that Mother’s testimony regarding her desire to spend more time with 

Child for family activities and the fact that Mother repeatedly referred to Child 

as “my child,” support his proposition that the trial court erred in finding that 

the Section factor (1) favored Mother. Id. at 18-19.

With respect to Section 5328(a)(1), the trial court stated on the record:

The [c]ourt believes that Father has engaged in a repeated act of 

attempting to undermine Mother’s authority and disparage her to 

[Child]. There are accusations back and forth about withholding 

specific periods of custody. The [c]ourt’s greater concern is the 

efforts that [F]ather has made to undermine Mother.

As I was listening to Father’s testimony . . . there were a 

few things that I can only describe as gaslighting. [Father] was 

being asked about an exchange in Our Family Wizard where 

[Mother] is . . . repeatedly attempting to get him to answer a 

simple question about whether or not [Child] is going to 

participate in the Christmas play and he won’t respond. And his 

response to counsel’s question about that is [Mother’s] constant 

follow-ups are just an example of her OCD and anxiety. So he 

ignores her and ignores her and ignores her so she has to 
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repeatedly ask for a simple answer and his response is . . . that’s 

just her OCD and anxiety, it’s not because I’ve been ignoring her 

for the last four weeks.

N.T., 8/18/22, at 227-28.

Mother testified that Father has ignored her while exchanging Child and, 

at times, has responded to her through Child. N.T., 8/4/22, at 12-14. On 

direct examination, Child’s maternal grandmother confirmed that Father 

sometimes ignores Mother at exchanges, in front of Child:

Q. Have you seen [Mother] attempting to communicate with 

[Father] at custody exchanges?

[Maternal Grandmother]. Yes.

Q. And what kind of things have you seen her attempting 

to communicate about?

[Maternal Grandmother]. [J]ust simple things sometimes, 

like, hey, here’s his hat, here’s his lunch box, he needs this and 

this. And [Father] does not communicate verbally back or he’ll 

ignore her.

Q. And does he do that in the presence of [Child]?

[Maternal Grandmother]. Yes.

Id. at 77-78. Mother also testified that Father has ignored her requests for 

information regarding Child’s activities, namely T-ball and a Christmas play. 

Id. at 27-30. 

Regarding the Christmas play, Father testified as follows on crossexamination as follows:

Q. . . . The first message you received from [Mother]

regarding [Child’s] Christmas play was on November 17, 2021, 

correct?

[Father]. That’s what the page says, yes.
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* * *

Q. And it looks like you failed to respond to that question?

[Father]. I don’t think that an immediate response was 

necessary. The level of urgency on a message like this is not very 

high and I don’t think it requires an immediate response. In 

hindsight, I think I probably should have. This is part of my 

reflection that I’ve done through this process. I probably should 

have said I acknowledge you sent me the message, I’ll get back 

to you when I have an answer.

* * *

Q. And then my client emailed you again on November 21st 

asking about whether you planned to take him to the school play, 

correct?

[Father]. That’s what the page says, yes.

Q. Then you responded with, “Why do you ask?” Right?

[Father]. That’s what the page says, yes.

Q. And she wanted ─ she said, “Well, because obviously I’d 

like to attend if he’s going to be there and it’s your Saturday so I 

need to make arrangements.” And again, you didn’t let her know 

whether he was going to be at the play, correct?

[Father]. It doesn’t look like I responded to her until 

[December] 3rd.

Q. All right. And the exhibit that you prepared for the 

[c]ourt, you would agree with me you left out all of these other 

exchanges, the first one being November 17th, 2021?

[Father]. Well, what I noticed about the exhibit 34 is that it 

appears to be a screen shot from a phone which wouldn’t have 

been a report from a Wizard app so that’s one of the differences 

that I notice.

* * *

Q. So, it was just coincidental that you only included one 

from her on December 1st asking and you responding on 

December 3rd about his attendance and leaving out that the play

was on December 4th?
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[Father]. I disagree. I think this more indicates [Mother’s]

OCD and anxiety about these things. This is not of an urgent play, 

a Christmas play. . . .

N.T., 8/18/22, at 169-71. 

Thus, we conclude, again, the record supports the trial court’s finding 

that Father does not provide straight answers to Mother’s inquiries despite 

numerous messages from Mother, and, in fact, did not provide her with 

information regarding the Christmas play until the day before it occurred.

Further, we find no support in the record for Father’s argument that 

Mother’s desire to spend more time with Child for family activities equates to 

her discouraging contact between him and Child. Similarly, Mother referring 

to Child as “my child” during the proceedings is unpersuasive as there is no 

evidence that Mother said this to discourage contact between Father and Child. 

Therefore, Father’s argument is without merit.

Finally, regarding the Section 5328(a)(13) factor ─ the level of conflict 

between the parties and their willingness to cooperate with one another ─

Father contends that the court erred in finding this factor also favored Mother 

because no evidence was presented that she made greater efforts than Father 

to cooperate. Father’s Brief at 20. On the contrary, Father argues that he 

presented evidence that he had suggested counseling upon Parents’ initial 

separation, but that Mother refused. Id. at 20-21. Father also asserts that 

he invited Mother to participate in mediation to resolve their custody issues, 

but Mother refused that as well. Id. at 21. Father concludes that there was 
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no evidence, other than Mother’s “self-reporting,” that she attempted to work 

with Father. Id.

Regarding factor (13), the trial court stated that there is “[s]ubstantial 

conflict in this case[, but it] is convinced that Mother has made greater efforts 

to cooperate with Father and Father has [not] reciprocated and so that factor 

favors Mother.” N.T., 8/18/22, at 232. The court did not elaborate further 

regarding this factor, and we observe no error. Father is again asking this 

Court to reweigh evidence and make credibility determinations. As related

supra, the trial court did not find Father credible and found Mother to be 

credible. Additionally, Mother and Stepfather testified in various instances 

that they support Child’s relationship with Father, including purchasing gifts 

from Child for Father and his family, and encouraging Child to go with Father 

during exchanges when Child says he does not want to go. See N.T., 8/4/22, 

at 8, 33-35; N.T., 8/16/22 at 75, 99, 144.

Based on the testimony, and our review of the certified record, we 

conclude that the court reasonably weighed the Section 5328(a)(1), (8), and 

(13) factors. Accordingly, we discern no error or abuse of discretion by the 

trial court in weighing the custody factors and entering its August 23, 2022,

order.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/13/2023